UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                 No. 96-4393

JAMES A. FORD, a/k/a Peanut,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                 No. 96-4419

TERRY ROGER WARREN,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                   No. 96-4427
ROBERT JEROME WARREN, JR., a/k/a
J.J.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                 No. 96-4428

KENNETH EDMONDS, a/k/a Red,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 96-4455
ROBERT JEROME WARREN, SR., a/k/a
Jerry,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4456

MARION LATIMER, JR., a/k/a J.R.,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CR-95-147)

Submitted: December 3, 1996

Decided: January 16, 1997

Before WILKINS, HAMILTON, and MOTZ, Circuit Judges.

_________________________________________________________________

No. 96-4393 dismissed and Nos. 96-4419, 96-4427, 96-4428,
96-4455, and 96-4456 affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

George A. Mills, III, Huntington, West Virginia; Jacqueline Ann Hal-
linan, Charleston, West Virginia; Nelson R. Bickley, Jr., BICKLEY,

                    2
JACOBS & RUFUS, Charleston, West Virginia; Anne Elizabeth
Shaffer, SALSBERY & DRUCKMAN, Charleston, West Virginia;
John Robert McGhee, Jr., KAY, CASTO, CHANEY, LOVE &
WISE, Charleston, West Virginia; Gerald Blair, Jr., Huntington, West
Virginia, for Appellants. Rebecca A. Betts, United States Attorney,
Michael L. Keller, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants were all involved in a conspiracy to distribute crack
cocaine in Williamson, West Virginia, between 1993 and 1995. Rob-
ert Warren, Sr. (Jerry Warren), pled guilty to conspiracy. Terry War-
ren (Jerry's brother) pled guilty to aiding and abetting the distribution
of crack in August 1995. James Ford, Marion Latimer, Kenneth
Edmonds, and Robert ("J.J.") Warren, Jr. (Jerry's son) entered pleas
to crack distribution. All contest their sentences. We dismiss Ford's
appeal but affirm the other sentences.

Briefly summarized, the facts developed in the district court
showed that Durand Warren (Jerry's nephew) and J.J. Warren got into
crack distribution while they were students at Marshall University in
Huntington, West Virginia. Durand began supplying crack to Jerry
Warren in 1994. J.J. Warren dropped out of school and returned to
Williamson but continued to sell crack which he obtained in Hunting-
ton. Jerry Warren sold crack to Mark Damron, a beauty shop operator
who held regular crack parties in his shop after hours. In the spring
of 1995, Jerry Warren developed a close relationship with Kelli
Koontz, one of Damron's friends, supplied her with crack at no
expense, and paid for an apartment where she and her friend Becky
Dean lived. Miki Koontz, Kelli's younger sister, also attended the

                     3
parties at Damron's shop, and associated with J.J. Warren and Durand
Warren during the summer.

In mid-August 1995, Miki Koontz entered a hospital for drug treat-
ment. Shortly afterward, Damron (who had been an occasional infor-
mant for local authorities) warned Kelli Koontz and her mother that
federal indictments were in the works. He urged her to cooperate.
Kelli instead informed Terry and Jerry Warren. The Warrens initially
threatened Dean, whom they perceived as most likely to give infor-
mation about their drug activities, urged Kelli and Dean to leave Wil-
liamson, and promised to give each of them $1000 if they would go.
Terry Warren also called Miki Koontz in the hospital.

Kelli Koontz and Becky Dean went to Atlanta on August 22, 1995,
and Miki Koontz was released from the hospital the same day. Miki
registered for classes as a freshman at Marshall University during the
following week. On Friday night, about an hour before she was to go
to a high school football game with her mother, Miki left home and
drove to the house of Chris Pennington, a high school friend who was
also a drug user. She did not return home, and she was found shot to
death two days later. Pennington confessed to shooting her but said
that Jerry Warren ordered him to commit the murder in lieu of paying
his drug debt to Warren, stood by while it was done, drew a gun on
Pennington, and threatened to kill him and his family if he did not do
it. As a result of Pennington's testimony at the sentencing hearing,
Jerry Warren's sentence was enhanced for first-degree murder under
USSG § 2D1.1(d).1

Latimer traveled to Ohio and North Carolina to buy crack for Jerry
Warren and distributed crack in Williamson. Edmonds made at least
one trip to Ohio and one trip to North Carolina with Latimer to pur-
chase crack for Jerry Warren. Terry Warren spent time at Jerry's
house during the summer of 1995 and drove Jerry at times when he
delivered crack to customers. Ford bought crack from Jerry Warren
and resold it.
_________________________________________________________________

1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).

                    4
I. Ford

Ford contends that the district court should have departed down-
ward under USSG § 4A1.3 from the career offender guideline range
because his prior drug convictions occurred in the 1980's and
involved small amounts of Valium and marijuana. The district court
acknowledged its authority to depart from a career offender sentence
in an unusual case but, relying on United States v. Brown, 23 F.3d
839, 842 (4th Cir. 1994), noted that prior convictions involving small
amounts of drugs did not make a case unusual. The court therefore
declined to depart. A sentencing court's decision not to depart is not
reviewable on appeal. United States v. Bayerle , 898 F.2d 28, 31 (4th
Cir.), cert. denied, 498 U.S. 819 (1990). Ford's appeal will therefore
be dismissed.

II. Terry Warren

The probation officer recommended a two-level adjustment for
obstruction of justice based on Terry Warren's threat to Becky Dean
and attempt to get Kelli Koontz and Becky Dean to leave Williamson
so as to eliminate the possibility that they might give information to
investigators. Terry Warren objected to the adjustment and denied
either threatening Dean or attempting to get the women to leave but
did not testify or offer evidence to rebut the information at sentencing.
Although the government was prepared to present evidence, the dis-
trict court did not ask to hear it and simply adopted the probation offi-
cer's recommended findings.

Terry Warren argues that, by not requiring the government to put
on evidence, the court failed to resolve a contested issue and thus did
not comply with Fed. R. Crim. P. 32(b)(6)(D). He suggests that the
1994 amendment to Rule 32 negates this Court's holding in United
States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990), that a defendant
must make an affirmative showing that disputed information in the
presentence report is inaccurate.

The 1994 amendments to Rule 32 "focused on preparation of the
presentence report as a means of identifying and narrowing the issues
to be decided at the sentencing hearing" and reorganized the rule "to
reflect an appropriate sequential order in the sentencing procedures."

                    5
Fed. R. Crim. P. 32 advisory committee's note. The amendments did
not change the defendant's burden of putting on evidence to support
a claim that information in the presentence report is inaccurate. Under
the Rule, the district court may in its discretion hear evidence from
the parties concerning a disputed issue but need not do so if the issue
can be resolved without evidence. Fed. R. Crim. P. 32(c)(1). There-
fore, the court did not err in dispensing with the government's evi-
dence.

III. Robert Warren, Jr. (J.J.)

Following his plea agreement, J.J. Warren gave immunized infor-
mation about ten trips he made in the fall of 1994 to Huntington to
obtain crack for sale in Williamson. Those amounts were not used to
calculate his sentence. At the sentencing hearing, the government
offered evidence from Steven Dillard, who testified that he bought
crack from J.J. Warren more than once during the summer of 1994.
J.J. Warren testified that he sold crack to Dillard as often as five times
during the summer of 1994, but said the most he sold in a given trans-
action was four grams. Defense counsel argued that, excluding immu-
nized information, J.J.'s involvement was about 20-30 grams. The
district court ultimately found that J.J. Warren was responsible for 20-
35 grams of crack.

On appeal, J.J. Warren argues, first, that the sales to Dillard were
protected information. There was no suggestion in the district court
that Dillard's testimony was immunized under the plea agreement.
Therefore, the issue has been forfeited absent a showing of plain
error. United States v. Grubb, 11 F.3d 426, 440 (4th Cir. 1993). J.J.
does not attempt to establish plain error and the record does not dis-
close that it occurred.

Second, J.J. Warren maintains that the district incorrectly calcu-
lated the amount he sold to Dillard. The court stated that Dillard said
he bought an ounce (28.35 grams) and an eight-ball (3 grams). Dillard
actually said he bought a half-ounce (14 grams) or an eight-ball (3
grams) on a number of occasions. However, if Dillard bought one
half-ounce and two eight-balls, the total would be 20 grams. The testi-
mony supports a finding of at least this much, particularly in view of

                     6
defense counsel's estimate that his client was liable for 20-30 grams.
Therefore, the court's finding was not clearly erroneous.

IV. Edmonds

Edmonds first challenges the district court's determination of his
criminal history. He contends that counting his prior convictions in
Ohio for "drug abuse" and "attempted drug abuse" with the effect of
increasing his current sentence unconstitutionally penalizes him for
being a drug addict. He cited Robinson v. California, 370 U.S. 660,
667 (1962), in which the Supreme Court struck down a state statute
which made it a crime to be addicted to narcotics. The district court
found that his criminal conduct--not his addiction--was punished by
the Ohio statute2 and denied his objection. We agree. Edmonds'
Eighth Amendment argument fails because his federal sentence has
not been increased because of his addiction but for unlawful conduct
which could be committed by addicts and non-addicts alike.

Edmonds next argues that the district court failed to understand its
authority to depart on the ground that his prior convictions for drug
abuse overstated the seriousness of his past criminal conduct. He
urges this Court to find that convictions for drug abuse may overstate
a defendant's criminal history and to remand so the court may recon-
sider a departure on this ground. A sentencing court's decision not to
depart because of lack of legal authority to depart is reviewed de
novo. United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992). While
the guidelines do not allow a departure based solely on drug depen-
dence, the district court recognized its authority to depart under
USSG § 4A1.3, but chose not to exercise its discretion. Therefore, a
remand is not necessary.

The district court found that Edmonds was not a leader in the
offense and was motivated by his addiction, rather than by a desire
to make money, but did not have a minor role because he participated
in many aspects of the conspiracy, including traveling out of state
with Latimer to purchase crack for Jerry Warren and selling crack.
_________________________________________________________________
2 The Ohio "Drug Abuse" statute forbids knowingly obtaining, possess-
ing, or using a controlled substance. Ohio Rev. Code Ann. § 2925.11
(Baldwin 1996).

                    7
The district court's finding is not clearly erroneous. A defendant who
has sold drugs in a drug conspiracy does not have a minor role in the
offense. United States v. Brooks, 957 F.2d 1138, 1149 (4th Cir.), cert.
denied, 505 U.S. 1228 (1992).

V. Robert Warren, Sr. (Jerry)

The district court determined that 53 ounces of crack (1.5 kilo-
grams) was attributable to Jerry Warren, giving him a base offense
level of 38. USSG § 2D1.1. The court found that Jerry Warren had
caused Pennington to kill Miki Koontz and applied the subsection (d)
cross-reference to USSG § 2A1.1 (First Degree Murder) if a victim
was killed under circumstances which would constitute murder under
18 U.S.C.A. § 1111 (West Supp. 1996) (murder within federal juris-
diction). This increased the offense level to 43, the highest listed in
the Sentencing Table. Further enhancements were made for pos-
session of firearms, USSG § 2D1.1(b)(1), leadership role, USSG
§ 3B1.1, and obstruction of justice, USSG§ 3C1.1. None of these
altered the guideline range, which was life. Warren received a life
sentence.

Jerry Warren contends that enhancing his sentence for first-degree
murder by applying the cross-reference in USSG § 2D1.1(d) instead
of through an upward departure violates due process because it
removes the district court's discretion and in effect results in a murder
conviction by a preponderance of the evidence. He concedes that
restrictions on a sentencing court's discretion do not violate due pro-
cess, but argues that this principle should not apply when a defen-
dant's sentencing amounts to a constructive conviction of an offense
not charged. He argues that conduct proved by less than a reasonable
doubt cannot, by definition, be murder under 18 U.S.C.A. § 1111.

This argument ignores Supreme Court and Fourth Circuit precedent
which holds that use of the preponderance of the evidence standard
in determining facts which affect the imposition of a sentence within
the statutory limits does not offend due process. See McMillan v.
Pennsylvania, 477 U.S. 79, 84-88, 93 (1986); United States v.
Engleman, 916 F.2d 182, 184 (4th Cir. 1990). Jerry Warren was not
convicted or sentenced for murder; however, his sentence for the drug
conspiracy to which he pled guilty could be increased without a viola-

                     8
tion of due process on the court's finding that it was more likely than
not that he was responsible for Miki Koontz's murder. See United
States v. Rivera-Gomez, 67 F.3d 993, 1001 (1st Cir. 1995) (Supreme
Court has made it clear that such sentencing enhancements do not
constitute punishment for separate offenses, citing Witte v. United
States, ___ U.S. ___, 63 U.S.L.W. 4576 (U.S. Jan. 6, 1995) (No. 94-
6187)). Moreover, the enhancement for the murder had no practical
effect on Jerry Warren's sentence.

Jerry Warren also questions the adequacy of the government's evi-
dence that he directed Pennington to commit the murder, arguing that
Pennington was not credible because there was no corroboration for
his testimony that he bought drugs from Jerry Warren and owed War-
ren money. The district court found that the murder enhancement
depended on the credibility of Pennington's testimony and that Pen-
nington was credible in all material respects. We do not review the
court's decision concerning Pennington's credibility. We do find that,
because of Pennington's testimony, the court's finding that Jerry War-
ren directed the murder was factually supported by a preponderance
of the evidence.

Jerry Warren also argues that he was sentenced to two life sen-
tences, one for a crime which he did not commit, and for this reason
his sentence is disproportionate punishment which violates the Eighth
Amendment. Warren received one sentence of life imprisonment.
Given the amount of drugs involved and Warren's participation in a
murder, the sentence does not violate the Eighth Amendment. See
United States v. D'Anjou, 16 F.3d 604, 612-14 (4th Cir.), cert. denied,
___ U.S. ___, 62 U.S.L.W. 3861 (U.S. June 27, 1994) (No. 93-9131).

Warren contends that the district court clearly erred in making the
enhancement for possession of firearms because there was no testi-
mony that he actively employed a firearm. He relies on Bailey v.
United States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995)
(No. 94-7448). This claim is without merit because Bailey does not
preclude a sentencing enhancement for possession of a firearm during
a drug offense. United States v. Hawthorne, 94 F.3d 118, 122 (4th
Cir. 1996).

The obstruction of justice adjustment Jerry Warren received was
based on his successful attempt to have Kelli Koontz and Becky Dean

                    9
leave Williamson to prevent them from giving information to authori-
ties about his drug business. He argues here that the evidence did not
support a finding that he persuaded them to leave because they had
their own reasons to leave, i.e., they feared trouble with the police
about some porch furniture they had stolen. Kelli Koontz testified that
when Jerry and Terry Warren and other members of their family dis-
cussed the impending federal indictments, Jerry and Terry wanted
Kelli Koontz and Becky Dean to go to Ohio and were willing to sup-
ply money for travelling because they expected the authorities to
question the women. She said Jerry Warren gave them $140 for
expenses. Although they went to Atlanta instead of Ohio, the women
left Williamson. The adjustment is properly given if there is evidence
that the defendant unlawfully influenced a witness in order to obstruct
or impede the investigation of the offense. USSG§ 3C1.1, comment.
(n.3). The district court's finding was not clearly erroneous.

Jerry Warren argues that the evidence was insufficient for a finding
that he was responsible for 53 ounces of crack because the govern-
ment did not establish how its sources of information knew the weight
of the crack. Warren's attorney did not make this specific argument
at sentencing, although he argued that some of the witnesses were not
credible. The information on the crack amounts came from statements
by Durand Warren, J.J. Warren, and Edmonds. All of these witnesses
had first-hand knowledge of the amounts they gave information about
and all were experienced drug dealers. The district court did not
clearly err in determining the amount of crack based on their state-
ments.

VI. Latimer

Testifying at his sentencing hearing, Latimer denied any participa-
tion in a crack conspiracy with Jerry Warren, although he admitted
buying crack for others as a favor and selling small amounts of crack
to Damron. The district court did not find his testimony credible.
Because Latimer did not admit the full extent of his involvement, the
court denied him an adjustment for acceptance of responsibility under
USSG § 3E1.1. The court also granted the government's request for
an obstruction of justice adjustment based on Latimer's untruthful tes-
timony at sentencing. USSG § 3C1.1, comment. (n.3(b), (h)).

                    10
The court's decision does not constitute double counting, as Lati-
mer argues here, even though both findings were based on the same
conduct. The denial of a reduction for acceptance of responsibility is
not a penalty. United States v. Frazier, 971 F.2d 1076, 1083-87 (4th
Cir. 1992), cert. denied, 506 U.S. 1071 (1993). Moreover, the struc-
ture of the guidelines frequently permits the application of several
sections to the same conduct. See United States v. Curtis, 934 F.2d
553, 556 (4th Cir. 1991). Finally, the commentary to USSG § 3E1.1
provides that an adjustment for acceptance of responsibility generally
will not be available to a defendant who has received an enhancement
for obstruction of justice.

Latimer also challenges the district court's finding that he was
responsible for the entire 53 ounces of crack which Jerry Warren
obtained during the life of the conspiracy. First, he suggests that he
left the conspiracy at some point and argues that the court failed to
make a finding on the duration of his involvement. In fact, the evi-
dence was that Latimer was involved through the summer of 1995;
there was no evidence that he withdrew from the conspiracy. Second,
he argues that the whole 53 ounces was not reasonably foreseeable to
him. In a jointly undertaken criminal activity, a defendant is responsi-
ble for reasonably foreseeable acts of others in furtherance of the
activity. USSG § 1B1.3(a)(1). The court found that Latimer was Jerry
Warren's chief courier, bringing into Williamson a good part of the
crack Jerry Warren sold. Latimer also sold crack during the time that
Durand Warren was supplying crack to Jerry Warren; consequently,
the court did not clearly err in finding that the whole 53 ounces was
reasonably foreseeable to him.

Last, Latimer contends that the court should have found him more
credible than the government witnesses whose testimony conflicted
with his. The credibility of witnesses is a decision for the factfinder
and is not reviewable on appeal. United States v. Saunders, 886 F.2d
56, 60 (4th Cir. 1989).

Accordingly, Ford's appeal is dismissed. The remaining Appel-
lants' sentences are affirmed. We dispense with oral argument
because the facts and legal contentions are adequately presented in the

                    11
materials before the court and argument would not aid the decisional
process.

No. 96-4393 - DISMISSED
Nos. 96-4419/27/28/55/56 - AFFIRMED

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