                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 23 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 99-6233
                                                     (D.C. No. 98-CR-93-T)
    COREY ANTWAN WILSON,                                  (W.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before TACHA , EBEL , and BRISCOE , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant pleaded guilty to distributing crack cocaine, admitting the

offense involved ten grams. Based on his leadership role, his obstruction of


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
justice, and the drug quantities involved in other relevant conduct determined

after two separate hearings,   1
                                   defendant was sentenced to life imprisonment. He

now appeals his sentence, contending it is (1) in excess of the applicable statutory

maximum 2 and (2) in violation of the United States Sentencing Guidelines

governing obstruction of justice, acceptance of responsibility, role in the offense,

and calculation of drug quantities. We hold that 21 U.S.C. § 841(b)(1)(B)(iii)

imposes an upper limit of forty years on defendant’s sentence, and that the district

court correctly applied the Guidelines as to obstruction of justice, acceptance of

responsibility, and role in the offense, but erred in determining the relevant drug

amounts. We therefore vacate defendant’s sentence and remand for resentencing.

                                    Statutory Maximum

       We recently clarified that “the mandatory sentencing directives in § 841(b)

are governed solely by the drug quantities involved in the offense of conviction.”

United States v. Santos , 195 F.3d 549, 553 (10th Cir. 1999). “[O]ther drug

quantities, which would qualify as ‘relevant conduct’ for calculating the


1
      The district court held one hearing generally to allocate drug quantities
among the various co-defendants, and then held a second hearing focused solely
on the calculation of defendant’s particular sentence. For our purposes, there is
no need to distinguish between the two hearings.
2
       Defendant raised this statutory issue in a pro se supplemental brief, which
we now order formally filed. Over his client’s objection, counsel has moved to
file another supplemental brief to bolster the same argument. In light of our
disposition of the issue, we deny counsel’s motion as moot.

                                             -2-
sentencing range under the [Guidelines] . . . may [not] be included in an aggregate

to trigger the statutory directives.”   Id. at 550. Thus, as the government concedes,

defendant’s sentence may not lawfully exceed the forty-year maximum applicable

to the distribution of ten grams of crack cocaine.   3
                                                         Compare § 841(b)(1)(B)(iii)

(specifying sentencing range of five to forty years for distribution of “5 grams or

more” of crack cocaine)      with § 841(b)(1)(A)(iii) (specifying sentencing range of

ten years to life for distribution of “50 grams or more” of crack cocaine). We

must therefore vacate defendant’s sentence of life imprisonment.

                                  Guideline Application

1.     Obstruction of justice

       The district court found defendant obstructed justice in two respects while

awaiting sentence: first, he attempted to intimidate an important sentencing

witness (co-defendant Dennis Reed), and second, he submitted affidavits from

himself and a family member containing representations conclusively shown to be



3
        Although both defendant and his counsel represent in unqualified terms that
he pleaded guilty to distributing ten grams of crack cocaine, the record available
to us suggests the drug quantity was not specified in the indictment or defendant’s
plea, but was derived from admissions made in association with sentencing. We
note this circumstance, as it might implicate further sentencing limitations
discussed in Jones v. United States , 526 U.S. 227 (1999), and Apprendi v. New
Jersey , 120 S. Ct. 2348 (2000). However, because defendant has never raised this
legal issue and, indeed, has recited factual circumstances which, if true, would
undercut it, we express no opinion on its merits or procedural availability in the
first instance in the resentencing proceedings to be conducted on remand.

                                            -3-
false by records introduced at the hearing. Defendant contends the resultant

two-point enhancement for obstruction was erroneous, but challenges only the

witness-intimidation finding. As the unchallenged perjury/subornation finding is,

by itself, a sufficient basis for the enhancement, defendant’s success on appeal is

foreclosed–regardless of his arguments relating to witness intimidation.         See

Murrell v. Shalala , 43 F.3d 1388, 1389-90 (10th Cir. 1994) (holding appellate

relief foreclosed when appellant challenges only one of two alternate bases for

ruling under review).

       In any event, we have also reviewed the evidence of defendant’s interaction

with Reed while incarcerated prior to sentencing. Reed testified that defendant

approached him about a statement he had made to investigators and warned him

“I’m not going to let you hurt me. You know, I’m not going to let you take my

life.” R. Vol. 12 at 1305. The plain implication to Reed was “that whatever it

take[s] for [defendant] to stop me from testifying against him, that’s what it

meant, exactly. . . . Including hurting me.”         Id. Later, defendant came to Reed’s

cell with several inmates who, Reed said, if provoked, “would have jumped me,

ain’t no doubt about it.”   Id. at 1306. Defendant kept repeating “what’s up?” until

someone said “[i]f you[’re] not going to put hands on him, come on, let’s go.”         Id.

at 1306-07. Eventually, they left. Reed explained the situation this way: “[H]e

wanted to intimidate me to scare me into helping turn things around to make me


                                               -4-
lie for him, and at the time, you know, I had to do the best thing I could, and that

was to lie to him and tell him that I would do whatever it took to help him.”     Id.

at 1310. Finally, a special agent (Nicholas Manns) assigned to the case testified

that Reed informed him of these incidents and others long before defendant’s

sentencing hearing.   Id. at 1347-50. We conclude the district court’s finding of

intimidation was not clearly erroneous.     See United States v. Hankins , 127 F.3d

932, 934 (10th Cir. 1997).

2.     Acceptance of responsibility

       The district court denied defendant a reduction for acceptance of

responsibility, despite his guilty plea, based on his post-plea attempts to obstruct

justice. We review that decision for “clear error,” affording it “great deference”

because “the sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility.”    United States v. Hawley , 93 F.3d 682, 689 (10th

Cir. 1996) (quotation omitted).

       “Application Note 4 [to USSG § 3E1.1] . . . advises that conduct resulting

in an enhancement [for obstruction of justice] . . . ordinarily indicates that the

defendant has not accepted responsibility for his criminal conduct.”       Hawley , 93

F.3d at 689 (quotation omitted). We see no error, much less clear error, in the

district court’s conclusion that defendant’s attempts to subvert the sentencing

process–itself serious wrongdoing he refuses to admit–undercut any acceptance of


                                            -5-
responsibility indicated by his guilty plea.         See, e.g. , United States v. Branch , 195

F.3d 928, 937 (7th Cir. 1999) (affirming denial of acceptance-of-responsibility

reduction because defendant committed perjury at sentencing);             United States v.

Case , 180 F.3d 464, 466, 468 (2d Cir. 1999) (affirming denial of reduction

because defendant committed perjury and submitted false documents during

pendency of sentencing).

3.     Role in the offense

       The district court found defendant to be “a leader in a criminal organization

that involved five or more participants and was otherwise extensive,” imposing a

four-level enhancement under USSG § 3B1.1(a). We review this determination

“for clear error, giving due deference to the district court’s application of the

guidelines to the facts.”   United States v. Smith , 131 F.3d 1392, 1398 (10th Cir.

1997). And, contrary to the understanding expressed in defendant’s supplemental

brief, “all relevant conduct . . . , not merely the conduct involved in the count[] of

conviction,” is properly considered in this regard.          Id.

       Testimony at sentencing showed more than five people performed various

functions at defendant’s direction in connection with his extensive crack cocaine

operation, including selling drugs, providing locations for drug sales, providing

locations for drug storage, transporting defendant for drug procurement and sale,

and performing various ancillary services such as retrieving stashed drugs, wiring


                                               -6-
funds, and taking customers to defendant. Defendant’s objection that they were

“independent contractors” outside the scope of § 3B1.1 because they performed

some of the same services for other drug dealers is not persuasive. There is no

requirement under § 3B1.1 that participation in the defendant’s enterprise be

exclusive. It is sufficient that defendant recruited accomplices to facilitate his

drug operation and exercised significant control over their conduct in this regard.

See id (discussing and applying factors governing § 3B1.1 inquiry). Ample

evidence exists to support the findings of the district court.

4.     Calculation of drug quantity

       The district court attributed 1590.8 grams of crack cocaine to defendant, for

a base offense level (BOL) of 38.     See USSG § 2D1.1(c)(1) (specifying BOL of

38 for 1.5 kilogram or more of cocaine base). Defendant contends, for various

reasons, that evidence at sentencing established his responsibility for no more

than 499 grams, which would translate to a BOL of 34.        See § 2D1.1(c)(3). We

review the district court’s quantity determinations for clear error, to ensure they

are based on a preponderance of the evidence.       See United States v. Ruiz-Castro ,

92 F.3d 1519, 1534 (10th Cir. 1996). As explained below, we hold there is

sufficient evidence to support a figure less than the quantity found by the district

court but greater than that asserted by defendant, resulting in a BOL of 36.     See

§ 2D1.1(c)(2).


                                            -7-
a.     Quantity estimates derived from drug proceeds

       Defendant’s first objection concerns the “dollars to drugs” formula used to

derive quantity estimates for two instances involving only proceeds. Indicating

without elaboration that it was relying on defendant’s own price, the presentence

investigation report (PSI) used $90.90 per gram for this purpose. Defendant

argued this price was too low and inflated the resultant estimates. At sentencing,

the government explained and supplied factual substantiation for the price. Agent

Manns, whose reports were reflected in the PSI, testified he used an average of

the prices defendant had charged in four controlled sales to a confidential

informant–prices which are uncontroverted. The dates and amounts of these sales

were all consistent with information in the PSI, which had also specified the price

for all but one of the sales. Defendant seizes upon the one sale initially lacking a

price specification and argues the government should not have been allowed to

include it when calculating the average price (which would be $14 per gram

higher without it), citing   United States v. Ivy , 83 F.3d 1266 (10th Cir. 1996).

This argument is meritless. In    Ivy , we held that by failing to object to a PSI, the

government waived the “right to      challenge the district court’s reliance on it

[absent plain error].”   Id. at 1297 (emphasis added). Here the government

endorsed the PSI, and the district court simply exercised its discretion to “permit




                                            -8-
the [government] to introduce testimony or other evidence on the objections”

made to the PSI by defendant. Fed. R. Crim. P. 32(c)(1).

b.     Estimate from Reed testimony regarding biweekly delivery

       Defendant raises two general objections to the assessment of 878.9 grams

of crack cocaine based on statements from co-defendant Dennis Reed, who in

March of 1998 said defendant had brought one to two ounces of crack cocaine

twice a week to a location frequented by Reed since the fall of 1997. Defendant

contends Reed’s testimony lacked “sufficient indicia of reliability” necessary to

permit the court to rely on it for an estimation of drug quantity.    Ruiz-Castro , 92

F.3d at 1534 (quotations omitted). First, he argues Reed’s drug use undercut his

reliability, citing United States v. Richards , 27 F.3d 465 (10th Cir. 1994), which

noted, without comment, that some other circuits “impose a higher standard of

scrutiny to drug quantity estimates made by an addict-informant,”       id. at 469 n.2.

Richards neither adopted nor rejected this higher standard (and we need not

decide whether to do so–defendant has not asserted, much less demonstrated by

citation to record evidence, that Reed was an addict). Instead,      “Richards stands

for the proposition that if a witness’ estimate conflicts with that witness’ own

testimony, and there is no other evidence to support the estimate, the estimate will

not support a finding.”   Ivy , 83 F.3d at 1290. Defendant cites no relevant

self-contradiction by Reed.


                                             -9-
       Second, defendant notes Reed initially lied to investigators about the full

extent of his own criminal activity, and argues Reed was therefore not credible

when discussing defendant’s activity. The district court was aware of Reed’s

earlier self-serving prevarication but nevertheless chose to believe his statements

about defendant, as had agent Manns. We cannot say this judgment, informed by

the judge’s own experience observing Reed (and Manns) on the stand at trial and

sentencing proceedings in this case, was clearly erroneous.      See United States v.

Jackson , 213 F.3d 1269, 1284 (10th Cir. 2000) (emphasizing deference owed

sentencing court’s determination of witness credibility);     United States v. Martin ,

163 F.3d 1212, 1217 (10th Cir. 1998) (same),      cert. denied , 526 U.S. 1137 (1999).

       Defendant also raises a more specific objection to the quantity estimated

from Reed’s statements. With certain modifications to avoid double-counting of

amounts accounted for elsewhere, the 878.9 grams were calculated by multiplying

one ounce (the lower end of Reed’s biweekly estimate) by twice the number of

weeks between October of 1997 and February of 1998. Defendant objects that

this calculation arbitrarily equated Reed’s vague reference to the “the fall” with

the specific–and relatively early–fall date of October 1, and that the district court

therefore erred in accepting the resultant computation. Based on our review of

the record and the government’s silence on the issue, we must agree. The

estimate is based entirely on Reed’s personal observation of defendant and Reed


                                           -10-
was never asked to clarify the time frame of that observation. There is simply no

evidence, much less a preponderance, to identify the relevant time period, other

than to say that it began sometime prior to the winter of 1997. Thus, the twelve

weeks between October 1 and December 21, 1997, cannot be included in the

calculation. Accordingly, a reduction of twenty-four ounces, or 680.4 grams,

from the amount estimated on the basis of Reed’s testimony is required.

c.    Double-counting with respect to Nunn estimate

      Defendant also objects to the assessment of 198.45 grams of crack cocaine

based on the testimony of co-defendant John Nunn. As defendant points out, in

light of the broad character of Nunn’s testimony, agent Manns admitted it was

possible the amounts involved were double-counted elsewhere in the PSI–in his

words, “I don’t have evidence to show either way.” R. Vol. 7 at 909. A lack of

“evidence to show either way” is a textbook example of a failure of proof by a

preponderance. Again, the government responds with silence to this facially

compelling argument. Under the circumstances, the 198.45 grams in question

should have been discounted.




                                        -11-
d.    Remaining objections regarding drug quantity

      The rest of defendant’s drug quantity objections lack merit. He challenges

the credibility of witnesses Gina Bromlow and Sherrie Warren, whose testimony

implicated nearly 300 grams of crack cocaine, but his conclusory attacks are

plainly insufficient to overcome the deference afforded the district court on such

matters. He also objects to 171 grams of crack cocaine included on the basis of

testimony by Reed regarding two trips on which Reed accompanied defendant

when he obtained three ounces of crack cocaine. Defendant summarily claims

these trips double count amounts derived from Reed’s other testimony, and from

testimony by Gina Bromlow, Sherrie Warren, and John Nunn, but fails to explain

how. The quantity derived from Reed’s other testimony, however, specifically

excluded amounts, such as these, exceeding two ounces. And, there is no

demonstrated basis for the alleged overlap with the two one-ounce “cookies”

observed by Gina Bromlow or the 220-gram quantity observed, at one time, by

Sherrie Warren. As for possible double-counting of amounts observed by John

Nunn, we have already held the 198.45 grams derived from his testimony must be

excluded.

                                    Conclusion

      In sum, we hold that insufficient evidence exists to support 878.85 of the

1,590.845 grams of crack cocaine attributed to defendant as relevant conduct at


                                        -12-
sentencing. Deducting that amount leaves a total of some 711 grams, which is

less than the 1,500 grams necessary to substantiate the BOL of 38 assessed by the

district court, but well in excess of the 500 grams necessary to assess a BOL of

36. See USSG § 2D1.1(c). With the other enhancements affirmed above, this

translates to a total offense level of 42 and a sentencing range of 360 months to

life. Of course, as discussed in section 1, the statutory maximum for the count of

conviction imposes an upper limit on any sentence to be imposed.

      The sentence imposed on the defendant by the United States District Court

for the Western District of Oklahoma is VACATED, and the cause is remanded

for resentencing consistent with this order and judgment. The appellant’s pro se

motion to file his supplemental brief is granted, but counsel’s motion to prepare

and file an additional supplemental brief is denied.



                                                       Entered for the Court



                                                       David M. Ebel
                                                       Circuit Judge




                                        -13-
