UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30024
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
IRA BRYANT, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
(98-CR-20096-01)
January 3, 2000
Before JONES, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Ira Byrant III (“Bryant”) pleaded guilty
to distribution of crack cocaine in violation of 21 U.S.C. §
841(a)(1). Bryant appeals his sentence, contending that the
district court incorrectly applied the United States Sentencing
Commission Guidelines (the “Guidelines”) in calculating the
quantity of crack cocaine considered in sentencing. For the
reasons discussed below, we affirm the sentence imposed by the
district court.
I.
*
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this opinion should not be published and is not precedent except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.
On May 4, 1996, Bryant began a four-year term of supervised
release after a conviction for distributing cocaine. While on
supervised release, Bryant distributed .51 grams of cocaine base to
an undercover federal agent. Less than one month later, Bryant was
present when the undercover agent purchased .52 grams of cocaine
from a third party, Jamie Holmes (“Holmes”). At the time of that
purchase, Bryant told the undercover agent that his “rocks were
bigger”, indicating that he had the larger quantities of cocaine
that the agent desired.
At sentencing, the government introduced its Presentence
Investigation Report (“PSI”) recommending that Bryant be sentenced
based on distribution of 1.03 grams of cocaine, the .51 distributed
by Bryant and the .52 distributed by Holmes, under § 1B1.3 of the
Guidelines. Bryant objected, contending that he should not be
sentenced based on Holmes’s transaction. The district court
disagreed, finding that there was sufficient evidence that Bryant
could reasonably foresee the Holmes transaction, and sentenced
Bryant to 37 months of imprisonment followed by a 3 to 5 year term
of supervised release, the maximum penalty under the applicable
Guidelines. Bryant timely filed a notice of appeal.
II.
We review a district court’s calculation of a sentence under
§ 1B1.3 of the Guidelines under the clearly erroneous standard.
See United States v. Lokey, 945 F.2d 825, 839 (5th Cir. 1991). At
sentencing, the government need only prove facts by a preponderance
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of the evidence, not beyond a reasonable doubt. See United States
v. Watts, 519 U.S. 148, 156 (1997). Thus, we must affirm unless
the district court committed clear error in determining that the
government had proved Bryant’s connection to Holmes’s .52 grams of
cocaine by a preponderance of the evidence.
Under section 1B1.3 of the Guidelines, the base offense level
is determined on the basis of “in the case of a jointly undertaken
criminal activity (a criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with others, whether or not
charged as a conspiracy), all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity.” Guidelines § 1B1.3(a)(1)(B). The district
court determined that it was reasonably foreseeable that Holmes
would engage in the sale of cocaine while in his presence, and thus
included the .52 grams in Bryant’s base offense.
Bryant contends that the Holmes transaction was not a “jointly
undertaken criminal activity” because the two were competing drug
dealers and thus Bryant was not working with Holmes at the time of
the transaction. It is true that it is not enough to find the sale
of drugs reasonably foreseeable alone, rather it is necessary to
prove that the defendant agreed to undertake criminal activity with
others. See United States v. Evboumwan, 992 F.2d 70, 74 (5th Cir.
1993). However, this Circuit has held that sales by competing drug
dealers may still be included under section 1B1.3 because “the
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friendly competitors . . . as a whole created a marketing site
greater than the sum of its parts . . . [t]he presence of multiple,
part-time pushers and a larger supply for users produced a
marketing symbiosis that far outweighed its minor competitive
aspects.” United States v. Smith, 13 F.3d 860, 865 (5th Cir. 1994).
The present case closely resembles that in Smith. Bryant and
Holmes were standing together in the yard of a house known for drug
dealing transactions. The undercover agent approached the two
because he had purchased cocaine from Bryant in the past. When the
agent purchased cocaine from Holmes, Bryant indicated that his
“rocks were bigger” in an attempt to garner additional business.
Thus, that Holmes and Bryant were competing drug dealers does not
change the fact that they were acting as marketing symbols for each
other, creating a “marketing site greater than the sum of its
parts.” Smith, 13 F.3d at 864. This is sufficient to determine
that the finding of the district court was not clearly erroneous,
in that the facts presented were more than sufficient to support
the conclusion that Bryant and Holmes were engaged in a jointly
undertaken criminal activity even though it was as competitors.
III.
For the reasons assigned, the sentence imposed by the district
court is AFFIRMED.
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United States v. Bryant
Combined Opinion