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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 18, 2006 Decided June 13, 2006
No. 04-3062
UNITED STATES OF AMERICA,
APPELLEE
v.
REGINALD CURTIS CARTER,
A/K/A REGGIE, A/K/A BLACK,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00252-03)
David B. Smith, appointed by the court, argued the cause for
appellant.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Roy W. McLeese, III, Martin D.
Carpenter, and Thomas J. Tourish, Jr., Assistant U.S. Attorneys.
2
Before: ROGERS, TATEL and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: “Operation Hole in One” was a
multi-year investigation by the Federal Bureau of Investigation
(“FBI”) and the D.C. Metropolitan Police Department (“MPD”)
of a heroin trafficking operation in northeast Washington, D.C.
Reginald C. Carter was identified as being part of the trafficking
operation and he was subsequently convicted by a jury of
possession with intent to distribute heroin and conspiracy to
distribute and possess with intent to distribute heroin and
cocaine. On appeal, Carter challenges his conviction on the
ground the district court erred in denying his motion to suppress
evidence obtained from the wiretapping of his cell phone
because the government failed to meet its burden under the
wiretapping statute to prove that the wiretaps were necessary
and that it had limited the wiretapping of conversations not
pertinent to the investigation. Carter contends further, for the
first time on appeal, that the district court erred in instructing the
jury on the scope of his conspiratorial agreement and that he was
denied the effective assistance of trial counsel under the Sixth
Amendment to the Constitution in moving to suppress the
wiretap evidence. Carter also challenges his life sentence on
both procedural and substantive grounds.
Our decisions in United States v. Sobamowo, 892 F.2d 90
(D.C. Cir. 1989), and United States v Anderson, 39 F.3d 331,
342 (D.C. Cir. 1994), rev’d in part on other grounds by United
States v. Anderson, 59 F.3d 1323 (D.C. Cir. 1995), are
dispositive of Carter’s suppression claim under the wiretapping
statute. Likewise, our decision in United States v. Childress, 58
F.3d 693, 722 (D.C. Cir. 1995), demonstrates the district court
did not plainly err in instructing the jury on the scope-of-
agreement requirement. Although Carter’s ineffective
3
assistance of counsel claim regarding his suppression motion
presents an interesting question regarding the scope of the
suppression remedy for a violation of the wiretap statute, the
court need not resolve this question because Carter cannot show
the requisite prejudice under Strickland v. Washington, 466 U.S.
668, 687, 694 (1984). We must remand Carter’s case, however,
because the district court failed to point to evidence supporting
its finding that Carter was responsible for the distribution of
over 30 kilograms of heroin and failed to make the required
findings on Carter’s role as an “organizer or leader” of criminal
activity under U.S. Sentencing Guidelines § 3B1.1(a).
Childress, 58 F.3d at 722. In addition, Carter is entitled to a
limited remand in light of United States v. Booker, 543 U.S. 220
(2005). See United States v. Coles, 403 F.3d 764, 769 (D.C. Cir.
2005). Accordingly, we remand the case to the district court on
Carter’s sentence but otherwise affirm the judgment of
conviction.
I.
In December 1996, the FBI and the MPD began
investigating heroin trafficking in the Langston Carver Terrace
neighborhood in northeast Washington, D.C. The task force
engaged in undercover drug buys, search warrants, audio and
video surveillance, and, ultimately, court-authorized wiretaps.
A confidential informant alerted the task force in February 1999
that Carter was a possible supplier of heroin to a drug dealer,
Ricardo Lanier. In April 2000, the district court1 approved the
wiretapping of Carter’s cell phone; the court extended the
wiretap authorization on two occasions. Over a 76-day period,
964 completed calls were made to and from Carter’s cell phone.
Of these calls, 600 were classified as “pertinent” to the
1
Judge Thomas Penfield Jackson approved each of the
wiretap applications. Judge Ricardo Urbina presided at Carter’s trial.
4
investigation; of the 364 “non-pertinent” calls, the monitoring
agents limited (i.e., minimized) their taping of 100 calls.
Evidence from the wiretaps and surveillance indicated that
Lanier was receiving his supply of heroin from a larger drug
trafficking organization involving numerous individuals,
including Carter, Carter’s cousin Earl Garner, Jr. (“Junior”), and
Junior’s father Earl Garner, Sr. (“Senior”). In 1996 Carter and
Junior had approached Senior about setting up a heroin
distribution operation. The operation expanded in late 1998, and
again in 1999, when Carter and Senior established a drug “lab”
at an apartment in Maryland where they cut, weighed, and stored
the drugs and counted the money from the drug sales. In 2000,
Carter and Junior assumed a more visible role and more
responsibility for the drug sales after Senior became concerned
about police surveillance. By this time, Carter was distributing
14 to 500 grams of heroin weekly. To avoid detection by the
police, Carter and Senior eventually moved the contents of the
Maryland lab to an apartment in Washington, D.C.; Carter had
the only key to the apartment.
“Operation Hole in One” ended when Carter, the Garners,
and approximately 30 others were arrested on August 8, 2000.
At that time 300 law enforcement officials executed 35 search
warrants. Recovered was over one million dollars in cash,
several kilograms of heroin, drug paraphernalia, including
cutting materials, and nineteen firearms, including three from
the D.C. apartment.
Carter was indicted on five counts: (1) conspiracy to
distribute and possess with intent to distribute heroin and
cocaine, 21 U.S.C. §§ 846 and 841(b)(1)(A)(i); (2) possession
with intent to distribute 100 grams or more of heroin, 21 U.S.C.
§§ 841 and 841(b)(1)(B)(i); (3) violation of the felon-in-
possession statute, 18 U.S.C. § 922(g)(1); (4) participation in a
5
continuing criminal enterprise, 21 U.S.C. § 848; and (5) the use
of a firearm in relation to a drug trafficking offense, 18 U.S.C.
§ 924(c)(1). The district court denied his pretrial motion to
suppress the wiretap evidence. A jury found him guilty on
Counts (1) and (2) and also found that the quantity of heroin
involved in the conspiracy count exceeded one kilogram.
Applying the mandatory Sentencing Guidelines then in effect,
the district court sentenced Carter to life imprisonment,
assigning him a base offense level of 38 after attributing 35
kilograms of heroin to him, U.S.S.G. § 2D1.1(c)(1), and a four-
level enhancement for his role as an “organizer or leader” of
criminal activity, id. § 3B1.1(a).
II.
A.
Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, 18 U.S.C. § 2510 et seq., authorizes the district court to
approve an application for the interception of certain wire, oral,
or electronic communications. 18 U.S.C. § 2518. The wiretap
statute requires that an application for a wiretap shall be in
writing, under oath, and shall contain certain information
including “a full and complete statement of the facts and
circumstances relied upon by the applicant[] to justify his belief
that an order should be issued.” Id. § 2518(1). On the basis of
the facts submitted by the applicant, the district court may
authorize a wiretap upon finding that (1) probable cause exists
to believe that an individual has committed or is about to
commit one of certain enumerated offenses; (2) probable cause
exists to believe that “particular communications concerning
that offense will be obtained” through an interception; (3)
“normal investigative procedures have been tried and have failed
or reasonably appear to be unlikely to succeed if tried”; and (4)
probable cause exists to believe that the communication facility
6
sought to be wiretapped “[is] being used, or [is] about to be
used, in connection with the commission of [the] offense.” Id.
§ 2518(3)(a-d); see United States v. Donovan, 429 U.S. 413, 435
(1977). The determination that “normal investigative
procedures have been tried and have failed or reasonably appear
to be unlikely to succeed if tried or to be too dangerous,” 18
U.S.C. § 2518(3)(c), is referred to as the “necessity
requirement,” and it is the “keystone of congressional regulation
of electronic eavesdropping.” United States v. Williams, 580
F.2d 578, 587-588 (D.C. Cir. 1978).
The wiretapping statute also requires that “[e]very [wiretap]
order and extension thereof shall contain a provision that the
authorization to intercept shall be executed as soon as
practicable [and] shall be conducted in such a way as to
minimize the interception of communications not otherwise
subject to interception . . . .” 18 U.S.C. § 2518(5). This is
referred to as the “minimization requirement.” Although “[t]he
statute does not forbid the interception of all nonrelevant
conversations,” the government must make reasonable efforts to
“minimize” the interception of such conversations. Scott v.
United States, 436 U.S. 128, 139-40 (1978). The statute also
provides that an order authorizing an interception cannot extend
“for any period longer than is necessary to achieve the objective
of the authorization, nor in any event longer than thirty days.”
18 U.S.C. § 2518(5).
The wiretap statute provides that “no part of the contents of
[intercepted] communication and no evidence derived therefrom
may be received in evidence in any trial, hearing, or other
proceeding . . . if the disclosure of that information would be in
violation of this chapter.” Id. § 2515. The “aggrieved person”
may move to suppress the introduction of wiretap evidence or its
fruits if “the communication was unlawfully intercepted,” the
“order of authorization or approval under which it was
7
intercepted is insufficient on its face,” or if “the interception was
not made in conformity with the order of authorization or
approval.” Id. § 2518(10)(a)(i-iii); see Donovan, 429 U.S. at
433-34.
B.
Necessity. Carter contends that the district court abused its
discretion in finding the government had met its burden to
demonstrate the wiretap of his cell phone was necessary under
18 U.S.C. § 2518(1)(c). He asserts that the tap was sought
immediately upon discovering Carter’s role as Lanier’s supplier
without efforts by the government to attempt normal
investigative procedures. He further asserts that the wiretap
application omitted material facts from its affidavits in support
of the wiretap application and its extensions.
Congress created the necessity requirement to ensure that
“wiretapping is not resorted to in situations where traditional
investigative techniques would suffice to expose the crime.”
United States v. Kahn, 415 U.S. 143, 153 n.12 (1974). To
adhere to Congress’s purpose, a court will “give close scrutiny”
to a contested wiretap application and will “reject generalized
and conclusory statements that other investigative procedures
would prove unsuccessful.” Williams, 580 F.2d at 588.
Because, however, the “statutory command was not designed to
foreclose electronic surveillance until every other imaginable
method of investigation has been unsuccessfully attempted,” the
government will meet its burden of demonstrating necessity if
it shows that “other techniques are impractical under the
circumstances and that it would be unreasonable to require
pursuit of those avenues of investigation.” Id. (internal
quotation marks omitted).
In Sobamowo, this court held that “a court may authorize
8
the wiretap of the phone of a member of an operation if
traditional investigative techniques have proved inadequate to
reveal the operation’s full nature and scope.” Sobamowo, 892
F.2d at 93 (citing United States v. Brown, 823 F.2d 591, 598
(D.C. Cir. 1987)) (internal quotation marks omitted). The
defendant contended that the government had failed to
investigate him adequately before resorting to a wiretap and
instead had improperly relied on prior affidavits submitted to
obtain a telephone wiretap of another defendant (Adair), who
was a purchaser of Sobamowo’s heroin. Id. The court rejected
the necessity challenge because “[e]vidence collected by the
government and detailed in the [prior Adair] affidavits revealed
that a conspiracy existed and that [Sobamowo] was connected
with it,” and because “[b]efore seeking to tap [his] telephone,
the government in fact attempted to gather information about
him in other ways.” Id. The court held that, “[c]onsidered in
conjunction,” the description of Adair’s conspiracy and the
earlier efforts to investigate Sobamowo described in the
Sobamowo affidavit were sufficient to justify the district court’s
determination that a wiretap was necessary. Id. Like the
defendant in Sobamowo, Carter faults the government’s reliance
on material in affidavits used in conjunction with an application
for a wiretap on another target (Lanier) and faults the
government for failing to investigate him using non-wiretap
techniques. The analysis in Sobamowo is therefore apt, and we
reach the same conclusion.
The wiretap application of April 25, 2000, submitted on
behalf of “Operation Hole in One,” included a 52-page affidavit
by FBI Special Agent Lawrence Alexander describing the nature
of the task force’s drug investigation and explaining the need for
the wiretap. The affidavit recounted specific evidence, derived
from a pre-existing wiretap on Lanier’s cell phone and telephone
communications, that linked Carter to the Lanier heroin
trafficking organization. The affidavit thus established that
9
Carter was a “member of an operation” by adducing evidence
that “a conspiracy existed and that [Carter] was connected with
it.” Id. Further, as did the affidavit in Sobamowo, the affidavit
here indicated that “[b]efore seeking to tap [Carter’s] telephone,
the government in fact attempted to gather information about
[him] in other ways.” Id. The affidavit stated that physical
surveillance of Carter had been conducted and that such
surveillance would be unlikely to succeed, both because of
counter-surveillance methods engaged in by Carter and because
physical surveillance alone would not generate detailed
information on the activities and associates of Carter, Senior,
and Lanier. The affidavit also stated reasons why other non-
wiretap investigative techniques, such as physical surveillance,
undercover informants, infiltration, or a “buy-bust,” would be
inadequate to reveal the “full nature and scope” of the drug
conspiracy. Id. Because Carter was a “wholesale” drug supplier
and dealt with a small circle of “retail” or street-level drug
dealers with whom he was already familiar, Special Agent
Alexander averred that Carter’s operations were unlikely to be
susceptible to infiltration by normal investigative techniques.
Consequently, “[c]onsidered in conjunction,” the description of
the Lanier drug operation and the account of prior investigative
efforts against Carter justified the district court’s determination
that the wiretap of Carter’s cell phone was necessary. Id.
Carter’s other objections are unpersuasive. Carter’s focus
on the brief two-day period between his identification by an
informant and the wiretap application ignores that the affidavit
accompanying the original wiretap application states that the
task force had intercepted drug-related conversations between
Carter and Lanier as early as March 14, 2000, well over a month
before the government applied to wiretap Carter’s cell phone.
To the extent Carter challenges the district court’s extensions of
the wiretap authorization, his claim fails because no authority
indicates that the government must cease to request wiretaps as
10
soon as it becomes clear that another technique, such as a search
warrant, may prove useful in a limited way. The necessity
requirement “was not designed to foreclose electronic
surveillance until every other imaginable method of
investigation has been unsuccessfully attempted.” Williams, 580
F.2d at 588 (internal quotation marks omitted). Although it
would likely have incriminated Carter, the immediate execution
of a search warrant on Carter’s D.C. drug-lab apartment would
not have revealed the “full nature and scope,” Sobamowo, 892
F.2d at 93, of Carter’s conspiracy and the premature execution
of a search warrant would have jeopardized the task force’s
effort to gather information about the rest of Carter’s drug
network by alerting Carter’s co-conspirators of the ongoing
investigation. Nor has Carter demonstrated that there were any
material omissions in the affidavits supporting the wiretap
application and extensions; the government’s failure to inform
the district court of the installation of a tracking device on
Carter’s car was of no moment because the affidavits set forth
the reasons why such physical surveillance was inadequate to
penetrate Carter’s conspiracy and because such an omission
does not undercut the fact that the government had “engaged in
an adequate range of investigative endeavors,” id., with regard
to Carter.
In light of Sobamowo, then, Carter fails to demonstrate that
the district court abused its discretion in finding the government
had met its burden to demonstrate the wiretaps of his cell phone
were necessary under 18 U.S.C. § 2518(1)(c).
C.
Minimization. Carter also contends that the fact that only
27% of the non-pertinent calls were minimized demonstrates on
its face that the government failed to fulfill its statutory
obligation under 18 U.S.C. § 2815(5). He maintains that the
11
district court therefore erred in denying his motion to suppress
without a hearing or an adequate explanation by the government
that it made reasonable efforts to minimize the interception of
non-pertinent calls.
In Anderson, the court observed that “[t]he Supreme Court
has indicated that the minimization requirement is not an
absolute prohibition on the interception of nonrelevant
conversations.” 39 F.3d at 342 (citing Scott, 436 U.S. at 135).
The court held there that a defendant who does not identify
“specific conversations that should not have been intercepted, or
even . . . a pattern of such conversations” has offered no
“concrete indications that the government failed to meet its
obligations to minimize intercepted communications,” and
thereby failed to show error by the district court. Id. Here,
Carter’s motion to suppress the cell phone wiretap evidence did
not identify any conversation or pattern of conversations by
which the district court could determine whether or not the
government had met its minimization obligations. Rather,
Carter only generally faulted the government’s failure to
minimize “communications unrelated to the purpose of the
interception,” such as “[c]onversations . . . particularly
pertaining to golf.” This is not an adequate objection. What the
wiretapping statute forbids is failure by the government to make
reasonable efforts to minimize interceptions of non-pertinent
communications; consequently, a defendant must identify
particular conversations so that the government can explain their
non-minimization. Having failed to identify “specific
conversations that should not have been intercepted, or even . .
. a pattern of such conversations,” Anderson, 39 F.3d at 342, the
issue of reasonable minimization was simply not in play.
Carter repeatedly points to the fact that the government only
minimized 27% of non-pertinent calls. But in Scott, the
Supreme Court, in evaluating the reasonableness of the
12
government’s efforts at minimization, explained that a high
interception rate of nonpertinent calls could be the outcome of
reasonable efforts at minimization in situations where the
intercepted calls were “very short,” “one-time only,” or were
“ambiguous in nature or apparently involv[ing] . . . guarded or
coded language.” Scott, 436 U.S. at 140. Consequently, “blind
reliance on the percentage of nonpertinent calls intercepted is
not a sure guide.” Id. Carter is thus precluded from relying
solely on the existence of a raw percentage of non-pertinent
intercepted calls as a means of demonstrating that some
conversations were intercepted when they would not have been
had reasonable attempts at minimization been made. Id.
There is therefore no basis to conclude that the district court
abused its discretion in failing sua sponte to hold an evidentiary
hearing, see United States v. Santora, 600 F.2d 1317, 1320 (9th
Cir. 1979), or to require the government to provide a detailed
explanation of the low percentage of minimized non-relevant
calls.
III.
In light of trial counsel’s failure to conform to the
particularization requirements of Scott and Anderson in moving
to suppress the wiretap evidence and its fruits, Carter contends
that he was denied the effective assistance of counsel guaranteed
by the Sixth Amendment to the Constitution and seeks a remand
for an evidentiary hearing. When, as here, a defendant raises an
ineffective assistance claim for the first time on appeal, the court
will remand the case to the district court for an evidentiary
hearing unless the trial record “conclusively shows that the
defendant is entitled to no relief.” United States v. Geraldo, 271
F.3d 1112, 1115-16 (D.C. Cir. 2001). A remand is unnecessary
here.
13
Assuming trial counsel’s failure to pursue properly Carter’s
minimization claims amounts to a failure to meet the standard
for attorney performance under the first prong of the test for
ineffective assistance of counsel under Strickland, 466 U.S. at
687, Carter cannot show the requisite prejudice. Under the
second prong of the Strickland test, Carter must show that there
is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. A “reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id.; see United States v. Moore, 394 F.3d 925, 931 (D.C. Cir.
2005). The government maintains that Carter suffered no
prejudice due to his trial counsel’s ineffective assistance because
Carter’s only remedy for the government’s failure to minimize
was suppression of the non-relevant calls and a civil cause of
action against the government for damages. Carter responds that
such a remedy would be meaningless, particularly as he lacks
the wherewithal to pursue a claim for civil damages under the
statute.
The Supreme Court has yet to address the scope of
suppression for a violation of the statutory minimization
requirement. See Scott, 436 U.S. at 135 n.10; see generally
Donovan, 429 U.S. at 433-34. The question is open in this
circuit. See Anderson, 39 F.3d at 342 (dictum); United States v.
Scott, 516 F.2d 751, 760 n.19 (D.C. Cir. 1975) (dictum), aff’d by
Scott, 436 U.S. at 128. We need not answer the question. Carter
has failed to show a “reasonable probability,” Strickland, 466
U.S. at 687, that if his trial counsel had properly raised the
minimization argument in the motion to suppress the district
court would have found the government’s efforts at
minimization to be unreasonable.
Carter maintains that “numerous personal calls” between
himself and his grandmother, wife, daughter, and stockbroker
14
were not minimized or were not minimized soon enough. He
does not explain, however, how effective counsel could have
demonstrated to the district court that the interception of these
calls indicated that the government’s efforts at minimization
were in violation of the statute. Carter cannot rely solely on the
raw percentage of intercepted non-pertinent calls to demonstrate
that the government failed to comply with its obligations to
minimize. See Scott, 436 U.S. at 140. He cannot deny that the
task force made some effort to minimize interception of non-
pertinent calls: 100 non-pertinent calls had been minimized and
over 62% of all intercepted calls were pertinent. And, as the
Supreme Court observed in Scott, 436 U.S. at 139, the fact that
the investigation of a target is part of a larger investigation of “a
widespread conspiracy” and the fact that the target and his co-
conspirators communicate in code language are circumstances
that would justify “more extensive surveillance” by the
government. Scott, 436 U.S. at 140. Moreover, before the
wiretap on Carter’s phone commenced, the prosecutor instructed
the task force agents on their minimization duties and
periodically reviewed the records of call interceptions for
compliance. The three district court orders approving the
wiretaps on Carter’s cell phone required a report after ten days
on the investigation’s progress and on the need for continued
surveillance, thus ensuring the interceptions were judicially
monitored during the execution of the wiretaps. See 18 U.S.C.
§ 2518(6); United States v. Wilson, 835 F.2d 1440, 1446 (D.C.
Cir. 1987). On the face of the record, then, it is unclear whether
the government’s minimization efforts constituted a violation of
the wiretapping statute.
Furthermore, Carter’s “minimization arguments are
couched in the broadest of terms.” Chagnon v. Bell, 642 F.2d
1248, 1262-63 (D.C. Cir. 1980). He proffers no facts or
affidavits containing “information as to the number, timing,
frequency, or subject matter,” id., of a pattern of conversations
15
alleged to be inadequately minimized, information that could
enable this court to conclude that a remand is required for a
determination of whether he was prejudiced. The government
posits in its brief, see Appellee’s Br. at 20 n.18, that many of the
non-minimized calls may have been of brief duration and may
have been made during “the early stages of surveillance” when
“the agents may be forced to intercept all calls to establish
categories of non-pertinent calls which will not be intercepted
thereafter,” Scott, 436 U.S. at 141. The government also
suggested during oral argument that some non-minimized calls
may have been intercepted because they appeared to involve the
use of code words. For example, the conversations pertaining
to golf, which Carter cited as evidence of the government’s
failure to minimize interception of innocent conversations,
might well have initially appeared suspicious to agents of
“Operation Hole in One,” which was so named because
members of the Lanier drug trafficking organization would
frequently meet at a golf course.
Carter neither cites record evidence nor proffers other
evidence that would cast doubt on the government’s posited
explanations. The three examples of improperly intercepted
calls that Carter cites, see Appellant’s Reply Br. 12 n.1—a
three-minute call on the sixth day of the wiretap, a five-minute
call regarding golf that was in fact minimized by the intercepting
agents, and a two-minute call—fall short of establishing that
with effective trial counsel Carter could have succeeded in
demonstrating unreasonable efforts at minimization by the
government. Although Carter claims that record citations were
not possible because “the telephone logs kept by the monitoring
officers are not part of the [district court] record,” id., nothing
barred him from proffering facts that, if credited, would
demonstrate a reasonable probability that with effective counsel
he would have been able to show the wiretaps were inadequately
minimized. Cf. United States v. Taylor, 139 F.3d 924, 932-33
16
(D.C. Cir. 1998); United States v. Pinkney, 543 F.2d 908, 916
(D.C. Cir. 1976). “Without such facts, there can be no support
. . . for the contention that the [wiretap] was inadequately
minimized.” Chagnon, 642 F.2d at 1263.
Absent either a record that on its face supports his claim or
evidence that would support a finding that the government
engaged in a pattern of violations, Carter’s virtually unsupported
assertion that effective counsel could have persuaded the district
court to conduct a hearing or to require a detailed explanation by
the government regarding the reasonableness of its minimization
efforts cannot suffice to show a “reasonable probability” the
district court would have found the government’s minimization
efforts were unreasonable. There is thus no reason to remand
the case for a hearing on prejudice. See Geraldo, 271 F.3d at
1115-16.
IV.
The district court instructed the jury that it must find
whether Carter “knew or should have known that the total
amount of the mixture or substance containing heroin involved
in the conspiracy was one kilogram or more.” The jury was
instructed that it had to make this finding beyond a reasonable
doubt. The jury was also instructed that a “crime” or “illegal
action” cannot be attributed to co-conspirators unless it was
committed “in order to further or somehow advance” the
conspiracy’s objectives. The jury verdict form, in turn,
instructed the jury that Carter could be held responsible for his
co-conspirators’ drug possession or distribution only if such
possession or distribution was both foreseeable to Carter and “in
furtherance of” Carter’s conspiracy.
In Childress, 58 F.3d at 722, the court described “two
substantive limitations on a defendant’s responsibility for acts
17
undertaken by co-conspirators”: those acts “must be ‘in
furtherance of’ the same conspiracy to which the defendant has
agreed, and they must be reasonably foreseeable to the
defendant.” Id. (quoting U.S.S.G. § 1B1.3 cmt. n.1) (1989)).
Carter does not challenge the district court’s instructions on the
foreseeability element but contends that the district court failed
to instruct the jury properly regarding its findings on the
quantity of drugs that fell within the “scope” of Carter’s
conspiratorial agreement. Because Carter raises this objection
for the first time on appeal, our review is for plain error. See
Johnson v. United States, 520 U.S. 461, 465-67 (1997); United
States v. Gaviria, 116 F.3d 1498, 1509 (D.C. Cir. 1997); United
States v. Spann, 997 F.2d 1513, 1515 (D.C. Cir. 1993). The
words “in furtherance of” accurately convey the “scope”
element of co-conspirator liability, Childress, 58 F.3d at 722,
and the jury verdict form reflects that the jury found Carter
responsible for over one kilogram of heroin based upon a correct
statement of the law of co-conspirator liability. See United
States v. Washington, 106 F.3d 983, 1012 (D.C. Cir. 1997).
Consequently, Carter fails to show plain error because the jury
instructions would have not led the jury to attribute to him
actions of his co-conspirators falling outside the “scope” of his
conspiratorial agreement.
V.
Carter contends that his life sentence must be set aside and
the case remanded for resentencing because the district court’s
factual findings were inadequate to permit meaningful appellate
review of the determination that (1) 30 kilograms of heroin were
properly attributable to him, establishing a base offense level of
38 under U.S.S.G. § 2D1.1, and (2) his role in the conspiracy
warranted a four-point enhancement in his offense level under
U.S.S.G. §3B1.1(a). Carter also contends that he was denied the
effective assistance of counsel at sentencing because his counsel
18
failed to argue that Carter exerted no authority or control over
his co-conspirators.
Carter’s contention that the district court lacked authority at
sentencing to find the quantity of drugs attributable to him and
that thus he is subject only the statutory maximum of twenty
years in prison, see Apprendi v. United States, 530 U.S. 466
(2000), is baseless; he was charged with and convicted of
conspiracy to violate 21 U.S.C. § 841(b)(1)(A)(i), which carries
a maximum sentence of life. However, in determining the
quantity of drugs attributable to a defendant, the sentencing
judge must point to evidence sufficient to support its findings.
See, e.g., United States v. Stover, 329 F.3d 859, 871 (D.C Cir.
2003). At sentencing, the district court did not point to evidence
that Carter alone distributed over 30 kilograms of heroin, nor
does the government contend that the record could support such
a finding. Rather, the government maintains that 30 kilograms
of heroin were properly attributable to Carter because the district
court credited testimony indicating that this quantity of heroin
fell within the scope of Carter’s conspiratorial agreements with
the two Garners and Lanier. The district court, however, did not
make sufficient findings on the scope of Carter’s conspiratorial
agreement with the Garners and Lanier to warrant the attribution
to Carter of drugs sold by Carter’s co-conspirators. See United
States v. Tabron, 437 F.3d 63, 68 (D.C. Cir. 2006); Childress, 58
F.3d at 710. For example, although the government in its brief
on appeal contends that the evidence at trial supported the
attribution of more than 30 kilograms of heroin to Carter
because his agreement encompassed the “cutting” of pure heroin
by his customers, the district court did not find that “cut”
quantities sold by dealers such as Lanier were properly
attributable to Carter. Such a finding is necessary before a
district court may sentence a defendant for conduct ostensibly
within the scope of his conspiratorial agreement. Nor did the
district court’s adoption of the findings in the presentence report
19
fill the gap; “when facing a claim of factual inaccuracy, the
district court cannot satisfy th[e] requirement [to make findings]
by simply adopting the presentence report.” United States v.
Thomas, 114 F.3d 228, 255 (D.C. Cir. 1997); United States v.
Graham, 83 F.3d 1466, 1477 (D.C. Cir. 1996).
The district court’s findings also do not support a four-level
enhancement for Carter’s role as an “organizer” or “leader” of
criminal activity under U.S. Sentencing Guideline § 3B1.1(a).
The district court found only that Carter was a “point of contact”
for heroin for several people and that Carter had “persons
delegated to him,” not that Carter exercised authority over
others or was “hierarchically superior” to them. United States
v. Quigley, 373 F.3d 133, 140 (D.C. Cir. 2004). The
“[Sentencing] [G]uidelines punish organizers and leaders more
severely” than mere participants only because “the more control
(that is, responsibility) the offender exercises over the
conspirators, the more culpable that offender is, and the greater
sentence she deserves.” Id. at 139-40. One who occupies an
“organizer” or “leader” position plays a role distinct from the
role of a mere “‘hub’ or ‘orchestrator’” of the conspiracy. Id.
Absent findings by the district court on Carter’s degree of
control or authority over his associates, the district court could
not enhance his sentence under § 3B1.1(a). See United States v.
Graham, 162 F.3d 1180, 1185 (D.C. Cir. 1998); Thomas, 114
F.3d at 261.
Accordingly, we remand the case to the district court to
make the necessary findings in support of the life sentence or, in
the absence of such findings, to resentence Carter, but otherwise
affirm the judgment of conviction. Further, although Carter is
not entitled to a full re-sentencing in light of Booker, 543 U.S.
220, 268, see United States v. Gomez, 431 F.3d 818, 824 (D.C.
Cir. 2005), he is entitled to a limited remand under Coles, 403
F.3d at 769, because “[a]t sentencing, the district court said
20
nothing from which we can deduce what course it would have
taken in the absence of a mandatory Guidelines regime.” United
States v. Mejia, No. 02-3067, 2006 WL 1506853, *15 (D.C. Cir.
June 2, 2006); Gomez, 431 F.3d at 824.