United States v. Brown

298 F.3d 120, 2002 U.S. App. LEXIS 15907, 2002 WL 1789771
Court of Appeals for the First Circuit·Decided August 8, 2002·No. 01-2572·Published·Cited by 18 cases

Opinion

*121 HOWARD, Circuit Judge.

In this appeal we must decide whether the district court committed clear error in finding that appellant Reginald Brown had a managerial role in the cocaine base (“crack”) distribution conspiracy to which he pleaded guilty. We affirm.

Brown was indicted following an investigation into distinct but overlapping crack distribution groups that were operating in the Biddeford and Saco, Maine area during the latter part of 2000 and the early part of 2001. In the course of the investigation, law enforcement agents learned that Brown was a member of one of the groups, referred to by informants as the “Knowledge” group. For purposes of this appeal, we focus on several encounters agents had with Brown and another member of the Knowledge group, Kenneth Scott.

On March 18, 2001, an undercover agent who had previously purchased 2.5 grams of crack from Scott went to Scott’s apartment to make another purchase. The appellant was present, introduced himself to the agent as “Knowledge,” and sold him 7.5 grams of crack for $1,000. The agent paid Scott $50 for setting up the deal.

The next day, the agent called Scott to order an additional 10 grams of crack. Scott told the agent that he needed to contact his source in order to complete the deal but agreed to meet the agent in a car outside Scott’s apartment building. Within a few minutes of the agent’s arrival, Brown drove up. The three then went into Scott’s apartment, where Brown sold the agent 7.0 grams of crack for $1,000. This time, Brown paid Scott $100 for setting up the deal. 1

As Brown was driving away from this second sale, Saco police officers attempted to pull him over in order to arrest him. Brown led the police on a short car chase, and then abandoned the car and fled on foot. During the foot chase, Brown attempted to hide 41.1 grams of crack he was carrying by stashing the drugs in a snowbank. Eventually, the officers caught up with Brown, placed him under arrest, and recovered the contraband.

This was not the first time during the investigation that Brown had attempted to elude the police while possessing a substantial quantity of crack. Four months earlier, as the police tried to stop Brown upon his return to Maine from New York, he also led them on a car and foot chase. Pursuing agents went to Scott’s apartment in their search for Brown. Scott told the authorities that the appellant was not there, but a short while later the agents saw Brown surreptitiously run from Scott’s apartment to a waiting vehicle. The police stopped the vehicle, apprehended Brown, and eventually recovered a bag containing 288.7 grams of crack. Brown admitted that the crack was his. 2

In due course, Brown was indicted and pleaded guilty to conspiring to possess crack with intent to distribute it. During his presentence interview and at the sentencing hearing, Brown admitted that he had made trips to New York to obtain crack and that he had developed a customer base of several purchasers in the Biddeford area. But he opposed the probation department’s recommendation, subsequently adopted and pressed by the government, that he receive a managerial *122 enhancement under U.S.S.G. § 3Bl.l(c) (requiring a two-level upward adjustment to the base offense level of a defendant who “was an organizer, leader, manager, or supervisor in ... criminal activity” of the type in which Brown engaged). 3 In opposing this recommendation, Brown took the position that those with whom he had conspired, and in particular Scott, were independent of Brown and not subject to his direction or control.

At the sentencing hearing, the district court rejected Brown’s argument and found that he was a manager with respect to Scott. In making this finding, the court observed that Brown’s “control or supervision [of Scott] need not be explicit,” and concluded that “the arrangements between” Brown and Scott supported a finding that Brown managed Scott. See United States v. Cruz, 120 F.3d 1, 4 (1st Cir. 1997) (en banc) (“a defendant’s role in the offense can be proved wholly by circumstantial evidence”). Brown now asserts that this finding was unsupported by the evidence. 4

The fact-specific finding Brown challenges is entitled to considerable deference and must stand unless clearly erroneous. E.g., id. at 3; United States v. Graciani, 61 F.3d 70, 75 (1st Cir.1995). We will not find clear error unless “on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (citation and internal quotation marks omitted); See also United States v. Castillo, 287 F.3d 21, 25 (1st Cir.2002). To demonstrate clear error in this case, Brown must convince us that the court was mistaken in finding that, on at least one occasion, Brown exercised authority or control over Scott or was otherwise responsible for organizing his activities. See, e.g., Cruz, 120 F.3d at 3; United States v. Voccola, 99 F.3d 37, 44 (1st Cir.1996). Brown has not succeeded in this task.

Brown pleaded guilty to conspiring with others, including Scott, to possess crack with intent to distribute it. Drug distribution conspiracies are frequently hierarchic, and our cases recognize that drug conspirators of higher rank commonly use subordinates as go-betweens to limit their own apparent involvement. See Cruz, 120 F.3d at 3-4 (citing cases); U.S.S.G. § 3B1.1, comment, n. 4. Here, evidence before the district court supported a conclusion that the Brown-Scott relationship involved this familiar dynamic.

The facts permitted the following inferences. Scott, in the go-between role of *123 steerer or finder, conducted the prefatory logistical communications with the undercover purchaser. Because Scott engaged in these preliminary discussions, Brown was able to limit his own apparent involvement until it was time for the transactions to be consummated. The deals were then completed in Scott’s apartment, further enabling Brown to limit his own exposure. 5

Other evidence presented to the sentencing judge also supported finding the existence of a criminal hierarchy. Although Scott made the smaller 2.5 gram crack sale to the undercover agent without Brown’s direct involvement, Brown personally completed the sales of more substantial amounts. See United States v. Akitoye, 923 F.2d 221, 227 (1st Cir.1991).

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United States v. Brown, 298 F.3d 120, 2002 U.S. App. LEXIS 15907, 2002 WL 1789771 (1st Cir. 2002).

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