UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                          No. 96-4079
CARL REYNOLDS, a/k/a Neal, a/k/a
Jermaine Azore, a/k/a Karl
Reynolds,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                        No. 96-4088

OWEN WALKER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                        No. 96-4111

MARGARET GRANDJEAN,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, David A. Faber, District Judges.
(CR-95-71)

Submitted: January 14, 1997

Decided: April 15, 1997
Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

David Schles, STOWERS & ASSOCIATES, Charleston, West Vir-
ginia; Patrick L. Brown, Union, Kentucky; Philip A. LaCaria, Welch,
West Virginia, for Appellants. Rebecca A. Betts, United States Attor-
ney, 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Unpublished opinions are not binding precedent in this circuit.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:

Carl Reynolds appeals the 210-month sentence he received on his
guilty plea to conspiracy to distribute and possess with intent to dis-
tribute crack cocaine, in violation of 21 U.S.C.§ 846 (1994). Owen
Walker appeals the 144-month sentence imposed on him after his
guilty plea to the same charge. Margaret Grandjean appeals the forty-
eight-month sentence she received after pleading guilty to use of a
communication facility in the commission of a conspiracy to distrib-
ute cocaine base, in violation of 21 U.S.C. § 843(b) (1994). Each
Appellant raises several issues regarding the application of the sen-
tencing guidelines. We affirm.

I.

Reynolds, Walker, and others distributed marijuana and crack
cocaine in Beckley, West Virginia, from September 1993 until May

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1995. Reynolds was the organizer of the conspiracy. One of Reyn-
olds' customers was Shawn Swain, who was himself the leader of a
crack cocaine conspiracy. Shawn Swain reported that he had seen
over one kilogram of crack cocaine in the possession of Walker,
Reynolds, and other co-conspirators.

The relationship between Swain's organization and Reynolds'
began to deteriorate in mid-1994. At one point,"Pee Wee" Swain
pulled a firearm on Walker and two accomplices and robbed them of
crack cocaine. Reynolds retaliated by firing eight shots from his vehi-
cle into a van in which Shawn Swain was riding. Walker was present
in Reynolds' car at the time of the shooting.

Margaret Grandjean was involved in the actual distribution of
crack cocaine for the Reynolds conspiracy, and she permitted Reyn-
olds to store significant amounts of drugs in her house. In June 1994,
Grandjean paged Reynolds in Maryland to ask him to bring approxi-
mately one gram of crack cocaine back to West Virginia.

II.

Grandjean claims that she was improperly sentenced, due to the
inclusion in her presentence report ("PSR") of evidence that she was
responsible for over fifty grams of crack cocaine, even though it is
undisputed that the actual facilitation offense to which she pled guilty
involved only one gram of crack cocaine. The PSR contained infor-
mation concerning Grandjean's drug activity from 1994 to 1995, stat-
ing that she bought and sold cocaine and stored over 125 grams of
crack cocaine in her house for the Reynolds conspirators.

Grandjean's claim is without merit, because with respect to drug
offenses, the defendant is accountable for all quantities of contraband
with which she was directly involved. USSG § 1B1.3, comment.
(n.2).* In addition, when criminal activity is undertaken in concert
with others (whether charged as a conspiracy or not), relevant conduct
includes the acts of others which are in furtherance of the criminal
activity and reasonably foreseeable. USSG § 1B1.3(a)(1)(B). Grand-
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1995).

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jean was charged with facilitating a conspiracy. Accordingly, any
conduct in furtherance of the conspiracy that was known to her or rea-
sonably foreseeable to her was properly attributed to her for sentenc-
ing purposes. United States v. Holley, 82 F.3d 1010, 1011 (11th Cir.
1996) (proper application of USSG § 1B1.3(a)(1)(B) requires that rel-
evant conduct encompass underlying conspiracy in§ 843(b) case).

Grandjean's attempt to narrowly construe her offense of conviction
is unavailing. She is responsible for all of the drugs that she reason-
ably knew were part of the underlying conspiracy that she facilitated.
It is undisputed that Grandjean agreed to store over 125 grams of
crack cocaine in her house, thereby further aiding the conspiracy she
had facilitated in her offense of conviction. Therefore, we find that
the district court properly considered this drug quantity as relevant
conduct for sentencing purposes.

III.

Although the district court allowed Grandjean a two-level reduc-
tion for minor participation in the offense pursuant to USSG
§ 3B1.2(b), she contends that she should have received a four-level
reduction for minimal participation under USSG § 3B1.2(a). A dis-
trict court's determination of whether a defendant had a minor or min-
imal role is factual and thus, subject to the clearly erroneous standard
of review. United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir.
1989). Role adjustments are determined on the basis of all relevant
conduct. USSG § 1B1.3(a). Grandjean participated in an ongoing con-
spiracy by dealing drugs and storing large amounts of contraband.
While her involvement was not as extensive as that of her co-
defendants, we find that the district court did not clearly err in finding
that her role was not properly characterized as minimal.

IV.

Grandjean asked the district court to depart on the ground that the
applicable guidelines range overstated the seriousness of her criminal
conduct. The district court stated that it could not find a specific,
unique factor in her case that would warrant departure and therefore,
the guidelines prevented a downward departure. A court's decision
not to depart is generally not reviewable on appeal. United States v.

                     4
Bayerle, 898 F.2d 28, 30 (4th Cir. 1990). However, when the district
court bases its refusal to depart on lack of legal authority, its decision
is a legal one and is reviewed de novo. United States v. Hall, 977 F.2d
861, 863 (4th Cir. 1992). Grandjean asserts that the district court mis-
understood its authority to depart.

In the absence of a characteristic that distinguishes a case as suffi-
ciently atypical to warrant a sentence different from that called for
under the guidelines, a sentence outside the guidelines range is not
authorized. See 18 U.S.C. § 3553(b) (1994). Here, the district court
understood its ability to depart in an atypical case but determined that
nothing about Grandjean's case qualified for a departure. Accord-
ingly, Grandjean's sentence is affirmed.

V.

Walker asserts that the district court erred in applying a two-level
enhancement pursuant to USSG § 2D1.1(b)(1) for possession of a
firearm during a drug offense. Walker contends that he did not actu-
ally possess the weapon at the time of the Swain shooting, and
although he was present at the shooting, he was not involved in the
planning or execution of the crime.

However, Walker was convicted of conspiracy to distribute cocaine
base. Therefore, even though he was not personally involved in the
shooting, the enhancement should be applied where the weapon was
possessed in furtherance of the conspiracy. See United States v.
Kimberlin, 18 F.3d 1156, 1159-60 (4th Cir. 1994). Moreover, a defen-
dant "possesses" a firearm for purposes of USSG § 2D1.1(b)(1) if the
weapon was merely "present," unless it is clearly improbable that the
weapon was connected with the offense. United States v. Hunter, 19
F.3d 895, 896 (4th Cir. 1994) (enhancement affirmed where defen-
dant could reasonably have foreseen that firearm would be present
during drug transaction).

Here, the firearm was present in the car with Walker and his co-
conspirators. The firearm was then discharged in order to gain retribu-
tion for a past drug-related robbery of Walker. Based on this evi-
dence, we find that the district court did not clearly err in finding that

                     5
it was reasonably foreseeable to Walker that a firearm would be pres-
ent.

VI.

Walker next asserts that he was entitled to a reduction for a mitigat-
ing role, because he was only a "gopher." However, Walker does not
deny that he sold drugs in furtherance of the conspiracy. The district
court did not err in finding that a drug seller in a drug conspiracy does
not have a minor role. United States v. Brooks , 957 F.2d 1138, 1149
(4th Cir. 1992).

VII.

Relying primarily on United States v. James, 78 F.3d 851 (3d Cir.
1996), cert. denied, ___ U.S. #6D6D 6D#, 65 U.S.L.W. 3259 (U.S. Oct. 7,
1996) (No. 95-9224), and United States v. Munoz-Realpe, 21 F.3d
375 (11th Cir. 1994), Reynolds argues that the Government failed to
prove that he possessed crack, as opposed to another form of cocaine
base. While Reynolds did not contend at sentencing that the substance
he possessed was anything other than crack cocaine, he now argues
that he should be resentenced under the powder cocaine guidelines,
because he pled guilty to a "cocaine base" conspiracy, and the Gov-
ernment failed to prove that the specific type of"cocaine base" at
issue was indeed "crack." USSG § 2D1.1(c), note (D) (specifically
noting that "crack" is but one form of "cocaine base").

Reynolds' reliance upon James and Munoz-Realpe is misplaced.
James involved an indictment that charged possession of "a detectable
amount of cocaine base" and an ambiguous plea colloquy. 78 F.3d at
855-56. Furthermore, the issue was hotly litigated at sentencing, and
the district court eschewed any specific factual findings, holding only
that "cocaine base means crack for purposes of the guidelines." Id. at
856-57. Faced with the ambiguities in the record and the lack of fac-
tual findings by the district court, the Third Circuit found that the
Government had failed to prove that the substance at issue was crack
cocaine. The court then remanded for resentencing. Id. at 858.

In Munoz-Realpe, the defendant pled guilty to importation of "co-
caine." He argued at sentencing that the drug at issue in his case, "co-

                     6
caine base in liquid form," should be treated as cocaine powder for
sentencing purposes. The Eleventh Circuit affirmed the district
court's factual finding that the substance was not crack cocaine. 21
F.3d at 376-77 (cocaine base in liquid form requires further process-
ing and can just as easily be made into powder cocaine as crack
cocaine).

However, in this case, unlike James and Munoz-Realpe, there is no
ambiguity. Reynolds pled guilty to the indictment, charging him with
conspiring to distribute "cocaine base, also known as `crack'." Fur-
thermore, Reynolds did not object to the PSR that calculated his sen-
tence based on crack cocaine, except to the extent that he asserted the
disparate sentencing standards for powder cocaine and crack cocaine
violated the Equal Protection Clause. In so doing, Reynolds demon-
strated his understanding that the use of the term"cocaine base" in the
PSR referred to "crack," and thereby, waived his present claim by not
raising it at sentencing. Finally, the guidelines specifically state that
the Sentencing Commission used the term "cocaine base" to refer to
"crack." USSG § 2D1.1(c), note (D). Reynolds' plea agreement, plea
hearing, PSR, and sentencing hearing are replete with references to
cocaine base, and it seems abundantly clear that all parties understood
the term "cocaine base" to mean "crack." In the absence of evidence
that the substance was another form of cocaine base and absent any
contemporaneous objection by Reynolds, his argument must fail.

In sum, there was sufficient evidence in the record to support, by
a preponderance of the evidence, that the substance at issue was crack
cocaine. Significantly, there was no evidence to the contrary, and no
objection by Reynolds to the computation of his sentence. Further-
more, because we have not adopted the holdings of either James or
Munoz-Realpe, the district court did not commit plain error by sen-
tencing Reynolds under the crack cocaine guidelines. See United
States v. Olano, 507 U.S. 725, 734 (1993) (claim raised for the first
time on appeal cannot justify reversal unless the error is "clear under
current law").

VIII.

The district court found that Reynolds was responsible for between
150 and 500 grams of crack cocaine. We employ a clearly erroneous

                     7
standard to review a district court's determination of drug amounts.
United States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990). The Gov-
ernment bears the burden of proving the quantity of drugs involved
by a preponderance of the evidence. Id. However, a defendant chal-
lenging the amount bears the burden of showing its inaccuracy.
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). A mere
objection to the finding in the PSR is insufficient. Rather, the defen-
dant has an affirmative duty to show that the information in the report
is unreliable and articulate the reasons why its facts are untrue or
inaccurate. Without such an affirmative showing, the district court is
"`free to adopt the findings of the [PSR] without more specific inquiry
or explanation.'" Id. (quoting United States v. Mueller, 902 F.2d 336,
346 (5th Cir. 1990)).

Before sentencing, Reynolds withdrew all objections to his PSR
save an equal protection argument concerning the sentencing structure
for crack cocaine offenses. On appeal, Reynolds fails to specifically
articulate the reasons why the amounts attributed to him were errone-
ous. Rather, he merely contends that the drugs for which he is respon-
sible should be limited to twenty-eight grams, because he admitted to
that quantity in plea negotiations. However, such an admission is
insufficient to meet Reynolds' affirmative duty to show that the infor-
mation in the PSR was unreliable and inaccurate. Thus, Reynolds'
claim that the Government failed to establish the drug amounts by a
preponderance of the evidence is without merit.

Also without merit is Reynolds' claim that the district court failed
to make specific findings of fact. Because Reynolds failed to make an
affirmative showing of the PSR's inaccuracies, the district court was
free to adopt the findings in the PSR.

IX.

Finally, Appellants argue that the district court erred by not depart-
ing from the guidelines based on the allegedly disproportionate nature
of sentencing guidelines for cocaine base and cocaine powder. We
squarely rejected this claim in United States v. Fisher, 58 F.3d 96, 99-
100 (4th Cir. 1995) (holding that statute providing higher penalties for
cocaine base than cocaine powder did not violate the Equal Protection
Clause), cert. denied, ___ U.S. #6D 6D6D#, 64 U.S.L.W. 3270 (U.S. Oct. 10,

                    8
1995) (95-5923). See also United States v. D'Anjou, 16 F.3d 604, 612
(4th Cir. 1994) (holding that sentencing guidelines equating one unit
of cocaine base with 100 units of cocaine powder did not violate
equal protection based on racial disparity). Accordingly, Appellants
contentions in this regard are frivolous.

X.

For the foregoing reasons, we affirm Appellants' sentences. We
deny Reynolds' pro se motions for intervention and for new counsel.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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