United States v. Brown

United States Court of Appeals

For the First Circuit

No. 01-2572

UNITED STATES OF AMERICA,

Appellee,

v.

REGINALD BROWN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Lynch and Howard, Circuit Judges

Geoffrey DuBosque for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief, for appellee.

August 8, 2002

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

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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

1

At sentencing, the appellant testified that he had paid Scott

the $100 because Scott requested it, but on cross examination

acknowledged that the payment was for Scott's help in setting up

the deal.

2

Following this first arrest, Brown agreed to cooperate with

investigators and was released from custody. But he subsequently

failed to appear for a scheduled court date and returned to crack

dealing.

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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 enhancement under U.S.S.G. § 3B1.1(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

3

The Sentencing Guidelines recognize that larger criminal

enterprises "tend to have clearly delineated divisions of

responsibility." U.S.S.G. § 3B1.1, background comment. For this

reason, as to criminal activity involving five or more participants

or that was otherwise extensive, § 3B1.1(a) and (b) distinguish

between organizers and leaders (who receive four-level

enhancements) and managers and supervisors (who receive three-level

enhancements).

As to smaller conspiracies, the Guidelines treat any

distinctions among organization, leadership, management and

supervision as having less significance. See id. Consequently,

a conspirator who was higher in the hierarchy would receive the

same two-level enhancement regardless of whether he was an

organizer, leader, manager, or supervisor. § 3B1.1(c).

The district court treated the conspiracy to which Brown

pleaded guilty as being governed by § 3B1.1(c). The government

does not appeal this characterization.

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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 (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

4

Brown also contends that the district court's explanation for

the enhancement was insufficiently detailed to permit meaningful

appellate review. We disagree. The court's ruling, while terse,

made clear that the court was anchoring the enhancement on

circumstantial evidence that Brown managed Scott.

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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 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). At all times in the course of

these two larger sales, Brown exercised exclusive dominion over the

drugs. See id. And Brown retained the lion's share of the

5

Along similar lines, Scott exposed himself to criminal

sanctions by sheltering Brown as he attempted to flee and by

denying to pursuing agents that Brown was in his apartment just

prior to Brown's first arrest.

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proceeds, while Scott received only small finder's fee payments for

his lesser, albeit important, role in the transactions. See

U.S.S.G. § 3B1.1, comment. n.4. From this evidence, the court

could reasonably conclude that Brown exercised authority over

Scott.

To be sure, Brown's characterization of his relationship

with Scott as involving coequal independent contractors is not

utterly contradicted by this evidence. Nor was the available

evidence direct; as we have noted, the district court inferred

Brown's managerial role from the circumstances. See supra at 4-5.

But all of this is unavailing to the appellant, because the

evidence need not have compelled the inference ultimately drawn.

All that is required is that the court's choice among competing

inferences be a plausible one. Cruz, 120 F.3d at 4 ("When

competing inferences plausibly can be drawn from a set of facts,

the fact finder's choice between them cannot be clearly

erroneous.") (citation omitted).

As we have recounted, the district court had before it

evidence that Brown supplied the drugs for the conspiracy that bore

his alias; that he established a customer base; that Scott acted as

a go-between or finder, with Brown personally involving himself in

completing the larger sales; that Brown used Scott's apartment for

transactions and as a safe-house; that he exercised dominion over

virtually all of the known quantities of drugs; and that he kept

the great majority of the proceeds. In view of this evidence, the

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inference chosen by the court easily meets the plausibility

standard.

Taking the evidence as a whole, we find no clear error in

the court's role-in-the-offense determination. See id.

Affirmed.

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