                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 1 2000
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 99-6315
                                                   (D.C. No. CR-98-185-M)
    ROY LEE WELLS, JR.,                                  (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.




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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Roy Lee Wells, Jr. pleaded guilty to possession of

pseudoephedrine with the intent to manufacture methamphetamine while he was


*
      This order and judgment is not binding precedent, except under the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.
an inmate at the Federal Correctional Institution at El Reno, Oklahoma. He

appeals only the sentence imposed. We have jurisdiction under 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291 and affirm.

       Wells’ prosecution stemmed from an investigation into an alleged

conspiracy to manufacture and distribute drugs within FCI El Reno, where he was

serving a 480-month sentence on drug, firearms and career criminal convictions.

The investigation targeted Wells and co-defendant Glen Brummett, a counselor on

the facility’s staff, and was conducted with the assistance of an inmate acting as a

confidential informant, who taped conversations between himself and Wells. The

investigation led to a seven-count indictment against Wells and Brummett, and

Wells pleaded guilty to count seven, possession of a List I controlled chemical

(pseudoephedrine) with intent to manufacture methamphetamine and aiding and

abetting, in violation of 21 U.S.C. § 841(d)(1) and 18 U.S.C. § 2. His conviction

carried a base offense level of thirty-two. The district court increased the base

offense level two levels each for three enhancements--distributing a controlled

substance within a prison,   see USSG § 2D1.1(b)(3); playing a leadership or

managerial role in the offense,   see id. § 3B1.1(c); and obstructing justice,   see id.

§ 3C1.1. With the resulting offense level of thirty-eight and a criminal history

category of VI, the sentencing range was 360 months to life. The district court




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sentenced him, inter alia, to the statutory maximum of 240 months to be served

consecutively to his existing sentence.    1



        On appeal, Wells challenges the three enhancements to his sentence. “We

review the district court’s legal interpretation and application of the sentencing

guidelines de novo and review the court’s factual findings for clear error, giving

due deference to the district court’s application of the guidelines to the facts.”

United States v. Henry , 164 F.3d 1304, 1310 (10th Cir.),           cert. denied , 527 U.S.

1029 (1999).   2



        Wells first challenges the enhancement for distribution of drugs in FCI

El Reno. Section 2D1.1(b)(3) provides for a two-level increase in the base

offense level for Well’s drug conviction “[i]f the object of the offense was the

distribution of a controlled substance in a prison, correctional facility, or

detention facility.” The district court’s determination that he fell within this

guideline section is a factual finding we review for clear error.          See Henry ,

164 F.3d at 1310.


1
       Brummett also pleaded guilty to one count of the indictment, possession of
pseudoephedrine with intent to manufacture methamphetamine, in violation of 21
U.S.C. § 841(d)(1), and was sentenced, inter alia, to ninety-seven months’
imprisonment. In a separate order and judgment, we have affirmed Brummett’s
sentence. See United States v. Brummett , No. 99-6279 (10th Cir. August ___,
2000).
2
        The 1998 version of the United States Sentencing Guidelines applies to this
case.

                                               -3-
       The evidence adduced at the sentencing hearing showed that Wells told the

confidential informant that he was processing raw materials and partially finished

methamphetamine into finished methamphetamine inside the prison, and he

boasted that “[t]hey could call this a dope house. I make all the dope around

here. You would not believe it in prison, would you?” R. Vol. 2 at 17.   3
                                                                             He also

stated that

       [m]aking dope in prison is a mother ‘F’ word. Like me and Boby
       said, this is history, but we can’t talk about it. We make history in
       this mother ‘F’ word. I was doing reactions here for a while. Once
       he brought that ammonia in, oh, my God.

Id. at 14. Brummett stated that he brought methamphetamine paste, which was not

in usable form, into FCI El Reno on six occasions and received a finished product

back from Wells on only two occasions, raising the inference that Wells

distributed the remainder in the prison. The district court relied on this and other

evidence to find that Wells distributed methamphetamine in FCI El Reno. While

Wells is correct that there is no direct evidence that he distributed

methamphetamine in the prison, we conclude there is sufficient circumstantial

evidence to support the court’s finding that he did.


3
      This and other quotations of Wells’ conversations with the confidential
informant were read into the record at the sentencing hearing by FBI agent Robert
Bornstein, who had investigated the case against Wells and Brummett. The
record does not include the actual transcripts of the tape of Wells’ conversations
with the informant. Bornstein used the phrases “‘F’ word” and “‘S’ word” in
reading the transcript into the record.

                                          -4-
       Wells next challenges the district court’s sentencing enhancement under

§ 3B1.1(c) for his aggravating role in the offense, i.e., his role as “organizer,

leader, manager, or supervisor of [the] criminal activity,”      id. We review the

district court’s decision to apply this enhancement for clear error.     See United

States v. Anderson , 189 F.3d 1201, 1211 (10th Cir. 1999). In determining whether

this enhancement applies, the court should consider “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.” USSG § 3B1.1, comment. (n.4). “In considering these factors, the

sentencing court should remain conscious of the fact that the gravamen of this

enhancement is control, organization, and responsibility for the actions of other

individuals because § 3B1.1(a) is an enhancement for organizers or leaders, not for

important or essential figures.”    Anderson , 189 F.3d at 1211 (quotation omitted).

       Wells contends that his role in the offense did not qualify him for this

enhancement because, as an inmate, he could not control the actions of Brummett,

who was the only other participant and a prison employee. He contends that he

and Brummett played roles of equal importance and notes that Brummett recruited




                                             -5-
Wells into the venture, they agreed to split any proceeds evenly, and Brummett

attempted to manufacture methamphetamine several times at his home.

       Other evidence supports the district court’s finding, however. Wells gave

Brummett the recipe for manufacturing methamphetamine, but retained control

over the final process. Wells told the informant that “[t]hey bring old Daddy all

the oil [methamphetamine paste or other unfinished methamphetamine] so I know

just what is happening. See, they can’t ‘F’ word me. They don’t know. I have

kept them dumb in two areas, and they are really dumb.” R. Vol. 2 at 15-16.

After Brummett had problems with the manufacturing process and came back to

Wells for advice, Wells told the informant: “He is ‘F’ word up. But that’s good,

cause he don’t try to, you know, be slick. They ain’t got no permission out here to

get rid of nothing. You don’t get nothing to get rid of.”     Id. at 48. Wells also

advised Brummett to obtain loans from his credit union to help explain the extra

income he was getting from distribution of the methamphetamine. This evidence

is sufficient to support the district court’s finding that Wells played an aggravating

role in the offense warranting the enhancement.       Cf. United States v. Tagore ,

158 F.3d 1124, 1131 (10th Cir. 1998) (“A defendant may receive an enhancement

as an organizer for devising a criminal scheme, providing the wherewithal to

accomplish the criminal objective, and coordinating and overseeing the

implementation of the conspiracy.”) (quotation omitted).


                                             -6-
      Finally, Wells contends that his conduct did not warrant the two-level

enhancement for obstructing justice. USSG § 3C1.1 provides for a two-level

enhancement if “the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the course of the

investigation, prosecution, or sentencing of the instant offense of conviction.”

Additionally, a finding of obstruction of justice generally prevents a defendant

from receiving a sentence reduction for acceptance of responsibility.   See id.

§ 3E1.1, comment. (n.4). Again, this is a factual matter that we review for clear

error. See United States v. Hankins , 127 F.3d 932, 934 (10th Cir. 1997).

      The district court found Wells obstructed justice by threatening and

attacking two other inmates from FCI El Reno who were going to be witnesses

against him. Agent Bornstein testified that Brummett said Wells had told him that

he intended to kill the “rats,” i.e., the witnesses. An incident occurred when

Wells, Brummett, and the two witnesses were all at the Oklahoma County Jail.

The witnesses testified at the sentencing hearing that as they were moving from

one cell to another, Wells came out of his cell, called one of the witnesses a “rat,”

and then attacked the other witness with a knife.

      Wells contends that § 3C1.1 applies only where a defendant’s actions were

intended to influence a proceeding and that since he had already pleaded guilty,

there was no proceeding to influence. He had not yet been sentenced, however,


                                            -7-
and § 3C1.1 expressly applies to sentencing. He also challenges the factual basis

for the court’s finding, contending that the evidence showed the witnesses attacked

Wells and that their credibility was suspect. Credibility determinations are the

province of the district court, to which we owe deference,   see United States v.

Farnsworth , 92 F.3d 1001, 1011 (10th Cir. 1996), and we have no reason to

question the credibility determination here. We also conclude that the evidence

was sufficient to support the court’s finding that Wells attempted to obstruct

justice by threatening and attacking the witnesses.

      AFFIRMED.



                                                       Entered for the Court



                                                       Stephen H. Anderson
                                                       Circuit Judge




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