Vacated by Supreme Court, October 3, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4896
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICK BARTON, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District Judge.
(CR-02-80)
Submitted: October 6, 2004 Decided: December 3, 2004
Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
A. Benton Chafin, Jr., Lebanon, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Rick A. Mountcastle, Assistant
United States Attorney, R. Lucas Hobbs, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rick Lee Barton, Sr., appeals his conviction and sentence on
several drug and gun offenses. For the following reasons, we
affirm Barton’s conviction and sentence.
I.
Barton was the leader of a drug operation that began in 1997.
The operation sold oxycontin and cocaine in rural Tazewell,
Virginia and Newhall, West Virginia. Because Barton was disabled,
he would direct other persons to drive him to North Carolina to
pick up oxycontin from his drug connection, Michael Billings.
Barton would also send individuals to Bluefield, Virginia to pick
up drugs. Barton generally sold drugs for cash, but he would
accept guns as well. Trial testimony showed that Barton accepted
guns in exchange for drugs on at least four occasions and that
Barton obtained guns worth almost $20,000 from one individual.
Barton would then sell the guns to Billings.
After his arrest, Barton waived his Miranda rights and told
investigators from the Bureau of Alcohol, Tobacco, and Firearms
that he had purchased drugs from Billings for almost fifteen years,
and that he had sold drugs to between 300 and 400 people.
Barton was indicted by a federal grand jury in the Western
District of Virginia on May 15, 2003 on six counts relating to his
drug operation: four counts of possession of a firearm in
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furtherance of a drug trafficking offense, 18 U.S.C.A. § 924(c),
and one count each of distribution and possession with intent to
distribute oxycodone (oxycontin) and cocaine, 21 U.S.C.A. §
841(a)(1), and conspiracy to engage in such a distribution, 21
U.S.C.A. § 846. Barton’s common law wife, Janice Alalusi, was also
indicted on the drug conspiracy and distribution counts. Barton
pleaded not-guilty to each count, and he was tried by a jury on
August 20 and 21, 2003 in the United States District Court for the
Western District of Virginia.
On the morning of August 21, 2003, the jury returned a verdict
of guilty on all counts. Barton requested a poll of the jury, and
one juror, the foreperson, indicated that the verdict read in court
was not her verdict. The district court then made the following
statement: “Ladies and gentlemen, it appears to me that your
verdict was not unanimous. Your verdict must be unanimous. I’m
going to ask you to return to the jury room and continue your
deliberations.” (J.A. at 325.) Barton did not object to this
instruction, and the jury returned later in the day, finding Barton
guilty on all counts. When polled, the foreperson this time
indicated that “guilty” was her verdict.
On August 28, 2003, Barton moved for a new trial based upon
the unanimity instruction given by the district court. The
district court denied this motion on November 10, 2003, at Barton’s
sentencing. It concluded that Federal Rule of Criminal Procedure
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31(d) gave it discretion either to declare a mistrial or to return
the jury for further deliberations when a poll revealed that a
verdict was not unanimous.
The district court then turned to Barton’s sentencing. The
pre-sentence report (PSR) recommended that Barton receive a four-
level enhancement under § 3B1.1 of the United States Sentencing
Guidelines for being an organizer or leader of criminal activity
that involved five or more participants or was otherwise extensive.
Barton objected to this enhancement, and the district court heard
evidence on the enhancement. The district court concluded that the
enhancement was proper because Barton “exercised decision making
authority in regard to the drug conspiracy. He participated
directly at the center of it.” (J.A. at 373.) In addition, the
district court found that “this drug conspiracy was wide ranging,
both in terms of time and participants, and geographically.” (J.A.
at 374.) The district court sentenced Barton to 1,170 months in
prison. The sentence was computed as follows: 210 months for
counts one and two; 60 months for count three to run consecutively;
and 300 months each, to run consecutively, for counts four, five,
and six. Barton noted a timely appeal and we have jurisdiction
under 28 U.S.C. § 1291.
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II.
On appeal, Barton contends that the district court abused its
discretion in failing to grant his motion for a new trial, erred in
permitting Barton to be convicted on four § 924(c) offenses, and
clearly erred in imposing the leadership enhancement. We find each
of Barton’s arguments to be without merit.
A.
Barton first argues that the district court’s instruction
after the jury returned without a unanimous verdict coerced the
jury and required the grant of a new trial. Because Barton failed
to object to the district court’s instruction, we review for plain
error, and not, as Barton contends, for abuse of discretion. See
Federal Rule of Criminal Procedure 30(d) (stating that “[f]ailure
to object [to a jury instruction] in accordance with this rule
precludes appellate review, except as permitted under Rule 52(b).”)
Because the district court made no error of law, Barton cannot
satisfy the plain error standard.
Federal Rule of Criminal Procedure 31(d) specifically states
that, if a jury poll reveals the jury was not unanimous, “the court
may direct the jury to deliberate further or may declare a mistrial
and discharge the jury.” Fed. R. of Crim. P. 31(d). In this case,
the district court chose to direct the jury to deliberate further.
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We cannot see how the district court’s compliance with a rule of
criminal procedure amounted to plain error.
B.
Next, Barton contends that, because he was convicted on only
one substantive drug offense, he cannot be convicted on multiple §
924(c) offenses1 for using a firearm in furtherance of the drug
offense. We review the district court’s ruling that Barton could
be so convicted and sentenced de novo. United States v. Carter,
300 F.3d 415, 424 (4th Cir.), cert. denied by McRae v. United
States, 123 S.Ct. 614 (2002). Although caselaw from other circuits
lends Barton some support for this argument, see United States v.
Anderson, 59 F.3d 1323, 1328 (D.C. Cir. 1995) (en banc)
(cataloguing that seven circuits, the Second, Fifth, Sixth,
Seventh, Ninth, Tenth and Eleventh, have concluded that only one §
924(c)(1) violation can be attached to a single predicate offense),
we have specifically held that multiple § 924(c) convictions are
1
Section 924(c) provides that:
Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other
provision of law, any person who, during and in relation
to any crime of violence or drug trafficking crime . . .
for which the person may be prosecuted on a court of the
United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime [be sentenced
to a five year minimum term of imprisonment].
18 U.S.C.A. § 924(c)(1)(A).
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permissible when only one substantive drug offense is charged. See
United States v. Camps, 32 F.3d 102 (4th Cir. 1994). As we
explained in Camps, “it is . . . self-evident that a defendant who
has engaged in numerous instances of the precise conduct that
Congress has outlawed has committed more than one criminal
offense.” Id. At 107.
Barton also argues that there was insufficient evidence to
convict him of one of the § 924(c) counts. Josh Wilson testified
at trial that he stole a gun from his grandfather and turned it
over to Barton in exchange for cash. Wilson then immediately
exchanged that money with Barton for oxycontin. Wilson testified
that he could not have purchased the drugs from Barton without
first selling Barton the gun. Barton contends that because Wilson
actually sold him the gun for cash, not drugs, the § 924(c)
conviction cannot stand. We disagree: section 924(c) criminalizes
the possession of a firearm in furtherance of a drug trafficking
offense, and Wilson’s testimony sufficiently showed that, through
a staggered transaction, Barton obtained a firearm in exchange for
drugs and, thus, in furtherance of his drug operation.
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C.
Finally, Barton argues that he does not qualify for a
leadership enhancement under the Sentencing Guidelines.2 We review
a district court's decision to apply a sentencing adjustment based
on a defendant's role in the offense for clear error. United
States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002).
To qualify for a four-level increase under § 3B1.1(a) of the
Sentencing Guidelines, a defendant must have been “an organizer or
leader of a criminal activity that involved five or more
participants or was otherwise extensive.” U.S. Sentencing
Guidelines Manual (U.S.S.G.) § 3B1.1(a) (2003). The Sentencing
Commission has indicated that a court should consider seven factors
in determining a defendant's “leadership and organizational role.”
U.S.S.G. § 3B1.1, cmt. n. 4. These include: “[1] the exercise of
decision making authority, [2] the nature of participation in the
commission of the offense, [3] the recruitment of accomplices, [4]
the claimed right to a larger share of the fruits of the crime, [5]
the degree of participation in planning or organizing the offense,
2
We note that at no point, before the district court or this
court, has Barton advanced an argument that the leadership
enhancement was imposed in violation of his Sixth Amendment rights.
See generally Blakely v. Washington, 124 S.Ct. 2531, 2536-37 (2004)
(reaffirming that “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury,” and explaining that the relevant statutory maximum is the
“maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant)
(emphasis omitted).
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[6] the nature and scope of the illegal activity, and [7] the
degree of control and authority exercised over others.” Id.
On the facts presented here, we cannot say that the district
court clearly erred in imposing the leadership enhancement. The
evidence showed that Barton recruited and directed at least five
persons, including his son, Janice Alalusi, Joseph Day, Michael
Dowdy, and Chris Browning, to obtain drugs for Barton to resell.
In addition, the evidence also showed that Barton’s drug conspiracy
was extensive in scope, stretching across three states for at least
five years. Barton himself confessed to selling drugs to between
300 and 400 people, indicating the existence of a drug conspiracy
that was “otherwise extensive.” U.S. Sentencing Guidelines Manual
(U.S.S.G.) § 3B1.1(a) (2003). Moreover, as a Government witness
explained at sentencing, Barton was the “common denominator” in
most drug sales in the area, and the trial evidence revealed Barton
to be the leader or organizer of this drug conspiracy. (J.A. at
346.) We have previously held that the leadership enhancement is
proper where an individual is the chief supplier of drugs to a
locality. See United States v. Carter, 300 F.3d at 426 (affirming
enhancement where evidence showed the defendants were “the
principal suppliers of crack cocaine to the street dealers in the
housing project.”)
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III.
For the foregoing reasons, we affirm Rick Lee Barton Sr.’s
conviction and sentence.
AFFIRMED
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