                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4503


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

LONNIE ANTHONY SMITH, a/k/a Timmy,

                Defendant - Appellant.



                             No. 10-4504


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

LONNIE ANTHONY SMITH, a/k/a Timmy,

                Defendant - Appellant.



Appeals from the United States District Court for the Northern
District of West Virginia, at Wheeling.    Frederick P. Stamp,
Jr., Senior District Judge.  (5:09-cr-00027-FPS-JES-1; 5:09-cr-
00007-FPS-JES-1)


Argued:   October 27, 2011               Decided:   November 30, 2011


Before TRAXLER, Chief Judge, and GREGORY and KEENAN, Circuit
Judges.
Affirmed by unpublished opinion.       Judge Gregory wrote the
opinion, in which Chief Judge Traxler and Judge Keenan joined.


ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC,
Covington, Kentucky, for Appellant.      Randolph John Bernard,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia,
for Appellee.    ON BRIEF: Stephen D. Herndon, Wheeling, West
Virginia, for Appellant.     William J. Ihlenfeld, II, United
States Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
GREGORY, Circuit Judge:

       This consolidated case comes on appeal from the conviction

and    sentencing      of   appellant        Lonnie      Anthony    Smith      for:    (1)

conspiracy      to    possess    with    intent     to    distribute     heroin,       (2)

causing a person to travel in interstate commerce to promote the

distribution of heroin, (3) the use of a telephone to facilitate

the distribution of heroin, and (4) conspiracy to escape.                               In

his appeal, Smith challenges the sufficiency of the evidence for

the conspiracy and interstate travel convictions.                           Smith also

contends    that      the   failure     of    the   Government      to   recommend       a

sentence at the bottom end of the Guidelines range as promised

in    Smith’s   plea    agreement       constitutes       plain    error.       For    the

reasons    that      follow,    we   find    that   Smith’s       arguments     have   no

merit.



                                             I.

       On February 3, 2009, a grand jury issued an indictment in

the Northern District of West Virginia charging Smith with the

violation of a number of federal statutes, and on April 7, 2009,

a    superseding      indictment      was     returned     charging      the    instant

offenses.       While awaiting trial, Smith plotted to escape from

the Northern Regional Jail in Moundsville, West Virginia, and he

pled guilty to a charge of conspiracy to escape.



                                             3
       At    Smith’s       bench     trial,         a   number       of     co-conspirators

testified according to plea agreements.                          The testimony showed

that Smith was a participant in and distributor for a heroin

ring.       Smith would frequently meet his customers at hotel rooms

rented       for     him     by     his    distributees          in        the    Pittsburgh,

Pennsylvania, area, where he would sell heroin multiple times

each    day,       knowing    that       the    heroin       would    be    resold     in    the

Northern District of West Virginia, among other places.

       On January 29, 2010, the district court found Smith guilty

of all three counts.              Smith was sentenced to 262 months for his

conspiracy count, 60 months for his violation of the Travel Act,

18 U.S.C. § 1952 (2006), 48 months for the use of a telephone to

distribute heroin, and 60 months for his escape conviction.                                  The

district        court        ordered       Smith        to     serve        all      sentences

concurrently.         Smith then filed his notice of appeal.

        Smith      appeals    the    sufficiency         of     the       evidence    of    two

counts:      conspiracy to possess with intent to distribute and to

distribute one kilogram of heroin, and aiding and abetting the

interstate travel of a person with the intent to carry on heroin

distribution.           Smith also appeals the sentence on his escape

conviction.           Because       of    the    fact-intensive            nature    of     this

appeal, we address the salient factual details of the heroin

conspiracy in the analysis on the merits of Smith’s appeal.



                                                4
                                         II.

     Smith challenges the sufficiency of the evidence for his

conspiracy and Travel Act convictions.              This Court must uphold a

verdict   where    there     is    “substantial     evidence”         such   that   “a

reasonable    finder     of       fact   could     accept        as   adequate      and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”         United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc), cert. denied, 519 U.S. 1151 (1997).

In doing so, this Court must look at the evidence as a “complete

picture, viewed in context and in the light most favorable to

the Government.”       Id.    We treat each challenge in turn, finding

that neither has merit.

                                         A.

     To prove conspiracy to possess with intent to distribute,

the government must show that (1) an agreement to possess heroin

with intent to distribute existed between two or more persons;

(2) the defendant knew of the conspiracy; and (3) the defendant

knowingly    and   voluntarily       became    a   part     of    the   conspiracy.

Burgos, 94 F.3d at 857.

     Whether there is a single conspiracy or multiple
     conspiracies depends upon the overlap of key actors,
     methods, and goals. However, one may be a member of a
     conspiracy without knowing its full scope, or all its
     members, and without taking part in the full range of
     its activities or over the whole period of its
     existence.     Also, it is not necessary that the
     conspiracy      have    a    discrete,    identifiable
     organizational    structure.     Often,   the   single

                                          5
     conspiracy is comprised of a loosely-knit association
     of members linked only by their mutual interest in
     sustaining the overall enterprise of catering to the
     ultimate demands of a particular drug consumption
     market.

United   States      v.   Nunez,       432       F.3d    573,       578   (4th    Cir.      2005)

(internal     citations        and    quotation             marks    omitted).          Once    a

conspiracy has been established, the government need only show a

slight   connection        between         the       defendant      and   the     conspiracy.

Burgos, 94 F.3d at 861.                 Furthermore, competition in the drug

market among some conspirators does not preclude a finding of a

single conspiracy.            United States v. Jeffers, 570 F.3d 557, 568

(4th Cir. 2009).

     As is frequently the case in drug distribution trials, most

of the salient evidence came from co-conspirator testimony.                                    The

district     court     gave     the     testimony           of   those     co-conspirators

testifying     under          plea    agreements             “greater      scrutiny”         and

nonetheless    concluded         that      the       co-conspirators’       testimony        was

credible.     United States v. Smith, No. 5:09CR7-01, slip op. at

33 (N.D. W. Va. January 28, 2010).

     Precedent and the facts are squarely on the side of the

Government.     The district court made extensive findings of fact,

detailing the operation of the conspiracy.                            All members of the

conspiracy     had        a     financial             interest       in    the         continued

distribution      of      heroin      in     the        Northern      District         of   West

Virginia;     they     shared        the    goal       of    “sustaining         the    overall

                                                 6
enterprise of catering to the ultimate demands of a particular

drug consumption market.”                Nunez, 432 F.3d at 578.                     That drug

market was the area around Weirton, West Virginia.                               See Smith,

at 28 (“It was in the mutual interest of defendant Smith and

various members of the conspiracy to promote and continue heroin

drug trafficking in the Northern District of West Virginia and

elsewhere.”).

      All    of    the        members     of       the     conspiracy         knew    of     the

significant quantity of heroin that Smith kept on hand, which

implies a distribution scheme.                  Furthermore, the repetitive drug

transactions       at    hotel     rooms       rented       for       Smith    by     the    co-

conspirators establish the regular and continuing nature of a

drug-distribution        conspiracy.               Cf.    Jeffers,      570    F.3d    at    568

(“Additionally,         the    evidence        showed       that      the     multiple      drug

dealers at Shriver’s Motel engaged in ‘a consistent series of

smaller     transactions,’        which    comprised            a    single    conspiracy.”)

(quoting United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.

1993)).

      The testimony of Kenneth Salters, Smith’s childhood friend

and co-conspirator, establishes the conspiracy and corroborates

the   incriminating       testimony        of       the    other      witnesses       and    co-

conspirators.       Salters saw Smith sell heroin to customers on a

daily     basis,    including           some       of     the       co-conspirators.          A

reasonable inference from Salters’s testimony is that Smith knew

                                               7
that at least some of his co-conspirators were redistributing

heroin in West Virginia.              And Smith even helped Salters start

selling heroin by giving Salters a customer list that included

buyers from the Northern District of West Virginia, and the two

began a referral system for heroin demand that they individually

could not meet.          Likewise, Salters corroborated testimony that

Smith paid heroin to co-conspirators who would rent motel rooms

and cars for Smith to further his drug activity and to hide

their   identities       if    the   police     investigated.          Salters      also

testified that the phone numbers discussed by other witnesses

were ones used to deal heroin.

       United States v. Banks is instructive.                        Banks involved,

like this case, a loose organization of drug distributors and

suppliers   charged       in    a    single    conspiracy       in    which   not   all

participants knew the identities of the others participating,

but nevertheless were engaged with a common enterprise whose aim

was to supply drugs to a discrete region.                       Banks, 10 F.3d at

1053-54.     The    Court      affirmed       the   convictions,       rejecting    the

defendant’s view that the government had proved numerous small

conspiracies but not a large overarching conspiracy.                           Id. at

1050-56.     The evidence supporting such a finding “essentially

consist[ed] of testimony about a great number of discrete buy-

sell    transactions      between      various      ones   of    the    alleged     co-

conspirators,      and    nothing      either       directly     or    inferentially

                                          8
probative of any discernible hierarchical organization in which

they were linked.”         Id. at 1053.

      The prosecution put on evidence sufficient for a reasonable

trier   of   fact     to   conclude    that      Smith     agreed    with    his    co-

conspirators to distribute heroin in the Weirton area of West

Virginia.     In addition to Salters’s testimony, co-conspirator

Grimes testified that Smith knew she was redistributing heroin

in West Virginia because she had told Smith about the sales and

that she told him that she was charging her customers twice what

she   paid   Smith.        Grimes   also       testified    that     she   saw   Smith

possess large amounts of cash and heroin and sell heroin to

other customers.       She told the court that Smith said that he was

worried because some of his customers were being indicted in

West Virginia.

      Satathite,      another   West   Virginia        dealer,      testified      that

Smith knew Satathite was redistributing heroin and that one time

Smith   remarked      that   Satathite         must   be   “moving    [the   heroin]

pretty quick.”      Additionally, Satathite testified that Smith met

him in West Virginia in the parking lot of the Weirton Medical

Center in June 2008 and sold him three bricks of heroin, further

establishing Smith’s ties to the redistribution of heroin in

West Virginia.

      Additional circumstantial evidence that Smith knew that his

customers were coming from West Virginia includes the area code

                                           9
of   the    phone     numbers    used     to    call        Smith    to     arrange      drug

transactions    and     the     license    plates      of     vehicles      used    by    co-

conspirators to pick up drugs.

     Furthermore,        Smith     once        offered       to     front       heroin     to

McLaughlin, a co-conspirator.              Fronting drugs shows knowledge of

resale.     See Nunez, 432 F.3d at 578 (citing the fact that drugs

were fronted as evidence of a conspiracy to distribute).

     Many     co-conspirators       testified          to    the    same     few   meeting

locations for deals with Smith, and many rented hotel rooms and

cars in exchange for heroin.                Pen registers for Smith’s cell

phones     showed   frequent      phone    calls       to    a     number    of    the   co-

conspirators.         Many co-conspirators also testified as to the

presence of trademark bag markings indicating different brands

of   heroin    distributed        by      Smith.            All     of    the     foregoing

demonstrate     the    similar     methods       and     means      used     by    the   co-

conspirators and Smith to conduct the conspiracy.

     The evidence here is at least as strong as that presented

in Banks.     We therefore affirm the conspiracy conviction.

                                           B.

     A conviction under the Travel Act, 18 U.S.C. § 1952 (2006),

must have three elements:              (1) interstate travel, (2) an intent

to promote an unlawful activity (a business enterprise), and (3)

performance or attempted performance of an unlawful act.                              United

States v. Gallo, 782 F.2d 1191, 1194 (4th Cir. 1986).                              Section

                                           10
1952(b) defines “unlawful activity” as “any business enterprise

involving . . . narcotics or controlled substances (as defined

in    section      102(6)    of   the    Controlled     Substance    Act)   . . .    in

violation of the laws . . . of the United States.”                          18 U.S.C.

§ 1952(b) (2006).            Smith’s liability for this violation is 18

U.S.C.       § 2’s      prohibition      against     “causing”      or   aiding     and

abetting a violation of federal law.

       Elements (2) and (3) above are clearly established by the

facts discussed above in connection with the sufficiency of the

conspiracy charge.           The question is whether Smith did aid, abet,

and cause Bryan Cottrill, a confidential informant, to travel

interstate.

       The    illegal       inducement    of     interstate    travel    occurred    on

September 26, 2008.               On that day, Cottrill, cooperating with

police, called Smith from West Virginia in order to arrange a

buy    in    Pennsylvania.         The    call    was   recorded.        Since    2003,

Cottrill had bought heroin from Smith three or four times per

week.        The usual pattern, followed in this instance, is that

Smith would tell Cottrill to “come up” to the “Robinson, Green

Tree”       area   of    Pittsburgh,      Pennsylvania;       Cottrill   would    call

Smith once he arrived in the area, and Smith would tell him the

meeting location -- in this case, the Robinson Mall.                         On this

particular call, Cottrill told Smith that he was “about to leave

the shop” and “jump on the highway,” but that he wanted to make

                                            11
sure that it was “all good.”                Cottrill went on to describe the

details of the purchase at the Robinson Mall.

       Admittedly, there was no direct evidence produced during

the Cottrill direct examination that Smith knew where Cottrill

lived, that a phone with a West Virginia area code was used, or

that a car with West Virginia plates was used.                           Yet there is

sufficient     evidence     for   a    reasonable         trier    of   fact   to    find

beyond    a    reasonable    doubt      that       Smith,    on     this     particular

occasion,      violated     the   Travel          Act.       The    district        court

reasonably concluded that Smith violated the Travel Act based on

(1) the history of the relationship between Smith and Cottrill,

(2) the imputed knowledge of Smith that many of his purchasers

came   from    West   Virginia,       (3)   the    timing     of   the     phone    calls

suggesting the distance traveled by Cottrill, and (4) the use of

the phrases “come up” and “jump on the highway” suggesting that

Smith knew Cottrill was coming from West Virginia, and (5) the

fact that that Smith encouraged Cottrill to do so in order to

sell Cottrill heroin.

       Court   precedent    bolsters        this    conclusion.          Smith      argues

that Rewis v. United States, 401 U.S. 808 (1971), controls.                            In

that case, a mere customer did not facilitate the business he

patronized.       The   Supreme       Court      agreed    that    “intent     to   . . .

facilitate” requires more than a mere “desire to patronize the

illegal activity.”          Id. at 811.            The evidence here, however,

                                            12
established that Cottrill frequently distributed heroin in West

Virginia purchased from Smith.               Cottrill had more than a mere

patronage relationship with Smith.

      In any case, the Rewis Court cites approvingly to a number

of circuit court cases “in which federal courts have correctly

applied § 1952 to those individuals whose agents or employees

cross state lines in furtherance of illegal activity.”                     Rewis,

401 U.S. at 813.          As this Circuit noted in United States v.

Baker, 611 F.2d 961, 963 (4th Cir. 1979), one such case cited,

United States v. Zizzo, 338 F.2d 577, 580 (7th Cir. 1964), held

the   proprietor    of    a    gambling      operation    liable    despite    his

contention that he did not travel interstate and did not even

know of the interstate travel of his employees.               The Zizzo court

said it was “clear that the gambling business . . . caused the

interstate travel by the three employees,” and that a jury could

properly   infer    that      the   proprietor     knew    that    some   of   his

employees lived out-of-state.             Zizzo, 338 F.2d at 580.              This

Circuit in Baker found its facts -- an interstate trip made by a

prostitute at the direction of her boss -- were “analogous to

the employee-agent cases approved in Rewis [sic],” and upheld

the Travel Act conviction.          Baker, 611 F.2d at 963.

      We   affirm   the       Travel   Act     conviction    because      of   the

reasonable inference from the record that Smith knew Cottrill



                                       13
was coming from West Virginia and because of the overwhelming

evidence of the purpose of the call.



                                            III.

        Appellant next argues that he should be allowed to withdraw

his guilty plea because of the Government’s failure to move for

a sentence at the bottom of the Guidelines range for his escape

conviction.

        The plain error standard governs here because Smith did not

raise this claim below.                  To prove plain error, “the appealing

party must show that an error (1) was made, (2) is plain . . . ,

and (3) affects substantial rights.”                     United States v. Lynn, 592

F.3d 572, 577 (4th Cir. 2010).                   The third prong means the error

“affected     the        outcome     of    the     district      court     proceedings,”

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).                           “Fourth

and finally, if the above three prongs are satisfied, the court

of appeals has the discretion to remedy the error -- discretion

which     ought     to     be    exercised        only    if    the     error   seriously

affect[s]     the        fairness,       integrity       or    public    reputation      of

judicial proceedings.”             Id. (citations ommitted).

        Smith argues on appeal that the government breached its

contract -- Smith’s plea agreement for his escape charge -- when

the government failed to recommend a sentence at the low end of

the   Guidelines         range     for    that    offense.        Surely,       Smith   has

                                             14
established     that       the    error    was    made   and     that     it   was   plain.

However, Smith cannot demonstrate it “affected his substantial

rights” because the outcome was not affected by the error.

      Smith was sentenced according to the grouping requirements

of   U.S.S.G.   § 3D1.2(c),           which      combines      conduct     for    multiple

charges into a single tally for sentencing purposes.                             The court

sentenced Smith to 262 months for the conspiracy charge, which

was at the lowest end of the Guidelines range for the grouped

offense, and he was ordered to serve time for all of his counts

concurrently.       So while Smith was sentenced to 60 months for his

escape    charge,      a    lower     sentence      would      not   have      helped   him

because   he    would       still     be   serving       the    concurrent       262-month

sentence for his conspiracy conviction.                        It therefore cannot be

said that the error violated Smith’s substantial rights.

      Because Smith has not shown that the error affected his

substantial     rights,          we   affirm     the   sentence      of    the    district

court.

                                                                                  AFFIRMED




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