F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 5 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs. No. 99-6064
(D.C. No. CR-98-84-C)
GREGORY C. WOMACK, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **
Defendant-Appellant Gregory C. Womack appeals from his convictions for
conspiracy to manufacture and distribute methamphetamine, 21 U.S.C. § 846
(count 1); manufacture of methamphetamine, 21 U.S.C. § 841(a)(1) (counts 2 &
5); and maintaining a house for the purpose of manufacturing methamphetamine,
21 U.S.C. § 856(a)(1); 18 U.S.C. § 2 (count 6). Mr. Womack was sentenced to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
360 months imprisonment on counts 1, 2, and 5 and 240 months on count 6, all
sentences to run concurrently with one another and a state sentence being served.
He also was sentenced to 5 years supervised release on counts 1, 2, and 5, and 3
years supervised release on count 6, all to run concurrently. Mr. Womack raises
three issues on appeal: (1) the district court erred in finding that he was the
leader of the conspiracy; (2) the court improperly used the 1998, instead of the
1995, Sentencing Guidelines; and (3) the amount of drugs attributed to him was
not based on sufficiently reliable evidence. We affirm, but modify the judgment
to reflect that the correct total offense level should be 40, rather than 42. This
modification in no way alters the sentence.
Background
In July 1997, police found the remains of a drug laboratory in a salvage
yard in Oklahoma City. Upon investigation of the site, they discovered envelopes
addressed to a certain apartment on 10th Street in Oklahoma City. Police
investigated the apartment where they apprehended Gregory Womack, as well as
other codefendants. Mr. Womack was found to be in possession of marijuana,
methamphetamine and cocaine. Tr. at 27.
Discussion
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A. Leadership Role
Mr. Womack argues that there was insufficient evidence for the trial court
to find that he was an organizer or leader of the conspiracy and enhance his
sentence by four levels under USSG § 3B1.1. “We review the district court's
conclusion that a defendant is a leader or organizer under § 3B1.1(a) for clear
error.” United States v. Tagore , 158 F.3d 1124, 1130 (10th Cir. 1998). 1
Application note 4 to § 3B1.1 sets out various factors that a court should
consider in determining whether an individual is an organizer or leader under the
guidelines. See USSG § 3B1.1, comment. (n.4). These include decision-making
authority, recruitment of accomplices, right to a larger share of the fruits of the
crime, degree and nature of participation in planning and commission of the
offense, scope of the illegal activity, and degree of control over others. At
sentencing, the district court specifically noted:
In this case, I have no question but that the evidence
abounds that Mr. Womack . . . was the leader and
organizer of an extensive conspiracy involving well
more than five people. Specifically, he chose the sites;
he either provided the precursor chemicals or directed
others where and what to get; he profited more than the
others; he directed sales as well as manufacture.
1
Mr. Womack argues that a § 3B1.1 determination is primarily legal and
review should be de novo. The issue of which standard of review to apply was
resolved in United States v. Cruz Camacho, 137 F.3d 1220 (10th Cir. 1998), and
we need not further address it here.
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Sentencing Tr. at 9. The evidence in the record supporting this finding is
substantial and there was no error.
B. Applicable Sentencing Guidelines
Mr. Womack argues that the court erred in sentencing him under the 1998
version of the Sentencing Guidelines (effective November 1, 1997) rather than
the 1995 version. Ordinarily, a defendant’s sentence should be based on the
version of the guidelines “that are in effect on the date the defendant is
sentenced.” 18 U.S.C. § 3553(a)(4); see also USSG 1B1.11(a). However, this is
not the case if amendments enacted after the defendant’s crime would increase
the sentence in violation of the Ex Post Facto Clause. United States v. Smith ,
930 F.2d 1450, 1452 n.3 (10th Cir. 1991).
The 1995 guidelines provided that one gram of methamphetamine had a
drug equivalency equal to one kilogram of marihuana. USSG § 2D1.1, comment.
(n.10) (Drug Equivalency Table) (1995). This ratio was changed in 1997, so that
under the revised guidelines one gram of methamphetamine was equal to two
kilograms of marihuana. USSG § 2D1.1, comment. (n.10) (Drug Equivalency
Table) (1998). Mr. Womack’s sentence was based upon the 1998 guidelines,
under which he was found responsible for drugs equivalent to roughly 33,600
kilograms of marihuana, with a base offense level of 38. See 8 R. at 7-8
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(presentence report). Combined with the four-level increase for being an
organizer or leader, this resulted in a final offense level of 42.
If the 1995 guidelines had been applied, Mr. Womack would only have
been responsible for approximately 26,000 kilograms of marihuana drug
equivalency, with a base level of 36 and a final offense level of 40. This
difference in levels, however, was harmless. Mr. Womack had a Category IV
criminal history. Using either a 40 or a 42 final offense level under the 1995
guidelines, the applicable sentencing range was still 360 months to life. See
Sentencing Tr. at 18 (district court specifically noting this at sentencing). As
there was no sentence increase, the Ex Post Facto Clause is not implicated. We
modify the judgment to reflect that Mr. Womack’s final offense level was 40, as
properly calculated under the 1995 guidelines. See 28 U.S.C. § 2106 (power of
court of appeals to modify judgment).
C. Reliability of Evidence of Drugs Attributable to Mr. Womack
A sentencing judge’s determination of the amount of drugs attributable to a
criminal defendant is reviewed for clear error. See United States v. Johnston ,
146 F.3d 785, 795 (10th Cir. 1998). The district court relied primarily upon the
testimony of two codefendants that pleaded guilty, Desiree Heasty and Shirley
Lay, in determining the proper amount of drugs to attribute to Mr. Womack. He
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claims that the district court erred because this testimony was not “sufficiently
reliable.” Aplt. Br. at 12.
“We defer to the district court when reviewing the credibility of the
witness[es] on whose testimony it relies in making its factual findings.” United
States v. Nieto , 60 F.3d 1464, 1469-70 (10th Cir. 1995). The district court
specifically found both Ms. Heasty and Ms. Lay to be credible witnesses, and we
defer to this finding. Sentencing Tr. at 20. There was no clear error.
The judgment is modified to reflect the proper offense level of 40, and as
modified is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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