                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 17 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 99-6198
v.                                               (W. District of Oklahoma)
                                                  (D.C. No. CR-98-93-T)
GEORGE JARVIS MITCHELL,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


                                  I. INTRODUCTION

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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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.
      In June of 1998, a federal grand jury sitting in the Western District of

Oklahoma handed down a multi-count indictment relating to a large drug

conspiracy operating out of Elk City, Oklahoma. George Jarvis Mitchell was

named in eleven counts of the indictment. The indictment charged Mitchell with

one count of conspiracy to distribute cocaine base, one count of maintaining a

place for the distribution and use of a controlled substance, two counts of

possession of cocaine base with intent to distribute, and numerous counts of

distribution of cocaine base. Mitchell eventually pleaded guilty to a single count

of distributing cocaine base in violation of 21 U.S.C. § 841(a)(1).

      The district court determined that Mitchell had a base offense level of 37

and a criminal history category of III, resulting in a guideline range for

imprisonment of 262 to 327 months. The district court imposed a sentence of 262

months. In order to calculate Mitchell’s base offense level pursuant to United

States Sentencing Guideline (“U.S.S.G.”) § 2D1.1(a)(3) and (c), the district court

held a hearing to determine the amount of drugs attributable to Mitchell. The

district court ultimately concluded that 911.29 grams of cocaine base were

attributable to Mitchell, resulting in a beginning base offense level of 36. See

U.S.S.G. § 2D1.1(c)(2). The district court then increased the base offense level

four levels after concluding that Mitchell was an organizer or leader of a criminal

activity that involved five or more participants. See id. § 3B1.1(a). After


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reducing Mitchell’s base offense level three levels for acceptance of

responsibility, see id. § 3E1.1(a) & (b), the district court arrived at a final base

offense level of 37.

      On appeal, Mitchell raises the following two challenges to the district

court’s calculation of his base offense level: (1) the district court erred in

attributing 911.29 grams of cocaine base to him for purposes of U.S.S.G. § 2D1.1

and (2) the district court erred in concluding that “Mitchell was a leader or

organizer of five or more participants in this offense.” In addition to the two

sentencing-related challenges, Mitchell belatedly asserted at the sentencing

hearing that the district court had erred in accepting his plea. According to

Mitchell, the plea was not knowingly entered. This court exercises jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirms.



                                    II. ANALYSIS

      A. SECTION 2D1.1(c) DRUG QUANTITY CALCULATIONS

      After a consolidated drug quantities hearing, held for the purpose of

apportioning and attributing drug quantities among the numerous participants in

this drug enterprise, the district court found that Mitchell was responsible for

911.29 grams of cocaine base. The drugs attributed to Mitchell by the district




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court fall into the following categories: (1) 17.45 grams 1 obtained from Mitchell

through “controlled purchases” over an approximately three-month period

between October of 1997 and January of 1998; (2) 4.09 grams obtained during the

execution of a search warrant at Mitchell’s residence; (3) 29.47 grams obtained

from the execution of a search warrant at the home of Regina Evans 2; (4) 576.78

grams witnessed by Evans; (5) 255.15 grams witnessed by Vicky Edmondson; and

(6) 28.35 grams retrieved from Evans’ home by Mitchell’s accomplices, at

Mitchell’s direction, while Mitchell was incarcerated. Mitchell asserts that the

government failed to present sufficient evidence to support any amounts except

those in categories (1) and (2).

      This court reviews a district court’s drug quantity calculations for clear

error. See United States v. Cruz Camacho, 137 F.3d 1220, 1225 (10th Cir. 1998).

The district court may rely upon estimates to establish a defendant’s base offense

level when the actual drugs underlying a drug-quantity determination are not

seized. See United States v. Ruiz-Castro, 92 F.3d 1519, 1534 (10th Cir. 1996).


      1
        In his appellate brief, Mitchell asserts that the total amount of cocaine base
resulting from controlled purchases is 15.06 grams. A review of paragraphs
thirteen through seventeen of the Presentence Report (“PSR”), portions of the
PSR which Mitchell admits are accurate, demonstrates that the correct total is
17.45 grams.
      2
       As set out more fully below in section II.B. of this opinion, Mitchell
exerted substantial control over Evans and her home, and used the home
extensively as a place to distribute cocaine base.

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“The government must prove the quantities of drugs for sentencing purposes by a

preponderance of the evidence and the evidence relied upon must possess a

minimum indicia of reliability.” Cruz Camacho, 137 F.3d at 1225.

      The applicable Sentencing Guidelines provision sets a base offense level of

36 for any quantity of cocaine base between 500 grams and 1.5 kilograms. See

U.S.S.G. § 2D1.1(c)(2). Therefore, any error in the district court’s findings as to

attributable drug quantities are harmless unless Mitchell successfully challenges

enough of the evidence to reduce the total to less than 500 grams. Because this

court concludes that the 576.78 grams the district court extrapolated from the

statements of Evans are adequately supported by the record, we need not consider

any of the other drug quantities challenged by Mitchell.

      The testimony before the district court regarding the quantity of cocaine

base attributable to Mitchell from sales at Evans’ residence came primarily from

the testimony of Federal Bureau of Investigation Special Agent Nick Manns.

Manns testified that he spoke with Evans following the execution of the search

warrant at her residence on March 10, 1998. Manns testified that he advised

Evans of her Miranda rights and that she agreed to waive those rights and speak

to him. Evans admitted that Mitchell had been selling cocaine base from her

home in return for money and drugs. Evans further indicated that Mitchell had

sold drugs out of her home on at least fifty separate occasions, with numerous


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sales occurring on each occasion. Manns opined, based on his investigation, that

fifty occasions was a conservative number. Based on the statements of Evans and

others, Manns further testified that, viewed conservatively, Mitchell sold at least

one-half of an ounce of cocaine base on each of these fifty occasions. To avoid

the potential of double counting quantities of drugs included in category (5),

those amounts witnessed by Edmondson, Manns reduced the total number of

occasions to forty-four. Manns testified that the selling of one-half of an ounce

of cocaine base on forty-four occasions resulted in a total amount of 623 grams.

Manns then subtracted those quantities included in categories (1) and (3),

resulting in a conservative estimate of 576.78 grams.

      Citing three decisions of this court, Mitchell asserts that the district court

erred in relying on the out-of-court statements made by Evans to Manns because

those statements were vague and uncorroborated. See United States v. Fennell, 65

F. 3d 812, 813-814 (10th Cir. 1995) (noting that unsworn, uncorroborated, out-of-

court statements are not favored in sentencing proceedings); United States v.

Ortiz, 993 F.2d 204, 207 (10th Cir. 1993) (same); see also United States v.

Richards, 27 F.3d 465, 469 (10th Cir. 1994) (holding that drug quantities for

sentencing purposes can be based on estimates but noting that such estimates

cannot be based on vague, uncorroborated testimony or guesswork). The problem

with Mitchell’s argument, and his citation of these cases, is that the record in this


                                          -6-
case contains ample corroboration as to both the number of occasions that he sold

cocaine base from Evans’ residence and the quantity of drugs sold on those

occasions.

      In particular, Dennis Reed told investigators that he had picked up Mitchell

in Altus, Oklahoma, on at least seven occasions with one-ounce quantities of

cocaine base and returned with him to Elk City. Reed observed Mitchell sell

cocaine base from Evans’ residence “hundreds of times.” Kelvin Bagby told

investigators that he had purchased cocaine base from Mitchell “over 1,000

times.” John Nunn told investigators that he observed Mitchell sell cocaine base

from Evans’ residence “hundreds of times.” David Sharp indicated that he

purchased cocaine base from Mitchell ten to twelve times each month for almost

one year. Corey Wilson indicated that Mitchell brought at least one-half ounce of

cocaine base to Evans’ residence to sell on at least a weekly basis. Patrick Brown

indicated that he made fifteen to twenty trips to Altus, Oklahoma, to pick up

drugs with Mitchell and that Mitchell obtained at least one-half ounce on each

trip. Finally, Manns described the contents of a video recording made in the

investigation. In the video, Mitchell is observed measuring out at least one ounce

of crack cocaine. Mitchell described in detail how much money he would make

selling the ounce.




                                        -7-
      Evans’ statements, corroborated by the statements of Mitchell’s co-

conspirators and accomplices, is sufficiently reliable and case specific to support

the district court’s attribution of at least 500 grams of cocaine base to Mitchell.

See United States v. Wacker, 72 F.3d 1453, 1377 (10th Cir. 1995) (holding that

district court may consider relevant information without regard to its admissibility

under the rules of evidence “so long as the information relied upon has some basis

of support in the facts of the particular case, and bears sufficient indicia of

reliability” (quotation omitted)). Accordingly, the district court did not commit

clear error in its drug quantity calculations and did not err in setting Mitchell’s

base offense level by reference to U.S.S.G. § 2D1.1(c)(2).

      B. SECTION 3B1.1 LEADER OR ORGANIZER ADJUSTMENT

      Mitchell challenges the district court’s four-point upward adjustment of his

base offense level pursuant to § 3B1.1(a). Mitchell’s argument is two-fold:

(1) the government failed to carry its burden of proving that he exercised control

or decision-making authority over any of his accomplices and (2) even assuming

the government did prove that he exercised control or decision-making authority

over some of his accomplices, it did not prove that he exercised such authority

over five of his accomplices. This court reviews questions of law regarding

application of the Sentencing Guidelines de novo. See United States v. Tagore,

158 F.3d 1124, 1127 (10th Cir. 1998). We review a district court’s findings of


                                          -8-
fact, including its ultimate finding Mitchell was a leader or organizer under

§ 3B1.1(a), for clear error. See id. at 1130.

      Mitchell qualifies for a four-point upward adjustment under § 3B1.1 if he

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

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). Mitchell is

clearly wrong in asserting that the government must prove that he controlled five

of his accomplices before a § 3B1.1(a) adjustment is applicable. See Cruz

Camacho, 137 F.3d at 1224 (“The government does not have to prove that

defendant controlled five or more participants. Instead, it must prove that five

persons participated in the criminal venture, and that defendant exercised

leadership control over at least one person.” (footnote omitted)). It is

uncontested that the criminal activity at issue in this case involved more than five

participants. Accordingly, Mitchell can demonstrate that the district court clearly

erred in adopting a § 3B1.1 adjustment only by showing that the evidence

adduced at the sentencing hearing is insufficient to demonstrate that he exercised




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control or decision-making authority over any of his accomplices. 3 This he

cannot do.

          To determine whether a defendant qualifies for a § 3B1.1 adjustment, the

court may consider several factors, including:

      the exercise of decision making authority, the nature of participation
      in the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of
      participation in planning or organizing the offense, the nature and
      scope of the illegal activity, and the degree of control and authority
      exercised over others.

U.S.S.G. S 3B1.1, comment. n. 4. In this case, the record supports the district

court’s finding that Mitchell exercised control over Regina Evans. The record

reveals that shortly after Mitchell arrived in Elk City, the locus of this particular

drug conspiracy, he became aware that Evans’ home was a convenient spot for the

distribution of cocaine base. Mitchell recruited Evans for the purpose of allowing

him to sell drugs from her home, paying her with both drugs and money. Over

time, Mitchell began to exert greater control over both Evans and her residence.



      3
       That is not to say, however, that a finding of control is always necessary to
support an adjustment under § 3B1.1(a). See United States v. Tagore, 158 F.3d
1124, 1131 (10th Cir. 1998) (“[T]he wording of § 3B1.1(a) is disjunctive. In
other words, an enhancement is appropriate if defendant was either a leader or an
organizer. . . . It is not necessary to find the defendant exercised control over
other participants to qualify for an organizer enhancement.”). Because the
evidence adduced at the sentencing hearing was sufficient to support the
conclusion that Mitchell was a leader of the drug conspiracy, this court need not
consider whether Mitchell would also qualify as an organizer. See id.

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In fact, Evans’ residence eventually became known as “G’s” 4 house. At this

point, Mitchell took control of who could sell drugs in the house while he was

present and began to recruit others, Kore Wilson for example, to sell drugs from

the residence. The evidence at sentencing also indicates that Mitchell received a

disproportionate share of the proceeds of the drug transactions occurring in

Evan’s residence. This evidence is certainly sufficient to support both the district

court’s finding that Mitchell exercised leadership control over Evans 5 and its

four-level upward adjustment of Mitchell’s base offense level pursuant to

§ 3B1.1(a).

      C. KNOWING PLEA

      Mitchell asserts that the district court erred in denying his oral motion to

withdraw his guilty plea, which motion was made at the conclusion of the

sentencing hearing and right before the district court was to enter a sentence. As

the sole ground in support of his motion, Mitchell asserted that his plea was not

knowing and voluntary. In particular, Mitchell asserted that (1) he was unaware

drug quantities outside his offense of conviction would be used to calculate his


      4
          “G” was Mitchell’s street alias.
      5
       Although the record evidence regarding Mitchell’s control of Evans and
her residence is sufficient, standing alone, to support the enhancement, this court
notes that a review of the record demonstrates similar support for the district
court’s conclusion that Mitchell exercised control over Patrick Brown, Dennis
Reed, Kore Winston, and Eric Hughes.

                                             -11-
sentence under the Sentencing Guidelines, (2) he thought he would be eligible for

probation, and (3) his attorney did not visit him often or keep him informed about

his case. This court reviews de novo the question whether a guilty plea was

knowing and voluntary. See United States v. Libretti, 38 F.3d 523, 529 (10th Cir.

1994). 6

       The record in this case demonstrates that Mitchell’s plea was knowing and

voluntary. During the plea hearing, the district court patiently and meticulously

explained to Mitchell that he likely faced a very long prison sentence and that the

exact length of that sentence could not be computed until after a hearing to

determine the amounts of drugs attributable to Mitchell for purposes of the

Sentencing Guidelines. The district court further explained that “it’s very

important for you to know that nobody can give you any assurance of what your



       6
        Although this court reviews the question whether a plea is knowing and
voluntary de novo, we review the district court’s denial of a motion to withdraw a
guilty plea for abuse of discretion, considering those seven factors set out in
United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993). See United States v.
Carr, 80 F.3d 413, 419 (10th Cir. 1996). Because the sole basis for Mitchell’s
oral motion to withdraw his guilty plea was that the plea was not knowing and
voluntary, the other six Gordon factors are not at play in this appeal.
Nevertheless, we note that after reviewing the entire record in this case, with
special emphasis on the petition to enter guilty plea, plea agreement, plea hearing,
and the sentencing hearing, it is clear that the district court did not abuse its
discretion in denying Mitchell’s motion. In particular, this court notes that
Mitchell has never asserted his innocence and that granting the dilatory motion
would have prejudiced the government, inconvenienced the court, and wasted
judicial resources. See Gordon, 4 F.3d at 1572.

                                        -12-
sentence will be because nobody has been able to compute it yet.” In response to

a question from the district court, Mitchell stated that he understood that nobody

could make him any guarantees about his sentence and that he likely faced a

substantial prison term. Mitchell further indicated that he freely entered into the

plea agreement with the government, that his attorney had explained the contents

and consequences of the plea agreement, and that he “understood everything” in

the plea agreement. When viewed against the record of the plea hearing and the

contents of the petition to enter guilty plea, Mitchell’s self-serving and conclusory

assertions regarding his plea are, standing alone as they do, clearly insufficient.

See Blackledge v. Allison, 431 U.S. 63, 74, (1977) (“Solemn declarations in open

court carry a strong presumption of verity. The subsequent presentation of

conclusory allegations . . . is subject to summary dismissal, as are contentions that

in the face of the record are wholly incredible.”).

      Upon de novo review, this court holds that the district court did not err in

concluding that Mitchell’s guilty plea was knowing and voluntary or in denying

Mitchell’s oral motion to withdraw his guilty plea on that ground.




                                         -13-
                               III. CONCLUSION

      For those reasons set out above, the judgment of conviction and sentence

entered in this case by the United States District Court for the Western District of

Oklahoma are hereby AFFIRMED.

                                       ENTERED FOR THE COURT:



                                       Michael R. Murphy
                                       Circuit Judge




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