                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-5025


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BEVERLY ALLEN BAKER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (5:11-cr-00237-D-1)


Submitted:   September 23, 2013          Decided:   September 26, 2013


Before GREGORY, DAVIS, and WYNN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North
Carolina, for Appellant.     Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Beverly         Allen     Baker       was    convicted          by       a    jury       of

conspiracy       to    distribute       280    grams          or    more    of    cocaine         base

(crack) in violation of 21 U.S.C. § 846 (2006), and nine counts

of   crack      distribution,          21     U.S.C.          § 841       (2006).          She     was

sentenced to life imprisonment.                       Baker appeals her sentence,

contending that the district court miscalculated her Guidelines

range.    We agree that the court made several procedural errors

which cannot be deemed harmless.                         United States v. Savillon-

Matute, 636 F.3d 119, 123-24 (4th Cir. 2011).                                Consequently, we

vacate the sentence and remand for resentencing.

             Testimony at Baker’s trial established that she sold

crack    from    her    home       between     2002      and       2011.         At    times,      her

boyfriend, her brother, and her sister also sold crack there.

Government witnesses included two of her regular customers and

several    of    her     suppliers.            In   the        presentence            report,      the

probation       officer      attributed        nineteen            kilograms      of       crack      to

Baker    based    on    written       estimations             by    her    suppliers         of    the

amounts    they       sold    to     her.      This       information         resulted           in    a

recommended       base       offense        level        of     38.         U.S.          Sentencing

Guidelines Manual § 2D1.1(c)(1) (2012).                             The probation officer

also recommended offense level increases for possession of a

firearm, see USSG § 2D1.1(b)(1), for being a leader or organizer

in the offense, see USSG § 3B1.1(a), for involving minors while

                                               2
having an aggravated role, see USSG § 2D1.1(b)(14)(B)(i), and

for obstruction of justice, see USSG § 3C1.1.                             Baker was in

criminal history category III.                   Her Guidelines range was life

imprisonment.

            At    the     sentencing       hearing,       the    government        asserted

that supplier Wayne Vick’s trial testimony, as opposed to his

written statements, supported a finding that he supplied Baker

with    about    six    kilograms     of    crack      rather     than       the   fourteen

kilograms recommended in the presentence report.                         The government

argued   that,     even    with     the    reduction,      the    total       quantity     of

crack    attributable       to    Baker    was     more    than    8.4       kilograms      of

crack.      Without        making    specific         findings    to     determine         the

quantity    of    crack     attributable        to    Baker,     the    district         court

agreed   that     base     offense    level      38    applied.        The     court     also

overruled        Baker’s     objections          to     the      remaining         sentence

enhancements.         The court rejected Baker’s request for a downward

variance    to    a    sentence      of   thirty      years     and    imposed      a    life

sentence.

            We    review     sentences       for      procedural       and    substantive

reasonableness under an abuse of discretion standard.                              Gall v.

United States, 552 U.S. 38, 51 (2007).                        Miscalculation of the

Guidelines range is a significant procedural error.                                Id.     We

review the district court’s factual findings for clear error and



                                            3
its legal determinations de novo.                      United States v. Llamas, 599

F.3d 381, 387 (4th Cir. 2010).

              Baker first argues on appeal that the amount of crack

attributed to her was clearly erroneous because it was based on

unreliable      evidence.            The     government        must        prove    the    drug

quantity attributable to the defendant by a preponderance of the

evidence.      United States v. Carter, 300 F.3d 415, 425 (4th Cir.

2002).       The    district        court     may      rely   on   information        in    the

presentence        report      unless      the       information      is     inaccurate      or

unreliable.         Id.     A district court’s findings on drug quantity

are generally factual in nature, and therefore are reviewed by

this court for clear error.                   Id.      In determining the amount of

drugs attributable to the defendant, “[w]here there is no drug

seizure or the amount seized does not reflect the scale of the

offense,      the    court       shall       approximate       the       quantity     of   the

controlled substance.”            USSG § 2D1.1 cmt. n.5.

              Here, the district court estimated that Baker bought

and sold more than 8.4 kilograms of crack, the threshold amount

for   base    offense       level    38.         Baker    argues     that     the    district

court’s      finding      that   she     was     responsible         for    more    than    8.4

kilograms of crack was not supported by the evidence and that

Wayne     Vick’s     testimony,         in     particular,         was     “so     vague   and

inconclusive        as    to     preclude        any     reliable        estimate     of   the

quantity of crack he supplied to Baker from 2002 to 2007 or

                                                 4
2008.”   We conclude that Baker is correct that the evidence of

the amount of crack Wayne Vick supplied to her was inconsistent

and the inconsistency was not resolved by the district court,

with the result that the district court’s finding concerning the

drug amount was inadequate.

          In     the    presentence   report,   based   on   Wayne   Vick’s

written statement, the probation officer recommended that Wayne

Vick supplied Baker with two ounces of crack every two weeks in

2002, and four ounces of crack every two weeks from 2003 to

2008, for a total of 14.9 kilograms of crack.            At trial, Wayne

Vick testified briefly that he started selling crack to Baker in

2002 and that he sold her one or two ounces every one or two or

three weeks.      Wayne Vick said he sold to her for, “A couple

years.    From    ’02    through   probably   ’07,   ’08,”   and   that   the

amounts he sold her were not always the same.                He said that,

“eventually it got to like four [ounces] on the end.”                     The

government did not inquire how long Wayne Vick sold four-ounce

quantities to Baker.        However, the government represented that,

when Wayne Vick said “at the end,” he meant the entire last year

that he sold crack to Baker.

          On appeal, the government has changed its calculation

again, and estimates in its brief that Wayne Vick sold Baker at

least 2.2 kilograms of crack.         The government also suggests in

its brief a recalculation of the 2.4 kilograms of crack supplied

                                      5
by Malcolm Dowdy as stated in the presentence report, based on

information that he sold her two ounces of crack every two weeks

for     twenty-two     months.          Dowdy’s       sales    to    Baker   were    not

addressed at sentencing. *             The government now suggests that Dowdy

sold Baker 5.4 kilograms of crack for twenty-four months based

on his trial testimony that he sold Baker two ounces of crack

every week from November 2002 to October 2003.

               Using its current estimates of the amounts Wayne Vick

and Dowdy sold to Baker, which total 7.6 kilograms of crack, and

in light of additional testimony by James Vick, Shawn Barber,

and Michael Burrell, the government argues that the evidence

supported a finding that 8.4 kilograms of crack was properly

attributed to Baker.              However, to avoid double counting, the

probation       officer    did    not    count       crack    sold   by    Barber,   who

testified that Sabrina sometimes received crack from Baker, but

did not say either he or Sabrina sold crack to Baker.                          Also to

avoid double counting, the probation officer did not include

crack Burrell bought from Baker between 2006 and 2009, before he

became a confidential informant.                  Adding the 2.04 kilograms of

crack       James   Vick   said   he    sold    to    Baker    to    the   government’s


        *
      Baker objected to the 2.4 kilograms of crack Dowdy sold her
as reported in the presentence report, but did not challenge it
at sentencing.     On appeal, Baker does not contest the 2.4
kilograms of crack attributed to her through Dowdy.



                                            6
current estimate would result in a total of 9.6 kilograms of

crack.      However,      this   calculation         was      not      presented   to   the

district    court.        When   the   resolution            of    a   Guidelines    issue

depends on a factual determination, the district court must make

that finding in the first instance.                 United States v. Davis, 679

F.3d 177, 183 (4th Cir. 2012).

            Both Wayne Vick and Dowdy gave significantly different

information about the amount of crack they sold to Baker to the

probation officer and in their trial testimony.                              Because the

district court’s factual finding that Baker was responsible for

8.4 kilograms of crack is unsupported by reliable evidence, and

is   thus   clearly      erroneous,     we       conclude      that     resentencing     is

required     for   the     district     court       to       make      new   findings    to

establish Baker’s base offense level.

            Baker also challenges the enhancement for possession

of   a   firearm   during       the   offense.           A    two-level      increase   is

authorized    under      USSG    § 2D1.1(b)(1)           if       “a   dangerous    weapon

(including a firearm) was possessed” during the commission of

the offense of conviction, “unless it is clearly improbable that

the weapon was connected to the offense.”                          USSG § 2D1.1 & cmt.

n.11(A).     “[P]ossession of the weapon during the commission of

the offense is all that is needed to invoke the enhancement.”

United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997).                             The

defendant has the burden of showing that a connection between

                                             7
his possession of a firearm and his drug offense is “clearly

improbable.”      United States v. Slade, 631 F.3d 185, 189 (4th

Cir. 2011).

           None of the government’s witnesses were asked at trial

whether    they   had    seen    Baker       in    possession      of    a     firearm.

However, many of the same witnesses testified before the grand

jury that they had seen a firearm in Baker’s purse or in her

home.     A preponderance of the evidence established that Baker

possessed a firearm during the conspiracy and she did not show

that it was clearly improbable that the gun was connected to the

offense.

           Baker contends that the district court clearly erred

in finding that she was an organizer or leader in the offense.

The district court’s determination that a defendant is a leader

in the offense is a factual finding reviewed for clear error.

United States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009).                          A

defendant qualifies for a four-level adjustment if he or she

“was an organizer or leader of a criminal activity that involved

five or more participants or was otherwise extensive.”                             USSG

§ 3B1.1(a).       A   “participant”      is   “a    person   who    is       criminally

responsible for the commission of the offense,” whether or not

he has been convicted.          USSG § 3B1.1 cmt. n.1.          “Leadership over

only one other participant is sufficient as long as there is

some control exercised.”           United States v. Rashwan, 328 F.3d

                                         8
160, 166 (4th Cir. 2003).               In drug cases, customers who are

solely end users of drugs are not participants.                        United States

v. Egge, 223 F.3d 1128 (9th Cir. 2000); United States v. Baez-

Acuna, 54 F.3d 634, 639 (10th Cir. 1995).

            Baker    argues   that      there      was   no     evidence      that    she

“planned     or   organized       the   drug       trafficking        of    others     or

exercised control and authority over others in the conspiracy.”

We agree.     At sentencing, although the evidence established that

the conspiracy had more than five participants, there was no

compelling    evidence     that    Baker     directed      or    exercised         control

over any of the participants.            Initially, the presentence report

stated   that     Baker   “directed      the     activities      of    multiple       co-

conspirators,” specifically, Sabrina and Ken Allen (her brother

and   sister),      Timothy   Warren,      and     her    mother.           When    Baker

objected     to   the     leader    adjustment,          the    probation         officer

responded    that    “Baker   directed       the    activities        of,    at    least,

Timothy Warren, and her mother, Barbara Allen[.]”

            The   district    court     decided      that      the    conspiracy      had

more than five participants; that Baker took “the larger share”

of the fruits of the crime; and that Warren “was getting paid by

her to be the doorman . . . to take care of the dogs, and to

just kind of be a handyman around her residence.”                            The court

found that Baker was “the one who participated in planning or



                                         9
organizing the offense.              She was running the show.”             The court

further found that:

     [S]he did exercise control and authority over the
     others.   She would go and do the deals to get the
     drugs from her suppliers and then had the operation
     set up in her residence, set the price, direct those
     who were handling the door for her, to the extent it
     wasn’t her directly, in the exchange of money for the
     crack.

            With regard to Sabrina and Ken Allen, the evidence

showed only that they sold crack in the same vicinity as Baker,

and sometimes sold crack at her house, but not that they acted

at her direction or under her control.                       Rather, the evidence

appears    to    show   that    they       all    acted    cooperatively.      Barber

testified that Sabrina obtained her crack from either Michael

Williams   or    Baker,       and    sold    crack   at    her   own   house   and   at

Baker’s house.          Michael Burrell testified that he saw Sabrina

and Ken Allen at Baker’s house because she “let . . . certain

people come over to make money,” but that he did not like to buy

from them because they gave smaller amounts of crack for the

same amount of money.

            As    evidence          that    Baker    directed    the    activity     of

Timothy    Warren,      the    probation         officer   reported    that    “Warren

testified before the grand jury regarding his knowledge of the

drug-trafficking activities of Wayne Vick, Beverly Baker, and

Ronnell Perry.”          Warren also testified before the grand jury




                                             10
that he bought crack from Baker by knocking at her door and that

either Baker or Sabrina would answer the door.

            In addition, the probation officer noted that Michael

Burrell    testified      at   trial       that,      during    one       his    controlled

purchases   of    crack    from      Baker,      he   encountered         Warren    at   her

door, gave his money to Warren, who passed it to Baker, who went

to the rear of her trailer, and shortly afterward Baker’s niece

brought the crack to Burrell.                    The probation officer further

noted that Shawn Barber testified at trial that “Warren was a

‘door man’ at Baker’s residence.”                     However, Joe Davis, one of

Baker’s regular customers, testified that, when he went to her

house,    “different      people”      would       answer      the    door,      including

Baker, her brother or sister, and sometimes a child.                            He did not

mention Warren.         Ronnell Perry, who lived with Baker, testified

at trial that Warren was a crack customer of Baker’s who did

“odds and ends” of work around her house and was paid in cash or

crack.      There       was    no     testimony        or    other        evidence       that

established      that    Warren      was    actually        employed       by    Baker    or

directed    by    her    in    any    capacity        relating       to    the     offense.

Instead, the evidence showed that Warren was a crack user who

helped out around Baker’s house at times in order to obtain

crack or money for crack, and sometimes opened the door if he

was present when another customer arrived, but took no active

part in the conspiracy.

                                            11
             After       Baker     was    arrested,       she     called    her    mother,

Barbara Allen, from prison and asked her mother to collect $600

owed to her by Joe Davis.                  Davis testified that he paid Baker

whatever he owed her for crack when he received his disability

payment each month.              After Baker’s arrest, he said he first

tried unsuccessfully to get in touch with Baker’s “people,” but

that ultimately Baker’s mother and brother came to his bank,

where   he   gave    them     the    money      he   owed       Baker.     There    was    no

evidence     that        Baker’s    mother        had     any    other     part    in     the

conspiracy.         We    conclude       that   this      one    recorded   instance       in

which she did something Baker asked her to do is insufficient to

qualify Baker for the four-level leader/organizer adjustment.

             The trial evidence established that Baker involved her

niece, a minor, in her drug sales to a limited extent.                             However,

the    two-level     enhancement          under      § 2D1.1(b)(14)(B)(1)           applies

only    if   the    defendant       also    has      an   aggravating       role    in    the

offense.     Because the evidence did not establish that Baker had

such an aggravating role, the enhancement for use of minors was

incorrectly applied.

             Last, Baker challenges the adjustment for obstruction

of justice.        To impose a Guidelines adjustment for obstruction

of justice based on perjury, “the sentencing court must find

that the defendant (1) gave false testimony; (2) concerning a

material matter; (3) with willful intent to deceive.”                                United

                                             12
States v. Perez, 661 F.3d 189, 192 (4th Cir. 2011).                               This Court

held in Perez that, “[i]f a district court does not make a

specific finding as to each element of perjury, it must provide

a finding that clearly establishes each of the three elements.”

Perez, 661 F.3d at 193.

              The district court found that Baker testified falsely

in    2009    before    a    grand    jury       that       was   investigating      Michael

Williams’ drug trafficking.                 The court reviewed her statements

and found that each of them amounted to perjury and constituted

obstruction of justice.               The grand jury proceedings are not in

the    record    on    appeal,       but   Baker        does      not   dispute    that    she

testified falsely that she had never seen Williams in possession

of cocaine or any illegal narcotics; said that Wayne Vick was

not in the drug business; said she had never received crack or

powder from Wayne Vick; and said she had never sold cocaine.

Baker    contends       that     the        district           court’s     findings       were

inadequate because (1) the district court did not find that her

false statements were material to the investigation of her own

drug offense, and (2) failed to find that she had an intent to

deceive.        However,      Baker        does       not    dispute     that,     when    she

appeared before the grand jury, she was advised that the grand

jury was investigating narcotics violations, that she had been

named    as     being       involved       in        the    distribution      of     illegal

substances, that she could later be charged with a federal drug

                                                13
violation, that she was advised of her rights, including her

right not to incriminate herself, and that she was informed that

she was under oath and subject to the penalty of perjury.                                   In

light    of    this    uncontested         information,          although     the    district

court    failed       to    make     specific         findings    on   each    element      of

perjury, we conclude that the court’s findings were adequate,

and     that    application           of    the       adjustment       was    not     clearly

erroneous.

               We note that the district court stated that it would

impose    the     same       life     sentence         as   a    variance      if     it   had

miscalculated the Guidelines range, citing Savillon-Matute, 636

F.3d at 123 (holding that claimed procedural error in Guidelines

calculation is harmless if (1) the district court would have

imposed the same sentence even if it had decided the Guidelines

issue     the     other       way,     and       (2)     the     sentence      imposed      is

reasonable).         In this case, we cannot say that the life sentence

imposed    by    the       district    court      is    reasonable      because,      on   the

record before us, Baker’s conduct was comparable to that of her

co-conspirators rather than more culpable.                         Although we express

no opinion as to the appropriate sentence, the district court

may     wish    to     reconsider          its    previous       conclusion         that   the

sentencing goals of 18 U.S.C. § 3553(a) (2006) require a life

sentence rather than a thirty-year sentence.



                                                 14
          For the reasons discussed, we vacate the sentence and

remand for resentencing in accord with this opinion.               We deny

Baker’s motion for leave to file a pro se brief.                We dispense

with oral argument because the facts and legal contentions are

adequately   presented   in   the   materials   before   this    court   and

argument would not aid the decisional process.



                                                   VACATED AND REMANDED




                                    15
