                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                 September 6, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 U N ITED STA TES O F A M ER ICA,

               Plainitff - Appellee,
                                                         No. 06-5037
          v.                                    D.C. No. 04-CR-127-001-TCK
 BOBBY W AYNE HALEY,                                     (N.D. Okla.)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




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

unanimously that oral argument would not materially assist in 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.

      B obby H aley, Sr., w as convicted by a jury of several drug offenses. He

was sentenced to 264 months imprisonment. He challenges the legality of the



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
search of the premises where drugs were found and his sentence. W e affirm.

                             I. Factual Background

      A. July 2003 Conspiracy

      In July 2003, Officer Carlos Guzman, acting undercover, met with Adrian

Tobie to discuss purchasing a one-half kilogram of crack cocaine. Tobie sought

$12,500 for the crack cocaine; Guzman stated he could only afford $8,000. Tobie

informed Guzman he could not lower the price without his source’s authorization.

He said he would consult his source and try to obtain a lower price. Tobie and

Guzman also discussed where the deal would take place. Tobie suggested a

salvage yard owned by his source. Guzman refused to perform the transaction at

the salvage yard and recommended the exchange take place at a neutral location.

After meeting with Guzman, Tobie went to see his source, Haley, at the salvage

yard to discuss the deal. Later, Tobie informed Guzman he had talked to his

source and the price could not be lowered. Guzman agreed to purchase the crack

cocaine for $12,500.

      The next morning, Tobie called Guzman and stated he was ready to conduct

the deal at the salvage yard. Guzman refused to perform the transaction at the

salvage yard and suggested he and Tobie meet again to discuss the deal’s terms.

Later that same day, Tobie and Guzman met in a store parking lot. There,

Guzman reiterated he would not conduct the deal at the salvage yard. Guzman

also showed Tobie the cash to be used to purchase the drugs. Tobie told Guzman

                                       -2-
he would call him if he and his source would agree to a location other than the

salvage yard.

      Tobie immediately went to see Haley at the salvage yard and informed him

the buyer had the money. Later that day, Haley told Tobie he was “ready” and to

meet him at his North Rockford residence. (R. Vol. XIII at 235.) W hen Tobie

arrived at the house, Haley was in the process of scraping crack cocaine from a

Pyrex bowl. He then bagged the crack cocaine and placed it in a container.

Because he did not trust Tobie with such a large amount of drugs, Haley called

his brother, Ronald, and a friend, M ichael, to follow Tobie w ith the drugs. Tobie

called Guzman and told him he and his source had agreed to perform the deal at a

neutral location. Guzman told Tobie to meet him in the store parking lot.

Officers in unmarked vehicles set up surveillance near the lot.

      Tobie went to the store parking lot, with Ronald and M ichael following in a

black pickup truck. Tobie stopped behind the store and retrieved the drugs from

Ronald. Tobie then drove to the parking lot; a few seconds later, Ronald and

M ichael arrived. Ronald and M ichael backed their truck into a parking spot on

the north side of the lot where they could observe Tobie. Concerned by the

truck’s presence and fearing a possible robbery, the surveillance officers created a

ruse to determine if the truck was linked to Tobie. They had officers in marked

patrol vehicles perform a traffic stop on surveillance officer Chris Claramunt’s

unmarked vehicle, a 1995 white Coupe D eV ille Cadillac, at a location where

                                        -3-
Tobie, Ronald and M ichael would see it. They then had Guzman call Tobie and

suggest they conduct the deal at a different location due to police being in the

area. Tobie agreed and walked over to Ronald and M ichael to inform them of the

change in location.

      Tobie then left the parking lot w ith Ronald and M ichael following. A

marked police car pulled behind Tobie’s vehicle. Tobie accelerated and made an

evasive turn before coming to a stop and unsuccessfully attempting to flee on

foot. Once Tobie was secured, the officers searched his vehicle, discovering the

container with the crack cocaine. Later testing revealed the crack cocaine

weighed 501.7 grams. Another marked patrol unit followed and attempted to stop

Ronald and M ichael’s vehicle. Ronald and M ichael did not stop immediately but

rather proceeded down the street and ran a red light before pulling over. In

M ichael’s wallet, officers discovered a piece of paper with “white Cadillac” and

the license plate number of Officer Claramunt’s undercover vehicle on it. (R.

Vol. X II at 167.)

      B. M ay 2004 Search

      In M ay 2004, a confidential informant informed Officer Jeff Henderson that

he/she had recently observed Haley selling cocaine out of his salvage yard and the

North Rockford residence. Henderson conducted nighttime surveillance of both

locations. At the salvage yard, he observed pedestrians and vehicles enter the

yard, stay for a few minutes and then leave; at the North Rockford residence, he

                                         -4-
observed short-term pedestrian foot-traffic. Based on his training and experience,

Henderson considered this activity to be consistent with drug activity. Henderson

sought and obtained search warrants for the salvage yard and the N orth Rockford

residence.

      Officers executed the warrants. The salvage yard consisted of a house and

garage. Inside the house, Haley was standing in the kitchen. After securing him,

the officers searched the house. In the kitchen area, they discovered, inter alia,

(1) powder and crack cocaine, (2) a Pyrex dish containing freshly cooked crack

cocaine, (3) a razor blade with cocaine residue, (4) two boxes of baking soda on

top of a microwave oven, (5) digital scales and (6) numerous sandw ich baggies. 1

Officer Bill Yelton searched Haley’s pockets, finding $1,500 in cash, a baggie

containing a small amount of crack cocaine and bills/receipts for the salvage yard

and North Rockford residence. At the North Rockford residence, officers seized

crack cocaine, a .41 caliber derringer firearm in a display box, counterfeit money,

and a set of digital scales.

                               II. Procedural Background

      Haley was originally indicted for (1) possession with intent to distribute

fifty grams or more of crack cocaine and (2) possession with intent to distribute

cocaine. These charges arose out of the execution of the search warrants at the

      1
        At trial, Officers James Comstock and Chris Claramunt testified drugs are
often distributed in sandwich baggies and crack cocaine is made by heating
powder cocaine w ith baking soda and water.

                                          -5-
salvage yard and North Rockford residence. Haley’s first trial resulted in a hung

jury. Subsequently, the government filed a superseding indictment. In addition

to re-charging the two counts in the original indictment, the superseding

indictment charged Haley with conspiracy to possess with intent to distribute fifty

grams or more of crack cocaine. The conspiracy charge arose out of Haley’s

activities with Tobie in July 2003. 2 Haley again proceeded to trial. Haley denied

being involved in the July 2003 incident. 3 As to the M ay 2004 events, he and his

witnesses suggested the police planted the evidence discovered in his pockets and

in the salvage yard’s house. 4 The jury found Haley guilty of all three counts.

      A presentence investigation report (PSR ) was prepared. 5 Based on the


      2
        The superseding indictment also named Tobie as a co-defendant and
charged him with conspiracy to possess with intent to distribute fifty grams or
more of crack cocaine and possession with intent to distribute fifty grams or more
of crack cocaine. He pled guilty to the conspiracy charge.
      3
       Additionally, Ronald and M ichael testified they did not know Tobie.
They stated they met Tobie for the first time on July 18, 2003, when Tobie hired
them to move furniture. W hen they followed Tobie in their truck, they believed
they were following him to the furniture’s location. M ichael also denied writing
down Officer Claramunt’s license plate number.
      4
        Haley expressly accused the police of planting the baggie of crack cocaine
found in his pocket. W hile he denied accusing the police of planting the
contraband found in the house, he did testify it was not present when he arrived at
the house. Individuals at the salvage yard at the time of its search testified they
saw officers search Haley’s pockets a number of times, each time returning the
items to his pockets. At least one individual also observed an officer enter the
salvage yard’s house with a bag.
      5
       Haley was sentenced pursuant to the 2004 edition of the United States
Sentencing Commission Guidelines M anual. All citations to the guidelines in this

                                         -6-
offense involving 53,156.7 kilograms of marijuana equivalent, the probation

department determined Haley’s base offense level was 38. W ith a criminal

history category of II, it calculated the guideline range as 262-327 months

imprisonment. Both Haley and the government filed objections to the PSR.

Haley objected to the probation department’s drug quantity calculation, in

particular, its inclusion of two kilograms of crack cocaine which Tobie told

officers after his arrest w as the total amount of drugs he received from Haley in

the two years preceding the July 2003 incident. The government argued the base

offense level should be adjusted upward two levels under USSG §3B1.1(c) based

on Haley’s role as a leader, organizer or manager in the conspiracy.

      The district court sustained both objections. As a result of the reduced

drug quantity, Haley’s base offense level was 36. Applying the two-level role in

the offense adjustment, the total offense level was 38, resulting in a guideline

range of 262-327 months imprisonment. The court sentenced Haley to 264

months imprisonment.

                                  III. Discussion

      Haley challenges the lawfulness of the search of the salvage yard’s house

and his sentence.

      A. Search of H ouse

      Haley argues the search of the salvage yard’s house was invalid because the


opinion refer to the 2004 guidelines unless otherw ise indicated.

                                         -7-
search warrant for the salvage yard did not authorize the house’s search.

Although Haley raised a number of pre-trial motions in the district court, he did

not (as he concedes on appeal) file a motion to suppress or otherwise challenge

the search of the house. Thus, he has waived the issue and we decline review.

Fed. R. Crim. P. 12(b)(3)(C), (e); see also United States v. Brooks, 438 F.3d

1231, 1240 (10th Cir. 2006) (“W hen a motion to suppress evidence is raised for

the first time on appeal, we must decline review.”).

      B. Sentence

      Haley claims the district court erred in applying the two-level upward

adjustment for being a leader or organizer under USSG §3B1.1(c). He also

contends his sentence is unreasonable under the factors set forth in 18 U.S.C.

§ 3553(a).

      W e review sentences imposed post-Booker 6 for reasonableness. United

States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). If the district court has

correctly determined the guideline range and the defendant is sentenced within

that range, the sentence is entitled to a “rebuttable presumption of

reasonableness.” Id. at 1054; see also Rita v. United States, --U.S.--, 127 S.Ct.

2456, 2462 (2007) (approving appellate court application of presumption of

reasonableness to properly calculated within-guidelines sentences) . “The

defendant may rebut this presumption by demonstrating that the sentence is

      6
          See United States v. Booker, 543 U.S. 220 (2005).

                                         -8-
unreasonable in light of the other sentencing factors laid out in § 3553(a).”

Kristl, 437 F.3d at 1055. In determining whether the district court correctly

applied the guidelines, we review factual findings for clear error and legal

determinations de novo. Id. at 1054.

             1. Leader/Organizer Adjustment (USSG §3B1.1(c))

      Haley claims the district court did not make adequate findings to support

the USSG §3B1.1(c) adjustment and the facts do not support its application.

Specifically, Haley maintains the mere fact he converted powder cocaine into

crack cocaine, fronted the drugs to Tobie and set the price for the drugs is

insufficient to show he was a leader or organizer of a conspiracy, especially since

the conspiracy lasted only two days. He relies on United States v. Anderson, 189

F.3d 1201 (10th Cir. 1999).

      Section 3B1.1(c) of the sentencing guidelines states: “If the defendant was

an organizer, leader, manager, or supervisor in any criminal activity [involving

less than five participants], increase by 2 levels.” “In order to be a supervisor,

one needs merely to give some form of direction or supervision to someone

subordinate in the criminal activity[.]” United States v. M andilakis, 23 F.3d 278,

280 (10th Cir. 1994) (quotations omitted). “Among the factors which a court may

consider are the defendant’s 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

                                          -9-
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.” Id.

(quotations omitted).

      In deciding to apply the U SSG §3B1.1(c) adjustment, the district court

stated:

      W e’ve had evidence that [Haley] was a major supplier of drugs. This
      is a large amount of drugs. Over 500 grams in this one particular
      transaction. That he did set the price, according to the testimony that
      we’ve received, that the drugs w ere his. That M r. Tobie w ent to his
      house off North Rockford and there was, as I recall, there was some
      surveillance at that time and some surveillance of M r. Tobie going to
      the salvage yard, and there was certainly surveillance that indicated
      [Ronald and M ichael] were involved. So this is not just M r. Tobie’s
      testimony. There’s other circumstantial evidence and other direct
      evidence that supports that.

      The testimony was that [Haley] cooked the cocaine. M r. Tobie says
      when he arrived, that [Haley] was in the process of bagging it and
      preparing it for this sale. That [Ronald and M ichael] arrived and that
      they were directed, so they were under the control of [Haley], that
      [Ronald and M ichael] were directed to take the drugs to this location.
      So they were given the direct control of those drugs for a period of
      time. They were there for surveillance and protection and get the
      money and return it to [Haley].

      Testimony is . . . that the money was to go directly back to [Haley].
      I
      think that that is sufficient, more than sufficient, to indicate that this
      two-level enhancement should apply.

      The drugs were fronted, they were cooked, they were priced, all by
      [H aley], and there were other people in the organization that were
      directed by the defendant to take control of the drugs and to monitor
      the transaction, and there’s a large amount of drugs that were
      involved . . . . The two-level enhancement based on leader,
      organizer will be applied.

                                          -10-
(R . Vol. X VII at 30-32.)

These findings are sufficient to support the application of USSG §3B1.1(c) to

Haley’s sentence because they clearly show he supervised others (Tobie, Ronald

and M ichael) in the criminal activity.

      Anderson is distinguishable. There, the evidence demonstrated Anderson

bought drugs from the source, was involved with co-conspirators who carried

money and drugs, and cooked cocaine into powder cocaine. 189 F.3d at 1212.

W e concluded such evidence was insufficient to support the application of USSG

§3B1.1 to Anderson’s sentence. Id. However, there was no evidence showing (1)

what happened to the drugs Anderson bought from the source, (2) Anderson

recruited or controlled the activity of the conspirators he was involved with, (3)

Anderson paid others for their services to the conspiracy, (4) Anderson set the

drug price or controlled the manner of the drug sales or (5) Anderson claimed the

right to receive a larger share of the proceeds. Id. Therefore, unlike in this case,

there was no evidence Anderson supervised or gave directions to any

subordinates. Indeed, in Anderson, the evidence pointed to two other individuals

as “running the show.” Id. (quotations omitted).

      The court did not err in applying USSG §3B1.1(c) to Haley’s sentence.

             2. 18 U.S.C. § 3553(a)

      Because the court correctly determined the guideline range and Haley was

sentenced within that range, his sentence is entitled to a rebuttable presumption of

                                          -11-
reasonableness. Kristl, 437 F.3d at 1054. Haley attempts to rebut this

presumption under the § 3553(a) factors. 7 Specifically, he contends his sentence

is unreasonably long considering (1) his offense was not comm itted with an intent

to harm anyone and was non-violent, (2) his criminal history is minimal, (3) there

is no indication he will commit further crimes or that he poses a danger to the

public, (4) a lesser sentence would allow him to complete the 500-hour prison

substance abuse treatment program and (5) Tobie received a substantially lower

sentence for committing the same crime.

      Haley has failed to rebut the presumption of reasonableness. In sentencing

Haley towards the bottom of the guideline range, the district court considered

Haley’s minimal criminal history and the possibility he may die in prison.

However, the court also noted the evidence against Haley was overwhelming and

“[he] is a major drug dealer.” (R. Vol. XVII at 36.) W e agree. Haley’s offenses

involved 654.49 grams of crack cocaine and 334.6 grams of cocaine. W hile

Haley may not have intended to harm anyone and no violence occurred, the sale

of drugs “is a serious offense that detrimentally impacts other people’s lives . . .



      7
         These factors include: the nature and circumstances of the offense; the
history and characteristics of the defendant; the need for the sentence imposed to
reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, afford adequate deterrence, protect the public, and
provide the defendant with needed educational or vocational training, medical
care or other correctional treatment in the most effective manner; pertinent
guidelines; pertinent policy statements; the need to avoid unwanted sentence
disparities; and the need to provide restitution. 18 U.S.C. § 3553(a).

                                         -12-
.” United States v. Pruitt, 2007 W L 2430125, *12 (10th Cir. 2007). M oreover,

although Haley’s criminal history is minimal and his past offenses occurred over

ten years ago, it is apparent these past convictions and their corresponding

punishments did not deter him from committing the current offense.

      That Tobie received a substantially lower sentence also fails to rebut the

presumption. Section 3553(a)(6) aims to prevent sentencing disparities “among

defendants with similar records who have been found guilty of similar conduct.”

It is unclear whether Haley and Tobie have similar records. Nevertheless, Haley

was found guilty of three drug offenses, whereas Tobie pled guilty to one.

Therefore, they have not “been found guilty of similar conduct.” Additionally,

Tobie cooperated with the government. See United States v. Davis, 437 F.3d 989,

997 (10th Cir.) (“W hile similar offenders engaged in similar conduct should be

sentenced equivalently, disparate sentences are allowed where the disparity is

explicable by the facts on the record.”) (quotations omitted), cert. denied, 547

U.S. 1122 (2006).

      Lastly, although one of the § 3553(a) factors requires the court to consider

the need for the sentence imposed to provide the defendant with needed

correctional treatment, see § 3553(a)(2)(D), it is but one factor. Therefore, the

fact a lower sentence would allow Haley to participate in the prison’s substance

abuse treatment program does not rebut the otherwise reasonableness of his

correctly calculated guideline sentence.

                                           -13-
AFFIRM ED.

             FOR TH E CO UR T:

             Terrence L. O’Brien
             United States Circuit Judge




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