IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4218
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
TERRENCE GADISON and
EARNEST EUGENE FERRELL,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Texas
(November 15, 1993)
Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER,*
District Judge.
DUPLANTIER, District Judge:
Defendants Terrence Gadison and Earnest Eugene Ferrell were
convicted of conspiracy to distribute more than 50 grams of cocaine
base in violation of 21 U.S.C. §§ 841 (a)(1) & 846. They both
appeal their convictions and sentences. We affirm Gadison's
conviction but vacate his sentence and remand for resentencing. We
affirm Ferrell's conviction and sentence.
I. Sufficiency of the Evidence.
Both defendants contend that the district court erred in
denying their motions for judgment of acquittal based upon the
insufficiency of the evidence. The convictions of both Gadison and
____________________
* District Judge of the Eastern District of Louisiana, sitting by
designation.
Ferrell are based, in large measure, upon the testimony of their
alleged co-conspirators, Tarolynn Scott and William Simpson.
Defendants contend that the testimony of these individuals was
incredible as a matter of law and that therefore, the evidence was
insufficient to support their convictions. Gadison also argues
that the evidence did not establish the amount of cocaine base for
which he was convicted. Ferrell contends that even considering the
co-conspirators' testimony, the evidence at trial proved only that
he associated with members of a drug conspiracy and was often
present at a notorious drug haunt.
In assessing the sufficiency of evidence, "we determine
whether, viewing the evidence and the inferences that may be drawn
from it in the light most favorable to the verdict, a rational jury
could have found the essential elements of the offenses beyond a
reasonable doubt." United States v. Pruneda-Gonzalez, 953 F.2d
190, 193 (5th Cir.), cert. denied, 112 S.Ct. 2952 (1992). In order
to support a conviction, the evidence need not eliminate all
possible hypotheses of innocence or be wholly inconsistent with
every conclusion except guilt, provided a reasonable trier of fact
could find that the evidence establishes guilt beyond a reasonable
doubt. Id. In assessing the sufficiency of evidence, a reviewing
court is not to make determinations concerning the credibility of
witnesses. United States v. Casel, 995 F.2d 1299, 1303 (5th Cir.
1993).
2
A detailed discussion of the evidence is unnecessary. Suffice
it to say that the testimony of both of the alleged
co-conspirators, Scott and Simpson, (some of which is discussed in
detail hereafter), if believed by the jury, was amply sufficient to
establish that each defendant voluntarily agreed together and with
others to possess 50 grams or more of cocaine base with intent to
distribute the drug. See United States v. Rodriguez, 993 F.2d
1170, 1175 (5th Cir. 1993). Moreover, the circumstantial evidence
to corroborate that testimony was strong,1 and the testimony of
both defendants to the contrary was incredible in many respects.
A. Incredibility of the Government's Witnesses
Both Gadison and Ferrell contend that the testimony of Scott
and Simpson, their alleged co-conspirators who testified pursuant
to plea agreements, was incredible as a matter of law because it
was uncorroborated, often contradictory, and given in connection
with plea agreements with the government. Additionally, both
defendants contend that the jury should have disregarded Scott's
testimony on account of her various disabilities.2
1
"'[C]ircumstances altogether inconclusive, if separately
considered, may, by their number and joint operation . . . be
sufficient to constitute conclusive proof.'" United States v.
Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989)(quoting Coggeshall
v. United States (The Reindeer), 69 U.S. (2 Wall.) 383, 17 L.Ed.
911, 914-15 (1865)).
2
Scott is a recovering drug addict and suffers from an
emotional disorder which requires her to continually take
medication to prevent mood swings.
3
It is well established that a conspiracy conviction may be
based upon the uncorroborated testimony of a co-conspirator, even
when that testimony is from one who has made a plea bargain with
the government, provided that the testimony is not incredible or
otherwise insubstantial on its face. United States v. Osum, 943
F.2d 1394, 1405 (5th Cir. 1991). Because the jury is the ultimate
arbiter of witness credibility, "[t]he test for 'incredibility' of
a witness is an extremely stringent one." Casel, 995 F.2d at 1304.
To be considered incredible as a matter of law, a witness'
testimony must "assert[] facts that the witness physically could
not have observed or events that could not have occurred under the
laws of nature." Osum, 943 F.2d at 1405.
There is nothing in the testimony of Simpson and Scott which
indicates that either of them testified as to facts that they could
not have possibly observed or which challenge the laws of nature.
Therefore their testimony can not be considered incredible as a
matter of law. See Casel, 995 F.2d at 1304-05.
Defendants' arguments regarding Scott's disabilities speak
only to her credibility, not the admissibility of her testimony.
See, e.g., United States v. Garner, 581 F.2d 481, 485 (5th Cir.
1978)(explaining fact that witness is drug user bears upon witness
credibility). We reiterate that we are "concerned only with the
sufficiency--not the weight--of evidence." United States v.
Garcia, 995 F.2d 556, 561 (5th Cir. 1993).
Because the jury was the final arbiter of the credibility of
the government's two primary witnesses, the jury's decision to
4
credit the testimony of Scott and Simpson cannot be disturbed on
appeal. See id.
B. Fifty Grams of Cocaine Base--Gadison
Gadison contends that the government's evidence is
insufficient to support a finding that the conspiracy for which he
was convicted involved 50 grams or more of cocaine base, as charged
in the indictment. Gadison emphasizes his view that the only
evidence with respect to the amount of cocaine base involved in the
conspiracy was with respect to the amount seized when Scott and
Simpson were arrested, 36.30 grams.
Contrary to Gadison's assertions, the record contains ample
evidence to support the jury's conclusion that more than 50 grams
of cocaine base were involved in this conspiracy. Tarolynn Scott
testified that the 36.30 grams seized from the car when she was
arrested had an approximate value of $1,400.00. She also testified
that on another of the seven to eight trips she made to Port Arthur
to sell crack cocaine for Gadison, she had observed Gadison count
out $3,200.00 in drug proceeds. The reasonable inference to be
drawn from this testimony is that at least one of Scott's trips to
Port Arthur involved over 80 grams of cocaine base. Viewed
favorably to the verdict, Scott's testimony alone established that
the conspiracy involved 50 grams of cocaine base. Simpson also
testified that the amount of crack cocaine sold on each of the five
trips he made to Port Arthur was approximately an ounce and one-
half or approximately 42 grams per trip. After a careful review of
5
the record, we conclude that, based upon the testimony of Scott and
Simpson, a rational jury could find beyond a reasonable doubt that
the conspiracy of which Gadison was a member involved at the very
least 50 grams of cocaine base.
II. Denial of Appointment of Investigator--Ferrell.
Prior to trial, Ferrell's counsel filed a motion pursuant to
18 U.S.C. § 3006A(e)(1) for the appointment of a private
investigator at the government's expense. In this motion, counsel
asserted that Ferrell was unable financially to employ
investigative services and that an investigation was required
because "the charges include allegations of offenses which
supposedly took place in December, 1990 and January, 1991, and some
of which may have occurred in Harris County, Texas." The district
court denied Ferrell's motion. Ferrell contends that the district
court erred in denying his request for the appointment of an
investigator and that he was prejudiced because witnesses who were
to testify on his behalf could not make the trip from Houston to
Beaumont.
We review the district court's refusal to appoint an
investigator "'in light of only the information available to the
trial court at the time it acted on the motion.'" United States v.
Davis, 582 F.2d 947, 951 (5th Cir. 1978)(quoting United States v.
Theriault, 440 F.2d 713, 715 (5th Cir. 1971)), cert. denied, 441
U.S. 962, 99 S.Ct. 2408 (1979). To justify the authorization of
investigative services under § 3006A(e)(1), a defendant must
6
demonstrate with specificity, the reasons why such services are
required. Id.
In Davis, we held that a request for investigative services
did not pass muster under § 3006A(e) where the defendant failed to
provide an explanation of the relevance of witnesses he wished to
contact, he failed to identify any leads he wished to follow, and
he did not demonstrate that he had exhausted other investigative
efforts. 582 F.2d at 951-52.
The motion filed by Ferrell's counsel did not show with any
specificity that investigative services at the government's expense
were merited. No indication was made that any prospective
witnesses or other evidence existed in Harris County likely to be
relevant to Ferrell's defense. Moreover, no showing was made that
defense counsel had ferreted out information through his own
efforts which was likely to lead to the discovery of relevant
evidence. Without such specificity, the district court could not
adequately appraise Ferrell's need for investigative services. The
trial court did not abuse its discretion in denying Ferrell's
motion.
III. Prior Conviction--Ferrell.
In September of 1990, Ferrell was convicted in Texas state
court of unlawful possession of cocaine. In the present case,
Ferrell filed a motion in limine at trial seeking to prevent any
reference to this prior conviction at trial. Outside of the
presence of the jury, the government offered Ferrell's prior
7
conviction under Fed. R. Evid. 404(b) to establish his knowledge,
motive or intent in the charged offense. The district court ruled
that Ferrell's prior conviction was relevant to the issue of intent
under Fed. R. Evid. 404(b), and overruled defense counsel's
objection that its probative value was outweighed by the danger of
unfair prejudice under Fed. R. Evid. 403. The court permitted the
government to introduce the conviction for the limited purpose of
showing Ferrell's state of mind or intent. Ferrell argues that the
district court erred in admitting his prior conviction for
possession of cocaine because it was not relevant to the offense
charged and its prejudicial effect outweighed its probative value.
The district court admitted Ferrell's prior conviction under
Rule 404(b), which provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of . . .
intent.
Fed. R. Evid. 404(b). In considering whether to admit extrinsic
offense evidence to show intent, a court must engage in a two-step
inquiry:
First, it must be determined that the extrinsic offense
evidence is relevant to an issue other than the
defendant's character. Second, the evidence must possess
probative value that is not substantially outweighed by
its undue prejudice and must meet the other requirements
of [Fed. R. Evid.] 403.
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)(en
banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244 (1979). The
district court's ruling under Rules 403 and 404(b) is reviewed for
abuse of discretion. See United States v. Hutchins, 818 F.2d 322,
8
328-29 (5th Cir. 1987), cert. denied, 484 U.S. 1041, 108 S.Ct. 772
(1988).
We conclude that the district court did not abuse its
discretion in finding Ferrell's prior conviction for possession of
cocaine relevant to his intent in the charged offense and more
probative than prejudicial. Ferrell put his intent at issue when
he entered his plea of not guilty to the conspiracy charge in the
indictment. See United States v. Prati, 861 F.2d 82, 86 (5th Cir.
1988)("in a conspiracy case the mere entry of a not guilty plea
raises the issue of intent sufficiently to justify the
admissibility of extrinsic offense evidence"). A prior conviction
for possession of cocaine is probative of a defendant's intent when
the charge is conspiracy to distribute. United States v. Vaquero,
997 F.2d 78, 87 (5th Cir. 1993).
Alternatively, we conclude that any error from the admission
of evidence of Ferrell's prior offense was harmless. "In a
harmless error examination, '[w]e must view the error, not in
isolation, but in relation to the entire proceedings.'" United
States v. Williams, 957 F.2d 1238, 1244 (5th Cir. 1992)(quoting
United States v. Brown, 692 F.2d 345, 350 (5th Cir. 1982)). We
must decide whether the inadmissible evidence actually contributed
to the jury's verdict; we will reverse a conviction only if the
evidence had a "substantial impact" on the verdict. United States
v. El-Zoubi, 993 F.2d 442, 446 (5th Cir. 1993).
We conclude that the admission of Ferrell's prior conviction
had no substantial influence on the jury's decision to convict. In
9
addition to the detailed testimony of the two co-conspirators,
there was a significant amount of strong circumstantial evidence
establishing Ferrell's membership in the conspiracy and negating
his defense. Thus, the admission of Ferrell's prior conviction
added little to the government's case. No detailed explanation of
the facts underlying the prior conviction was made; the only
mention made of the conviction after its introduction by the
government was during defense counsel's direct examination of
Ferrell. Finally, the district court minimized any potential undue
prejudice by instructing the jury that they were not to consider
the conviction in deciding whether Ferrell committed the charged
offense, but only for the purposes of establishing intent and
assessing credibility. See, e.g., United States v. Gordon, 780
F.2d 1165, 1174 (5th Cir. 1986)(holding improper admission of
extrinsic act evidence may be cured by limiting instruction). In
light of the record as a whole, we conclude that the jury's verdict
was not substantially influenced by the admission of Ferrell's
prior conviction.
IV. Sentencing.
We next consider the various challenges made by the defendants
to their respective sentences. Gadison argues that the district
court erroneously considered a prior misdemeanor conviction for
theft by check in determining his criminal history score. He also
contests the district court's determination that he displayed a
leadership role in the conspiracy. Ferrell argues that the
10
district court erred in determining that he was not entitled to a
reduction in his sentence as a minimal or minor participant in the
offense.
The factual findings of the district court regarding
sentencing matters are entitled to substantial deference, and we
will disturb those findings only if they are clearly erroneous.
United States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir. 1992). A
factual finding is clearly erroneous only where it is implausible
in light of the record read as a whole. Id. We review the
district court's interpretation of the Sentencing Guidelines de
novo. United States v. Madison, 990 F.2d 178, 182 (5th Cir. 1993).
A. Criminal History--Gadison
Gadison pleaded guilty in 1990 to the Texas state offense of
theft by check and was sentenced by the Texas state court to pay a
$200.00 fine. Based on this prior conviction, the district court
added one point to Gadison's criminal history score pursuant to
section 4A1.1(c) of the Sentencing Guidelines. This boosted
Gadison's criminal history category from category I to category II
under section 4A1.1 of the Guidelines. Gadison contends that
pursuant to section 4A1.2(c), his prior conviction for theft by
check should not have been counted in computing his criminal
history score, because it is similar to an exempted offense. We
review the district court's application of the Sentencing
Guidelines de novo. United States v. Moore, 997 F.2d 30, 34 (5th
Cir. 1993).
11
Misdemeanor offenses and petty offenses are generally
considered in calculating a defendant's criminal history score.
U.S.S.G. § 4A1.2(c). However, section 4A1.2(c)(1) provides that
certain enumerated offenses and "offenses similar to them" are to
be disregarded unless "(A) the sentence was a term of probation of
at least one year or a term of imprisonment of at least thirty
days, or (B) the prior offense was similar to an instant offense."
U.S.S.G. § 4A1.2(c)(1). One of the enumerated offenses is
"[i]nsufficient funds check". Id. Because Gadison received only
a $200.00 fine as a result of his prior conviction for theft by
check, and because theft by check is not similar to the instant
drug offense, his prior conviction should not have been included in
his criminal history if that conviction is similar to the offense
of "insufficient funds check". Id.
In United States v. Hardeman, 933 F.2d 278 (5th Cir. 1991), we
established a "common sense" approach to determine when a prior
offense is "similar" to one of the enumerated exempted offenses in
§ 4A1.2(c)(1). The Hardeman approach requires the district court
to assess all factors of similarity, including
a comparison of punishments imposed for the listed and
unlisted offenses, the perceived seriousness of the
offense as indicated by the level of punishment, the
elements of the offense, the level of culpability
involved, and the degree to which the commission of the
offense indicates a likelihood of recurring criminal
conduct.
Hardeman, 933 F.2d at 281. A court employing the Hardeman factors
should do so cognizant of the fact that the criminal history
factors are designed to take into account the relative severity of
12
a prior offense as well as the degree to which it indicates the
likelihood of future criminal behavior. Id. at 281-82. We are
mindful that the Hardeman "factors should assist the district court
in determining whether it makes good sense to include the offense
in question in the defendant's criminal history score." Id. at 281
(emphasis in original). Applying the Hardeman factors, we
conclude that the facts involved in Gadison's prior conviction of
the Texas state offense of theft by check constitute a "similar
offense[] to" the offense of "insufficient funds check", U.S.S.G.
§ 4A1.2(c)(1), and should not have been considered in calculating
Gadison's criminal history score.
The redactors of the Guidelines Manual could not have listed
by title the crimes established by statute in the fifty states and
the United States Congress. Instead, they used generic terms such
as "insufficient funds check", without attempting to define the
"generic" crimes. Texas' name for the "insufficient funds check"
crime is apparently "issuance of bad check". Tex. Penal Code Ann.
§ 32.41 (Vernon 1989 & Supp. 1993).
Under a comparative punishment analysis, Gadison's prior
conviction for theft by check is identical to the Texas offense of
issuance of a bad check. We base this conclusion upon the facts
underlying Gadison's state offense, including lack of evidence
submitted by the government (see note 3 infra), the class of the
theft by check offense for which he was convicted, and the sentence
he received. Our holding is fact specific; how a Guidelines
sentence might be affected by a theft by check offense under other
13
facts, including the class of conviction and sentence, is not
before us. Texas law categorizes the offense of issuance of a bad
check as a Class C misdemeanor. Tex. Penal Code Ann. § 32.41(f).
In 1990, when Gadison was convicted in the Texas state court, the
penalty for a Class C misdemeanor was a fine not to exceed $200.00.
Tex. Penal Code Ann. § 12.23 (Vernon 1974). On the other hand,
classification of theft by check under Texas law ranges from a
Class 1 felony to a Class C misdemeanor depending on the value of
the property involved. Tex. Penal Code Ann. § 31.03(e) (Vernon
1989 & Supp. 1993). Based on the $200.00 fine imposed by the Texas
state court, and on the only evidence at his sentencing hearing, we
conclude that Gadison pleaded guilty to a Class C misdemeanor.3
"The level of punishment imposed for a particular offense serves as
a reasonable proxy for the perceived severity of the crime."
Hardeman, 933 F.2d at 282. The fact that Gadison received merely
a fine of $200.00 indicates that the State of Texas views the
offense to which Gadison pleaded guilty as similar to issuance of
a bad check.
Comparing the elements of insufficient funds check and the
Texas state offense of theft by check leads us also to the
3
Gadison's presentence report does not provide any of the
facts underlying his prior conviction for theft by check.
However, Gadison asserted in his written objections and again at
sentencing that he had pleaded guilty to a Class C misdemeanor
for theft by check. A document attached to Gadison's written
objections indicates that Gadison did in fact plead guilty to a
Class C misdemeanor. The government, which has the burden of
proving the facts supporting an enhancement of a defendant's
sentence, United States v. Sanders, 942 F.2d 894, 897 (5th Cir.
1991), offered no evidence to the contrary.
14
conclusion that the two offenses are sufficiently similar to
warrant exclusion of Gadison's theft by check conviction from
Gadison's criminal history score. Under Texas law, a person
commits the offense of "issuance of bad check"
if he issues or passes a check or similar sight order for
the payment of money knowing that the issuer does not
have sufficient funds in or on deposit with the bank or
other drawee for the payment in full of the check or
order as well as all other checks or orders outstanding
at the time of issuance.
Tex. Penal Code Ann. § 32.41(a). The Texas Penal Code provides
that a person commits theft "if he unlawfully appropriates property
with intent to deprive the owner of property." Tex. Penal Code
Ann. § 31.03(a). The Texas theft statute also states that
[i]f the actor obtained property or secured performance
of service by issuing or passing a check or similar sight
order for the payment of money, when the issuer did not
have sufficient funds in or on deposit with the bank or
other drawee for the payment in full of the check or
order as well as all other checks or orders then
outstanding, his intent to deprive the owner of property
under Section 31.03 of this code (Theft) . . . is
presumed.
Tex. Penal Code Ann. § 31.06(a)(Vernon 1989 & Supp. 1993)(emphasis
added).
The principal distinction between the Texas state offense of
theft by check and the Texas state offense of issuance of a bad
check is that theft by check requires the additional element of a
specific bad result--that defendant acquire property of a
particular value from the victim. Cheney v. State, 755 S.W.2d 123,
128 (Tex. Crim. App. 1988)(en banc)(quoting Christiansen v. State,
15
575 S.W.2d 42, 44 (Tex. Crim. App. 1979)). We conclude that such
a distinction does not render the two offenses sufficiently
dissimilar to warrant inclusion of the Class C misdemeanor theft by
check offense in Gadison's criminal history score under section
4A1.2(c)(1).
Hardeman directs that we consider "the level of culpability
involved." 933 F.2d at 281. We regard the Guideline "offense" of
"insufficient funds check" and the Texas misdemeanor "theft by
check" as involving comparable degrees of culpability. Finally, we
conclude that Gadison's conviction for theft by check does not
"indicate[] a likelihood of recurring criminal conduct," Hardeman,
933 F.2d at 281, especially since to qualify as a Class C
misdemeanor, the theft involved under $20.00. See Tex. Penal Code
Ann. § 31.03(e)(1). "[T]he seriousness of the offense is one
indication of whether the offense has any predictive capacity for
future criminality." Hardeman, 933 F.2d at 283.
In sum, we conclude that the offense of theft by check to
which Gadison pleaded guilty is "similar" to the offense which the
Guidelines refer to as "insufficient funds check" for purposes of
section 4A1.2(c)(1). Therefore, the district court erred by
including Gadison's prior theft by check conviction in his criminal
history score under section 4A1.2(c), and we must remand for
resentencing.
16
B. Leadership Role--Gadison
Gadison's presentence report ("PSR") concluded that he was a
leader or organizer of a conspiracy involving five or more
participants and therefore recommended the enhancement of Gadison's
base offense level by four levels pursuant to § 3B1.1(a) of the
Sentencing Guidelines. Prior to the sentencing hearing, Gadison's
counsel filed a motion for an evidentiary hearing on his objections
to the PSR, including the recommended four level enhancement.
Gadison requested the hearing primarily for the purpose of cross-
examining an individual who did not testify at trial, but who
provided information included in the PSR concerning Gadison's role
in the offense. The district court denied Gadison's motion and
enhanced his base offense level as suggested by the PSR.
Gadison contends that there was insufficient evidence to find
either that five individuals were involved in the conspiracy, or
that Gadison was a leader or organizer. Gadison also argues that
the district court's failure to provide him with an evidentiary
hearing concerning his leadership role effectively deprived him of
his due process rights under the Fifth Amendment and his right to
confront his accusers under the Sixth Amendment.
We first address Gadison's challenge to the sufficiency of the
evidence underlying the district court's factual findings. An
enhancement under section 3B1.1(a) must be supported by a factual
finding that, with respect to the transaction which serves as the
basis for the conviction, "the defendant was an organizer or leader
of a criminal activity that involved five or more participants or
17
was otherwise extensive." In measuring the number of participants
in a criminal enterprise, the sentencing court's focus is upon "the
number of transactional participants, which can be inferentially
calculated provided that the court does not look beyond the offense
of conviction to enlarge the class of participants." United States
v. Barbontin, 907 F.2d 1494, 1498 (5th Cir. 1990)(emphasis in
original). However, the "offense" to be considered "is broader
than the offense charged, and includes the 'contours of the
underlying scheme itself.'" United States v. Kleinebreil, 966 F.2d
945, 955 (5th Cir. 1992)(quoting United States v. Mir, 919 F.2d
940, 945 (5th Cir. 1990)). In other words, "the scope to be
considered . . . encompasses . . . the underlying activities and
participants that directly brought about the more limited sphere of
the elements of the specific charged offense." United States v.
Manthei, 913 F.2d 1130, 1136 (5th Cir. 1990).
In the instant case, there was substantial evidence to
establish Gadison as an organizer or leader in a criminal activity
involving four other participants, and Gadison himself may be
counted as a participant for purposes of § 3B1.1(a). Barbontin,
907 F.2d at 1498. Tarolynn Scott and William Simpson admitted that
they were participants in the conspiracy. Scott also testified
that Ms. Emma, the owner of the Family Diner, safeguarded drug
proceeds for Gadison. Clearly, Ms. Emma can be considered a
"participant" for purposes of section 3B1.1(a) inasmuch as her
actions "directly brought about . . . the elements of the specific
charged offense." Manthei, 913 F.2d at 1136. Her role formed an
18
inseparable part of the larger distribution scheme. Finally, co-
defendant Ferrell may be counted as the fifth participant. We
conclude that the evidence at trial adequately supported the
district court's finding that the conspiracy involved at least five
persons.
Gadison also contends that the evidence was insufficient to
support the district court's determination that he was a leader or
organizer. In determining whether a defendant was a leader or
organizer, the sentencing court should consider
the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree
of control and authority exercised over others.
U.S.S.G. § 3B1.1, Application note 3; see United States v.
Rodriguez, 897 F.2d 1324, 1325-26 (5th Cir.), cert. denied, 498
U.S. 857, 111 S.Ct. 158 (1990).
Applying these factors to the present case, we have no
difficulty in concluding that Gadison orchestrated almost every
aspect of this conspiracy. There was evidence that Gadison:
- decided when trips to Port Arthur would take place.
- set the sale price of the crack cocaine.
- enlisted the assistance of Ferrell, Simpson and Scott.
- processed the crack cocaine for distribution.
- prepared his own vehicle to transport the crack cocaine
by secreting the drugs and a firearm therein.
- contacted Scott to tell her when trips to Port Arthur
would take place.
19
- often accompanied his co-conspirators on junkets to
Port Arthur.
- collected the drug proceeds and paid Scott and Simpson
therefrom.
Because the evidence at trial was amply sufficient to support
the district court's conclusion that Gadison exercised a leadership
role in a conspiracy involving at least five participants, the
district court did not err in refusing to grant Gadison an
evidentiary sentencing hearing.
C. Relevant Conduct--Ferrell
Ferrell's PSR held him accountable for 291 grams of cocaine
base, the estimated amount delivered by Tarolynn Scott when she was
accompanied by Ferrell and Gadison. The PSR also held Ferrell
responsible for the .32 caliber revolver confiscated from Scott and
Simpson. However, in calculating Ferrell's offense level under
section 1B1.3 of the Sentencing Guidelines, the district court held
him accountable only for the 36.30 grams of cocaine seized when
Scott and Simpson were arrested, not the additional cocaine, and
not the revolver. The district court concluded that the drugs
seized from Scott and Simpson were being delivered in furtherance
of the conspiracy and that their delivery was reasonably
foreseeable by members of the conspiracy, but Ferrell could not
have reasonably foreseen that his co-defendants would be carrying
a firearm.
Ferrell argues that the district court erred in determining
that it was reasonably foreseeable for him to know that Scott and
20
Simpson were delivering 36.30 grams of crack cocaine on the date
they were arrested. Ferrell argues that if he could not foresee
that the firearm would be in the car, he could not have known that
the conspiracy involved 36.30 grams of cocaine base.
Under the version of section 1B1.3 in effect at the time of
Ferrell's sentencing, a district court could hold a defendant
accountable for "all acts and omissions committed or aided and
abetted by the defendant, or for which the defendant would be
otherwise accountable." U.S.S.G. § 1B1.3(a)(1)(1991). Conduct for
which a defendant would be otherwise accountable includes "conduct
of others in furtherance of the execution of the jointly-undertaken
criminal activity that was reasonably foreseeable by the
defendant." U.S.S.G. § 1B1.3, Application note 1 (1991). The
application notes to the present version of § 1B1.3, effective
November 1, 1992,4 stress that "the scope of the criminal activity
jointly undertaken by the defendant . . . is not necessarily the
same as the scope of the entire conspiracy, and hence relevant
conduct is not necessarily the same for every participant."
U.S.S.G. § 1B1.3, Application note 2 (1992).
It is clear from the record that the conduct of Scott and
Simpson in transporting the 36.30 grams seized by the authorities
was within the scope of the jointly-undertaken activity to which
Ferrell agreed and was reasonably foreseeable by him. The jointly-
4
We may consider the November, 1992, revisions because the
Sentencing Commission, by amending section 1B1.3, intended merely
to clarify the scope of relevant conduct under § 1B1.3. United
States v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993).
21
undertaken activity to which Ferrell agreed was the transportation
of crack cocaine, often in amounts well over 36.30 grams, from
Houston to Port Arthur for distribution outside the Family Diner.
Ferrell's agreement can be fairly inferred from his conduct. The
evidence at trial showed that on more than one occasion, Ferrell
accompanied Tarolynn Scott and William Simpson to Port Arthur in
order to sell crack cocaine.
Furthermore, the evidence revealed that Ferrell worked closely
with Gadison, the leader of the conspiracy, was present when crack
cocaine was being processed, and sold crack cocaine outside the
Family Diner. Thus, the record clearly shows that Ferrell was
aware of the extent of drug distribution involved in the
conspiracy. The district court's refusal to hold Ferrell
accountable for the revolver placed in the car by Gadison is not
inconsistent with and does not affect the court's decision with
respect to the amount of crack cocaine for which Ferrell can be
held accountable. In contrast to the substantial evidence
indicating Ferrell's knowledge as to the amounts distributed in
furtherance of the conspiracy, there was no evidence presented at
trial which indicated that Ferrell was ever aware that a firearm
was used in furtherance of the conspiracy.
D. Minimal or Minor Role--Ferrell
Ferrell contends that the district court should have reduced
his offense level under § 3B1.2 of the Sentencing Guidelines
because his participation in the conspiracy was minimal, or at most
22
minor. Ferrell's claim is based upon the contention that he was a
"peripheral member" of the conspiracy who lacked complete knowledge
or understanding of the scope of the conspiracy.
Section 3B1.2 provides that a district court must reduce a
defendant's offense level by four levels if it determines that the
defendant is a minimal participant in the offense for which he was
convicted, U.S.S.G. § 3B1.2(a), or by two levels if the defendant
was a minor participant. U.S.S.G. §3B1.2(b). A defendant who is
"plainly among the least culpable of those involved in the conduct
of a group" is characterized as a "minimal participant". U.S.S.G.
§ 3B1.2, Application note 1. A defendant should be considered a
"minor participant" if he is "less culpable than most other
participants, but [his] role could not be described as minimal."
U.S.S.G. §3B1.2, Application note 3. A downward adjustment under
§ 3B1.2 is generally appropriate only where a defendant was
"'substantially less culpable than the average participant.'"
United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.
1989)(emphasis in original)(quoting U.S.S.G. § 3B1.2, Commentary),
cert. denied, 495 U.S. 923, 110 S.Ct. 1957 (1990). A court "need
not accept the defendant's self-serving account of his role in [a]
drug organization." Id.
The trial testimony provides ample support for the district
court's determination that Ferrell did not play a minimal or minor
role in the conspiracy for which he was convicted. In fact,
Ferrell was a significant member of the conspiracy, and his
culpability was comparable to that of his co-conspirators. The
23
evidence showed that crack cocaine was processed for distribution
in Ferrell's home, making it a base of operation for the
conspiracy. Ferrell also accompanied Gadison and other co-
conspirators on several trips to Port Arthur for the purpose of
distributing crack cocaine. Significantly, Ferrell sold crack
cocaine outside the Family Diner. Ferrell's own testimony showed
him to be a close aide to Gadison, the leader of the conspiracy.
Based upon this evidence, the district court's finding that
Ferrell's role was neither minimal nor minor was not clearly
erroneous, and Ferrell was not entitled to an adjustment under §
3B1.2.
V. Conclusion
For the foregoing reasons, we AFFIRM Gadison's conviction but
VACATE his sentence and REMAND for resentencing. We AFFIRM
Ferrell's conviction and sentence.
24