In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4158

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MYRIS MATTHEWS,

Defendant-Appellant.



Appeal from the United States District Court
for the Central District of Illinois.
No. 2:99CR20007-001--Michael P. McCuskey, Judge.


Argued June 14, 2000--Decided July 19, 2000



       Before Cudahy, Flaum, and Manion, Circuit Judges.

      Flaum, Circuit Judge. Myris Matthews pleaded
guilty to one count of possession of cocaine base
("crack") with the intent to distribute. See 21
U.S.C. sec. 841(a)(1). He was sentenced to 240
months imprisonment and five years supervised
release. Matthews appeals his sentence, arguing
that the district court erred by giving him a
two-level upward adjustment for a supervisory
role under U.S.S.G. sec. 3B1.1(c). We affirm.

I.   BACKGROUND

      While investigating the Gangster Disciples
street gang in Decatur, Illinois, agents assigned
to the Illinois State Police Task Force X
arranged several controlled buys of crack from
Matthews. The upward adjustment for his role in
the offense was based on two of these buys, both
of which preceded the crack offense charged in
the indictment. The first transaction occurred on
January 25, 1999. On that day, Matthews was paged
by a confidential source ("CS") who knew him as
"Twin" and who had bought crack cocaine from him
previously. Matthews returned the call, which was
recorded, and told the CS to go to 1336 East
Walnut Street in Decatur. The CS, wearing a wire
and under surveillance, went to the address,
where he was met by an unidentified woman. The CS
told her that Twin had sent him to buy crack, and
she acknowledged that Twin had alerted her that
he would be arriving. The woman let the CS into
the kitchen and said she would sell him two rocks
of crack for $40. When the CS replied that he
always got a better deal from Twin, she responded
that he could wait for Twin if he wanted a better
deal. The CS purchased the crack cocaine.

      The second transaction occurred the following
day, January 26, 1999. The CS again telephoned
Matthews and arranged to purchase powder cocaine
at the Walnut Street address. Upon arriving at
the house, the CS was met by Matthews and an
unidentified man. Again, the CS wore a wire and
was under surveillance until he entered the
house. The government alleges that the
unidentified man was in possession of the cocaine
and gave it to the CS at Matthews’ direction. The
parties agree that Matthews, not the unidentified
man, negotiated the price, but disagree as to who
was in possession of the cocaine. Matthews argues
that the government’s evidence established that
the unidentified man was not in any way involved
in the transaction.

      After several more transactions between the CS
and Matthews, the agents obtained a search
warrant for the Walnut Street address. Upon
arriving at the house, the agents encountered
Matthews and searched him, finding crack, cash,
and a key. Matthews told the agents that the key
was to his father’s house. Matthews’ father
allowed agents to search his house without a
warrant. He directed the agents to a bedroom that
Matthews used. There the agents found crack,
cash, marijuana, and a gun.

      After Matthews pleaded guilty, the probation
officer recommended a two-level upward adjustment
for Matthews’ supervisory role, explaining that
"the defendant exerted control over the
unidentified female and male that took part in .
. . the controlled deliveries." Matthews filed
objections to the Pre-Sentence Report ("PSR"),
arguing that he did not exert control over any
individual during the transactions on January 25
and January 26. After hearing testimony from the
agent who monitored the wire worn by the CS and
counsel’s arguments at the sentencing hearing,
the district court concluded that the upward
adjustment was warranted and adopted the
probation officer’s recommendation.

II.   DISCUSSION

      We review an upward adjustment for a
defendant’s aggravating role in an offense for
clear error. United States v. Billingsley, 115
F.3d 458, 464 (7th Cir. 1997). Whether the
defendant played an aggravating role is a
question of fact that is clearly erroneous "only
if, after reviewing the entire evidence, we are
left with the definite and firm conviction that
a mistake has been committed." United States v.
Granado, 72 F.3d 1287, 1290 (7th Cir. 1995)
(internal citations and quotations omitted). If
the fact finder chooses between two permissible
views of the evidence, the choice is not clearly
erroneous. Id.

      A two-level upward adjustment is warranted under
U.S.S.G. sec. 3B1.1(c) if "the defendant was an
organizer, leader, manager, or supervisor" in the
criminal activity. Application Note 4 provides
factors to be used in determining whether a
defendant falls under any of these categories.
Those factors are: (1) the exercise of decision
making authority; (2) the nature of participation
in the commission of the offense; (3) the
recruitment of accomplices; (4) the claimed right
to a larger share of the fruits of the crime; (5)
the degree of participation in planning or
organizing the offense; (6) the nature and scope
of the illegal activity; and (7) the degree of
control and authority exercised over others.
U.S.S.G. sec. 3B1.1(c), comment. (n.4). "Although
control over other participants is a significant
factor, . . . [n]o single factor is essential to
determine whether a sentence should be adjusted
under sec. 3B1.1, nor must equal weight be given
to each factor." United States v. Bush, 79 F.3d
64, 67 (7th Cir. 1996) (internal citations
omitted). "Thus, for example, even if a defendant
did not exercise control, an [upward adjustment]
under sec. 3B1.1 may apply so long as the
criminal activity involves more than one
participant and the defendant played a
coordinating or organizing role." Id.

      Matthews argues that the evidence related to
the January 25 drug deal does not support a
finding that he exercised any control over the
unidentified woman who sold the crack to the CS.
We disagree. At the very least, Matthews played
a coordinating or organizing role that was
sufficient for an upward adjustment under sec.
3B1.1(c). See Billingsley, 115 F.3d at 465
(upward adjustment pursuant to 3B1.1(c) was not
clearly erroneous even though district court did
not explicitly find that defendant "controlled"
other participants). Matthews coordinated the
transaction by setting the time and location of
the deal. He also called the unidentified woman
to let her know that the CS would be arriving.
Moreover, the female’s statement indeed evidenced
Matthews’ control over her. When the CS balked at
the price, the woman responded that he would have
to wait for Matthews if he wanted a better price.
A reasonable inference from this statement is
that Matthews, not the woman, had the authority
to negotiate the price. Matthews argues that this
statement meant only that the CS was welcome to
buy from him if the CS did not like the woman’s
price, and, in his view, the appropriate
inference to draw is that he was involved as a
middleman--he merely directed the CS to a crack
house where drugs could be purchased. The
district court was thus presented with two
permissible views of the evidence, and did not
clearly err by choosing to believe that the
female’s statement evidenced Matthews’ control
over her. See Granado, 72 F.3d at 1290 (affirming
upward adjustment based on district court’s view
of the evidence).

      Matthews also argues that the second transaction
on January 26 did not occur as described in the
PSR. The PSR recounts that Matthews negotiated
the price and then directed an unidentified man
to give the drugs to the CS. Matthews, however,
asserts that the unidentified man did not have
the drugs in his possession. Rather, he argues
that the evidence established that he alone
negotiated the deal and that he was the one who
gave the CS the drugs. Matthews points to
testimony at the sentencing hearing that, he
alleges, contradicts the PSR. On direct
examination, agent Richard Hughes, who monitored
the wire worn by the CS and heard the
transaction, testified that the unidentified man
"brought several packages of cocaine out of his
pocket" and was directed by Matthews to give the
CS "three for the price of $40." But Matthews
points to the following exchange on Hughes’
cross-examination as proof that it was he, not
the unidentified man, who gave the drugs to the
CS:
Q: And on that occasion, it was actually Mr.
Matthews who gave the confidential source a--it
was powder cocaine in exchange for the $40 that
you had given the confidential source, correct?

A: Yes.

Q: It was not the unidentified black male who
supplied your confidential source with any drugs
on that occasion; isn’t that correct?

A: Yes.

Q: And it was Mr. Matthews personally who supplied
the--and it was powder cocaine on that occasion,
correct?

A: Yes.

      We are troubled by this seemingly contradictory
testimony. Although the responses to the first
and third questions in the above exchange are
unclear due to the compound nature of the
questions, the agent clearly responds to the
second question by stating that the unidentified
man was not the one to give the drugs to the CS.
The government did not object to this line of
questioning nor did it respond to Matthews’
argument at the sentencing hearing based on this
apparently inconsistent testimony. In its brief
on appeal, the government sets aside the effect
of the agent’s response to the second question
and simply insists that the testimony was not
contradictory. If the unidentified man did not
give the drugs to the CS, there is no evidence
that Matthews played a supervisory or organizing
role in the January 26 transaction. We find that
the record does not support the finding that
Matthews played an aggravating role in this
transaction. See United States v. Mankiewicz, 122
F.3d 399, 405-06 (7th Cir. 1997) (prior to the
imposition of upward adjustment pursuant to
3B1.1(c), government must establish that the
defendant had some real and direct influence on
other participants); United States v. Mustread,
42 F.3d 1097, 1103 (7th Cir. 1994) (noting that,
at a minimum, defendant must exert some real and
direct influence). Because of the significant
difference that even a two-level upward
adjustment can have on the length of a sentence,
we underscore that a defendant’s role must be
clear prior to imposing an upward adjustment
pursuant to 3B1.1(c).

      However, regardless of the uncertainty
surrounding the January 26 transaction, Matthews
was still eligible for the upward adjustment
based on the January 25 transaction. See United
States v. Sierra, 188 F.3d 798, 803 (7th Cir.
1999) (noting that section 3B1.1(c) "only
requires that the defendant directed one
person").

III.   CONCLUSION

       For the foregoing reasons, Matthews’ sentence is

Affirmed.
