WAYNE HISLOP, PETITIONER V. UNITED STATES OF AMERICA No. 89-7696 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals, Pet. App. 1-14, is unreported, but the judgment is noted at 898 F.2d 148 (Table). JURISDICTION The judgment of the court of appeals was entered on February 26, 1990. The petition for a writ of certiorari was filed on May 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED Whether the district court correctly adjusted petitioner's sentence upward 1. for his possession of a firearm during a drug offense; and 2. for his management or supervision of a criminal activity. STATEMENT Following his plea of guilty in the United States District Court for the Eastern District of Virginia, petitioner was convicted of distribution and possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1) (Count 5). /1/ The district court sentenced petitioner to a term of 57 months' imprisonment, to be followed by a six-year period of supervised release. In addition, the district court fined petitioner $17,500 and imposed a $50 special assessment. Judgment and Commitment Order at 1-3, 5. The court of appeals affirmed. 1. The evidence at sentencing, including the testimony of DEA Special Agent Chris Tolley, showed that members of the drug distribution conspiracy to which petitioner belonged purchased a large number of firearms in furtherance of the conspiracy. In particular, the evidence showed that petitioner was present when some of these weapons were purchased; that co-conspirators Gayle and Corinthian (the latter of whom pleaded guilty to the conspiracy) threatened another co-conspirator at gunpoint; and that firearms were carried by members of the conspiracy when they obtained cocaine and moved it through their distribution network. Pet. App. 11. The evidence further showed that petitioner recruited at least one person into the conspiracy and supervised six to eight drivers making daily drug deliveries whenever co-defendant Smallen, head of the conspiracy's Norfolk drug distribution unit, was not present. Pet. App. 12; Gov't C.A. Br. 9. The district court, after determining that petitioner was a member of the conspiracy and therefore liable for the acts of his co-conspirators, see Gov't C.A. Br. 4, found petitioner accountable for the actual distribution of 132.14 grams of cocaine -- an amount that translated into a base offense level of 18. United States Sentencing Guidelines (U.S.S.G.) Section 2D1.1(a)(3). The court increased this offense level by two points for possession of a firearm, U.S.S.G. Section 2D1.1(b)(1), and by three points because petitioner was a manager or supervisor of a criminal activity involving five or more participants, id., Section 3B1.1(b). The court reduced the offense level by two points for acceptance of responsibility. Id., Section 3E1.1(a). The adjusted offense level was 21. When combined with petitioner's criminal history category of III, this offense level produced a sentencing guidelines range of 46-57 months. The district court imposed a 57-month sentence. Pet. App. 5-6. 2. The court of appeals affirmed. Pet. App. 1-14. It reviewed the evidence supporting the district court's findings that petitioner possessed a firearm during the offense and was a manager or supervisor of a criminal activity, and concluded that those findings were not clearly erroneous. Pet. App. 11-12; see United States v. Daughtrey, 874 F.2d 213, 217-218 (4th Cir. 1989). /2/ ARGUMENT 1. Petitioner contends, Pet. 6-12, that the court of appeals misapplied U.S.S.G. Section 2D1.1(b)(1) when it affirmed the district court's finding that petitioner possessed a firearm during the offense of conviction, and that the decision below conflicts with United States v. Vasquez, 874 F.2d 250 (5th Cir. 1989). These contentions are without merit. a. At the time petitioner was sentenced, Section 2D1.1(b)(1) required a two point increase in a defendant's base offense level "if a firearm or other dangerous weapon was possessed during commission of the offense." /3/ The adjustment for firearms possession, like all adjustments for specific offense characteristics, is governed by Part B. U.S.S.G. Section 1B1.1. Section 1B1.3(a) of that Part provides that "(u)nless otherwise specified, * * * specific offense characteristics * * * shall be determined on the basis of the following: all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense." U.S.S.G. Section 1B1.3(a)(1). By this provision, sentence enhancement for firearms possession is proper -- even when the defendant does not himself possess a firearm -- when the defendant is a member of a conspiracy during the commission of the offense of conviction; a co-conspirator possessed a firearm in furtherance of that conspiracy; and the defendant was a member of the conspiracy when the firearm was possessed. United States v. Otero, 890 F.2d 366, 367 (11th Cir. 1989); United States v. Missick, 875 F.2d 1294, 1301-1302 (7th Cir. 1989). Petitioner's contrary theory -- that Section "2D1.1(b)(1) requires that a gun must be possessed and used in the commission of the offense to which the defendant pled," Pet. 8 (emphasis in original) -- simply ignores the governing application principle found in Section 1B1.3(a)(1). That Section requires only that a defendant be "otherwise accountable" for possessing a firearm "during the commission of the offense of conviction" or "in furtherance of that offense" -- not that he possess or use the firearm in committing the offense to which he pleaded guilty. Under this standard, the district court's findings plainly support the adjustment for firearms possession because petitioner was a member of a drug trafficking conspiracy that employed firearms when he committed the offense of cocaine distribution, even though he did not individually possess a firearm, see Otero, 890 F.2d at 367; Missick, 875 F.2d at 1301-1302, and was not himself convicted of conspiracy, see Pinkerton v. United States, 328 U.S. 640, 646-647 (1946); Otero, 890 F.2d at 367; Missick, 875 F.2d at 1302. Two of petitioner's co-defendants pleaded guilty to the cocaine trafficking conspiracy of which petitioner was a member. One of those guilty pleas included an admission that handguns were used in connection with the conspiracy. Evidence at the sentencing hearing showed that the conspirators purchased large numbers of firearms in furtherance of the conspiracy; that petitioner was present when some of the guns used by the conspiracy were purchased by one of his co-conspirators; and that during the course of the conspiracy two of the conspirators threatened another conspirator at gunpoint. Gov't C.A. Br. 6-7. "It is not unreasonable to recognize that weapons have become 'tools of the trade' in illegal narcotics operations." United States v. White, 875 F.2d 427, 433 (4th Cir. 1989) (even though defendant pleaded guilty to aiding and abetting, not conspiracy, sentence properly enhanced under Section 2D1.1(b)(1) where co-defendant's possession of firearm was reasonably foreseeable). Weapons were among the tools of the conspiracy to which petitioner belonged; he was properly held accountable for their possession. b. The decision below does not conflict with United States v. Vasquez, 874 F.2d 250, 251 (5th Cir. 1989). In Vasquez, a "reverse buy" situation, the defendant bought drugs from an undercover agent in a parking lot far away from his home. After the defendant's arrest at the scene of the purchase, a search of his home revealed a firearm. There was no showing that the drugs and the firearm were ever less than several miles apart, or that the drug purchase and a distribution conspiracy (which alone may have involved the firearm) were connected. Cf. U.S.S.G. Section 2D1.1, comment. (n.3) (unloaded hunting rifle in closet of drug trafficker would not by itself support sentence enhancement). The present case bears little resemblance to Vasquez. The evidence relied on by the district court showed that large numbers of firearms were purchased and used in furtherance of the cocaine trafficking conspiracy to which petitioner belonged. It was during that time and in connection with that conspiracy that petitioner committed the offense of cocaine distribution to which he subsequently pleaded guilty. Moreover, contrary to petitioner's suggestion, see Pet. 9, the absence of a conspiracy charge was not essential to the result in Vasquez. The court there merely remarked in dictum that its holding "might (have been) different" if the defendant had been convicted of conspiracy. 874 F.2d at 251. In fact, however, the court of appeals concluded that the district court's conspiracy-related findings did not "as a matter of law" "reveal sufficient connections to the possession offense to justify" an enhancement. Ibid. On the different facts of the present case, however, both courts below found "sufficient connections" to warrant enhancement. Those findings amply support the sentence enhancement here. 2. Petitioner further claims, Pet. 12-17, that the court of appeals misapplied U.S.S.G. Section 3B1.1(b) when it affirmed the district court's finding that petitioner managed a criminal activity. /4/ That fact-bound claim does not merit this Court's review. A finding that a defendant is a manager or supervisor of criminal activity is essentially factual, see United States v. Fuentes-Moreno, 895 F.2d 24, 26 (1st Cir. 1990); United States v. Mejia-Orosco, 867 F.2d 216, 221 (5th Cir.), cert. denied, 109 S.Ct. 3257 (1989), and should be upheld if not clearly erroneous, United States v. White, 875 F.2d at 432. In the instant case, DEA Agent Tolley testified at sentencing that, according to information provided to the government by one of petitioner's co-conspirators, whenever the usual supervisor of the conspiracy's Norfolk drug distribution unit was absent, petitioner was responsible for the six to eight drivers and their daily drug deliveries. Gov't C.A. Br. 6, 9. Other evidence, see Pet. App. 12, showed that petitioner recruited at least one person into the conspiracy, see United States v. Pierce, 893 F.2d 669, 676 (5th Cir. 1989). On the basis of this evidence, the court of appeals correctly sustained the district court's finding that petitioner played a managerial role in the conspiracy. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS M. GANNON Attorney JULY 1990 /1/ A 13-count indictment charged petitioner and eight others with a variety of narcotics and racketeering offenses. Petitioner was named in two conspiracy counts and two distribution counts. The conspiracy counts and the other distribution count were dismissed at sentencing on motion of the government. Judgment and Commitment Order at 1. Petitioner and four co-defendants -- Devon Clarke, Gary Gayle, Michael Smallen, and Markie Corinthian -- appealed from the sentences imposed after their guilty pleas. Clarke also appealed from the denial of his motion to withdraw his guilty plea. Pet. App. 4. Petitioner's co-defendants have not sought review in this Court. /2/ Petitioner also argued in the court of appeals that his base offense level should be determined by the specific quantity of cocaine he pleaded guilty to possessing, and not the amount he was actually responsible for distributing. The court of appeals rejected that argument, Pet. App. 8-10, and petitioner does not pursue it here. /3/ Section 2D1.1 was amended effective November 1, 1989. Its meaning remains substantially the same. See U.S.S.G. App. C, at 61. /4/ U.S.S.G. Section 3B1.1(b) provides for an increase in a defendant's offense level as follows: If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.