United States v. Cr-92-31-T Cheryl Williams, 9 F.3d 118, 10th Cir. (1993)
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Scribd Government DocsUnited States v. Cr-92-31-T Cheryl Williams, 9 F.3d 118, 10th Cir. (1993)
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Scribd Government Docs9 F.
3d 118
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES of America, Plaintiff-Appellee,
v.
CR-92-31-T Cheryl WILLIAMS, Defendant-Appellant.
No. 92-6263.
United States Court of Appeals,
Tenth Circuit.
Oct. 29, 1993.
Before ANDERSON, ENGEL2 and KELLY, Circuit Judges.
ORDER AND JUDGMENT1
1
Defendant-appellant Cheryl Williams appeals from her sentence for various
drug-related offenses, 21 U.S.C. 841(a)(1), 843(b), 846, contending that the
district court (1) miscalculated her base offense level, and (2) incorrectly
applied a two-level enhancement for possession of a firearm in connection with
the underlying offense. Our jurisdiction arises under 28 U.S.C. 1291 and 18
U.S.C. 3742 and we affirm.
Background
2
Pursuant to an ongoing investigation, Officer Mark Danner of the Oklahoma
City Police Department and Special Agent Karen Simpson of the Bureau of
Alcohol, Tobacco and Firearms set up a drug transaction with Ms. Williams
and codefendant Sylvester Hutchinson. Agent Simpson placed several phone
calls to Mr. Hutchinson's home in order to set up the transaction. She spoke to
Ms. Williams on two of these occasions. II R. 225-29. A meeting was arranged
between Mr. Hutchinson, Ms. Williams, Agent Simpson and Officer Danner to
discuss the transaction. At the meeting, Mr. Hutchinson related that he would
travel to Houston once a week to pick up between 8 and 10 ounces of cocaine
base. The reverse "sting" operation was set for later that evening in a nearby
motel room.
3
Ms. Williams, Mr. Hutchinson and two codefendants arrived at the motel room
and Mr. Hutchinson gave Officer Danner $4,000 for the purchase of the
cocaine. Codefendant Bonnie Hooks then processed the cocaine into rock
(crack) form and smoked some of it with Ms. Williams. All were arrested
shortly thereafter including codefendant Terry Hooks who was waiting outside.
Ms. Williams was convicted for, inter alia, possession with intent to distribute
cocaine, conspiracy to possess and distribute cocaine base, and possession of
cocaine and cocaine base. The presentence report recommended a base offense
level of 42, including a two-level upward adjustment for possession of a firearm
in connection with the underlying offense. U.S.S.G. 2D1.1(b)(1)(1992). This
offense level included a quantity of 240 ounces of cocaine base codefendant
Hutchinson had possessed. After a sentencing hearing, the judge adopted the
recommendations of the presentence report but made a two-level downward
adjustment for acceptance of responsibility.
Discussion
5
We review the district court's factual findings concerning drug quantity and
possession of a firearm for clear error. United States v. Pinedo-Montoya, 966
F.2d 591, 595 (10th Cir.1992); United States v. Underwood,, 982 F.2d 426, 428
(10th Cir.1992). We review de novo its interpretation of the Sentencing
Guidelines. Pinedo-Montoya, 966 F.2d at 595.
6I. Quantity of Drugs Within Scope of Conspiracy
7
Ms. Williams' base offense level reflected 240 ounces of cocaine base to which
Mr. Hutchinson had admitted possession. The amount was computed from his
statements that he had traveled to Houston approximately once a week from
May through December (approximately 30 times) to pick up between 8 and 10
ounces of cocaine base. The district court found Ms. Williams accountable for
this conduct and sentenced her accordingly.
In sentencing a defendant for a drug-related offense, a judge must "approximate
the quantity" of drugs relevant to the offense, U.S.S.G. 2D1.1 (n.12), including
those amounts that were part of the "same course of conduct or common
scheme or plan as the offense of conviction." U.S.S.G. 1B1.3(a)(2); United
States v. Barela, 973 F.2d 852, 855-56 (10th Cir.1992), cert. denied, 113 S.Ct.
1021 (1993). The inclusion of such amounts must be supported by a
preponderance of the evidence. United States v. Reyes, 979 F.2d 1406, 1410
(10th Cir.1992). The district court may rely on government estimates in
approximating related quantities, United States v. Sturmoski, 971 F.2d 452, 462
(10th Cir.1992), so long as the estimate possesses "sufficient indicia of
reliability to support its probable accuracy." U.S.S.G. 6A1.3(a).
9
Ms. Williams contends that she should not be held accountable for the 240
ounces of crack transported by Mr. Hutchinson from Houston and later
distributed by him. She admits to involvement in only the planning and the
consummation of the underlying transaction of January 23, 1992. The evidence,
however, is to the contrary. Agent Simpson testified that when she asked Ms.
Williams whether she had ever gone to Houston with Mr. Hutchinson, Ms.
Williams replied that Mr. Hutchinson "never" went alone, clearly implying Ms.
Williams awareness of Mr. Hutchinson's activities. III R. 237. Moreover, the
record reveals Ms. Williams' active participation in drug transactions with Mr.
Hutchinson dating from March 1991. III R. 167-76. Clearly, evidence of Ms.
Williams' awareness of and active participation in the drug conspiracy
adequately supports the district court's finding that the transportation and
distribution of cocaine by Mr. Hutchinson prior to December 19, 1991, formed
part of a continuous course of conduct for which Ms. Williams was
accountable. See United States v. Ruth, 946 F.2d 110, 112-13 (10th Cir.1991);
United States v. Sanders, 929 F.2d 1466, 1475 (10th Cir.), cert. denied, 112
S.Ct. 143 (1991).
10
We also find no error in the court's estimate of 240 ounces of crack being
possessed and distributed by Mr. Hutchinson and Ms. Williams prior to the
offense for which they were convicted. This estimate was based on figures
which codefendant Hutchinson supplied himself. This certainly evidences the
requisite "indicia of reliability to support its probable accuracy." U.S.S.G.
6A1.3(a); United States v. Cook, 949 F.2d 289, 296 (10th Cir.1991) (relying on
amounts specified in testimony of codefendant); see United States v. Laster,
958 F.2d 315, 318 (10th Cir.1992) (relying on amounts specified in ledger kept
by defendant); United States v. Ross, 920 F.2d 1530, 1538 (10th Cir.1990)
(same); United States v. Harris, 903 F.2d 770, 778 (10th Cir.1990) (same).
II. Upward Adjustment for Possession of Firearm
11
12
Ms. Williams argues that she should not have received a two-level upward
adjustment for possession of a firearm in connection with her offense of
conviction because she was not present when the firearm was recovered from
Mr. Hutchinson's residence. Actual possession of the firearm giving rise to the
enhancement is not necessary. United States v. Underwood, 982 F.2d 426, 428
(10th Cir.1992). In Underwood, we held that "a 2D1.1(b)(1) enhancement
could be based on a codefendant's possession of a firearm if Defendant knew of
his codefendant's possession or such possession was reasonably foreseeable by
Defendant...." Id. (citations omitted). Here, firearms were recovered from Mr.
Hutchinson's locked bedroom to which only he and Ms. Williams possessed the
keys. III R. 272. There was also testimony by Richard Bouchard and Terry
Hooks that guns would frequently be lying around Mr. Hutchinson's bedroom.
III R. 173-74, 284-90. At the sentencing hearing, Officer Danner testified that
firearms were present in Hutchinson's bedroom on December 19 while Ms.
Williams was present. IV R. 20, 94. This is certainly sufficient to prove that
Ms. Williams knew that Mr. Hutchinson possessed such firearms in
conjunction with the conspiracy for which she was convicted. Thus, the district
court did not err in enhancing Ms. Williams sentence pursuant to U.S.S.G.
2D1.1(b)(1).
13
AFFIRMED.
The Honorable Albert J. Engel, Senior United States Circuit Judge for the
United States Court of Appeals-Sixth Circuit, sitting by designation
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.
R. 36.3
