IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50428
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN DARNELL COBB,
also known as Martin Cobb,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-97-CR-49-1
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January 7, 1999
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Martin Darnell Cobb appeals his sentence after his
conviction by a jury of conspiracy to possess with intent to
distribute crack cocaine and two substantive counts of
distribution of crack cocaine.
Cobb argues that the district court clearly erred in finding
that the two-level enhancement pursuant to U.S.S.G. § 3B1.1(c)
applied. He argues that the evidence failed to show that he had
a supervisory role over any of the other alleged participants.
Cobb’s argument at the sentencing hearing was directed against
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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the four-level increase of § 3B1.1(a), and he basically conceded
that the two-level adjustment under § 3B1.1(c) would be
appropriate. Therefore, we review the district court’s finding
for plain error. See United States v. Rodriguez, 15 F.3d 408,
414-15 (5th Cir. 1994). Johnny Taylor and Jimmy Bragewitz
testified that they and Remy Phillips sold crack for Cobb. This
testimony supports the district court’s finding that Cobb was
deserving of the two-level adjustment under § 3B1.1(c). The
district court did not plainly err in applying this adjustment.
Cobb argues that the district court erred in determining the
applicable drug quantity. He contends that the drug amount was
based on unreliable information. Cobb argues that the district
court erroneously relied upon the probation officer’s attribution
of a “kilo of crack cocaine” based upon Cobb’s admission to
Medford that he received a kilo of “powder” cocaine. The
district court's calculation of the quantity of drugs involved
for sentencing purposes is reviewed for clear error. See United
States v. Mergerson, 4 F.3d 337, 345 (5th Cir. 1993).
The probation officer stated that Cobb should be held
accountable for one kilo of “crack” cocaine. Earlier in the
Presentence Report (PSR), the probation officer stated that Cobb
had told Medford that he received his “Crack” from Mark Evans,
who got his “Crack” from two brothers in Houston. Cobb told
Medford that the cocaine was bought in the powdered form by the
kilo and that he had been to Houston with Evans. Cobb denied at
the sentencing hearing that he had told Medford that he bought a
kilo of crack in Houston.
No. 98-50428
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Even if Cobb did go to Houston with Mark Evans, it is not
clear from the record that Cobb ever admitted that he bought a
kilo of “crack” with Evans in Houston. His statement to Medford,
as related in the PSR, can be interpreted as meaning that Evans
bought the cocaine in powder form in Houston. There is no
evidence in the record that this entire kilogram of powder was
converted to crack for sale by Cobb. If Cobb possessed both
powder cocaine and crack cocaine, the district court was required
to convert both to marijuana under the drug equivalency table to
determine a single offense level. U.S.S.G. § 2D1.1, comment.
(n.10). The district court clearly erred in relying upon the
PSR’s representation that Cobb was responsible for one kilogram
of “crack.” Cobb’s sentence is VACATED, and this case is
REMANDED for resentencing. On remand, the district court shall
make specific findings regarding the type and quantity of cocaine
referred to in PSR ¶¶ 32 and 41(j), if it chooses to use such
quantity in its sentencing determination.
Cobb contends that Jimmy Bragewitz told three different
stories on three different occasions about when he first met Cobb
and the duration of the period of his association with Cobb.
Cobb testified under oath at his sentencing hearing that he met
Bragewitz approximately two months before his arrest in early
October. Cobb denied that Bragewitz went with him to Temple once
a week from May to October 1996. He denied that Bragewitz ever
went with him to Temple to buy “dope.” Cobb argues that this
difference in the period of his association with Bragewitz is
crucial because Bragewitz claimed to have accompanied Cobb to
No. 98-50428
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Temple, Texas, “at least once a week” from May to October 1996 to
pick up crack, and that based on this testimony, the probation
officer found that Cobb was responsible for 148.83 grams of
crack. Cobb notes that the probation officer also credited
Bragewitz’ statement to Medford on May 28, 1997, that Cobb and
Marshall would go to Temple alone, from May to October 1996, and
purchase quarter-ounce cookies of crack at least three times a
week, from which statement the probation officer calculated that
Cobb was responsible for 446.51 grams of crack cocaine.
Cobb argues that the calculation of the above drug
quantities is erroneous because the probation officer used the
entire month of October 1996 when Cobb was arrested on October
7.1 Cobb argues that, second, it was erroneous to base the drug
amount on the period of May to October because Bragewitz
testified that he was unsure of the period in question and that
the district court should have erred on the side of caution in
estimating the drug quantity. Third, Cobb argues that the
district court did not make a factual finding regarding why he
found Bragewitz’ statements to Medford more credible than the
testimony at the sentencing hearing. Additionally, Cobb argues
that Bragewitz’ testimony is unreliable and that Bragewitz is at
best confused and at worst lying. Cobb notes that Bragewitz
1
We note that the PSR explicitly states that the drug
quantity is calculated as a certain number of grams per week for
twenty-two weeks during the period from May to October 1996.
Counting the first week of May 1996 as the first of the twenty-
two weeks, the last week included in the PSR’s calculation would
be the last week of September or the first week of October 1996.
Cobb is therefore incorrect about this point. As we discuss
below, however, Cobb’s sentence must be vacated for other reasons
related to Bragewitz’s testimony.
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admitted that he was a methamphetamine addict, and he argues that
his testimony should be received with caution. Lastly, Cobb
argues that Bragewitz’ testimony is unreliable because of his
cooperation with authorities and lenient treatment in return.
He concludes that Bragewitz’ information cannot be considered
reasonably reliable.
The sentencing court “shall resolve disputed sentencing
factors at a sentencing hearing in accordance with Rule 32(c)(1),
Fed. R. Crim. P.” § 6A1.3(b). Rule 32(c)(1) provides that the
district court “must rule on any unresolved objections to the
presentence report” and for “each matter controverted, the court
must make either a finding on the allegation or a determination
that no finding is necessary.” A district court has wide
discretion in determining which evidence to consider and which
testimony to credit. United States v. Edwards, 65 F.3d 430, 432
(5th Cir. 1995).
The district court’s only finding regarding the drug
quantity was that “the amount of `crack’ cocaine set forth in the
Pre-Sentence Report is a conservative estimate.” Cobb makes
several arguments regarding why Bragewitz’ testimony was
unreliable. We do not consider Bragewitz’ testimony to be
unreliable per se. However, given Bragewitz’ conflicting
statements, his equivocation about the number of months he had
been associated with Cobb, and Cobb’s contradictory testimony,
the district court was required to make findings regarding the
indicia of reliability of Bragewitz’ statements to Medford and to
resolve the disputed sentencing factor presented by the factual
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disputes between Bragewitz’ statement and Cobb’s testimony under
oath. For this reason also, Cobb’s sentence is VACATED and
REMANDED for additional factual findings.
Cobb argues that the district court used an unsubstantiated
amount of crack based on information provided by Taylor. Cobb
notes that Taylor allegedly stated that Cobb purchased two to
three cookies of crack in Houston in the summer of 1996. Cobb
points out that the PSR stated, without substantiation, that the
cookies weighed at least two ounces and used this information to
determine that Cobb possessed 56.70 grams of crack cocaine. Cobb
argues that the record does not contain any proof of how much
these cookies weighed and that the PSR engaged in speculation
that each cookie weighed one ounce. Cobb also adopts the same
arguments he made in relation to Bragewitz regarding the
unreliability of Taylor’s statements due to Taylor’s use of drugs
and his cooperation with the Government.
There is some discrepancy between the statement reported in
the PSR and Taylor’s testimony at trial. At trial, Taylor
referred to a “couple of cookies,” and the PSR reports that
Taylor referred to two to three ounces. Cobb testified at
sentencing that the most he ever bought was “five-gram quarters”
at a time. The district court made no specific finding regarding
the weight of the cookies purchased in Houston. If the “couple
of cookies” weighed only a quarter ounce each, then the amount of
crack referred to in the PSR should have been only one-half
ounce. On remand, the district court should clarify this amount
by making a specific finding.
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Cobb argues that the district court erred in adopting the
PSR’s drugs amounts that relied on statements by Clorinda
Phillips. He notes that according to the PSR, Phillips told
Medford that she had witnessed Cobb receive a “one-ounce cookie”
each Friday from May through August, 1996.2 The probation
officer calculated that Cobb was thus responsible for 20 ounces
(567 grams) of crack. Cobb notes that Phillips testified at the
sentencing hearing that she had never made such a statement.
Cobb contends that the district court did not sufficiently
explain why it believed her former statement rather than her
testimony.
Phillips testified at the sentencing hearing that she did
not know how much crack Cobb sold, and she denied her statement
to Medford. The district court apparently credited her earlier
statement to Medford; however, the district court did not make a
specific finding regarding the indicia of reliability of her
prior statement or a finding resolving the factual dispute
between her prior statement and her hearing testimony. On
remand, the district court should clarify this amount by making a
specific finding.
Cobb argues that the district court erred in relying on
Medford’s ballpark estimate for the amount of crack sold on “the
2
We note, for whatever relevance it may have on remand,
that although the PSR apparently relies on Agent Medford’s report
of Clorinda Phillips’s debriefing for its conclusion that Cobb
received a one-ounce cookie of crack every Friday from May
through August 1996, Medford’s report does not quote Phillips as
saying that such a transaction occurred weekly from May through
August 1996, only that Cobb usually received the cookie on
Fridays and that his source had been bringing crack cocaine to
Gatesville for the past three years.
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Hill” attributable to Cobb. He argues that Medford’s testimony
did not have sufficient reliability to support its probable
accuracy. The district court’s single finding on drug quantity,
that the amount of crack set forth in the PSR was a conservative
estimate, appears to be based in large part, if not entirely, on
Medford’s agreement with the district court’s statement that Cobb
would have been accountable for substantially more than the 2.34
kilograms in the PSR. The district court discounted any problems
or discrepancies with the specific amounts of crack listed in the
PSR in the subsections to PSR ¶ 41. The district court relied on
this general estimate in spite of Medford’s testimony that all he
could really base an amount on was the information he received in
the debriefings as outlined to probation. The district court did
not attempt to determine what amount of crack would equal one-
quarter or one-half pound a week or to determine how many weeks
were involved. The district court assumed that it would be more
than the 2.34 kilograms outlined in the PSR. The district court
clearly erred in relying on Medford’s vague estimates rather than
making findings of fact on the specific amounts listed in the
PSR. For all the reasons discussed above, Cobb’s sentence is
VACATED and this case is REMANDED for resentencing.
Cobb argues that the district court erred in imposing a fine
of $9,000. Cobb concedes that he made no objection to the
imposition of the fine and that plain error applies. See
Rodriguez, 15 F.3d at 414. The district court did specifically
find that Cobb had an inability to pay, giving that reason for
imposing a fine below the guideline range. Thus, there is no
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reason to remand for a specific finding. Despite that finding,
the district court is not precluded from imposing a fine. United
States v. Hodges, 110 F.3d 250, 251-52 (5th Cir. 1997). The
district court did not commit plain error in imposing the fine.
SENTENCE VACATED; REMANDED FOR RESENTENCING IN ACCORDANCE
WITH THIS OPINION.