United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3952
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Quintin L. Brown, *
*
Defendant - Appellant. *
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Submitted: September 10, 2002
Filed: November 22, 2002
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Before HANSEN, Chief Judge, RICHARD S. ARNOLD and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
Quintin L. Brown appeals his conviction and sentence for conspiring to
distribute five hundred or more grams of cocaine, aiding and abetting the possession
with intent to distribute five hundred or more grams of cocaine, and traveling in
interstate commerce to promote the distribution of cocaine, all in violation of 21
U.S.C. §§ 841 and 846 and 18 U.S.C. §§ 2 and 1952. Brown argues the
government’s evidence was insufficient. He also raises three sentencing issues,
challenging the district court’s1 drug quantity finding and its assessment of two-level
enhancements for obstruction of justice, based on a finding that Brown committed
perjury at trial, and for his leadership role in the offense. We affirm.2
I. Sufficiency of the Evidence.
Brown first argues that the trial evidence was insufficient to convict him of the
three charges. We review the evidence in the light most favorable to the jury’s
verdict and reverse only if no reasonable jury could have found Brown guilty beyond
a reasonable doubt. United States v. Pena, 67 F.3d 153, 155 (8th Cir. 1995).
Brown and Roger Clark exited a bus during a layover at the Greyhound Bus
Station in Kansas City. Brown carried a black Concourse bag and Clark carried a
black Rome tote bag. They set the bags together on the floor while Clark plugged cell
phones into a nearby outlet and Brown walked to the cafeteria. Kansas City Detective
Mark Sumpter approached Clark and began to introduce himself; Detective William
Brown stood ten feet away. Brown returned from the cafeteria and after Detective
Sumpter had identified himself as a police officer, Brown and Clark agreed to answer
questions. Both Brown and Clark produced valid California driver’s licenses. Clark
1
The HONORABLE GARY A. FENNER, United States District Judge for the
Western District of Missouri.
2
Brown also argues that his conviction under 21 U.S.C. § 841 violates
Apprendi v. New Jersey, 530 U.S. 466 (2000). This contention is without merit. The
indictment charged violations of § 841 involving five hundred or more grams of
cocaine. The jury convicted Brown of those charges. His 293-month sentence was
less than the forty-year maximum sentence prescribed for a violation involving that
quantity. Thus, neither his conviction nor his sentence violated Apprendi. See 21
U.S.C. § § 841(b)(1)(B)(ii); United States v. Hernandez, 299 F.3d 984, 992-93 (8th
Cir. 2002); United States v. Sprofera, 299 F.3d 725, 728-29 (8th Cir. 2002) (rejecting
facial challenge to § 841).
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produced two bus tickets from Oakland, California, to Charleston, South Carolina.
The tickets had been paid for in cash and were issued in the names of “Mr. Roger O.”
and “Roger” some forty minutes prior to the bus’s departure from Oakland.
Detective Sumpter then asked about the two bags on the floor. Brown and
Clark each said he had carried the Concourse bag off the bus. Neither claimed
ownership of the Rome bag. Considering their answers evasive and inconsistent, the
detectives took Brown, Clark, and the two bags to the customer service office, where
a drug dog alerted to the Rome bag. A warrant search of the bag uncovered almost
three kilograms of cocaine, packaged for distribution, and 105 grams of marijuana.
In addition to the bus tickets, Clark was carrying claim tickets for three checked bags.
A black Rome suitcase with a claim stub matching one of the three claim tickets
contained clothing that would fit Brown, but not Clark. The other two claim tickets
were for bags containing clothing that fit only Clark. Brown was carrying over
$2,000 in cash and receipts evidencing a substantial jewelry purchase and rental car
payments in South Carolina earlier that year.
At trial, the detectives described the foregoing events and testified that they
recognized the itinerary and behavior as typical of two-man teams of drug traffickers.
Detective Sumpter further testified that Brown gave inconsistent answers in a lengthy
interview following his arrest. At one point, when Sumpter asked what Brown and
Clark intended to do with the cocaine once they reached South Carolina, Brown
replied, “I am not going to tell you where we were supposed to take the dope.” He
then leaned back in his chair, smiled, and said, “you almost had me.”
Following the detectives, the government called Flinten Otis, who had shared
a cell with Brown for over two weeks while Brown was awaiting trial. Otis testified
that Brown described how he smuggled cocaine from California to South Carolina by
airplane, bus, and automobile and attempted to recruit Otis as a driver on future trips
for $5,000 per trip. Brown also expressed concern to Otis that the police would find
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Brown’s fingerprints on the cocaine. But Brown told Otis he was not concerned that
Clark would testify for the government because Brown had paid $10,000 for Clark’s
attorney and because, if Clark did testify, “he could never go back to California
again.” Otis also testified that Brown became upset when Clark pleaded guilty to a
drug trafficking conspiracy charge, rather than a possession charge, because that left
Brown “still tied to the case.”
Brown argues that Clark was in possession of the Rome bag when they exited
the bus, and the government failed to prove that Brown either knew of or
constructively possessed the drugs in that bag. We disagree. The events at the bus
station, the evidence found on their persons and in their luggage, and the testimony
of Flinten Otis combined to present the jury with ample evidence that Brown and
Clark were traveling together, that Brown knew drugs were in the Rome bag, and that
he and Clark were engaged in a conspiracy to distribute them. See United States v.
Ivey, 915 F.2d 380, 384 (8th Cir. 1990) (elements of conspiracy to distribute drugs
and aiding and abetting drug distribution); United States v. Fetlow, 21 F.3d 243, 247
(8th Cir. 1994) (elements of Travel Act violation).
II. Sentencing Issues.
A. Drug Quantity. The police seized approximately three kilograms of cocaine
from the Rome bag when Brown was arrested at the Kansas City bus station. In
Brown’s Concourse bag, the police found four car rental receipts from prior trips to
South Carolina. At trial, Brown admitted he made four trips from California to South
Carolina in the five months before his arrest. Brown told Detective Sumpter he was
unemployed, yet he incurred significant travel expenses, drove rental cars substantial
distances, and purchased expensive jewelry while in South Carolina. Flinten Otis
testified that Brown described numerous drug trafficking trips to South Carolina and
offered Otis $5,000 per trip to serve as Brown’s driver on future trips. In calculating
Brown’s base offense level for sentencing purposes, the district court found that the
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four prior trips were relevant drug trafficking conduct and estimated that Brown had
distributed three kilograms of cocaine on each trip. Brown contends the resulting
drug quantity finding of almost fifteen kilograms of cocaine was clearly erroneous.
The Guidelines expressly provide that drug quantities not specified in the count
of conviction which were part of the same course of conduct may be considered in
determining a defendant’s offense level. For this purpose, if “the amount seized does
not reflect the scale of the offense, the court shall approximate the quantity of the
controlled substance.” U.S.S.G. § 2D1.1 comment. (n. 12). “The court may make a
specific numeric determination of quantity based on imprecise evidence, so long as
the record reflects a basis for the court’s decision.” United States v. Roach, 164 F.3d
403, 413-14 (8th Cir. 1998) (citations omitted).
In this case, there was ample evidence from which the district court could find
that Brown made four prior trips to South Carolina in the months immediately
preceding his arrest for the purpose of distributing cocaine. From the travel expenses
he incurred, the expensive jewelry he purchased, his offer to pay Otis $5,000 for
future trips, and an unexplained $5,000 bank deposit that coincided with one of these
trips, it was reasonable to infer that the unemployed Brown made these trips to
engage in financially significant drug trafficking.
Brown correctly emphasizes that the record contains no evidence of the specific
quantities involved in these prior trips. But we are unwilling to conclude that no
quantity may therefore be reasonably estimated. The supply end of this drug
trafficking conspiracy was located in California, the demand end in South Carolina,
and the two conspirators were caught mid-route in Kansas City. Thus, more specific
drug quantity evidence was not readily available to the government. In making its
drug quantity calculation, the district court began by limiting the relevant conduct to
four contemporaneous trips to South Carolina that had been established by
documentary evidence and Brown’s trial testimony. See U.S.S.G. § 1B1.3 comment.
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(n.9(B)) (defining “same course of conduct” for relevant conduct purposes). The
court then determined drug quantity by estimating that each prior trip involved
approximately the same quantity of cocaine as the government seized at the Kansas
City bus station. As the Guidelines required some approximation, and as no quantity
estimate was more reasonable on this record, we conclude that the court’s drug
quantity finding was not clearly erroneous. Accord United States v. Oleson, 44 F.3d
381, 385-86 (6th Cir. 1995).
B. Obstruction-of-Justice Enhancement. At trial, Brown testified that he had
no knowledge of the cocaine found in the Rome bag. He also denied the material
aspects of Flinten Otis’s testimony -- that Brown had described his drug trafficking
activities in South Carolina, offered Otis a job distributing drugs in the future, hoped
his fingerprints would not be found on the drugs in the Rome bag, and paid Clark
$5,000 to plead guilty to a possession offense. Brown’s presentence investigation
report recommended that he be assessed a two-level increase for obstruction of justice
based upon this false testimony. See U.S.S.G. § 3C1.1. Brown objected to the
increase, arguing that “he exercised his constitutional right to a jury trial and testified
truthfully at that trial, even though the jury chose to disbelieve him.” At sentencing,
neither party introduced evidence on this issue. The district court overruled the
objection, explaining, “I believe the defendant did testify untruthfully and your
objection to the enhancement for obstruction of justice is denied.”
On appeal, Brown argues that he should not be penalized for exercising his
constitutional right to testify in his own defense. The Supreme Court squarely
rejected this objection to a § 3C1.1 obstruction-of-justice enhancement in United
States v. Dunnigan, 507 U.S. 87, 96-98 (1993). Brown goes on to argue, more
specifically, that the district court made only a general finding of perjury, thereby
violating the Court’s ruling in Dunnigan that, before imposing an enhancement based
upon the defendant’s perjury at trial, the sentencing court “must review the evidence
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and make independent findings . . . of an obstruction or impediment of justice that
encompasses all of the factual predicates for a finding of perjury.” 507 U.S. at 95.
In Dunnigan, the Court explained that independent perjury findings are
important because some defendants “may give inaccurate testimony due to confusion,
mistake or faulty memory,” while others may testify on “matters such as lack of
capacity, insanity, duress or self-defense” which may be truthful but “insufficient to
excuse criminal liability.” 507 U.S. at 95. Here, on the other hand, Brown testified
on the central issues at trial, and the presentence report identified specific ways in
which that testimony was contrary to the jury’s verdict. We have repeatedly affirmed
obstruction-of-justice enhancements, despite the absence of specific findings on the
elements of perjury, when the evidence of the defendant’s willfulness was
“unequivocal” and “the record left no doubt that the defendant’s false testimony at
trial was not the result of confusion, mistake, or faulty memory.” United States v.
Esparza, 291 F.3d 1052, 1055 (8th Cir. 2002); see United States v. Simms, 285 F.3d
1098, 1101 (8th Cir. 2002); United States v. Taylor, 207 F.3d 452, 455 (8th Cir.
2000). Having heard the trial testimony, the district court overruled Brown’s general
objection to the relevant paragraphs of the presentence report. Its obstruction finding
“is supported adequately by the record and thus was not clear error.” United States
v. Robinson, 217 F.3d 560, 565-66 (8th Cir.), cert. denied, 531 U.S. 999 (2000).
C. Aggravating Role Enhancement. Brown argues the district court committed
clear error in imposing a two-level enhancement because he was “an organizer,
leader, manager, or supervisor” of a criminal activity that involved fewer than five
participants. U.S.S.G. § 3B1.1(c). We will uphold this enhancement if the defendant
controlled at least one other participant in the drug trafficking offense. See Pena, 67
F.3d at 156-57; U.S.S.G. § 3B1.1 comment. (n.2).
At trial, detectives Sumpter and Brown testified that Brown seemed to be the
leader when he and Clark were questioned and then detained at the Kansas City bus
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station. This testimony was corroborated by Brown’s cellmate, Flinten Otis, who
testified that Brown said he organized numerous trips to carry drugs from California
to South Carolina and paid operatives such as Clark to serve in supporting roles. On
this record, the district court’s finding that Brown was an organizer or leader of the
criminal activity was not clearly erroneous.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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