944 F. 2d 902 - United States v. Berry

Anthony Eugene Berry and William Leburt Dickerson each pled guilty to three counts of distribution of cocaine and crack cocaine (21 U.S.C. § 841) pursuant to plea agreements which provided for the dismissal of two additional substantive counts and a conspiracy count. Both appeal the sentences imposed by the district court. We affirm.

Berry and Dickerson allege that the district court erred in accepting the probation officer's suggestion that between five and fifteen kilograms of cocaine were involved in the overall offense and should be considered relevant conduct in determining their offense levels. Although they concede that they were members of the conspiracy, they contend that only the drug amounts in the counts they pled to should be used to compute their sentences because the total amount involved in the conspiracy was not reasonably foreseeable to them.1 They further maintain that reliance on the amounts given in the presentence report violated the confrontation clause in that these amounts were derived from unreliable hearsay testimony. And they argue that determining the offense level after a guilty plea is entered violates the spirit and purpose of the sentencing guidelines by frustrating the process of plea negotiation.

We find no merit in these contentions. The information in the presentence report was compiled largely from statements made by other members of the close-knit conspiracy to the probation officer, who testified about the sources of the information at both sentencing hearings. In his statement to the probation officer, Samuel McCotter, the head of the conspiracy, estimated that he may have purchased as much as forty kilograms from his sources in New York, Florida, and California for sale in North Carolina. Through his attorney, Dickerson conceded that he had traveled with McCotter on three trips to obtain cocaine. He was part of the conspiracy for more than two years, and was described in investigative reports as McCotter's number one man, the one who handled sales of larger amounts of drugs and dispensed drugs to another conspirator to be packaged in small amounts for street sales. Berry sold drugs on the street for the conspiracy for over a year. He was the son of McCotter's first wife and the nephew of Dickerson, and worked closely with Dickerson's son, who also sold drugs on the street.

A conspirator can be held accountable for the total amount of drugs distributed by the conspiracy if, when he joined the conspiracy, he could reasonably foresee the distribution of future amounts, see United States v. Willard, 909 F.2d 780 (4th Cir.1990), or he "knew or reasonably should have known what the past quantities were." United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d Cir.1991). Because of Dickerson's and Berry's participation in the wide-ranging conspiracy and because of their close and long-term connection with other members of the conspiracy, the district court's finding is not clearly erroneous.

Although Berry and Dickerson made objections to certain information contained in the report, neither was willing to present evidence concerning his actual involvement during his sentencing hearing, and each refused the district court's offer to hold an evidentiary hearing to determine the amounts of drugs properly attributable to him. A defendant who disputes information in the presentence report has the burden of showing that it is inaccurate. United States v. Terry, 916 F.2d 157 (4th Cir.1990). Neither Berry nor Dickerson met that burden, and the district court did not clearly err in finding by a preponderance of the evidence that the drug amounts used to calculate Berry's and Dickerson's offense levels were properly attributed to them.

Appellants' contention that relevant conduct has been too broadly interpreted and that the plea bargaining process is frustrated by having a defendant's offense level determined after he enters his plea is frivolous.2 Under the guidelines, as under pre-guideline sentencing procedures, a defendant's sentence is determined by the sentencing judge; then as now, a prosecutor may agree to recommend a certain sentence but cannot promise that the judge will follow his recommendation. Moreover, the plea agreement in each of these cases states that sentencing will be in accordance with the guidelines, that the sentencing court is not bound by any recommendations or agreements as to guideline applications, and that the sentence may be as high as the statutory maximum. Thus, the district court properly considered relevant conduct and properly calculated appellants' offense level.

Berry maintains that he should have been given a reduction in offense level for having a minor role in the offense. A defendant's role in the offense is a factual question, and the district court's finding is reviewed for clear error. United States v. White, 875 F.2d 427 (4th Cir.1989). The district court found no evidence that Berry was any less committed to the furtherance of the conspiracy than the other conspirators even though he participated at a lower level than some others. This determination was not clearly erroneous.

We therefore affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED.