UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 94-5321
KENNETH W. KEMP, a/k/a Lamont,
a/k/a El, a/k/a Al, a/k/a L,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CR-93-117)

Argued: December 8, 1995

Decided: January 3, 1996

Before ERVIN, Chief Judge, MOTZ, Circuit Judge, and
WILLIAMS, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Cloud Hicklen Miller, III, MILLER & ASSOCIATES,
Atlanta, Georgia, for Appellant. Laura Marie Everhart, Assistant
United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:
Helen F. Fahey, United States Attorney, Norfolk, Virginia, for Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Kenneth W. Kemp was convicted in a jury trial of 8 counts of con-
spiracy and drug distribution. Kemp appeals both his conviction and
his sentencing on various grounds, raising questions regarding the
Sixth Amendment, jury instructions, several guideline sentencing fac-
tors and the admissibility of witness statements taken in the course of
an investigation. Finding no reason to modify Kemp's base offense
level because such action would not affect his sentence, despite a
retroactive amendment to the sentencing guidelines, and finding no
abuse of discretion as to the remaining issues, we affirm the trial court
in all respects.

I.

In July 1990 Kemp joined a cocaine distribution conspiracy that
had been ongoing since 1988. He took the place of Duane Wilkey,
who was killed in a drug related gun battle. Wilkey and Corey Jacobs
were the leaders of the conspiracy, and Kemp became the new co-
leader.

Jacobs and Kemp became leaders and organizers of a conspiracy
that eventually distributed approximately 15 kilograms of cocaine per
week in the Norfolk vicinity. They recruited a number of couriers to
bring in drugs from New York City. Various other persons sold more
than 50 guns to Kemp and his associates. Although there were occa-
sional disputes among members of the conspiracy, and even instances
in which street-level drug vendors competed against each other, the
conspiracy continued unabated. The conspiracy ceased operation only
with the arrest of Kemp and several others in September 1993.

Kemp, along with five codefendants, was indicted by a Norfolk
grand jury on cocaine conspiracy charges. Kemp was indicted on 19

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of 84 counts in the indictment and asserted his right to jury trial. His
codefendants pled guilty. Kemp was arraigned on October 27, 1993,
where he was represented by court-appointed counsel Robert Rigney.
The court directed appointment of Rigney at the arraignment and set
conditions in the event that Kemp should wish to retain other counsel.
One condition was that any new counsel must have no conflict of
interest in the case.

On October 27, Kemp filed to substitute William P. Robinson, Jr.
as his attorney. The government moved to disqualify Robinson based
on several actual and potential conflicts. First, Robinson also repre-
sented Norman Tyson, a codefendant on the same indictment but a
fugitive at the time. Second, a partner of Robinson's, Junious Fulton,
had previously represented Roman Grandy on a drug charge. Grandy
was a codefendant but pled guilty and was cooperating with the gov-
ernment at the time of the disqualification. Grandy did in fact testify
for the government. Third, the government expected at the time to call
as a witness potential defendant Delton Raynor. Raynor was previ-
ously Robinson's client. Although Kemp offered to waive these con-
flicts, there is no evidence that Tyson, Grandy or Raynor made such
an offer. The motion to substitute was denied by a magistrate judge
and then affirmed by the district judge, both denials citing conflict of
interest.

Kemp was convicted after a jury trial beginning December 29,
1993 and ending January 6, 1994. The district judge sentenced Kemp
to life imprisonment with five years supervised release on four sepa-
rate counts, with lesser concurrent sentences on the four remaining
counts. The district judge based the sentencing in part on a calculation
of Kemp's base offense level at 42, pursuant to the then-effective
United States Sentencing Guideline § 2D1.1(c).

II.

Kemp makes six arguments in his appeal: (1) that the failure to
substitute Robinson was so arbitrary as to violate his Sixth Amend-
ment guaranty of the right to assistance of counsel; (2) that the trial
court prejudiced his case by refusing to order production of an FBI
"302" witness statement; (3) that he should not have received a four-
level offense enhancement for his leadership role, pursuant to United

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States Sentencing Guidelines § 3B1.1(a); (4) that he should not have
received a two-level enhancement for possession of a firearm pursu-
ant to § 2D1.1(b); (5) that the trial court erred when it refused to give
a multiple conspiracy instruction to the jury; and (6) that a subsequent
amendment to the sentencing guidelines allows his base offense level
and sentence to be recalculated. Of these arguments, Kemp does not
strongly argue the first four, and we find his arguments unpersuasive.
We find that the trial court did not commit clear error or abuse its dis-
cretion as to issues (1) through (4), and as to these issues, the trial
court is affirmed. As to the two remaining issues, we also affirm the
trial court, but offer the following explanation of our analysis.

We first address Kemp's request for a multiple conspiracy jury
instruction. A trial court's instruction will stand unless clearly errone-
ous. United States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993). While
the government bears the burden of proving a single conspiracy as
charged in the indictment, a jury's finding of a single conspiracy must
stand unless the evidence would not allow it even when viewed in the
light most favorable to the government. See United States v. Hines,
717 F.2d 1481, 1489 (4th Cir. 1983); United States v. Baker, 985 F.2d
1248 (4th Cir. 1993).

As Kemp correctly states, a multiple conspiracy instruction is an
instruction that the jury may find a defendant not guilty of the con-
spiracy charged even though they would otherwise find him guilty of
another conspiracy. But contrary to Kemp's argument, United States
v. Mills does not require that a defendant receive such an instruction
each time there is but the slightest foundation in evidence, no matter
how tenuous. See 995 F.2d at 485. The instruction is appropriate only
if "supported by the facts." Id.

To Kemp's burdens of clear error and the presumption of facts
favorable to the jury verdict, the law adds even a final hurdle to
Kemp's appeal: proof of prejudice to his "substantial rights." Even
where there is proof of multiple conspiracies, reversal is appropriate
only where such proof prejudiced the substantial rights of the defen-
dant. United States v. Barsanti, 943 F.2d 428, 439 (4th Cir. 1991).
Substantial rights are infringed if the jury might have been confused
into imputing guilt to members of one conspiracy because of the
activities of other conspiracies and their members. Id.

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The trial court correctly found that the facts did not support a mul-
tiple conspiracy jury instruction. Kemp was an organizer, the hub of
the various spokes of the conspiracy, and minor disputes between the
lower-ranking members did not serve to end or void the conspiracy
as to him. Further, there is nothing to indicate impairment of Kemp's
substantial rights. Kemp has failed to meet his heavy burden on this
issue and we therefore affirm the trial court.

Second, we address the question of Kemp's proper base offense
level. The trial court's application of sentencing factors will be
reviewed for clear error. United States v. Brooks, 957 F.2d 1138 (4th
Cir. 1992). The trial court may determine the facts of the case, for the
purposes of sentencing, by a mere preponderance of the evidence.
United States v. Vinson, 886 F.2d 740, 741-42 (4th Cir. 1989).

Kemp's sentencing argument involves two parts, one a dispute over
the amount of cocaine involved and the other a dispute over the
proper offense level calculation in light of a subsequent amendment
to Guidelines § 2D1.1(c). As the amount of cocaine base was a factual
issue at sentencing, the trial court needed only a preponderance of the
evidence to find that Kemp was involved in the distribution of
1,314.04 kilograms of cocaine base. Reviewed on appeal only for
clear error, this finding must be sustained; in fact, the trial court
clearly made every effort to resolve disputed amounts in favor of the
defendant. Regardless, in April 1994 the trial court need only have
found 15 kilograms of cocaine base to put Kemp in the base offense
level of 42. See United States Sentencing Commission, Guidelines
Manual, Appendix C, Amendment 505. We affirm the trial court's
factual findings.

The more interesting sentencing issue is the effect of Amendment
505. In a Presentence Report of March 1994 the United States Proba-
tion Officer calculated Kemp's base offense level at 42, at that time
the proper offense level for 15 or more kilograms of cocaine base
under § 2D1.1. The trial court used the same method in its sentencing
of April 1994 and, after the two-level enhancement for firearms and
four-level enhancement for leadership role, gave Kemp an adjusted
offense level of 48. Since the Sentencing Table mandates a life sen-
tence for any adjusted offense level higher than 42, Kemp received
life imprisonment. See USSG Ch.5, Pt.A. However, on November 1,

                    5
1994, Amendment 505 became effective and reduced the highest base
offense level in § 2D1.1 to 38. Kemp argues that § 1B1.10(c) makes
the amendment retroactive, and that both his base offense level and
sentence should now be recalculated.

We disagree. Guidelines § 1B1.10(a), governing subsequent modi-
fication of sentencing factors, reads in pertinent part:

          [w]here a defendant is serving a term of imprisonment, and
          the guideline range applicable to that defendant has subse-
          quently been lowered as a result of an amendment to the
          Guidelines Manual . . . a reduction of the defendant's term
          of imprisonment is authorized under 18 U.S.C. § 3582(c)(2).

Title 18 U.S.C. § 3582(c)(2) provides:

          in the case of a defendant who has been sentenced to a term
          of imprisonment based on a sentencing range that has subse-
          quently been lowered by the Sentencing Commission . . .
          upon motion of the defendant or the Director of the Bureau
          of Prisons, or on its own motion, the court may reduce the
          term of imprisonment . . . .

Finally, Application Note 2 to § 1B1.10 explains that § 1B1.10 was
drafted to implement 28 U.S.C. § 994(u), which reads in full:

          [i]f the Commission reduces the term of imprisonment rec-
          ommended in the guidelines applicable to a particular
          offense or category of offenses, it shall specify in what cir-
          cumstances and by what amount the sentences of prisoners
          serving terms of the imprisonment for the offense may be
          reduced.

Taken together, these sections authorize a court to reduce the defen-
dant's sentence where a subsequent amendment has changed the
Guidelines in such a fashion that the range of possible sentences is
lowered. But in Kemp's case, the range has not been lowered.

Although a new base offense level of 38 would not place Kemp in
the automatic life sentence category he formerly occupied under the

                    6
Sentencing Table, his adjusted offense level would still do so. The
adjusted offense level of 44, calculated by adding the base offense
level to his two- and four-level enhancements, would still place Kemp
off the chart and into a mandatory life sentence. Thus the change in
§ 2D1.1(c) is a reduction in neither the "guideline range" referred to
in Guidelines § 1B1.10(a) nor the "sentencing range" of 18 U.S.C.
§ 3582(c)(2), because there is no "range." Whether his offense level
is the former 48, or the possible 44, his only authorized sentence is
life imprisonment.

This arithmetic raises two points. First, the authorization to apply
retroactive amendments via § 1B1.10 is discretionary, not mandatory,
as urged by Kemp. See United States v. Turner , 59 F.3d 481, 483 (4th
Cir. 1995). Second, the three sections cited above clearly concern
changes in actual sentence, not changes in the various base levels and
adjustments that go into the calculation of sentence. We question
whether the sections authorize a modification with no real effect. We
conclude that retroactive modification does not apply to Kemp's case
because a reduction in his base offense level would not affect his sen-
tence. Modification would be a meaningless exercise. Therefore we
decline to perform it and we affirm the trial court.*

III.

We conclude that none of the challenges raised by Kemp merit
reversal. Therefore Kemp's conviction and sentence, and the judg-
ment of the trial court, are affirmed in all respects.

AFFIRMED
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*Should Kemp wish to engage in such an exercise, the trial court is the
proper forum in which to move for reconsideration of his sentence.
Kemp may argue to the trial court that the possible reduction in base
offense level makes a downward departure more feasible. However, a
departure is an extraordinary action and is best left to the trial court's
sound discretion. We will not assume such action for the purposes of this
appeal.



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