The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5014
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAYVON GREGORY BROWN, a/k/a Ray-Ray,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:06-cr-00029-gec)
Submitted: July 31, 2008 Decided: September 26, 2008
Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rayvon Gregory Brown appeals his 324-month sentence after
pleading guilty to conspiracy to distribute and possess with intent
to distribute more than fifty grams of cocaine base, in violation
of 21 U.S.C.A. §§ 841(b)(1)(A), 846 (West 1999 & Supp. 2008), four
counts of possession with intent to distribute cocaine base, in
violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C), and two counts of
possession with intent to distribute more than five grams of
cocaine base, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(B).
Brown claims the district court erred in calculating the amount of
drugs attributable to him and by imposing sentencing enhancements
for possession of a firearm and his role within the conspiracy.
Brown also asserts his sentence is unreasonable in light of the
Supreme Court’s ruling in Kimbrough v. United States, 128 S. Ct.
558 (2007), and the recent amendments to the Sentencing Guidelines
for crack cocaine offenses. After reviewing the record, we find
the district court did not err in determining Brown’s base offense
level or by imposing the sentencing enhancements. However, because
the district court did not have the benefit of the Kimbrough
decision or the amendments to the crack cocaine Guidelines at the
time of Brown’s sentencing, we remand this case to allow the
district court an opportunity to reconsider Brown’s sentence.
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I
Appellate review of a district court’s imposition of a
sentence is for abuse of discretion. Gall v. United States, 128 S.
Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007). This court “must first ensure that the
district court committed no significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.A.] § 3553(a) [(West 2000 & Supp. 2008)] factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.” Gall,
128 S. Ct. at 597.
If there are no procedural errors, we next consider the
substantive reasonableness of the sentence. Id. “Substantive
reasonableness review entails taking into account the totality of
the circumstances, including the extent of any variance from the
Guidelines range.” Pauley, 511 F.3d at 473 (internal quotation
marks and citation omitted). While this court may presume a
sentence within the Guidelines range to be reasonable, we may not
presume a sentence outside the range to be unreasonable. Id.
“Even if we would have reached a different sentencing result on our
own, this fact alone is ‘insufficient to justify reversal of the
district court.’” Id. at 474 (quoting Gall, 128 S. Ct. at 597).
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II
A
Brown’s first claim challenges the district court’s
determination of his base offense level. He asserts that the
amount of drugs held attributable to him was based on hearsay
statements provided by co-defendants “who hoped to curry favor with
the Government” in order to reduce their own sentences. Pursuant
to U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.3(a)(1) (2005),
in determining the proper base offense level to apply to a
defendant involved in a drug conspiracy, the defendant is
responsible for his own acts, as well as for “all reasonably
foreseeable acts” of his co-conspirators taken in furtherance of
the joint criminal activity. See United States v. Randall, 171
F.3d 195, 210 (4th Cir. 1999); United States v. Gilliam, 987 F.2d
1009, 1013 (4th Cir. 1993). The Guidelines do not require precise
calculations of drug quantity, as the district court’s
approximation is not clearly erroneous if supported by competent
evidence. Randall, 171 F.3d at 210. If the district court relies
on the drug quantity included in the pre-sentence report (“PSR”),
the defendant bears the burden of establishing that the information
is incorrect, as “mere objections are insufficient.” Id. at 210-
11.
According to the PSR, as well as the summary of evidence
submitted by the Government in support of Brown’s guilty plea, the
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conspiracy was responsible for a minimum of 896 grams of crack
cocaine and a maximum of 2,688 grams. The probation officer
estimated that during Brown’s involvement in the conspiracy, an
estimated 2.126 kilograms of cocaine base were transported from
Washington, D.C., to a residence in Luray, Virginia, where it was
then repackaged and distributed. The probation officer reached
this estimate based on proffers made by a number of Brown’s co-
defendants who had pled guilty. DEA Agent Kenneth Rosel testified
that, according to the co-defendants’ accounts, Brown originally
transported one to two ounces of crack cocaine each week from
Washington, D.C.; however, the amount eventually increased to three
or four ounces a week. Probation Officer W.R. Good also testified
that the accounts given by the co-defendants were “very consistent”
with one another and with their prior statements to authorities.
While Brown contends the district court erred by relying
on hearsay statements provided by his co-defendants, a sentencing
court may consider any relevant information, including hearsay
evidence, provided the information has “sufficient indicia of
reliability to support its probable accuracy.” USSG § 6A1.3(a);
see also United States v. Love, 134 F.3d 595, 607 (4th Cir. 1998)
(no bar on use of hearsay at sentencing). In this case, Agent
Rosel and Probation Officer Good both testified that the drug
amounts were calculated based on statements provided by a number of
co-conspirators, all of whom had first-hand knowledge of the
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narcotics operation and were found by the officers to be “very
consistent” and “very credible.” While Brown testified that the
total amount of drugs brought in each week was far lower than the
Government’s estimate, the district court found the statements
provided by his co-conspirators were sufficiently reliable to
support the Government’s estimate of the total drug amount. See
United States v. Sampson, 140 F.3d 585, 591 (4th Cir. 1998) (in
reviewing Guidelines sentence, appellate court assesses district
court’s credibility determinations for clear error). Accordingly,
the district court did not err in finding that Brown was
responsible for at least 1.5 kilograms of cocaine base.
B
Brown next contends the district court erred by imposing
a four-level enhancement for his role within the conspiracy. A
four-level enhancement for the defendant’s role in the offense is
appropriate when “the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive.” USSG § 3B1.1(a). Factors distinguishing a
“leadership” or “organizational role” from that of a manager or
supervisor include:
the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree
of control and authority exercised over others.
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USSG § 3B1.1, comment. (n.4).
According to the PSR, Brown was the “hub” of the
conspiracy, as he developed a reliable source of cocaine base in
Washington, D.C., and transported and distributed the cocaine
throughout Page County, Virginia, with the assistance of his co-
conspirators. Brown was described as having “almost complete
authority and control” over the conspiracy, as he “fronted drugs to
members of the conspiracy, maintained the source of supply, set
prices, meeting dates and times, recruited others and profited
substantially from the activities of the conspirators.” At the
sentencing hearing, Agent Rosel testified that the accounts
provided by the co-defendants indicated that Brown was the source
for the crack cocaine and the head of the conspiracy. Agent Rosel
and Probation Officer Good also detailed an incident in which Brown
held a gun to the head of one of the co-conspirators and threatened
to kill him after Brown discovered that he was stealing crack
cocaine and replacing it with “soap powder.”
Again, Brown asserts the enhancement imposed by the
district court was based solely on hearsay accounts provided by
unreliable informants and co-conspirators. At the sentencing
hearing, Brown testified that he did not direct or organize the
conspiracy, and notes there was no evidence he received a greater
share of the proceeds. However, in light of the statements
provided by his co-defendants, the district court found Brown’s
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testimony to not be credible. See Sampson, 140 F.3d at 591. Based
on the information contained in the PSR and the summary of
evidence, as well as the testimony provided by Rosel and Good, the
district court had reliable evidence that Brown maintained the
source of narcotics, organized the transportation of the cocaine
base from Washington, D.C., into Page County, recruited co-
conspirators to repackage and distribute the drugs, directed others
to procure firearms for use in the conspiracy, and exercised
control and authority over his co-conspirators through threats of
violence. Accordingly, the district court did not err in
determining that Brown was a leader or organizer within the
conspiracy.
C
Brown also contends the district court erred by imposing
a two-level enhancement for possession of a firearm. Under USSG
§ 2D1.1(b)(1), a two-level offense level enhancement shall be
imposed if a dangerous weapon, including a firearm, was possessed
during the narcotics offense. The adjustment is applied “if the
weapon was present, unless it is clearly improbable that the weapon
was connected with the offense.” USSG § 2D1.1, comment. (n.3). In
order to demonstrate that a weapon was present, the Government need
show only that “the weapon was possessed in connection with drug
activity that was part of the same course of conduct or common
scheme as the offense of conviction.” United States v. McAllister,
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272 F.3d 228, 233-34 (4th Cir. 2001) (internal quotation marks and
citation omitted). Pursuant to USSG § 1B1.3(a)(1)(B), a defendant
may be held responsible for a firearm possessed by another member
of the conspiracy if possession of the firearm was reasonably
foreseeable to the defendant and in furtherance of the jointly
undertaken criminal activity. See United States v. Kimberlin, 18
F.3d 1156, 1159-60 (4th Cir. 1994).
According to the PSR, Brown and his co-defendants
“regularly used and carried firearms in furtherance of the
conspiracy.” Brown’s co-conspirators noted occasions when he would
become “highly volatile” while in possession of a firearm and would
use his gun to threaten them. Brown also recruited one of his co-
conspirators to serve as an armed “enforcer” in order to provide
security during transportation or distribution of the narcotics.
Agent Rosel testified that almost all of the co-conspirators had
seen Brown in possession of multiple firearms, including a .45
caliber handgun with a laser sight. Brown also used a firearm to
threaten a co-conspirator after Brown caught him stealing crack
cocaine.
On appeal, Brown relies on the fact that no firearms were
ever recovered from him or any other member of the conspiracy.
However, such evidence is not required in order to impose a
sentencing enhancement for possession of a dangerous weapon;
rather, the district court need only find the evidence presented
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has “sufficient indicia of reliability to support its probable
accuracy.” USSG § 6A1.3(a). In this case, Brown’s co-conspirators
provided consistent statements to investigating officers regarding
Brown’s procurement, possession, and use of firearms during the
course of the conspiracy, both for protection and enforcement.
Despite Brown’s testimony that he neither possessed a firearm nor
saw any member of the conspiracy with a gun, the accounts provided
by his co-conspirators were sufficiently reliable for the district
court to determine that Brown’s testimony was not credible.
Accordingly, the district court did not err in imposing a two-level
enhancement for possession of a firearm in furtherance of the
conspiracy.
D
Finally, Brown contends his sentence is unreasonable in
light of the Supreme Court’s ruling in Kimbrough and the recent
amendments to the Sentencing Guidelines for crack cocaine
offenses.1 The Government acknowledges the district court did not
have the benefit of the Kimbrough decision at the time of Brown’s
sentencing and concedes the case should be remanded for
resentencing.2
1
Prior to sentencing, Brown filed a sentencing memorandum in
which he requested the district court consider reducing his
sentence to account for the disparities in sentencing between crack
cocaine and powder cocaine offenses.
2
After Brown was sentenced in October 2007, the Supreme Court
decided that “it would not be an abuse of discretion for a district
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Accordingly, while we affirm the district court’s
determination of the total drug amount for which Brown should be
held responsible and the imposition of the relevant sentencing
enhancements, we vacate the sentence imposed and remand this matter
in order to allow the district court an opportunity to reconsider
Brown’s sentence in light of Kimbrough and the amendments to the
Sentencing Guidelines. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
court to conclude when sentencing a particular defendant that the
crack/powder disparity yields a sentence ‘greater than necessary’
to achieve § 3553(a)’s purposes, even in a mine-run case.”
Kimbrough, 128 S. Ct. at 575. Kimbrough thus abrogated this
Court’s decision in United States v. Eura, 440 F.3d 625, 634 (4th
Cir. 2006) (holding that 100:1 ratio cannot be the basis of a
variance), vacated, 128 S. Ct. 853 (2008). Furthermore, on
November 1, 2007, the United States Sentencing Commission lowered
the base offense level for drug offenses involving crack cocaine.
See USSG § 2D1.1 (2007); USSG App. C, Supp. Amend. 706. Upon
remand, these amendments would be applicable.
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