                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 15-4347


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

ISHMAEL BAITH FORD-BEY, a/k/a Jason Green,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Senior District
Judge. (8:13-cr-00492-DKC-2)


Submitted:   September 15, 2016               Decided:   October 12, 2016


Before DUNCAN    and   FLOYD,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Marvin D. Miller, LAW OFFICES OF MARVIN D. MILLER, Alexandria,
Virginia, for Appellant. Rod J. Rosenstein, United States
Attorney, Deborah A. Johnston, Thomas P. Windom, Assistant
United States Attorneys, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Ishmael    Baith      Ford-Bey      appeals      his    396-month        sentence

imposed pursuant to his guilty plea to various drug and money

laundering       charges.        On     appeal,       Ford-Bey       challenges      his

leadership role enhancement, his firearm enhancement, and the

drug quantity attributed to him.                 We conclude that the district

did not err in applying an enhancement for Ford-Bey’s role in

the    offense    or   in    calculating        the   applicable         drug   quantity.

However, we find that the firearm enhancement was improper, and

thus, we vacate Ford-Bey’s sentence and remand for resentencing.

                                           I.

       We   review     sentencing      adjustments      based       on    a   defendant’s

role in the offense for clear error.                   United States v. Sayles,

296 F.3d 219, 224 (2002).             In addition, we may affirm a sentence

enhancement      for   any    reason    appearing      in     the    record.      United

States v. Garnett, 243 F.3d 824, 830 (4th Cir. 2001) (appellate

courts may “affirm [sentence enhancements] on the basis of ‘any

conduct [in the record] that independently and properly should

result in an increase in the offense level’ by virtue of the

enhancement”) (citation omitted).                 A defendant’s offense level

is to be increased by four levels “[i]f the defendant was an

organizer or leader of a criminal activity that involved five or

more     participants.”             U.S.       Sentencing       Guidelines        Manual



                                           2
§ 3B1.1(a) (2014).           The following factors should be considered

in determining whether a role adjustment is warranted:

       (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.

See United States v. Kellam, 568 F.3d 125, 148 (4th Cir. 2009)

(citing USSG § 3B1.1 cmt. 4).

       However, a defendant need only exercise control over one

other participant in order to be deemed a leader or organizer.

USSG   §   3B1.1    cmt.    2.         This    is    “not   a    particularly         onerous

showing,”       requiring    “only       a    conclusion        that   [the     defendant]

supervised at least one . . . participant,” and it “does not

require the court to identify specific examples.”                              See United

States     v.    Hamilton,       587    F.3d       1199,    1222   (10th       Cir.    2009)

(citations omitted).             Moreover, once the court has determined

that   the      defendant   exercised         some    control      over   at    least    one

participant, it need look no further into whether or not the

defendant exercised control over others.                    Id. at 1223.

       Taking the record as a whole, there is ample evidence to

support the district court’s determination that Ford-Bey was a

leader or organizer of a criminal enterprise consisting of five

or more people.        First, it is undisputed that the organization


                                               3
consisted of five or more people.                       As for the level of control

Ford-Bey       had    over    his     cohorts,          the       evidence       presented    at

sentencing clearly established that Ford-Bey was a leader and/or

organizer of his group.                In addition to being the top of the

supply stream for tens of millions of dollars worth of cocaine,

Ford-Bey    received         large,    monthly         drug       shipments       from    January

2011 until August 2012.               Ford-Bey directed the truck driver to

the    particular      location        for       delivery         of   the      shipment.     In

addition, Ford-Bey sent his “brother” to meet the truck driver

on at least one occasion and directed the truck driver to give

the shipment to the brother.                  Ford-Bey paid the truck driver to

take money back to his supplier.                       The evidence also shows that

Ford-Bey retained the authority to decide whether money would be

going back with the truck driver.                           In addition, the evidence

showed that at least one co-conspirator sold drugs he received

from    Ford-Bey       and    collected          payments         that     he    delivered    to

Ford-Bey.

       While    Ford-Bey       asserts        that      the       evidence       merely     shows

buyer-seller         relationships          between         him   and    his     supplier    and

those to whom he sold drugs, we have never held that a criminal

enterprise must have a rigid structure or be the only criminal

enterprise      its    members        are    a       part    of    before       conspiratorial

criminal liability can attach.                    Cf. United States v. Burgos, 94

F.3d    849,     858    (4th     Cir.        1996)      (en        banc)     (“[W]hile       many

                                                 4
conspiracies           are    executed       with         precision,          the   fact     that       a

conspiracy is loosely-knit, haphazard, or ill-conceived does not

render it any less a conspiracy — or any less unlawful.”).                                              As

stated above, under § 3B1.1, the Government need only establish

that    a      defendant             exercised           control           over     one      of      his

co-conspirators,              not     that     he       exercised          rigid    or      exclusive

control over any of them.                      Moreover, the selling of drugs on

consignment does not create a wall between a seller and his

downstream         co-conspirators.               In      fact,       a    dealer     who   “fronts”

drugs   to     a       lower-level        dealer        with     the      expectation       that       the

drugs will be sold and he will be repaid from the proceeds of

those sales “overstep[s] a mere seller’s role,” and assumes a

control position.              See United States v. Pena, 67 F.3d 153, 156

(8th Cir. 1995); United States v. Atkinson, 85 F.3d 376, 378

(8th Cir. 1996).

       Where       a    defendant         “retain[s]            the       financial      risk     of    a

distribution by fronting or consigning the drugs,” to another

dealer,      he    remains          invested      in      the    ultimate         distribution          of

those drugs to their end-users and retains a certain measure of

control over those drugs and/or the dealer he has tasked with

selling      them.           See generally Pena, 67 F.3d at 156-157.                              Thus,

Ford-Bey      cannot         hide     behind        the    technical          structure         of     his

arrangements with his coconspirators to insulate himself from

leadership         liability         in    this      conspiracy.               Accordingly,          the

                                                    5
district court did not commit clear error in giving Ford-Bey a

four-level adjustment for his role in the conspiracy.

                                            II.

       Section 2D1.1(b)(1) of the Guidelines directs a district

court    to     increase   a   defendant’s         offense     level    by    two    levels

“[i]f a dangerous weapon (including a firearm) was possessed.”

The     enhancement     is     proper       when     the   weapon      at    issue       “was

possessed in connection with drug activity that was part of the

same    course     of   conduct   or     common       scheme     as    the   offense       of

conviction,” United States v. Manigan, 592 F.3d 621, 628-29 (4th

Cir.    2010)     (internal     quotation          marks   omitted),        even    in   the

absence of “proof of precisely concurrent acts, for example, gun

in hand while in the act of storing drugs, drugs in hand while

in the act of retrieving a gun.”                    United States v. Harris, 128

F.3d     850,     852   (4th    Cir.     1997)        (internal       quotation      marks

omitted).         Nonetheless,        the     Government       has     the    burden      of

establishing by a preponderance of the evidence “that a temporal

and    spatial     relation     existed       between      the    weapon,      the       drug

trafficking       activity,     and    the    defendant.”         United       States      v.

Romans, 823 F.3d 299, 317 (5th Cir. 2016), petition for cert.

filed, (July 6, 2016).                Under this standard, “the Government

must show that the weapon was found in the same location where

drugs or drug paraphernalia are stored or where part of the

transaction occurred.”            Id.        Once the Government has met its

                                             6
burden, the defendant can avoid the enhancement by showing that

“it is clearly improbable that the weapon was connected with the

offense.”     Harris, 128 F.3d at 852.

     The    district        court    ruled       that    a     handgun       was    found   in

Ford-Bey’s     residence       at     a    time        when     he   was      significantly

involved in drug trafficking and that Ford-Bey attempted to go

back to his residence after a drug delivery went bad.                                Ford-Bey

contends that the Government failed to connect the firearm to

any activity or place where drug dealing occurred and notes that

no drugs or drug paraphernalia were found at his home.

     The     only     even    marginally          drug-related          items      found     in

Ford-Bey’s     home    were    many       luxury       items    that    were       presumably

purchased     with    drug     proceeds          and     were     forfeited        as    such.

However, the Government does not cite any case law supporting

the conclusion that a firearm found in close proximity to items

purchased with drug proceeds satisfies the nexus requirement of

USSG § 2D1.1.        Although the proceeds are circumstantial evidence

of Ford-Bey’s drug dealing, their presence in his home does not

establish     that    any    drug    transactions         took       place    there.        See

Romans, 823 F.3d at 318-19.                Further, there is no evidence that

Ford-Bey ever carried a gun with him during his drug dealings.

Given the absence of evidence that the weapon was in the same

location as drugs or drug paraphernalia or that the weapon was

where   any    part     of     any    drug       transaction           took     place,      the

                                             7
Government     has    failed     to    meet    its    burden       of     showing    the

necessary nexus.         Thus, the district court’s enhancement was

clearly erroneous.        Accordingly, we vacate Ford-Bey’s sentence

and remand for resentencing.

                                        III.

     A     defendant      convicted       of     conspiring         to      distribute

controlled     substances      is     accountable      for    all       quantities       of

contraband with which he was directly involved and, in the case

of   a   jointly      undertaken      criminal       activity,      all     reasonably

foreseeable quantities of contraband that were in furtherance of

the joint criminal conduct and were reasonably foreseeable to

the defendant.         USSG § 1B1.3 cmt. n.3.                The Government must

prove    the   drug   quantity      attributable       to    the    defendant       by   a

preponderance of the evidence.                 United States v. Carter, 300

F.3d 415, 425 (4th Cir. 2002).                A district court’s findings on

drug quantity are generally factual in nature and therefore, are

reviewed by this court for clear error.                Id.

     The district court noted that the threshold amount for the

highest offense level was 450 kilograms of cocaine.                         The court

reasoned that, between March and August 2012, there were seven

clusters of calls between the truck driver and Ford-Bey.                             The

court ruled that “there’s not reason for Mr. Ford-Bey to be

talking to this truck driver except when this truck driver is

here delivering the cocaine.”            Although the court did not do any

                                          8
specific calculations, it determined that, “with just the truck

driver,”     the   amount     seized       from    the       last    delivery,     and     the

telephone     records,       the    amount       is    well        over   450    kilograms.

Ford-Bey contends that the district court’s finding is strictly

speculation and that the prior deliveries could well have been

marijuana, as the driver believed.

      We    conclude     that      the    district      court’s       calculations       were

properly      based    on     the        truck    driver’s          testimony      and     the

corroborating phone records.                While the truck driver initially

believed that he was hauling marijuana, he realized later that

he had been transporting cocaine.                     The appearance of the boxes

and   the    procedure      never    changed,         and    the    record      provides    no

support for the conclusion that the contents of the boxes had

been altered.         Ford-Bey has come forward with no evidence that

he was trafficking in marijuana up until the last shipment, and

in fact, he pled guilty to a cocaine conspiracy covering several

years.

      Moreover, the court’s calculations did not include any of

the laundered money.            The record reveals more than $500,000 in

cash deposited into Ford-Bey’s bank accounts during the relevant

time period and the court ordered the forfeiture of more than

$108,000,000 in cash and other items.                       The record reveals that a

kilogram of cocaine cost could gross $80,000, when sold by the

gram.       Thus, the forfeited funds represent the sale of three

                                             9
times the drug amount required for the offense level adopted by

the district court.       Given the truck deliveries and the evidence

regarding the drug proceeds, there is no clear error in the

district court’s ruling on drug quantity.

     Accordingly,      we    affirm     the   district       court’s     rulings

regarding    drug   quantity     and   Ford-Bey’s    role    in   the   offense.

Because the firearm enhancement was clearly erroneous, we vacate

Ford-Bey’s sentence and remand for resentencing.                     We dispense

with oral argument because the facts and legal contentions are

adequately    presented     in   the   materials    before    this    court   and

argument would not aid the decisional process.

                                                         AFFIRMED IN PART;
                                              VACATED AND REMANDED IN PART




                                       10
