UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 96-31247
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UNITED STATED OF AMERICA,
Plaintiff-Appellee,
VERSUS
TERENCE MILLSAPS, MICHAEL JOHNSON
AND HERMAN A. STEVENSON III,
Defendant-Appellants.
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Appeals from the United States District Court
for the Eastern District of Louisiana
_______________________________________________
October 8, 1998
Before REYNALDO G. GARZA, HIGGINBOTHAM and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:
In November, 1995, Trent Summers, a DEA informant, met with
the defendants, Terence Millsaps and Michael Johnson in New
Orleans. There they discussed the possibility of entering into a
drug transaction. Summers told Millsaps that he could provide him
with 10 kilograms of cocaine.
On December 1, 1995, Summers introduced Andrew Chambers, a DEA
informant, to Millsaps and Johnson as a supplier of cocaine from
Los Angeles. They agreed that Chambers would provide Millsaps and
Johnson with 10 kilograms of cocaine at a price of $14,500 per
kilogram or a total of $140,000.
On December 4, 1995, Chambers, Summers, Millsaps, Johnson and
defendant Herman Stevenson had a telephone conversation where they
agreed to meet to complete the drug transaction in a Sam’s
Wholesale Club parking lot. Inside Stevenson’s Land Cruiser,1
Chambers saw a firearm and money to be used in the transaction.
Chambers then made the prearranged arrest signal and the DEA
intervened. The agents arrested Stevenson, Millsaps and Johnson and
seized a .45 caliber pistol and $39,863.00 from Stevenson’s
Vehicle.
On December 15, 1995, a grand jury for the Eastern District of
Louisiana, returned a three-count indictment against Stevenson,
Millsaps and Johnson. All three were charged with conspiracy to
possess cocaine with intent to distribute and attempted possession
of cocaine with intent to distribute. In addition, Stevenson was
charged with the use of a firearm in relation to the drug
trafficking crime.
On March 7, 1996, the grand jury returned a sixteen count
superseding indictment against Stevenson, Millsaps, and Johnson.
The new indictment added three counts charging Stevenson with
heroin trafficking and ten counts charging him with money
1
A Toyota Land Cruiser is a 4x4 sport-utility vehicle with a
enclosed cabin area.
2
laundering, all stemming from activities unrelated to Millsaps and
Johnson. Also included in the indictment were the three counts
against the defendants in the original, December 15 indictment.
On March 18, 1996, Yvonne Hughes enrolled as counsel for
Michael Johnson. On April 9, 1996 the government filed a Motion to
Disqualify Defense Counsel Yvonne Hughes due to a conflict of
interest in her representation of Johnson and government witness
Prestiss Martin. On May 1, 1996, the court granted the
government’s motion to disqualify defense attorney Yvonne Hughes
and on May 16, 1996, the court denied Johnson’s motion to
reconsider its decision.
On June 19, 1996, the district court granted a motion by
Millsaps and Johnson for a severance. The court feared that a
trial on all counts of the superseding indictment would prejudice
Millsaps and Johnson with evidence of Stevenson’s unrelated heroin
trafficking. The district court ordered trial to proceed first
against Millsaps, Johnson, and Stevenson based solely on the
original three count indictment.
On November 13, 1996, the jury convicted Millsaps and Johnson
on the two counts relating to them, and it found Stevenson guilty
on all three of his counts. On November 22, 1996, the government
moved to dismiss the 13 counts of the superseding indictment
concerning Stevenson’s heroin trafficking and money laundering. On
February 26, 1996, after enhancing his sentence under the career
offender provisions of the Sentencing Guidelines, the court
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sentenced Millsaps to 450 months of imprisonment.
On April 30, 1997, the district court granted the government’s
motion for an upward departure and sentenced Stevenson to 295
months of imprisonment. All three defendants timely appealed to
this Court.
Discussion
I. Denial of Appellants’ Motion for Mistrial.
During the government’s case-in-chief, prosecutors played
taped conversations between the DEA informants and the defendants
to the jury. After one of the tapes was played, the government
asked its informant, Chambers, to testify to the meaning of some of
the terms used in the conversation:
Q. Now, Mr. Chambers, you heard that portion of the
conversation, didn’t you?
A. Yes, I did.
Q. Who’s speaking to who in this portion of the
conversation?
A. I’m talking to Millsaps.
Q. Is he speaking to you?
A. Yes.
Q. Is there some conversation in here where you’re talking
about the “nickel.” [sic] What do you mean by the
“nickel” there?
A. I’m talking about five keys.
Q. And there is also conversation where you’re told that
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this other person [Stevenson] is “old players game is
that boy.” At that time what did you understand that to
mean?
A. He’s a heroin dealer.
Q. And when you were told “He jumping on this time on the
strength of me,” at that time, what did you understand
that to mean?
A. Millsaps, the only reason that he had switched from the
heroin to the coke was because Millsaps told him it was
cool and straight; there was no problem with it.
The defense objected to this testimony, arguing that heroin charges
were not before the jury. The court sustained the objection and
gave the jury a cautionary instruction: “I have sustained an
objection to any reference to the use of heroin, and the jury is
instructed to disregard anything to do with the use of heroin.”
The defendants, however, moved for a mistrial, which the court
denied. All the defendants now assert that this was an error.
The defendants contend that the district court’s pretrial
rulings barred any reference to heroin at trial, so that Chambers’
testimony was so prejudicial that it warranted a mistrial. The
defendants’ claim, however, lacks merit because the court never
made such an explicit pretrial ruling. Rather, before trial the
court only severed the heroin/money-laundering charges against
Stevenson from the cocaine charges against all three defendants
because of its concern that:
[i]f the indictment forebodes the trial evidence, it is
obvious that much of the trial will be concerned with
Stevenson’s alleged activities as a heroin dealer and money
launderer. The jury might infer, correctly or incorrectly,
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that anyone associated with Stevenson must be involved in
narcotics trafficking, given the likely nature of the
evidence. Because of the overwhelming evidence which will
probably be introduced against Stevenson, the Court finds that
Millsaps and Johnson will be prejudiced by going to trial with
him as to [the heroin and money laundering counts].
The defendants never filed a motion in limine to bar references to
heroin in the cocaine trial, nor did the court ever make such a
ruling sua sponte. The trial court properly sustained the
defendants’ trial objections to the testimony about heroin, since
those references constituted evidence of other crimes. However,
the defendants are mistaken in their assertion that the
government’s eliciting of this testimony violated the terms of a
pretrial order.
In light of these facts, it is clear that the district court
did not abuse its discretion in denying the defendants’ motion for
a mistrial. The refusal to grant a mistrial based on the admission
of prejudicial evidence is reviewed for an abuse of discretion.
United States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998). “If the
motion for mistrial involves the presentation of prejudicial
testimony before a jury, a new trial is required only if there is
a significant possibility that the prejudicial evidence had a
substantial impact upon the jury verdict, viewed in light of the
entire record.” Id. In addition, a prejudicial remark may be
rendered harmless by curative instructions to the jury. United
States v. Nguyen, 28 F.3d 477, 483 (5th Cir. 1994). Furthermore,
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this Circuit also gives great weight to the trial judges’
assessment of the prejudicial effect of the remark. Id.
The government contends that the references to heroin were
admissible on res gestae grounds. However, whether this is true or
not is irrelevant. Even if the reference to Stevenson’s heroin
activities was prejudicial to the defendants, the trial court
struck that testimony and gave a curative instruction. Also,
“juries are presumed to follow their instructions.” Zafiro v.
United States, 506 U.S. 534, 540 (1993), and the defendants do not
explain how the court’s curative instruction was inadequate.
At trial there was substantial evidence of the defendants’
guilt. Thus, it is highly unlikely that any of the cocaine-
conspiracy convictions were derived from the jury’s concerns about
heroin. Rather, to the extent that the jury disregarded the
court’s curative instruction, the admission of the heroin evidence
is harmless. See United States v. Sotelo, 97 F.3d 782, 797-98 (5th
Cir. 1996) (finding harmless the admission of hearsay evidence when
the evidence was later stricken, a curative instruction was given,
and the evidence of guilt was overwhelming), cert. denied, Quintana
v. United States, 117 S.Ct. 620 (1996). Therefore, the defendants
have failed to establish that the heroin testimony was so
overwhelmingly prejudicial as to make the court’s denial of a
mistrial an abuse of discretion.
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II. Lack of Credibility of Government’s Chief Witness
This Circuit, when reviewing a challenge to the sufficiency of
the evidence, must determine whether a rational trier of fact could
have found that the evidence established guilt beyond a reasonable
doubt. United States v. Ivey, 949 F.2d 759, 766 (5th Cir. 1991),
cert. denied, Wallace v. United States, 506 U.S. 819 (1992). It
must also view all evidence and any inferences that may be drawn
from it in the light most favorable to the government. Ivey, 949
F.2d at 766. In addition, “[i]t is the sole province of the jury,
and not within the power of this Court, to weigh conflicting
evidence and evaluate the credibility of witnesses. Id. at 767.
The jury has the unique role to “judge the credibility and evaluate
the demeanor of witnesses and to decide how much weight should be
given to their testimony.” United States v. Layne, 43 F.3d 127,
130 (5th Cir. 1995), cert. denied, 514 U.S. 107 (1995). This
narrow standard of review for sufficiency of the evidence
challenges “gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in testimony, to weigh the
evidence and to draw reasonable inferences from basic facts to
ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979).
The defendants assert that the evidence of their guilt was
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insufficient because their convictions rested on the testimony of
Chambers, a government informant who lacked credibility. Even
assuming Chambers’ testimony was the only evidence presented
against the defendants their argument remains meritless. It is
clear that Chambers is not the most pristine of witnesses.
Chambers has been paid over $1,000,000 by the DEA for his testimony
in past cases, he cheated on his taxes, and he beat his wife. In
light of these facts however, the jury still chose to convict the
defendants. Therefore, because the jury has the sole power to
weigh and evaluate the credibility of each witness and their
verdict was not so incredible, it would be unjustified and improper
for this Court to intervene.
III. Determination of Amount of Cocaine Involved in the Conspiracy
At sentencing, the trial court found that the amount of
cocaine involved in the conspiracy was 10 kilograms. The
Sentencing Guidelines catagorize drug offenses by the amount of
drugs involved. One such category, which the district court
applied to the defendants, covers conspiracies to possess with
intent to distribute between 5 and 15 kilograms of cocaine. See
U.S.S.G. § 2D1.1(C)(4).
Millsaps argues that the district court erred in finding that
the crime involved 10 kilograms of cocaine. He contends that the
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only evidence of a 10 kilogram conspiracy came from Chambers’
ambiguous testimony and that Chambers is an an unreliable
government informant. Otherwise, Millsaps asserts, that the
evidence pointed to a much smaller conspiracy. Millsaps notes that
the conspirators agreed to a price of $14,500/kilogram, but when
arrested they were found to be carrying only $38,863 in cash.
Therefore, Millsaps concludes that the conspiracy must have
involved only a purchase of less than 3 kilograms of cocaine
because the defendants possessed insufficient cash to procure any
more.
This Circuit has firmly established that the burden of proof
at sentencing is usually by a “preponderance of the evidence.”
United States v. Lombardi, 138 F.3d 559, 562 (5th Cir. 1998).
However, we have also recognized that in some rare circumstances
that the “beyond a reasonable doubt” standard may be more
appropriate. United States v. Mergerson, 4 F.3d 337,343 (5th Cir.
1993) cert. denied, 510 U.S. 1198 (1994). In these situations “a
particular fact relevant to sentencing dramatically alters the
sentencing options of the court to the disadvantage of the
defendant.” Id.
This Court, as in Mergerson, is quite reluctant to part from
the preponderance of the evidence standard in a non-capital case
and will not do so. Although the determination of the quantity of
drugs involved in this conspiracy had a substantial impact on
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Millsaps’ sentence, it does so in every other drug case as well.
To accept a higher burden of proof under the facts of this case
would cause us to impose a higher burden of proof in every
narcotics prosecution. We routinely employ the preponderance of
the evidence standard in calculating the quantity of drugs involved
in drug crimes, and we will not depart from that well settled
practice.
A district court’s factual findings for sentencing purposes
are reviewed for clear error. See United States v. Misher, 99 F.3d
664,671 (5th Cir. 1996), cert. denied, Cobb v. United States, 118
S.Ct. 73 (1997). This deferential standard of review specifically
covers a district court’s determination as to the amount of drugs
involved in the narcotics offense. See United States v. Mir, 919
F.2d 940 (5th Cir. 1990). Furthermore, the clearly erroneous
standard of review protects the district court’s determination of
the amount of drugs involved in an offense. Lombardi, 138 F.3d at
562.
The district court’s finding that the conspiracy involved 10
kilograms of cocaine was not clearly erroneous. At trial, Chambers
testified that he understood that their initial transaction was to
involve 5 kilograms of cocaine, with a follow-up transaction to
involve another 5 kilograms if everything went well the first time.
Thus, the defendants intended to purchase 10 kilograms of cocaine
in two installments of 5 kilograms each. Therefore, the district
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court did not clearly err in concluding that a preponderance of the
evidence pointed to a 10 kilogram conspiracy. Furthermore, even if
the transaction involved only 5 kilograms of cocaine, it would not
change the offense level of the crime. See U.S.S.G. § 2D1.1(C)(4)
(covering 5 to 15 kilograms of cocaine). The mere fact that the
defendants were caught with only enough money to purchase less than
3 kilograms of cocaine does not outweigh the testimony indicating
that they intended to purchase 10 kilograms.
IV. Sentencing of Millsaps as a Career Offender.
Millsaps asserts that the district court erred in sentencing
him as a career offender. Millsaps’ Presentence Investigation
Report’s (PSI) reported that he had a 1986 federal felony
conviction for bank robbery and a 1991 state felony conviction for
aggravated battery. Millsaps objected to the PSI’s classification
of him as a career offender, however, he offered no evidence
suggesting that the PSI report of his criminal history was
inaccurate. Instead, Millsaps suggests that once he objected to
the PSI, the government was required to present proof of his
convictions. However, this assertion is without merit.
To support his contention, Millsaps relies on United States v.
Johnson, 823 F.2d 840, 842 (5th Cir. 1987), in which we refused to
enhance a sentence based solely on a government attorney’s disputed
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accusations about the defendant’s past crimes. As we stated in
Johnson, however, “the reports upon which [a] district judge bases
the sentence must be reliable.” Id. PSI’s qualify as such reliable
reports. In United States v. Rodriguez, 897 F.2d 1324, 1327-28
(5th Cir. 1990), cert. denied, 498 U.S. 857 (1990), we held that a
district court is entitled to rely entirely upon the facts
contained in a PSI, even if a defendant objects to those facts, if
the defendant does not present any rebuttal evidence. The
defendant must show the evidence in which the district court relied
upon in sentencing was materially untrue. Rodriguez, 897 F.2d at
1328. Millsaps did not present any evidence suggesting that the
PSI’s detailing of his criminal record was erroneous. Accordingly,
the district court did not clearly err in relying upon the PSI to
conclude that Millsaps was a career offender.
V. Forced Recusal of Johnson’s Attorney
It was not an error for the district court to disqualify
Yvonne Hughes as Johnson’s attorney. A district court’s
disqualification of a defense attorney for conflict of interest is
reviewed for abuse of discretion. Sotelo, 97 F.3d at 791. The
Supreme Court has previously upheld the disqualification of defense
counsel over the defendant’s Sixth Amendment objection when the
counsel also represented a potential government witness. See
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United States v. Wheat, 486 U.S. 153 (1988).
On April 9, 1996, the government filed a motion to disqualify
Yvonne Hughes as Johnson’s defense counsel because Hughes had
previously represented a government witness in the case, Prentiss
Martin. Hughes contended that she no longer represented Martin,
and Martin offered to waive the attorney-client privilege for
purposes of this case. Nevertheless, on May 6, 1996, we dismissed
the appeal for want of prosecution, but later reinstated it on
October 3, 1996. Finally, on November 8, 1996, Johnson appeared
in open court and stated under oath that he wished to proceed to
trial with his present counsel and no longer desired to pursue the
appeal from the disqualification ruling.
Nevertheless, Johnson now asserts that his waiver of an
appeal was not effective, alleging that the colloquy between the
court and himself regarding the waiver was perfunctory and he was
not fully informed of his rights. Johnson essentially complains of
an error he invited himself, a situation we normally will not
tolerate. See United States v. Lewis, 524 F.2d 991, 992 (5th Cir.
1975). Therefore, his contention is meritless.
Although Hughes had terminated her relationship with Martin,
and Martin agreed to waive his attorney/client privilege, the
potential still existed that Hughes would have divided loyalties.
As the Wheat court summarized:
The District Court must recognize a presumption in favor of
the petitioner’s counsel of choice, but that presumption may
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be overcome not only by a demonstration of actual conflict but
by a showing of serious potential conflict. The evaluation of
the facts and circumstances of each case under this standard
must be left primarily to the informed judgement of the trial
court.
Id. at 164. It is evident that the potential for divided loyalties
here was “serious” enough to justify the district court’s exercise
of discretion in disqualifying Hughes.
VI. Johnson’s Multiple Offender Enhancement
On November 8, 1995, the government filed a Bill of
Information to establish Johnson’s prior conviction pursuant to
LA.REV.STAT. 40:967(C)(2) for possession of “crack” cocaine. Based
upon this conviction, the government petitioned to have Johnson
sentenced as a multiple offender under 21 U.S.C. § 851 (d)(1).
Subsequently, on November 13, 1996, Johnson was convicted and
timely filed an objection to the multiple Bill. However, the
Motion to Quash was denied and the trial court sentenced Johnson as
a multiple offender.
Johnson asserts, without citation, that his conviction for
possession of “crack” would constitute a misdemeanor in some other
states, and therefore, the government would not treat him as a
multiple offender if his conviction had been elsewhere.
Accordingly, Johnson argues that the government has no compelling
interest under the law to enhance his sentence because he would be
15
treated differently from other defendants similarly situated.
We rejected the identical argument in United States v. Kubosh,
63 F.3d 404, 405-07 (5th Cir. 1995) vacated on other grounds,
Bailey v. United States, 116 S.Ct 1012 (1996), reaffirmed on these
grounds, United States v. Kubosh 120 F.3d 47, 48 (5th Cir.
1997)(“Kubosh II”). In Kubosh, we noted that in enacting the
multiple-offender provisions of the narcotics laws, “Congress was
well aware that different states classify similar crimes
differently. Congress’ deference to the states in this matter is
not irrational.” Kubosh, 63 F. 3d at 407. Therefore, we upheld
the enhancement of Kubosh’s sentence due to his multiple offender
status despite the fact that his prior Texas convictions might have
been treated as misdemeanors in other jurisdictions. Id. at 406.
The Supreme Court vacated Kubosh in light of Baily. On
remand, we reversed Kubosh’s conviction for carrying a firearm in
relation to a drug offense. See Kubosh II, 120 F.3d at 48-9.
Nevertheless, the Kubosh II court “again reject[ed] Kubosh’s other
contentions on appeal, for the same reasons in [Kubosh].” Id. at
49. Thus, although Kubosh was vacated by the Supreme Court, we
readopted all of the reasoning of Kubosh not pertinent to Baily,
including the refutation of Kubosh’s equal protection argument.
Accordingly, it is clear that Johnson was properly sentenced by the
trial court as a multiple offender.
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VII. Upward Departure in Stevenson’s Sentence
On January 10, 1997, the government filed a motion for an
upward sentencing departure in the sentencing of Stevenson based
upon the inadequacy of his criminal history. See U.S.S.G. § 4A1.3.
Stevenson’s PSI suggested a base offense level of 34 and zero
history points. The government sought to increase Stevenson’s
sentence based upon the heroin and money laundering charges filed
against him in the superseding indictment that were dismissed
following his conviction, as well as uncharged instances of heroin
trafficking and tax evasion. At the sentencing hearing the
government called an I.R.S. special agent who summarized the
government’s evidence against Stevenson as it related to each of
these alleged crimes.
After considering the government’s evidence of other crimes,
the district court granted the government’s motion for upward
departure and increased Stevenson’s criminal history from Category
I, with a guideline range of 151 to 188 months, to Category III,
with a guideline rang of 188 to 235 months of imprisonment. The
district court sentenced Stevenson to 235 months.
Stevenson contends that it was a violation of due process for
the district court to base the upward departure on evidence of
crimes charged in the superseding indictment, but were subsequently
dismissed. He complains that the sentencing hearing permitted the
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government to prove the heroin and money laundering charges against
him utilizing a more lenient burden of proof than it would have
faced had it actually sent him to trial for those crimes. However,
in United States v. Ashburn, 38 F.3d 803 (5th Cir. 1994) (en banc),
our Court held that a district court could depart upward under §
4A1.3 to account for conduct alleged in counts of an indictment
that were dismissed pursuant to a plea agreement. Our Court
stated that § 4A1.3 expressly authorizes the Court to consider
“prior adult criminal conduct not resulting in a conviction.” Id.
at 808 n. 14. It is clear that “if the district court offers
‘acceptable reasons’ for the departure and the departure is
reasonable” that we will affirm a departure from the guidelines.
Id. at 807. Because Stevenson’s case does not differ significantly
from Ashburn, this Court rejects Stevenson’s due process argument.
Stevenson also asserts that the district court misapplied the
Guidelines and its upward adjustment was excessive. The district
court considered Stevenson’s tax, heroin, and money-laundering
activities to be worth one criminal history point each, for a total
criminal history of four points. The district court in upwardly
departing explicitly relied on this evidence and not upon the six
arrests that appear in his PSI. In detailing the point breakdown
the district court stated “I’m assigning one point for the IRS, one
point for the heroin activities, and one point for the money
laundering.” While as stated this mathematically would equal
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three points, both the heroin activities and money laundering
activites would have neccessary resulted in incarceration under the
guidelines, thus accounting for the additional point. See §
U.S.S.G. 4A1.1. Therefore, at least one additional criminal
history point (beyond the three) would have been appropriate
because Stevenson almost certainly would have been sentenced for
this conduct had he been convicted.2 Four criminal history points
would properly establish the Category III criminal history for
which Stevenson was sentenced. Therefore, the district court did
not err in its upward departure.
VIII. Stevenson’s Status as a Leader of the Conspiracy
Stevenson objects to the trial court’s finding of an increase
in the base level of two points based upon Stevenson’s leadership
role in the conspiracy. See U.S.S.G. § 3B1.1. The district court
relied upon Stevenson’s status as the financier of the cocaine deal
to justify the enhancement. Although it may be a questionable as
to whether the financier of a conspiracy deserves a § 3B1.1
2
In calculating the appropriate criminal history category,
this Court has previously stated that, “we do not require the
district court to go through such a ‘ritualistic exercise’. . .”
Ashburn, 38 F.3d at 809. However, under §4A1.1 of the Sentencing
Guidelines, it is more likely than not that one of the dismissed
charges would have been categorized under §4A1.1(b) had he been
convicted of the charges, thereby accounting for the fourth point.
See Id. at 808.
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adjustment for being an organizer of that conspiracy, Stevenson has
waived this issue on appeal. Stevenson’s appellate brief notes
that he objected to the § 3B1.1 enhancement at sentencing and it
illustrates his reasons for objection, however, the brief does not
request this Court to vacate his sentence on this ground. Rather,
Stevenson states: “These factual findings are reviewed for clear
error.” Stevenson does not wish to abandon his objection to these
findings, but understands that his appeal lies with the
misapplication of the sentencing guidelines and the error of law in
the upward departure. Because Stevenson does not assert any
specific error arising from the two level organizer enhancement,
nor does he advance any legal argument, this Court considers this
issue waived.
Conclusion
For the foregoing reasons, we AFFIRM the district court’s decisions
in all respects regarding the convictions and sentences of all
three defendants.
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