                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          SEP 30 2003
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 02-3434
v.                                                  (District of Kansas)
                                                (D.C. No. 00-CR-40010-JAR)
TROY DEVON FENNELL,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, 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. Fed. R. App. P. 34(f); 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       This order and judgment is not binding precedent, except under the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.
I.    INTRODUCTION

      Pursuant to a plea agreement, Appellant Troy Devon Fennell pleaded guilty

to conspiracy to possess with the intent to distribute in excess of 100 grams of

phencyclidine, also known as PCP. At sentencing, the district court attributed

45.4 grams of actual PCP or 785.2 grams of PCP mixture to Fennell when

calculating his base offense level. The district court also refused to grant a

downward adjustment for acceptance of responsibility and imposed an upward

adjustment for obstruction of justice because Fennell originally failed to appear at

sentencing. Finally, the district court increased Fennell’s offense level for

participating in the offense as a supervisor or manager.

      Fennell appeals his sentence, contending that the district court erred in

calculating the amount of PCP for his offense level, failing to grant Fennell an

acceptance of responsibility decrease, and assessing an increase for being a

supervisor or manager. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this

court affirms. The district court did not err in calculating Fennell’s base offense

level because the PCP mixture from both bottles attributed to Fennell was at least

700 grams and less than one kilogram under U.S.S.G. § 2D1.1(c)(5).

Additionally, the district court did not err in refusing to grant a decrease for

acceptance of responsibility after assessing an increase for obstruction of justice.




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Finally, the district court did not err in adjusting Fennell’s sentence for being a

supervisor or manager. 1

II.   BACKGROUND

      In November 1999, an agent for the Drug Enforcement Administration

(“DEA”) searched Greyhound bus passenger Joewan Bevel, who informed the

agent that he was traveling from Los Angeles, California to Kansas City,

Missouri. The agent discovered a mouthwash bottle containing PCP concealed in

Bevel’s waistband. Upon further testing by the DEA, the bottle was found to

contain 392.6 grams of PCP mixture or 22.7 grams of actual PCP. Bevel

identified Fennell as the individual who supplied the drugs for transport to Kansas

City. Bevel further participated in a controlled delivery to the recipient of the

PCP, Anthony Murphy, also known as “Smurf.” Bevel notified Fennell that he

had scheduled the delivery to Murphy. Murphy was arrested while attempting to

pick up the PCP from Bevel.

      During the investigation of the Bevel transport, authorities learned that

Lashonda Banks had been arrested at an Oklahoma City bus station the previous

day for carrying a mouthwash bottle filled with PCP. Similar to Bevel, she told

law enforcement that she was going to Kansas City from California. After


      1
       This court admonishes defense counsel for violating 10th Cir. R.
28.2(A)(2) by failing to attach to appellant’s brief a copy of the district court’s
sentencing decision from which this appeal was taken.

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discovery of the PCP, she informed authorities that Fennell promised to pay her

for the transport. Banks also indicated that she was told that, upon arriving in

Kansas City, Murphy would make arrangements to meet her at the bus station.

      The Oklahoma City Police Department measured the bottle possessed by

Banks and discovered that it contained 470 milliliters of PCP. However, a

complete analysis was never conducted; thus, the purity level of the sample was

never determined.

      In February 2000, Fennell was arrested in Los Angeles, California on a

federal warrant. He admitted that he had been working with two drug dealers in

Kansas City known as “Hawk” and “Smurf.” He also acknowledged that he was

responsible for finding couriers who would willingly transport the PCP to Kansas

City by bus and that he was paid “a couple hundred dollars” for each transaction

he brokered. Fennell also admitted that he had made the arrangements for both

Bevel and Banks to carry the PCP to Kansas City.

      Fennell was indicted on one count of conspiracy to possess with intent to

distribute in excess of 100 grams of a mixture or substance containing PCP and

one count of possession with intent to distribute in excess of 100 grams of a

mixture or substance containing PCP. After cooperating with authorities, Fennell

pleaded guilty to conspiracy to possess with intent to distribute in excess of 100

grams of a mixture or substance of PCP pursuant to a plea agreement. The


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district court dismissed the possession with intent to distribute count. Fennell,

however, failed to appear at his sentencing on April 20, 2001 and could not be

located until his arrest on June 25, 2002. At the subsequent sentencing hearing,

he claimed that he did not appear at his original sentencing because he was

concerned for the safety of his family and did not have the money to travel from

California to Kansas.

      The district court sentenced Fennell to 151 months’ imprisonment. The

court attributed to Fennell 45.4 grams of actual PCP or 785.2 grams of PCP

mixture. Fennell was given a base offense level of 30 because the offense

involved at least 700 grams but less than one kilogram of PCP mixture. See

U.S.S.G. § 2D1.1(c) n.(B) (“In the case of a mixture or substance containing PCP,

. . . use the offense level determined by the entire weight of the mixture or

substance, or the offense level determined by the weight of the PCP (actual), . . .

whichever is greater.”) Although the court recognized that the purity of the PCP

confiscated from Banks had not been tested, it concluded that the untested amount

had the same purity level because the mouthwash bottles were transported within

one day and involved the same source, quantity, and participants.

      The court also increased Fennell’s base offense level for his role in the

offense under U.S.S.G. § 3B1.1(c) by concluding that Fennell’s role was that of a

supervisor or manager because he recruited and paid Bevel to transport the drugs,


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interacted with and paid Banks as a courier, purchased the bus ticket for Bevel,

acted in a supervisory role to Murphy, and was the contact person for arranging

the deliveries. In addition, the court declined to apply the acceptance of

responsibility decrease as recommended in the plea agreement because Fennell

breached the agreement by originally failing to appear for sentencing. Instead,

the court increased Fennell’s offense level for obstruction of justice under

U.S.S.G. § 3C1.1 for absconding bond and failing to appear. The court further

noted that it would be inconsistent for the court to apply both the acceptance of

responsibility downward adjustment and the obstruction of justice enhancement.

III.   STANDARD OF REVIEW

       This court reviews de novo the district court’s interpretation and

application of the Sentencing Guidelines. United States v. Wiseman, 172 F.3d

1196, 1217-18 (10th Cir. 1999). The district court’s factual findings are reviewed

for clear error, with deference given to the district court’s determinations of

credibility. Id.

IV.    DISCUSSION

       A.    Drug Quantity

       Fennell argues that the district court erred in calculating his drug quantity

and that his base offense level should have only been computed using the bottle

seized from Bevel. The government carries the burden of proving drug quantity


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by a preponderance of the evidence. United States v. Wacker, 72 F.3d 1453, 1477

(10th Cir. 1996).

      Under the Sentencing Guidelines, the sentencing court calculates the

defendant’s offense level by using the greater of the entire weight of the PCP

mixture or the weight of actual PCP. U.S.S.G. § 2D1.1(c) n.(B). The Guidelines

further provide for a base offense level of 30 when an offense involves at least

700 grams but less than one kilogram of PCP mixture. Id. § 2D1.1(c)(5). On the

other hand, the base offense level is 28 when the actual PCP amount is at least

forty but less than seventy grams. Id. § 2D1.1(c)(6). Accordingly, pursuant to

U.S.S.G. § 2D1.1(c) n.(B), the district court was obligated to utilize the weight of

the mixture in calculating Fennell’s offense level.

      Fennell argues that the district court erred in assigning the same purity

level of PCP from the bottle seized from Bevel to the bottle seized from Banks

because the purity level of the PCP in the Banks bottle was never tested. After

review of the record, this court concludes that the purity level of the Banks bottle

is irrelevant because the district court calculated Fennell’s base offense level by

using the greater weight of the PCP mixture contained in the bottles seized from

Bevel and Banks. Fennell neither contests that the bottle seized from Banks

contained PCP nor that the weight of the bottle was identical to the bottle seized




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from Bevel. Thus, the district court did not clearly err in making its drug quantity

calculation.

      B.       Acceptance of Responsibility

      Fennell contends that the district court erred in not granting a decrease for

acceptance of responsibility. The district court’s determination of whether the

defendant has accepted responsibility is entitled to great deference and “should

not be disturbed unless it is without foundation.” United States v. Amos, 984 F.2d

1067, 1071-72 (10th Cir. 1993).

      The Sentencing Guidelines permit a two-level decrease in a defendant’s

offense level “[i]f the defendant clearly demonstrates acceptance of responsibility

for his offense.” U.S.S.G. § 3E1.1(a). If the defendant enters a timely plea of

guilty, an additional decrease of one level is allowed. Id. § 3E1.1(b). However,

conduct which results in an enhancement for obstruction of justice “ordinarily

indicates that the defendant has not accepted responsibility for his criminal

conduct.” Id. § 3E1.1, cmt. n.4. Only under extraordinary circumstances may the

district court apply both an obstruction of justice increase and an acceptance of

responsibility decrease. Id.

      Fennell asserts that because he freely admitted his guilt and saved the court

and the government time and resources otherwise necessary for trial, his

extraordinary personal circumstances of protecting his family and not having the


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money to travel qualified him for the acceptance of responsibility adjustment.

Although entering a plea of guilty prior to commencement of trial and an

admission of the conduct is evidence of acceptance of responsibility, it may be

“outweighed by conduct of the defendant that is inconsistent with such acceptance

of responsibility.” United States v. Hawley, 93 F.3d 682, 689 (10th Cir. 1996)

(quotation omitted). Moreover, a defendant’s failure to appear at sentencing

tends to interfere with the disposition of the case and impedes or delays the

administration of justice. United States v. St. Julian, 922 F.2d 563, 571 (10th Cir.

1990).

         In this instance, the district court concluded that it would be inconsistent to

apply both the acceptance of responsibility and the obstruction of justice

adjustments. The court determined that because Fennell elected not to show at

sentencing and to spend eighteen months “on the run,” he was disqualified from

an acceptance of responsibility reduction. Fennell’s actions subsequent to his

guilty plea did not clearly demonstrate an acceptance of responsibility and his

circumstances were not so extraordinary as to prevent him from contacting the

court for eighteen months. Hence, the district court did not err in refusing to

grant the adjustment.




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         C.    Role in the Offense

         Fennell argues that the district court erred in imposing a two-level increase

for his role as a supervisor or manager in the offense. The government has the

burden to prove by a preponderance of the evidence the necessary facts for the

adjustment to apply. United States v. Anderson, 189 F.3d 1201, 1211 (10th Cir.

1999).

         Section 3B1.1(c) of the Sentencing Guidelines provides a two-level

increase “if the defendant was an organizer, leader, manager, or supervisor in any

criminal activity.” In assessing whether the defendant played such a role, the

court considers

         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. § 3B1.1, cmt. n. 4.

         Fennell contends that even though he arranged for the transport of PCP, he

was at most a middleman and not an organizer, leader, manager, or supervisor.

The district court determined that Fennell could be characterized as a supervisor

or manager because he recruited and paid Bevel, interacted with and paid Banks,

arranged for the travel and transport of the drugs, had a supervisory role over

Murphy, and was a central contact person for the transactions.

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      Specifically, Fennell relies on Anderson in which this court remanded for

resentencing because there was insufficient evidence of the defendant’s

involvement in the conspiracy to support the application of the enhancement. 189

F.3d at 1212. In Anderson, this court determined that distributing drugs as a

middleman and cooking cocaine was not adequate evidence to show that the

defendant was an organizer, leader, manager, or supervisor. Id. at 1211-12 & n.6.

Anderson, however, is distinguishable because Anderson was merely a supplier of

drugs and there was no evidence that he recruited others or controlled their

activity. Here, Fennell concedes that he recruited Bevel and made arrangements

to transport the drugs, as well as acted as a contact between the couriers and the

drug recipient. Thus, the evidence supported the district court’s findings. Given

the involvement of Fennell in the conspiracy, the district court’s enhancement

under § 3B1.1(c) was not erroneous.

V.    CONCLUSION

      Based upon the foregoing reasons, Fennell’s sentence is AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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