                          PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                               No. 00-4833
LEONARD ANDREW SAYLES, JR, a/k/a
Leno,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 00-4859
ROBERT JARED SMITH,
              Defendant-Appellant.
                                       
           Appeals from the United States District Court
     for the Southern District of West Virginia, at Charleston.
             Charles H. Haden II, Chief District Judge.
                            (CR-99-198)

                       Argued: May 9, 2002

                      Decided: July 10, 2002

    Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.



Affirmed in part and vacated and remanded in part by published opin-
ion. Judge Motz wrote the opinion, in which Judge Wilkins and Judge
Michael joined.
2                      UNITED STATES v. SAYLES
                             COUNSEL

ARGUED: Brian Alexander Glasser, BAILEY & GLASSER, L.L.P.,
Charleston, West Virginia; John G. Hackney, Jr., Charleston, West
Virginia, for Appellants. John J. Frail, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee. ON BRIEF: Kasey
Warner, United States Attorney, Charleston, West Virginia, for
Appellee.


                             OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

   A jury convicted Leonard Sayles and Robert Jared Smith of various
drug offenses; Sayles was also convicted of a related firearm viola-
tion. The district court sentenced Sayles to 295 months of imprison-
ment, followed by a five-year term of supervised release; the court
sentenced Smith to life imprisonment, followed by a five-year term
of supervised release. Sayles and Smith appeal, challenging their con-
victions and sentences. We affirm their convictions, vacate their sen-
tences, and remand for resentencing.

                                  I.

   At trial, a number of law enforcement officers testified regarding
their investigation and surveillance of drug distribution activities at
the City Park apartment complex on Roseberry Circle in Charleston,
West Virginia. On January 28, 1999, two officers conducting video
surveillance observed both Smith and Sayles engaging in "hand-to-
hand" transactions involving substances that appeared to be illegal
drugs.

   The officers videotaped Smith carrying "a plastic bag containing a
white tan hard substance," apparently selling illegal drugs to others.
Smith then drove away from Roseberry Circle in a purple Maxima.
Law enforcement officers stopped the Maxima; a subsequent search
yielded $1,690 on Smith’s person and digital scales with cocaine resi-
due in the center console of his car. Officers also recovered nearby
                       UNITED STATES v. SAYLES                         3
3.7 grams of crack, which had been thrown from the Maxima by one
of Smith’s passengers, John Clements, immediately prior to the stop.
At the police station, Smith asked an officer "how are you going to
hold me after [Clements] done told you the dope was his?"

   As to Sayles, on January 28, 1999, the officers at Roseberry Circle
videotaped him attempting to give money to another co-defendant and
carrying "a plastic bag with a [large amount of] white tan substance
up against his shirt." Nine months later, on September 22, 1999, offi-
cers stopped a white Mustang, in which Sayles was a passenger. Offi-
cers recovered one weapon underneath the driver’s seat, which the
driver admitted was his, and a second weapon, a Lorsin .380 pistol,
underneath the passenger seat where Sayles had been riding; officers
also recovered digital scales from Sayles’s seat. At the police station,
officers found 4.01 grams of crack on Sayles. In addition, one officer
testified at trial that Sayles admitted that the gun under the passenger
seat was his and told the officers that he carried the gun because
"some of his boys . . . were getting shot."

   The prosecution’s expert testified that drug dealers (not users)
carry digital scales and crack amounts greater than three-and-a-half
grams. Other named co-defendants who pled guilty to various related
drug charges also testified against Smith and Sayles. Arbera Ross, an
admitted drug dealer, testified that he sold crack to Smith "four or five
times" during 1998, ranging from 100 grams to a "dub" (i.e., $200
worth of cocaine for $100). Ross also testified that he had sold Sayles
crack "[a]bout ten times . . . from a hundred grams and the rest would
be ounces." Marvin Garrett, another drug dealer, testified that he "lost
count" of the times he had seen Smith distributing crack to others and
had obtained from six grams to an ounce of crack from Smith on ten
to twenty occasions from 1995 to 1999. Garrett also testified that he
and Sayles had cooked cocaine into crack "numerous times . . . [f]or
resale on the streets." According to Garrett, he received "a hundred
dub" or "a couple grams" of crack from Sayles "[a]bout ten or more
times" and had observed Sayles distributing crack to others "[m]ore
than 20 times" from 1995 to 1999.

   In his defense, Smith proposed to call John Clements, the co-
conspirator who was Smith’s passenger during the January 28 traffic
stop. But the district court permitted Clements’s attorney to assert
4                      UNITED STATES v. SAYLES
Clements’s Fifth Amendment right to refuse to testify. Smith then
called Herman James, another co-defendant, who also asserted his
Fifth Amendment privilege. Neither Smith nor Sayles called any other
witnesses.

   The jury convicted Sayles of one count of conspiracy to distribute
fifty grams or more of cocaine base in violation of 21 U.S.C.A. § 846
(West 1999), two counts of possession with intent to distribute
cocaine base in violation of 21 U.S.C.A. § 841(a)(1) (West 1999), and
one count of carrying a firearm during and in relation to a drug traf-
ficking crime in violation of 18 U.S.C.A. § 924(c)(1)(A) (West 2000).
The jury convicted Smith of one count of conspiracy to distribute fifty
grams or more of cocaine base in violation of 21 U.S.C.A. § 846, and
one count of aiding and abetting possession with intent to distribute
cocaine base in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A.
§ 2 (West 2000).

   At sentencing, the district court applied a four-level enhancement
to Smith, as an "organizer or leader," and sentenced him to life
imprisonment on the drug conspiracy count and twenty years on the
aiding and abetting count, to be served concurrently, followed by five
years’ supervised release. The district court applied a two-level
enhancement to Sayles for his lesser aggravating role and sentenced
him to 235 months on each of the three drug counts, to be served con-
currently, a 60-month consecutive sentence on the firearm count, and
five years’ supervised release.

   Smith and Sayles challenge both their convictions and sentences on
several grounds. Only two of these challenges merit extended discus-
sion.

                                  II.

   Smith contends that the district court erred in permitting John
Clements’s counsel to invoke Clements’s Fifth Amendment privilege
against self-incrimination and so allowing Clements to avoid testify-
ing on Smith’s behalf. (Smith makes no similar claim with respect to
Herman James’s proposed testimony.)
                       UNITED STATES v. SAYLES                        5
   Smith’s counsel attempted to elicit testimony from Clements, who
had entered into a plea agreement as to a distribution count of the
same indictment in which Smith and Sayles were charged. Clements’s
attorney stated that Clements would "take the Fifth" if called. His
attorney explained that Clements had a "good faith basis" to do so
because, inter alia, "there could be issues raised . . . that would con-
cern uncharged conduct for which Mr. Clements does not have immu-
nity." The district court then held a hearing outside the presence of
the jury, in which Smith’s counsel stated that his inquiries "would be
limited to the question of whether [Smith] aided and abetted [Clem-
ents] in a distribution" as alleged in the indictment, particularly
regarding the money officers seized from Smith during the traffic stop
on January 28, 1999. Smith’s counsel proffered:

    that if he had taken the stand, Mr. Clements would have tes-
    tified that Mr. Smith did not aid and abet him in the distribu-
    tion which is alleged in count 5. It is also my understanding
    that his testimony would have been that at the time he was
    arrested on January 29th or 28th, 1999 that he had in his
    possession certain sums of money and that Mr. Smith had
    certain sums of money and that when that money was found,
    the officers, particularly Officer Rinehart[,] took the money
    — took all of the money from the two of them and told the
    two of them that they were going to put the drugs on Mr.
    Clements and the money on Mr. Smith.

   The court noted that it had not yet accepted Clements’s plea or sen-
tenced Clements, and Clements’s counsel stated that "because there
is no termination of prosecution clause [in Clements’s plea agree-
ment] . . . it’s possible that he could be prosecuted for other activi-
ties." Clements’s attorney then asked Clements, under oath, "if you
were called as a witness in this trial and were asked questions by
either the defense or the prosecution, would you invoke your Fifth
Amendment right to silence." Clements answered, "[y]es," and the
court excused him.

   The Sixth Amendment grants a defendant the right to compel testi-
mony by witnesses in his defense. When a defendant’s right to com-
pel testimony conflicts with a witness’ privilege against self-
incrimination, however, a court must "make a proper and particular-
6                       UNITED STATES v. SAYLES
ized inquiry into the legitimacy and scope of the witness’ assertion of
the privilege." Gaskins v. McKellar, 916 F.2d 941, 950 (4th Cir.
1990). A court can excuse a witness from testifying "only if the court
finds that [the witness] could legitimately refuse to answer any and
all relevant questions." Id.; accord Hoffman v. United States, 341 U.S.
479, 486-88 (1951); Rogers v. United States, 340 U.S. 367, 374
(1951).

   In this case, we need not determine if the district court erred in fail-
ing to make a more specific inquiry to determine whether Clements
could claim a valid Fifth Amendment privilege. This is so because
even if the court did err, that error was harmless.

   An error is harmless if it is "clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty absent the
error." Neder v. United States, 527 U.S. 1, 18 (1999). Even if the dis-
trict court had conducted a more particularized inquiry, and that
inquiry had resulted in Clements being permitted to testify, and Clem-
ents had testified that Smith did not aid and abet him in possessing
and distributing crack on January 28, 1999, we believe it clear beyond
a reasonable doubt that a jury nevertheless would have found Smith
guilty of that crime.

   Law enforcement officers testified to seeing Smith, Sayles, Clem-
ents, and others, including Arbera Ross and Marvin Garrett, engaged
in illegal drug distribution activity at the Roseberry Circle complex
for several hours on January 28, 1999. Officers videotaped Smith and
Clements engaging in these activities, and the prosecution then played
important portions of those videotapes to the jury. Eventually officers
reported that Smith and Clements left the area in a purple Maxima —
with Smith driving and Clements in the passenger seat. After a police
cruiser activated flood lights and sirens to stop the Maxima, officers
testified that "an arm came out of the passenger window" and threw
an object out; that an officer within five minutes recovered the object,
which police later tested and found to be 3.7 grams of crack. The
police searched Smith and found $1,690, mostly in twenty dollar bills,
and drug scales in his car. Two of Smith’s and Clements’s co-
conspirators, Ross and Garrett, substantiated the police officers’
account of Smith and Clements’s drug activity on January 28, 1999.
Given this evidence, even if Clements had testified as Smith proffered
                         UNITED STATES v. SAYLES                           7
he would, it is clear beyond a reasonable doubt that any reasonable
jury would have convicted Smith of aiding and abetting Clements in
possession with intent to distribute cocaine on January 28, 1999.1

                                    III.

   Both Smith and Sayles argue that the district court erred in increas-
ing their offense levels at sentencing. The district court assessed a
four-level increase on Smith for his aggravating role as an "organizer
or leader" in the drug conspiracy, and a two-level increase on Sayles
for his lesser aggravating role in the conspiracy. We review a district
court’s decision to apply a sentencing adjustment based on a defen-
dant’s role in the offense for clear error. United States v. Sheffer, 896
F.2d 842, 846 (4th Cir. 1990).

   To qualify for a four-level increase under § 3B1.1(a) of the Sen-
tencing Guidelines, like that imposed on Smith for his role in the con-
spiracy, a defendant must have been "an organizer or leader of a
criminal activity that involved five or more participants or was other-
wise extensive." U.S. Sentencing Guidelines Manual (U.S.S.G.)
§ 3B1.1(a) (1999). The Guidelines provide for a three-level increase
if a "defendant was a manager or supervisor (but not an organizer or
  1
    Sayles maintains that insufficient evidence supports his conviction for
the firearm offense, using or carrying a weapon during and in connection
with a drug trafficking offense in violation of 18 U.S.C.A. § 924(c). We
can set aside his conviction only if no reasonable jury could have con-
cluded beyond a reasonable doubt that he committed this crime. See
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). At
trial, the prosecution offered more than sufficient evidence to satisfy this
standard, including the handgun found beneath the passenger seat where
Sayles had been seated while carrying more than four grams of crack
prepared for individual sale, and Sayles’s admission that the gun was his
and that he carried it for protection because "some of his boys . . . were
getting shot." See Muscarello v. United States, 524 U.S. 125, 126-27
(1998) (holding that one carries a firearm within the meaning of
§ 924(c)(1) if he carries the firearm anywhere inside a vehicle); United
States v. Mitchell, 104 F.3d 649, 654 (4th Cir. 1997) (stating that "if a
firearm is carried for protection or intimidation, it is carried ‘in relation
to’ the drug trafficking offense within the meaning of § 924(c)(1)" (cita-
tion omitted)).
8                      UNITED STATES v. SAYLES
leader) and the criminal activity involved five or more participants or
was otherwise extensive." U.S.S.G. § 3B1.1(b). Finally, § 3B1.1(c)
provides for a two-level increase when a court finds, as the district
court did with respect to Sayles, that a defendant "was an organizer,
leader, manager, or supervisor in any criminal activity other than that
discussed in [§ 3B1.1] (a) or (b)." U.S.S.G. § 3B1.1(c).

   Neither Smith nor Sayles argues that the charged conspiracy
involved fewer than five participants. Rather, each of them raise a sin-
gle contention: the Government did not produce evidence that he
functioned as any sort of "organizer, leader, manager or supervisor"
in the conspiracy.

   The Sentencing Commission has indicated that a court should con-
sider seven factors in determining a defendant’s "leadership and orga-
nizational role." U.S.S.G. § 3B1.1, cmt. n.4. These include: "[1] the
exercise of decision making authority, [2] the nature of participation
in the commission of the offense, [3] the recruitment of accomplices,
[4] the claimed right to a larger share of the fruits of the crime, [5]
the degree of participation in planning or organizing the offense, [6]
the nature and scope of the illegal activity, and [7] the degree of con-
trol and authority exercised over others." Id.

   The district court made abbreviated findings in support of its deci-
sion to increase Smith and Sayles’s offense levels. With respect to
Smith, the court simply stated:

    Mr. Smith has an elevated role in this organization, he is at
    the level just below Mr. Ross and Mr. James, and he shares
    on the same level with the absent Mr. Groom, and he is
    involved as an organizer and leader in an organization that
    involves five or more people and, consequently, the court
    sets the 4 points on that.

When Smith’s counsel objected that "no evidence" had been "offered"
at the sentencing hearing "to support" the four-level increase, the dis-
trict court responded that it relied on the findings in the presentence
report and the evidence at trial. The probation officer’s presentence
report, in turn, contains only the following "finding" as to "Adjust-
ment for Role in the Offense":
                        UNITED STATES v. SAYLES                        9
      The evidence suggests that Mr. Smith was a leader in crimi-
      nal activity involving five or more participants. The partici-
      pants include Arbera Ross, Simernon Rogers, Calvin Dyess,
      as sources of supply for the defendant’s distribution and
      Ronald Tinsley, and Ivan Lee as distributors for the defen-
      dant. If the court finds Mr. Smith held an aggravating role,
      the probation officer believes a 4-level increase is appropri-
      ate.

   In Sayles’s case, the presentence investigation report recommended
that because the conspiracy involved five or more participants and
Sayles "had at least three sources of supply for crack cocaine and one
person stated that he sold crack for Mr. Sayles on approximately 20
occasions,"(emphasis added),2 Sayles was "by definition a leader in
criminal activity involving five or more participants" and, therefore,
"a 4 level increase is appropriate." The district court adopted these
findings but rejected the recommendation, explaining that "the testi-
mony supported" Sayles’s contention that he was "a lesser player in
this conspiracy." For this reason, the district court assessed Sayles
"only a two-point enhancement, pursuant to 3B1.1(c)."

   These are the only findings supporting the role adjustments
assessed against Smith and Sayles. No matter how generously these
findings are read, the sole justification offered for imposition of an
adjustment for a leadership or management role on Smith and Sayles
is that they bought and sold crack. But being a buyer and seller of ille-
gal drugs, even in league with more than five or more other persons,
does not establish that a defendant has functioned as an "organizer,
leader, manager or supervisor" of criminal activity. See United States
v. Anderson, 189 F.3d 1201, 1212 (10th Cir. 1999); United States v.
Medina, 167 F.3d 77, 80-81 (1st Cir. 1999); United States v. Vargas,
16 F.3d 155, 160 (7th Cir. 1994). Cf. United States v. Bartley, 230
F.3d 667, 673-74 (4th Cir. 2000) (affirming § 3B1.1 adjustment and
noting "[t]his is not a case in which a defendant simply supplied drugs
  2
   This statement and a similar statement quoted above in Smith’s pre-
sentence report reference only drug sales by Smith and Sayles; the Gov-
ernment does not contend that Smith or Sayles controlled their buyers,
nor does the trial testimony establish that Smith or Sayles controlled
those who purchased drugs from them.
10                     UNITED STATES v. SAYLES
and negotiated their sale"); United States v. Perkins, 108 F.3d 512,
518 (4th Cir. 1997) (affirming § 3B1.1 adjustment and rejecting
defendant’s contention that "he only had a buyer/seller relationship
with his codefendants").

   The Government does not contend to the contrary. Nor does the
Government argue that it introduced evidence that Smith or Sayles
"exercise[d] decision making authority." See U.S.S.G. § 3B1.1, cmt.
n.4; Perkins, 108 F.3d at 518 (affirming § 3B1.1 adjustment when
defendant facilitated criminal enterprise by "renting apartments,
acquiring pagers, hiring a lawyer for a codefendant, and paying for
the bond of another codefendant"); United States v. Brooks, 957 F.2d
1138, 1152 (4th Cir. 1992) (affirming § 3B1.1(b) adjustment when
defendant, inter alia, paid employees of the drug operation and "ef-
fectively ran the operation while her husband was ill").

   Similarly, the Government does not claim that its evidence demon-
strated that Smith or Sayles "plan[ned] and organize[d]" the drug traf-
ficking or "exercise[d] . . . control and authority over others" in the
conspiracy. Compare U.S.S.G. § 3B1.1, cmt. n.4; Bartley, 230 F.3d
at 673-74 (affirming § 3B1.1(b) adjustment when defendant directed
others as to where to mail and transport drugs, set prices and terms
of payment, arranged logistics of deliveries, and gave advice as to
how to market the product); United States v. Al-Talib, 55 F.3d 923,
932 (4th Cir. 1995) (affirming § 3B1.1(b) adjustment when defendant
"acted as a manager in a large criminal enterprise, supervising the
preparation of marijuana for shipment and sending out his inferiors to
deliver the drugs"); United States v. Kincaid, 964 F.2d 325, 329 (4th
Cir. 1992) (affirming § 3B1.1(c) adjustment when defendant "exer-
cised control" over "co-conspirator . . . by providing him with specific
instructions on the circumstances under which he could sell narcotics
from [defendant’s] residence," directed other drug transactions, and
instructed another as to abduction of a drug dealer and how to obtain
a refund for unsatisfactory cocaine).

   The Government does, however, contend that it offered evidence
proving two of the factors relevant to an aggravating role determina-
tion as to Smith and one as to Sayles. Specifically, the Government
argues that its evidence established that both Smith and Sayles "re-
cruited" drug couriers and that Smith retained "a larger share of the
                       UNITED STATES v. SAYLES                        11
proceeds" of the drug conspiracy. See U.S.S.G. § 3B1.1, cmt. n.4.
Such evidence could provide the basis for a § 3B1.1 adjustment only
it if demonstrated that Sayles was an organizer, leader, manager or
supervisor of people. See United States v. Capers, 61 F.3d 1100, 1109
(4th Cir. 1995); see also Bartley, 230 F.3d at 673-74 (affirming
§ 3B1.1(b) adjustment where the evidence showed the defendant
"controlled the activities of other participants" and "exercised man-
agement responsibility," by, inter alia, "handling proceeds" and "di-
rect[ing] others to wire proceeds from the drug distribution activities
or to receive such transfers of funds on his behalf"). In this case, evi-
dence of recruitment and retention of a larger share of the proceeds
cannot demonstrate this since such evidence does not exist.

   Neither in its brief nor at oral argument could the Government pro-
vide any record citation supporting its contention that it offered such
evidence. Smith and Sayles included the entire trial transcript in the
joint appendix to support their contentions that the Government failed
to produce evidence of recruitment or Smith’s retention of a larger
share of the proceeds. We have carefully reviewed that transcript and
can only agree.

   The trial was short, with testimony consuming only part of two
days; as the district court noted prior to instructing the jury, the evi-
dence was "rather briefly presented." For the most part, the Govern-
ment relied on the testimony of ten law enforcement officers and
employees, who related what they observed on January 28, 1999, and
September 22, 1999, displayed the video tapes made on the former
date, described the searches resulting from these observations, pro-
vided chain of custody evidence, and presented expert opinions. None
of these witnesses would seem to be in a position to have actual
knowledge as to Smith’s or Sayles’s possible aggravating roles; in
any event, none of these witnesses were questioned on those matters.

    The Government did also offer the testimony of co-conspirators
Ross and Garrett, who presumably might have been able to supply
evidence as to Smith and Sayles’s respective roles in the conspiracy,
if they had been asked to do so. But they were never asked about this.
Rather, in response to the prosecutor’s questions, Ross simply identi-
fied Smith and Sayles and testified that he had sold crack to both of
them; Garrett also identified Smith and Sayles and testified that he
12                      UNITED STATES v. SAYLES
and Sayles "converted cocaine powder to crack," that he purchased
crack from Sayles and Smith, and that he observed Sayles sell crack
and Smith buy crack from others. Neither Ross nor Garrett were ques-
tioned about, or testified to, recruitment efforts by either Smith or
Sayles or whether Smith took a larger share of the profits from the
drug conspiracy.

   In sum, the Government certainly produced ample evidence that
both Smith and Sayles bought and sold significant amounts of cocaine.3
But the Government offered no evidence that either defendant
recruited drug couriers or that Smith claimed a larger share of the
fruits of the conspiracy. Of course, this is not to say Smith and Sayles
did not recruit others, or that Smith did not retain a larger share of the
drug conspiracy profits, or, for that matter, that Smith and Sayles did
not act as decision-makers or exercise control over others. Smith and
Sayles may have done some or all of these things, but at their short
trial, the Government failed to present such evidence. Given the total
absence of evidence as to Smith’s or Sayles’s aggravating role, we
must conclude that the district court clearly erred in its application of
U.S.S.G. § 3B1.1. See United States v. Harriott, 976 F.2d 198, 202
(4th Cir. 1992) (vacating and remanding for resentencing when dis-
trict court clearly erred in applying U.S.S.G. § 3B1.1). Accordingly,
we vacate their sentences and remand for resentencing in accord with
this opinion.4
  3
     Sayles’s contention that the district court erred in determining the
quantity of controlled substances attributable to him as relevant conduct
clearly fails. The district court attributed to Sayles 940 to 960 grams of
crack. Sayles argues that Ross’s testimony on this point at trial conflicted
with his testimony at Sayles’s sentencing hearing. Even if we agreed,
Garrett’s consistent testimony at trial and at sentencing provided evi-
dence fully supporting the threshold quantity of crack needed to sustain
the sentence. See United States v. Uwaeme, 975 F.2d 1016, 1018 n.8 (4th
Cir. 1992).
   4
     Sayles has filed a pro se motion to amend his appellate brief, which
we have granted. He argues in his amendment that his indictment vio-
lated Apprendi v. New Jersey, 530 U.S. 466 (2000). The argument is
meritless. See United States v. Roberts, 262 F.3d 286, 291 (4th Cir. 2001)
(holding no Apprendi error existed when none of defendant’s concurrent
sentences exceeded the statutory maximum) (citing United States v. Kin-
ter, 235 F.3d 192, 201-02 (4th Cir. 2000)).
                     UNITED STATES v. SAYLES                   13
                               IV.

   For the foregoing reasons, we affirm Smith and Sayles’s convic-
tions, but vacate their sentences and remand for resentencing.

                            AFFIRMED IN PART AND VACATED
                                   AND REMANDED IN PART
