UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 96-4569
TYHEIM SHAWNDALE LITTLE, a/k/a
Israel, a/k/a Is,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 96-4586
TREVOR LITTLE, a/k/a Tragedy, a/k/a
Trag,
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-95-198)

Submitted: July 15, 1997

Decided: September 11, 1997

Before HALL, MURNAGHAN, and NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Daniel S. Corey, Poca, West Virginia; Christopher J. Havens,
Charleston, West Virginia, for Appellants. Rebecca A. Betts, United
States Attorney, Monica K. Schwartz, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

In these consolidated appeals, Tyheim Shawndale Little (No. 96-
4569) and Trevor Little (No. 96-4586) appeal from their multiple jury
convictions after a four-day trial for various drug trafficking crimes
and their resulting life sentences. Because we find that the trial court
did not err in any of its evidentiary rulings during trial, that the evi-
dence is sufficient to support the convictions, and that Appellants
were properly sentenced, we affirm Appellants' convictions and sen-
tences.

Construed in the light most favorable to the Government, the evi-
dence discloses that Appellants were engaged in a drug trafficking
network in which they acquired quantities of cocaine and cocaine
base in New York City and then distributed the drugs in Charleston,
West Virginia. The two organized numerous persons to support the
drug trafficking conspiracy in various ways, including couriers, dis-
tributors, runners, protectors, and chauffeurs. The drug trafficking
operation began to unravel in 1995 when some of their minions were
arrested.

In December 1995, Trevor was finally arrested after engaging
police in a high speed chase through residential areas of Charleston.
Several police officers in several cars were involved in the chase, dur-

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ing which the vehicle in which Trevor fled drove onto a sidewalk to
avoid hitting a police vehicle parked in an intersection. One police car
blew out a tire during the chase and narrowly avoided hitting a bus.
When the vehicle finally came to a stop, Trevor exited with a loaded
semi-automatic handgun and attempted to flee on foot. In the course
of his flight, Trevor fell off a cliff and injured his back. Trevor was
hospitalized for approximately one week due to his injuries.

The officer who arrested Trevor after his fall ("Harper") advised
him of his Miranda rights at the scene. He testified that he found Tre-
vor to be conscious and attentive and that Trevor stated he understood
his rights. Trevor later testified at a suppression hearing that he did
not remember being told his rights at the scene but acknowledged that
he knew what his Miranda rights were because he had been arrested
before.

The police guarded Trevor at all times during his hospitalization.
During this time, he made several incriminating statements to police
officers which he later sought to suppress. The district court denied
the suppression motion after a two-day hearing. Both Appellants
assert that the court improperly denied the suppression motion
because Trevor was unable to understand his Miranda warnings due
to his injuries and his subsequent hospitalization and treatment.

This court reviews the district court's factual findings on Appel-
lants' motion to suppress for clear error. United States v. McCraw,
920 F.2d 224, 227 (4th Cir. 1990). Whether Trevor knowingly and
intelligently waived his Fifth Amendment rights is also a question of
fact which this Court reviews for clear error. United States v. Gordon,
895 F.2d 932, 939 (4th Cir. 1990). The Court reviews the district
court's legal conclusions de novo. United States v. Daughtrey, 874
F.2d 215, 217 (4th Cir. 1989).

After hearing testimony, the district court found as matters of fact
that Harper advised Trevor of his Miranda rights when he was
arrested; that Trevor knew what his Miranda rights were and that Tre-
vor knew he was indicted. The court also found that Trevor was
advised of his right to counsel; that he was alert, responsive, and talk-
ative while hospitalized even though he was medicated; that Trevor
was again advised of his Miranda rights in the hospital; and that he

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"volunteered" the incriminating statements he made to police officers
who guarded him in the hospital. We find that none of these factual
findings is clearly erroneous. We further conclude that these findings
support the court's decision to admit Trevor's incriminating state-
ments under 18 U.S.C. § 3501 (1994) in the prosecution of both
Appellants.

Both Appellants assert that the evidence was insufficient to support
their convictions of conspiracy. The jury's verdict must be upheld if
there is substantial evidence, taking the view most favorable to the
government, to support the finding of guilt. United States v. Jackson,
863 F.2d 1168, 1173 (4th Cir. 1989). The necessary elements to sup-
port a conspiracy conviction include: (1) an agreement among the
defendants to do something illegal; (2) knowing and willing participa-
tion in the agreement; and (3) an overt act in furtherance of the pur-
pose of the agreement. United States v. Meredith , 824 F.2d 1418,
1428 (4th Cir. 1987). Knowledge and participation in the conspiracy
may be proved by circumstantial evidence. Id.

Construing both direct and circumstantial evidence in the light
most favorable to the Government, we find it sufficient to support the
jury's verdicts that both Appellants engaged in a conspiracy to distrib-
ute crack cocaine. It is clear from trial testimony that Trevor and
Tyheim worked together to obtain and to distribute the drugs.

Both Appellants also assert that the district court erred in permit-
ting the Government to introduce into evidence plea agreements of
co-defendants Spence and Adkins. Neither raised this objection at
trial, however, and we find no plain error. See United States v. Olano,
507 U.S. 725, 731-32 (1993); Fed. R. Crim. P. 52(b). Appellants fail
to establish error at all, plain or otherwise. Government witnesses'
plea agreements may be admitted to explain the government's proce-
dures and the relationship between it and its witnesses, and the admis-
sion of such plea agreements does not constitute improper
"bolstering." See United States v. Lewis , 10 F.3d 1086, 1089 (4th Cir.
1993).

Both Appellants also assert that the sentencing court erred in apply-
ing an enhanced sentence for "crack" pursuant to USSG § 2D1.1
because the Government did not establish by a preponderance of the

                    4
evidence that the cocaine base they distributed was crack rather than
another form of cocaine base. Again, we review this claim for plain
error because Appellants did not raise this objection below. We find
Appellants have failed to establish plain error in this respect.

Both Appellants continue that the sentencing court relied upon
unreliable hearsay testimony to determine drug quantities for sentenc-
ing purposes. They allege that the findings contained in the presen-
tence reports, which the sentencing court adopted, are clearly
erroneous because they are based on inaccurate testimony.

The Government need only establish quantity by a preponderance
of the evidence, and this court accepts those findings of fact unless
they are clearly erroneous. United States v. Williams, 986 F.2d 86, 90
(4th Cir. 1993). The sentencing court may consider all evidence
before it at sentencing in determining quantity. United States v.
Wilson, 896 F.2d 856, 858 (4th Cir. 1990). The court may rely upon
any relevant information without regard to its admissibility under the
rules of evidence provided that the information has sufficient indicia
of reliability to support its probable accuracy. United States v.
Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992). With these standards
in mind, we find that a preponderance of the evidence supports the
court's calculations of quantity, and that the Littles' claims to the con-
trary are meritless.

Both Appellants also assert that the Government violated due pro-
cess by issuing indictments that did not specify a definite quantity of
crack which they allegedly distributed. They maintain that because of
this failure to specify an amount in the indictments, they were not
notified that they might be subjected to enhanced penalties under 21
U.S.C. § 841(b). The quantity of drugs is a sentencing factor which
the Government need only establish by a preponderance of the evi-
dence at sentencing. Williams, 986 F.2d at 90. Drug quantity is not
a substantive element of a § 841 offense. United States v. Fletcher, 74
F.3d 49, 53 (4th Cir.), cert. denied, #6D 6D6D# U.S. ___, 65 U.S.L.W. 3260
(U.S. Oct. 7, 1996) (No. 95-9447). Therefore, we conclude there is no
requirement that the indictment set forth a specific quantity of con-
trolled substance.

Appellants also object to the sentencing court's imposition of sen-
tencing enhancements for their roles in the offense and for possession

                     5
of firearms. It is within the discretion of the district court to determine
that a defendant was an organizer or leader of criminal activity that
involved five or more participants for purposes of a four-level
increase in offense level under USSG § 3B1.1. United States v.
Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995), cert. denied, ___ U.S.
___, 64 U.S.L.W. 3708 (U.S. Apr. 22, 1996) (No. 95-8395). This
court reviews the district court's factual determination regarding the
defendants' roles in the offense under § 3B1.1 for clear error. Id.
Since there was ample evidence presented at trial and at sentencing
that supported the district court's conclusion that Appellants were
"equal partners" in leading a drug possession and distribution conspir-
acy with "five levels" in the possession and distribution ring, we find
no clear error.

This court also reviews a weapon enhancement under USSG
§ 2D1.1(b)(1) for clear error. United States v. Rusher, 966 F.2d 868,
880 (4th Cir.), cert. denied, 506 U.S. 926 (1992). Under that Guide-
lines section, the sentencing court applies a two-level enhancement if
a dangerous weapon was possessed. Since there was ample evidence
that both Trevor and Tyheim carried and used firearms in the course
of their drug trafficking exploits, the court's§ 2D1.1 enhancement
was not clearly erroneous.

Trevor alleges that the court improperly enhanced his sentence
under USSG § 3C1.2 for reckless endangerment during flight. That
section provides for a two-level increase in offense level "[i]f the
defendant recklessly created a substantial risk of death or serious bod-
ily injury to another person" while fleeing from a police officer. We
review the district court's determination that Trevor's flight from law
enforcement presented a reckless risk of endangerment for clear error.
United States v. Chandler, 12 F.3d 1427, 1433 (7th Cir. 1994). We
find no clear error here. Trevor, who was armed with a loaded hand-
gun, evaded capture by authorities in a high speed chase that involved
several vehicles. His willful, reckless conduct during flight clearly
could have caused injury to others.

Trevor also asserts that the court improperly adjusted his sentence
for obstruction under USSG § 3C1.1 because there was insufficient
evidence that his conduct was "obstructive." Whether Trevor's con-
duct amounted to obstruction of justice is a legal question which we

                     6
review de novo, United States v. Saintil, 910 F.2d 1231, 1232 (4th
Cir. 1990), but we review the underlying factual findings for clear
error. Daughtrey, 874 F.2d at 217.

As the court observed, there was "abundant evidence" presented to
support this two-level increase in offense level. One of the Govern-
ment's witnesses who testified against the Little brothers stated that
Trevor threatened him and that he seriously considered not testifying
as a result of the threats, and the witness was transferred to another
jail because of the threats. We conclude that Trevor's intimidating
comments to the witness support the court's sentencing enhancement
for obstruction.

Finally, Tyheim asserts that the court clearly erred in attributing
4829.18 grams of cocaine base to him because the court failed to find
that the full amount was reasonably foreseeable or jointly undertaken
by him under USSG § 1B1.3. We find the court's quantity calculation
adequately supported by the record.

For these reasons, we affirm both Appellants' convictions and sen-
tences. We deny Trevor Little's motion for oral argument and dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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