United States Court of Appeals
For the First Circuit
No. 01-2572
UNITED STATES OF AMERICA,
Appellee,
v.
REGINALD BROWN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Lynch and Howard, Circuit Judges
Geoffrey DuBosque for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
August 8, 2002
HOWARD, Circuit Judge. In this appeal we must decide
whether the district court committed clear error in finding that
appellant Reginald Brown had a managerial role in the cocaine base
("crack") distribution conspiracy to which he pleaded guilty. We
affirm.
Brown was indicted following an investigation into
distinct but overlapping crack distribution groups that were
operating in the Biddeford and Saco, Maine area during the latter
part of 2000 and the early part of 2001. In the course of the
investigation, law enforcement agents learned that Brown was a
member of one of the groups, referred to by informants as the
"Knowledge" group. For purposes of this appeal, we focus on
several encounters agents had with Brown and another member of the
Knowledge group, Kenneth Scott.
On March 18, 2001, an undercover agent who had previously
purchased 2.5 grams of crack from Scott went to Scott's apartment
to make another purchase. The appellant was present, introduced
himself to the agent as "Knowledge," and sold him 7.5 grams of
crack for $1,000. The agent paid Scott $50 for setting up the
deal.
The next day, the agent called Scott to order an
additional 10 grams of crack. Scott told the agent that he needed
to contact his source in order to complete the deal but agreed to
meet the agent in a car outside Scott's apartment building. Within
a few minutes of the agent's arrival, Brown drove up. The three
then went into Scott's apartment, where Brown sold the agent 7.0
-2-
grams of crack for $1,000. This time, Brown paid Scott $100 for
setting up the deal.1
As Brown was driving away from this second sale, Saco
police officers attempted to pull him over in order to arrest him.
Brown led the police on a short car chase, and then abandoned the
car and fled on foot. During the foot chase, Brown attempted to
hide 41.1 grams of crack he was carrying by stashing the drugs in
a snowbank. Eventually, the officers caught up with Brown, placed
him under arrest, and recovered the contraband.
This was not the first time during the investigation that
Brown had attempted to elude the police while possessing a
substantial quantity of crack. Four months earlier, as the police
tried to stop Brown upon his return to Maine from New York, he also
led them on a car and foot chase. Pursuing agents went to Scott's
apartment in their search for Brown. Scott told the authorities
that the appellant was not there, but a short while later the
agents saw Brown surreptitiously run from Scott's apartment to a
waiting vehicle. The police stopped the vehicle, apprehended
Brown, and eventually recovered a bag containing 288.7 grams of
crack. Brown admitted that the crack was his.2
1
At sentencing, the appellant testified that he had paid Scott
the $100 because Scott requested it, but on cross examination
acknowledged that the payment was for Scott's help in setting up
the deal.
2
Following this first arrest, Brown agreed to cooperate with
investigators and was released from custody. But he subsequently
failed to appear for a scheduled court date and returned to crack
dealing.
-3-
In due course, Brown was indicted and pleaded guilty to
conspiring to possess crack with intent to distribute it. During
his presentence interview and at the sentencing hearing, Brown
admitted that he had made trips to New York to obtain crack and
that he had developed a customer base of several purchasers in the
Biddeford area. But he opposed the probation department's
recommendation, subsequently adopted and pressed by the government,
that he receive a managerial enhancement under U.S.S.G. § 3B1.1(c)
(requiring a two-level upward adjustment to the base offense level
of a defendant who "was an organizer, leader, manager, or
supervisor in . . . criminal activity" of the type in which Brown
engaged).3 In opposing this recommendation, Brown took the
position that those with whom he had conspired, and in particular
Scott, were independent of Brown and not subject to his direction
or control.
At the sentencing hearing, the district court rejected
Brown's argument and found that he was a manager with respect to
3
The Sentencing Guidelines recognize that larger criminal
enterprises "tend to have clearly delineated divisions of
responsibility." U.S.S.G. § 3B1.1, background comment. For this
reason, as to criminal activity involving five or more participants
or that was otherwise extensive, § 3B1.1(a) and (b) distinguish
between organizers and leaders (who receive four-level
enhancements) and managers and supervisors (who receive three-level
enhancements).
As to smaller conspiracies, the Guidelines treat any
distinctions among organization, leadership, management and
supervision as having less significance. See id. Consequently,
a conspirator who was higher in the hierarchy would receive the
same two-level enhancement regardless of whether he was an
organizer, leader, manager, or supervisor. § 3B1.1(c).
The district court treated the conspiracy to which Brown
pleaded guilty as being governed by § 3B1.1(c). The government
does not appeal this characterization.
-4-
Scott. In making this finding, the court observed that Brown's
"control or supervision [of Scott] need not be explicit," and
concluded that "the arrangements between" Brown and Scott supported
a finding that Brown managed Scott. See United States v. Cruz, 120
F.3d 1, 4 (1st Cir. 1997) (en banc) ("a defendant's role in the
offense can be proved wholly by circumstantial evidence"). Brown
now asserts that this finding was unsupported by the evidence.4
The fact-specific finding Brown challenges is entitled to
considerable deference and must stand unless clearly erroneous.
E.g., id. at 3; United States v. Graciani, 61 F.3d 70, 75 (1st Cir.
1995). We will not find clear error unless "on the entire evidence
[we are] left with the definite and firm conviction that a mistake
has been committed." Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 573 (1985) (citation and internal quotation marks
omitted); See also United States v. Castillo, 287 F.3d 21, 25 (1st
Cir. 2002). To demonstrate clear error in this case, Brown must
convince us that the court was mistaken in finding that, on at
least one occasion, Brown exercised authority or control over Scott
or was otherwise responsible for organizing his activities. See,
e.g., Cruz, 120 F.3d at 3; United States v. Voccola, 99 F.3d 37, 44
(1st Cir. 1996). Brown has not succeeded in this task.
Brown pleaded guilty to conspiring with others, including
Scott, to possess crack with intent to distribute it. Drug
4
Brown also contends that the district court's explanation for
the enhancement was insufficiently detailed to permit meaningful
appellate review. We disagree. The court's ruling, while terse,
made clear that the court was anchoring the enhancement on
circumstantial evidence that Brown managed Scott.
-5-
distribution conspiracies are frequently hierarchic, and our cases
recognize that drug conspirators of higher rank commonly use
subordinates as go-betweens to limit their own apparent
involvement. See Cruz, 120 F.3d at 3-4 (citing cases); U.S.S.G. §
3B1.1, comment. n.4. Here, evidence before the district court
supported a conclusion that the Brown-Scott relationship involved
this familiar dynamic.
The facts permitted the following inferences. Scott, in
the go-between role of steerer or finder, conducted the prefatory
logistical communications with the undercover purchaser. Because
Scott engaged in these preliminary discussions, Brown was able to
limit his own apparent involvement until it was time for the
transactions to be consummated. The deals were then completed in
Scott's apartment, further enabling Brown to limit his own
exposure.5
Other evidence presented to the sentencing judge also
supported finding the existence of a criminal hierarchy. Although
Scott made the smaller 2.5 gram crack sale to the undercover agent
without Brown's direct involvement, Brown personally completed the
sales of more substantial amounts. See United States v. Akitoye,
923 F.2d 221, 227 (1st Cir. 1991). At all times in the course of
these two larger sales, Brown exercised exclusive dominion over the
drugs. See id. And Brown retained the lion's share of the
5
Along similar lines, Scott exposed himself to criminal
sanctions by sheltering Brown as he attempted to flee and by
denying to pursuing agents that Brown was in his apartment just
prior to Brown's first arrest.
-6-
proceeds, while Scott received only small finder's fee payments for
his lesser, albeit important, role in the transactions. See
U.S.S.G. § 3B1.1, comment. n.4. From this evidence, the court
could reasonably conclude that Brown exercised authority over
Scott.
To be sure, Brown's characterization of his relationship
with Scott as involving coequal independent contractors is not
utterly contradicted by this evidence. Nor was the available
evidence direct; as we have noted, the district court inferred
Brown's managerial role from the circumstances. See supra at 4-5.
But all of this is unavailing to the appellant, because the
evidence need not have compelled the inference ultimately drawn.
All that is required is that the court's choice among competing
inferences be a plausible one. Cruz, 120 F.3d at 4 ("When
competing inferences plausibly can be drawn from a set of facts,
the fact finder's choice between them cannot be clearly
erroneous.") (citation omitted).
As we have recounted, the district court had before it
evidence that Brown supplied the drugs for the conspiracy that bore
his alias; that he established a customer base; that Scott acted as
a go-between or finder, with Brown personally involving himself in
completing the larger sales; that Brown used Scott's apartment for
transactions and as a safe-house; that he exercised dominion over
virtually all of the known quantities of drugs; and that he kept
the great majority of the proceeds. In view of this evidence, the
-7-
inference chosen by the court easily meets the plausibility
standard.
Taking the evidence as a whole, we find no clear error in
the court's role-in-the-offense determination. See id.
Affirmed.
-8-