UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-50476
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOWARD JAMES BELL,
Defendant-Appellant.
____________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
Civil Docket #W-97-CV-321
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December 20, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
The only issue on appeal is whether the district
court properly rejected Bell’s § 2255 petition raising a claim
of counsel’s ineffectiveness at sentencing. Finding no error,
we affirm.
*
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this opinion should not be published and is not precedent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.
In 1996, Howard James Bell (federal inmate # 57238-
097) pleaded guilty to conspiracy to distribute and possess
with intent to distribute methamphetamine, in violation of 21
U.S.C. § 841(a)(1).
At sentencing, Bell’s attorney did not object to the
four-level enhancement for Bell’s role in the offense. He
objected successfully to other enhancements, however, and as
a result, the court sentenced Bell to 210 months’
imprisonment, followed by five years’ supervised release, and
imposed a fine of $5000. Bell’s direct appeal was dismissed
as untimely.
After a series of procedural maneuvers, Bell was
given leave to pursue a § 2255 motion in district court in
which he alleged his trial counsel was constitutionally
ineffective for failing to object to a four-level sentence
enhancement for Bell’s role as an organizer or leader in the
offense. U.S.S.G. § 3B1.1.
Disagreeing with his position, the Government
submitted the affidavit of Bell’s trial attorney, Brian
Pollard. Pollard recalled that Bell was reluctant to talk
about any drug dealing he may have had or about what he had
told law enforcement personnel during debriefing prior to
counsel’s appointment. Pollard stated that he calculated
Bell’s potential sentence under the guidelines and assumed,
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inter alia, that Bell would be found to be an organizer or
leader. He sent copies of his calculations to Bell and Bell’s
California attorney, William Logan. Pollard asserted that he
had several conversations with Bell prior to the guilty plea.
When he received the PSR, he immediately sent copies to Bell
and Logan and asked Bell to advise counsel if he had any
objections. Pollard’s notes showed that he subsequently
talked with Bell and presumably that they had discussed any
objections. After visiting Bell, counsel raised three
objections to the PSR, not including an objection to the
organizer/leader enhancement. Pollard did not recall Bell
saying that he wanted to object to that enhancement.
The district court held that Bell was not denied
effective assistance of counsel and denied his § 2255 motion.
The court found that the PSR supported the organizer/leader
enhancement, that counsel could not have been ineffective for
failing to present meritless objections, and that Bell could
not have been prejudiced by counsel’s failure to object to the
enhancement because Bell had presented nothing that would
indicate that such objection would have been granted. This
court granted Bell a COA to appeal.
DISCUSSION
Bell argues that he was denied effective assistance
of counsel, who failed to object to the four-level adjustment
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to his base offense level for his role as an organizer or
leader of a criminal activity that involved five or more
participants or was otherwise extensive.
Bell’s PSR recommended a four-level upward
adjustment under U.S.S.G. § 3B1.1(a) for being a leader or
organizer of criminal activity that involved five or more
participants or was otherwise extensive. The probation
officer outlined three factors upon which he based his
conclusion that Bell played a organizational or leadership
role: (1) Bell was the source for all the methamphetamine
distributed by Hooper and the other co-conspirators, showing
Bell’s participation to a greater degree in the commission of
the offense; (2) “Bell controlled the price to be paid by
Hooper/Murphy for the methamphetamine that was purchased
thereby claiming a right to a larger share of the fruits of
the crime”; and (3) Bell packaged the methamphetamine and
shipped it via Federal Express “thereby participating to a
greater degree” in the commission of the offense. Counsel did
not object to this adjustment.
To prevail on a claim of ineffective assistance of
counsel, a defendant must show: (1) that his counsel’s
performance was deficient in that it fell below an objective
standard of reasonableness; and (2) that the deficient
performance prejudiced his defense. Strickland v. Washington,
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466 U.S. 668, 689-94 (1984). A failure to establish either
deficient performance or prejudice defeats the claim. Id. at
697. To show that his attorney’s performance at sentencing
was prejudicial under Strickland, Bell must demonstrate that
there is a reasonable probability that but for counsel’s
ineffective assistance, the sentence would have been
significantly less harsh. Spriggs v. Collins, 993 F.2d 85, 88
(5th Cir. 1993) (emphasis added).
If counsel had successfully defeated any adjustment
for Bell’s role in the offense, Bell’s total offense level
would have been 31 which combined with his category II
criminal history, would have resulted in a guideline range of
121 to 151 months, rather than a range of 188 to 235 months.
See R. 1, 132. If counsel was deficient in not objecting to
the four-level enhancement, this resulted in a specific,
demonstrable enhancement to Bell’s sentence and, thus, was
prejudicial. See United States v. Phillips, 210 F.3d 345, 351
(5th Cir. 2000). Accordingly, this court must determine
whether counsel’s failure to raise a challenge to the
leadership-role enhancement constituted deficient performance.
A defendant’s base offense level may be increased
four levels if he was an organizer or leader of a criminal
activity involving five or more participants. U.S.S.G.
§ 3B1.1(a). A § 3B1.1 adjustment is proper only if the
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defendant was an organizer, leader, manager, or supervisor “of
at least one other person who was criminally culpable in,
though not necessarily convicted for, the endeavor."1 United
States v. Gross, 26 F.3d 552, 555 (5th Cir. 1994); see
§ 3B1.1, comment. (n.2). To distinguish whether the defendant
played an organizational/leadership role or played a
management/supervisory role, the court should consider the
following factors: (1) the exercise of decision-making
authority; (2) the nature of participation in the commission
of the offense; (3) the recruitment of accomplices; (4) the
claimed right to a larger share of the fruits of the crime;
(5) the degree of participation in planning or organizing the
offense; (6) the nature and scope of the illegal activity; and
(7) the degree of control and authority exercised over others.
§ 3B1.1, comment. (n.4).
Bell, who lived in California, admitted that he
supplied Hopper, a Texas truck driver, with approximately
seven to 15 pounds of methamphetamine on and off within a
year’s time. The methamphetamine was destined for Harold Joe
Murphy’s distribution network in Waco, Texas. In the
1
If the defendant did not organize, lead, manage, or
supervise another participant, an upward departure, but not
the base offense level increase, may be warranted if the
defendant nevertheless exercised management responsibility
over the property, assets, or activities of a criminal
organization. § 3B1.1, comment. (n.2); see United States v.
Jobe, 101 F.3d 1046, 1068 (5th Cir. 1996).
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beginning, Bell supplied Hopper with small quantities and when
Hopper figured out that Bell could get more, Bell obtained a
pound of methamphetamine for Hopper. At first, Hopper
traveled to California to pick up the drugs from Bell,
sometimes accompanied by Murphy. Hopper later figured out
that they could use Federal Express to transport the drugs.
Hopper would telephone Bell to set up the drug purchase and
the transfer of money; Hopper would then send a cashier’s
check in payment to Bell or his associate/partner, Hasan.
Bell would buy one pound of methamphetamine for from $4,000 to
$9,000, and would sell it for $9,000 to $11,000 per pound. At
one time, Bell had several sources of his supply, including
Raymond Hajjaj. Bell was described as working for Hajjaj and
as Hajjaj’s right-hand man.
Bell asserts that these facts presented in the PSR
did not support the finding that he was a leader or organizer.
He asserts that there was “no discussion” that the criminal
activity involved five or more participants. Bell also
asserts that there is no evidence that he exercised decision-
making authority, recruited accomplices, claimed a right to a
larger share of the fruits of the crime, had a higher degree
of participation in planning or organizing the offense, or had
any control or authority over others.
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The Government argues that an objection to the
§ 3B1.1(a) enhancement would not have been successful. The
Government argues that Bell (1) controlled the supply of all
of the methamphetamine distributed by Hopper and the co-
conspirators in the Waco area and thus played a central role
and participated to a greater degree in the commission of the
offense; (2) controlled the price of the methamphetamine paid
by Hopper and Murphy, controlled the method of payment by
requiring cashiers’ checks, some made payable to
intermediaries, and fronted drugs to Murphy and, thus,
manifesting control and decision-making authority in the
offense; (3) attempted to collect debts and thus to maintain
discipline as evidenced by Murphy’s assertion he began
receiving threats after Hopper demanded payment of his own fee
and said that Bell wanted his payment for the fronted drugs;
(4) used deputies and unwitting participants to cash checks
for him; (5) profited from his sale of the drugs and, thus, it
could be inferred that he received the largest share of the
fruits of the conspiracy; and (6) controlled the packaging at
his residence and shipment of the drugs via Federal Express
and, thus, played a leadership role. The Government asserts
that this evidence showed Bell’s exercise of control and
authority which supported the leadership adjustment.
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It is clear from the PSR that the conspiracy
involved far more than five participants. The case involved
the four indicted codefendants three other named participants,
and others.
Moreover, from the foregoing facts, the district
court found Bell’s contention that he was not an organizer or
leader under § 3B1.1 unfounded, while the PSR’s contrary
conclusion was “fully supported by the record.” We are
mindful that a fact finding that a defendant is an organizer-
leader would be reviewed on direct appeal for clear error.
United States v. Lage, 183 F.3d 374, 383-84 (5th Cir. 1999),
cert. denied, 120 S.Ct. 1179 (2000). Thus, Bell bears a heavy
burden in demonstrating that counsel would necessarily have
prevailed in objecting to this enhancement in the district
court or on appeal.
After careful reviewing the PSR and relevant
portions of the record, we are unpersuaded by Bell’s
arguments. Bell’s pivotal role as a supplier to the
conspiracy also placed him in the position of packaging and
arranging delivery of the drugs, controlling the price, taking
a large share of the profit, enforcing payment from Murphy,
fronting drug deliveries on credit, and using dupes to receive
some of the disguised payments. Individually, none of these
actions might qualify for a sentencing enhancement. But put
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together, they would surely have shielded the district court’s
finding that Bell was an organizer/leader from reversal for
clear error. Bell’s trial counsel was thus not
constitutionally deficient, and the trial court correctly
denied § 2255 relief.
AFFIRMED.
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