United States v. Johnny Sparrow

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4655

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHNNY RAY SPARROW, a/k/a Johnny Blaze,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:11-cr-00009-F-1)

Submitted: June 27, 2013 Decided: July 16, 2013

Before DAVIS, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Cindy H. Popkin-Bradley, CINDY H. POPKIN-BRADLEY, ATTORNEY AT
LAW, Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Joshua L.
Rogers, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Johnny Ray Sparrow, Jr., entered a guilty plea to the

charges of distributing, and aiding and abetting the

distribution of, five or more grams or more of cocaine base

(crack) and a quantity of cocaine, in violation of 21 U.S.C. §

841(a)(1) and 18 U.S.C. § 2. The district court sentenced

Sparrow to a term of imprisonment of 78 months.

On appeal, Sparrow argues that the district court erred in

its sentencing determination. Sparrow contends that the court

included certain drug quantities as relevant conduct in

calculating his advisory sentencing guidelines range, without

finding by a preponderance of the evidence that those quantities

were attributable to him. Upon our review, we conclude that the

district court did not err and, accordingly, we affirm the

district court’s judgment.

I.

In March 2008, Sparrow and a co-defendant, Darian Jevon

Cantey, sold 37.5 grams of cocaine and 15.8 grams of cocaine

base to a confidential informant working for the Lenoir County

Sheriff’s Office in Kinston, North Carolina (the March 2008

transaction). After the transaction was completed,

investigators conducted a search of Sparrow’s residence, where

they found an unidentified quantity of marijuana and a $20 bill

2
that was part of the “buy money” provided by the confidential

informant.

The March 2008 transaction formed the basis of Sparrow’s

indictment, in which he was charged with distributing, and

aiding and abetting the distribution of, five or more grams of

cocaine base (crack) and a quantity of cocaine, in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Sparrow entered a

guilty plea to those charges without the benefit of a plea

agreement.

After the district court accepted Sparrow’s guilty plea,

the United States Probation Office prepared Sparrow’s

presentence investigation report (PSR). In addition to the drug

quantities arising from the March 2008 transaction, the findings

in the PSR attributed additional drug quantities to Sparrow from

prior transactions as part of the relevant conduct of Sparrow’s

present offenses. See U.S.S.G. § 1B1.3. The PSR stated that

investigators interviewed two cooperating individuals, Clifton

Edwards and Kendall Wells, who attested that they purchased

drugs from Sparrow. 1 According to the PSR, Edwards stated that

he purchased at least 1.5 ounces of cocaine from Sparrow, and

1
The PSR also included a discussion of a third cooperating
individual, Maurice Brown, who told investigators that he
purchased drugs from Cantey, Sparrow’s co-defendant. The
quantity of drugs that Brown stated he purchased from Cantey was
not attributed to Sparrow in calculating Sparrow’s sentence.

3
that he had seen Sparrow possess an additional 3 ounces of

cocaine and 2 pounds of marijuana. The PSR also stated that

Wells began purchasing cocaine from Sparrow in 2000, and that in

an 18-month period Wells purchased 108 ounces of cocaine from

Sparrow.

In combination with the drug quantities at issue in the

March 2008 transaction, the calculations in the PSR indicated

that Sparrow was responsible for the distribution of 109.5

ounces (3,104.33 grams) of cocaine, 15.8 grams of crack cocaine,

and 2 pounds (907.2 grams) of marijuana, for a total marijuana-

equivalency rate of 678.2 kilograms. Based on these

calculations, the PSR stated that Sparrow’s base offense level

under U.S.S.G. § 2D1.1(c)(6) was 28. After 3 points were

deducted for acceptance of responsibility, resulting in an

adjusted offense level of 25, and given Sparrow’s criminal

history category of III, the PSR stated that Sparrow’s advisory

guidelines range was a term of between 70 and 87 months’

imprisonment.

Sparrow filed written objections to the PSR, accepting

responsibility for the drug quantities at issue in the March

2008 transaction, but asserting that he should not be held

accountable for the additional drug quantities attributed to him

by Edwards and Wells. Sparrow contended in his objections that

4
he did not know Edwards and Wells, that they were not credible,

and that their accusations against him were false.

The district court held a sentencing hearing, at which the

government called as a witness Detective Michael Shawn Howard of

the Lenoir County Sheriff’s Office. Howard, who was the case

agent for the County’s investigation of Sparrow’s drug

activities, provided testimony concerning his interviews with

Edwards and Wells. Howard testified that Edwards and Wells

stated that Sparrow distributed to them certain quantities of

drugs, as recounted in the PSR. Howard further testified that

he found Edwards and Wells to be reliable, because information

provided by them led to the convictions of several other

defendants, and because Edwards and Wells provided Howard

certain identifying information about Sparrow that supported

their statements.

After Sparrow’s counsel cross-examined Howard, the

government argued that it had “proven [the] drug weight by a

preponderance of the evidence.” The district court stated in

response that it was “going to find that [Sparrow] is

responsible for the distribution of 109.5 ounces of cocaine,

15.8 grams of crack cocaine, [and] two pounds of marijuana,

which have a marijuana equivalency of 678.2 kilograms,” thus

adopting the drug weight calculation from the PSR. Accordingly,

the district court overruled Sparrow’s objections to the PSR,

5
and the court formally adopted the findings in the PSR,

including the guidelines range of 70-87 months’ imprisonment.

The court heard argument from Sparrow’s counsel and a brief

statement from Sparrow, after which the court announced a

sentence of 78 months’ imprisonment and a period of supervised

release of three years. The court stated that, in imposing this

sentence, the court had considered Sparrow’s advisory guidelines

range and the factors set forth in 18 U.S.C. § 3553(a).

After sentencing Sparrow, the district court held a bench

conference with the parties, during which the court expressed

dissatisfaction with the government’s practice at sentencing of

offering the hearsay testimony of an investigator, rather than

presenting testimony from the cooperating individuals. In

relevant part, the district court stated that:

Now, this business of having trials on the amounts of
drugs, if you would bring the people in here that he’s
denied knowing, the next time I’ll take away his
acceptance of responsibility. I want an end to this.
. . . If he won’t accept it, the [drug weight] amount
on his plea agreement, you [the assistant United
States Attorney (AUSA)] damn well be prepared to prove
it . . . . And if you [the AUSA] can’t get this thing
straight and get it proved right then I’m going to
find with the defendant. . . . Do you [the AUSA]
understand to tell your boss that? . . . Well, you
can tell him, by God, that you’ve seen a judge that’s
mad as hell about this.

The district court entered its judgment, and Sparrow timely

filed a notice of appeal.

6
 II.

Sparrow’s sole argument on appeal is that the district

court erred in sentencing him on the basis of the drug weight

that included the drug quantities attributed to him by Edwards

and Wells, because, in Sparrow’s view, the district court did

not find that drug weight attributable to him by a preponderance

of the evidence. Sparrow bases this contention primarily on the

statements made by the court during the bench conference. We

disagree with Sparrow’s argument.

As a general matter, we review a district court’s sentence

for reasonableness under an abuse of discretion standard. Gall

v. United States, 552 U.S. 38, 51 (2007); United States v.

Evans, 526 F.3d 155, 161 (4th Cir. 2008). We review for clear

error the district court’s factual findings, including the

court’s calculation of the quantity of drugs attributable to a

defendant with relation to his sentencing. United States v.

Slade, 631 F.3d 185, 188 (4th Cir. 2011); United States v.

Mehta, 594 F.3d 277, 281 (4th Cir. 2010); United States v.

Randall, 171 F.3d 195, 210 (4th Cir. 1999).

For purposes of sentencing, the government must prove the

drug quantities attributable to the defendant by a preponderance

of the evidence. United States v. Milam, 443 F.3d 382, 386 (4th

Cir. 2006); Randall, 171 F.3d at 210. In this context, the

district court is entitled to consider any relevant evidence,

7
including hearsay statements, so long as they are reliable, even

though such statements might be inadmissible during a trial.

Randall, 171 F.3d at 210.

Sparrow’s argument is untenable because it would require us

to determine that the district court deemed Edwards’ and Wells’

statements unreliable, yet nevertheless overruled Sparrow’s

objections to the PSR and adopted the PSR’s findings despite the

government’s purported failure of proof. Such a conclusion is

not supported by the record.

The district court considered the findings in the PSR and

heard testimony from Howard concerning his interviews with

Edwards and Wells, including the reasons why Howard thought that

the information they provided was credible and reliable. After

Howard’s testimony, the government explicitly argued that it had

“proven [the] drug weight by a preponderance of the evidence.”

Immediately thereafter, the court overruled Sparrow’s objection

to the calculation in the PSR of the drug quantities

attributable to him, and the court adopted the PSR and stated

that the findings contained in the PSR were “credible and

reliable.” In light of this sequence of events, it is readily

apparent that the court did find by a preponderance of the

evidence that the drug quantities relating to Edwards’ and

Wells’ statements, which were incorporated in the PSR’s drug

weight calculation, were properly attributable to Sparrow.

8
 We further note that we are not persuaded by Sparrow’s

assertion that the district court’s comments at the bench

conference, after the court announced Sparrow’s sentence,

indicate that the court was not convinced that the government

had met its evidentiary burden. Although the district court

expressed a clear preference that the government present direct

rather than hearsay testimony in future sentencing hearings

involving disputed drug quantities, we will not draw the

negative inference that the lack of such testimony in this case

constituted a failure of proof. 2 Sparrow is required to

2
Nevertheless, we note our concern with the remarks made by
the district court during the bench conference. Contrary to the
district court’s suggestion, a defendant who pleads guilty to an
indictment without a plea agreement will generally be eligible
for a reduction in his base offense level under the sentencing
guidelines for acceptance of responsibility, even if that
defendant does not acquiesce to the government’s allegations of
any alleged “relevant conduct” that was not charged in the
indictment. See U.S.S.G. § 3E1.1 cmt. n. 1(A) (“A defendant may
remain silent in respect to relevant conduct beyond the offense
of conviction without affecting his ability to obtain a
reduction under this subsection.”); Elliott v. United States,
332 F.3d 753, 766 (4th Cir. 2003). It is only when a defendant
“falsely denies” or “frivolously contests” relevant conduct that
the district court determines to be true does a defendant lose
his eligibility for the acceptance of responsibility reduction.
See U.S.S.G. § 3E1.1 cmt. n. 1(A) (“However, a defendant who
falsely denies, or frivolously contests, relevant conduct that
the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility.”); Elliott, 332
F.3d at 766. Thus, a defendant who merely requires the
government to meet its proof burden to establish relevant
conduct, in the absence of any “false denial” by the defendant,
does not jeopardize his eligibility for the reduction, as the
(Continued)
9
establish that the district court clearly erred in adopting the

drug weight calculation in the PSR, Slade, 631 F.3d at 188, and

he has failed to meet his burden here.

For these reasons, we affirm the district court’s judgment.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this Court and argument would not aid the decisional process.

AFFIRMED

district court’s comments during the bench conference would
suggest.

10