UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 95-5171
TERRYONTO MCGRIER, a/k/a Rodney
Jones,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-93-196)

Argued: May 10, 1996

Decided: July 22, 1996

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Mychal Sommer Schulz, JACKSON & KELLY, Charles-
ton, West Virginia, for Appellant. Michael O. Callaghan, Assistant
United States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: Rebecca A. Betts, United States Attorney, Charleston, West
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Terryonto McGrier was convicted of conspiring to possess with
intent to distribute cocaine base and heroin, in violation of 21 U.S.C.
§ 846, and carrying and using a firearm in relation to the commission
of a drug trafficking crime, in violation of 21 U.S.C. § 924(c). The
district court sentenced him to life imprisonment on the drug count
and a consecutive five-year prison term on the firearm count. On
appeal, McGrier alleges violations of his constitutional right to a
speedy trial and of the Speedy Trial Act, insufficiency of the evi-
dence, improper use of pretrial immunized testimony, and sentencing
errors. We affirm.

I

In October 1990, Jerome Thomas, McGrier's convicted co-
conspirator, recruited Rodney Merritt to bring cocaine base and her-
oin to Charleston, West Virginia, for distribution through a network
which included Betty Lou White, Willis Moore, Charles Lee Smith,
and McGrier.

Merritt was arrested and negotiated a plea agreement in exchange
for his cooperation in the investigation of Thomas' activities. While
Merritt was cooperating, Thomas brought McGrier to Charleston. In
October 1990, Thomas introduced McGrier as "Bam" to Betty Lou
White, and Thomas, McGrier, and White became involved in the sale
of heroin. Heroin was distributed on three to four occasions to Willis
"Baby" Moore. Moore would telephone Thomas or McGrier indicat-
ing that he wished to purchase heroin. Thomas, White, and McGrier
would then travel to a prearranged telephone booth where Thomas
would place heroin in the coin slot of the phone. After Moore sold the
heroin, he gave money back to Thomas, McGrier, or White.

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On November 21, 1990, a controlled call was made by Merritt to
Charles Lee Smith to arrange a meeting of Merritt and Thomas at
Cutlip's Motel in Charleston. After the call, Thomas told Smith to
take McGrier to Cutlip's Motel to find Merritt. When Thomas did not
appear at Cutlip's Motel, Merritt was brought by Officers Hart and
Crawford to a nearby Motel 6. There, Merritt spotted Thomas and
McGrier in a car driven by Thomas. McGrier began firing at Merritt
and Officers Hart and Crawford as they stood in the parking lot talk-
ing. Thomas and McGrier drove away with the officers and a marked
police car in pursuit. Thomas veered off the road, killing a bicyclist.
Several miles later, Thomas wrecked the car and was arrested.
McGrier fled on foot and was arrested hours later.

While McGrier was incarcerated, he made various statements to
other prisoners regarding his drug dealings. In July 1992, he told
George Carter that he sold "boy and girl" (street names for heroin and
cocaine) in Charleston, West Virginia. He told inmate George Posey
that he was associated with "Jerome" [Thomas] at the time of the
shootout.

II

McGrier contends that the government violated his right to a
speedy trial under the Sixth Amendment by failing to bring him to
trial for over four years after the issuance in November 1990 of the
criminal complaint, arrest warrant, and federal detainer. His challenge
focuses on the more than two-and-one-half-year period before his fed-
eral indictment. The government elected to permit the state to prose-
cute the defendants first without interference from the federal
government. The government also gave as reasons for delay its con-
sideration of what charges to bring, its need to know the state sen-
tence and the length in custody there, its decision whether to try
McGrier with Thomas, and its assessment of problems raised by
McGrier's post-conspiracy statements.

This very issue was examined and disposed of by us in the appeal
of Thomas, McGrier's co-defendant. See United States v. Thomas, 55
F.3d 144, 148-51 (4th Cir.), cert. denied, 116 S. Ct. 266 (1995). In
Thomas, we held that defendant's Sixth Amendment right to a speedy
trial was not violated despite an uncommonly long delay of more than

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two years between the filing of the complaint and the indictment and
the resulting presumption of prejudice, where the defendant did not
assert his right to a speedy trial in due course, and the government
gave plausible reasons for the delay. Because there are no facts that
materially distinguish McGrier's case, we reject the argument for the
same reasons as those given in Thomas.

III

McGrier also contends that in finding a violation of the Speedy
Trial Act--because more than 30 days accrued between his federal
arrest and indictment--the district court abused its discretion by dis-
missing the original indictment without prejudice. Because the dis-
missal was without prejudice, McGrier was later charged by a
superseding indictment, tried, and convicted. The district court deter-
mined that the original indictment should be dismissed without preju-
dice because the crimes involved were serious and there was no
indication that the government deliberately attempted to evade the
Speedy Trial Act.

Our review of the record reveals that the district court did not abuse
its discretion in dismissing the indictment without prejudice. The
Speedy Trial Act provides that in determining whether an indictment
should be dismissed with or without prejudice, "the court shall con-
sider, among others, each of the following factors: the seriousness of
the offense; the facts and circumstances of the case which led to the
dismissal; and the impact of a reprosecution on the administration of
this chapter and on the administration of justice." 18 U.S.C.
§ 3162(a)(1).

The district court considered these factors and applied them to the
facts of this case, and the record provides sufficient support for the
court's decision.

IV

McGrier next contends that the evidence is insufficient to support
his participation in the conspiracy involving Merritt and Thomas. The
government, on the other hand, argues that McGrier not only partici-

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pated in the distribution of heroin, but also acted as a "hit man" when
the conspiracy was crumbling. The evidence amply supports the gov-
ernment's claim.

In addition to evidence of McGrier's central role in the shootout
with the police, which showed that McGrier himself fired five times,
there was testimony that McGrier was involved in the drug transac-
tions as early as October 1990, when the conspiracy began. Both
White and Moore described the heroin transactions, and both testified
that McGrier was a participant. On motion for judgment of acquittal,
the district court reviewed the evidence at trial and stated that "it is
left with the firm conclusion a reasonable jury could find the Defen-
dant guilty beyond a reasonable doubt on the counts of conviction by
reason of the evidence submitted in support of those charges." We
agree.

V

McGrier argues that the government improperly used his pretrial
immunized testimony in violation of Kastigar v. United States, 406
U.S. 441 (1972). The government insists, however, that the evidence
it presented at trial against McGrier was obtained from sources other
than McGrier's immunized testimony.

The immunized testimony, given pursuant to a plea agreement
which the court later rejected, consists of McGrier's debriefing on
October 25, 1993, and grand jury testimony given on November 30,
1993. All involved government agents testified that they believed
McGrier's debriefing was less than forthright and truthful and that the
debriefing thus ended abruptly without revealing useful information,
and the district court so found. The court also found that Merritt's 72-
page grand jury testimony of November 28, 1990, and not McGrier's
9-page testimony, was the source upon which the government relied
to further its investigation. Before the grand jury, McGrier was ques-
tioned simply to "elicit enough facts to support a factual basis of his
involvement in the charged drug conspiracy." Moreover, the govern-
ment attorney testified, "All the information that was extracted to
prosecute the case [against McGrier] came from Rodney Merritt."

To preserve a witness' Fifth Amendment right against compelled
self-incrimination, the government is forbidden under Kastigar from

                    5
using "the immunized testimony or any evidence derived from it
either directly or indirectly" in the prosecution of a witness who
received use immunity in exchange for their testimony. United States
v. Harris, 973 F.2d 333, 336 (4th Cir. 1992). And the government
must satisfy the "heavy burden" of proving by a preponderance of the
evidence that the information it proposed to use in defendant's prose-
cution was not tainted. See Kastigar, 406 U.S. at 460-62; Harris, 973
F.2d at 336.

McGrier's arguments that the government did not meet its burden
"amount[ed] to merely speculative opportunities for taint to occur,
and `[t]he government [was] not required to negate all abstract "possi-
bility" of taint.'" Welsh v. Holt, 1996 WL 84487, at *3 (4th Cir. Feb.
28, 1996) (unpublished) (quoting United States v. Byrd, 765 F.2d
1524, 1529 (11th Cir. 1985)). Accordingly, we agree with the district
court's conclusion that the evidence introduced against McGrier was
not tainted by use of his pretrial immunized testimony.

VI

In connection with his sentencing, McGrier contends that the dis-
trict court's calculation of his base offense level by using 17 ounces
and 26.35 grams of crack cocaine and by making an upward adjust-
ment for obstruction of justice was clearly erroneous. The government
argues that the factual findings necessary for the calculation of the
base offense level and the upward adjustment were established by a
preponderance of the evidence and the district court's factual findings
are not clearly erroneous. Our review of the record leads us to agree
with the government, even though we also agree that the evidence did
not provide a precise calculation of the quantity of the controlled sub-
stance. But a precise calculation is not required. See, e.g., United
States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996).

Merritt admitted at trial, "I think it was 20 ounces of cocaine, crack
cocaine," that were involved. Officer Hart testified that after review-
ing the grand jury transcript of Merritt's testimony, he concluded that
Thomas and Merritt had 18 ounces of cocaine base for distribution,
and of that amount, they used approximately two grams to entice two
women to have sex with them prior to Thomas' departure. Thus, Offi-
cer Hart subtracted the two grams from the 18 ounce total, arriving

                    6
at relevant conduct of slightly less than 18 ounces of cocaine base.
The district court accepted these calculations for establishing
McGrier's offense level.

McGrier argues that the district court should have relied upon the
actual drugs introduced at trial to calculate the base offense level. But
the testimony reveals that to do so would have grossly underestimated
the amounts of drugs involved in the conspiracy. The testimony is
replete with references to large dollar figures and numbers of bags of
cocaine, which supports a finding that the conspiracy involved much
more cocaine base than that which the police actually seized. We con-
clude that the district court's factual findings are not clearly errone-
ous.

On the upward adjustment for obstruction of justice, the district
court also did not clearly err. The court's findings are based on credit-
ing the testimony of George Posey and Linda Ingram concerning
threats made to them or transmitted to them from McGrier through
intermediaries. The court found that the threats to Posey were made
prior to trial through intermediaries, and the threat to Ingram was
made directly by McGrier after the trial. Such conduct meets the
obstruction of justice enhancement. See U.S.S.G. § 3C1.1, application
note 3(i) (listing conduct prohibited by 18 U.S.C.§ 1513).

VII

Finally, McGrier argues that 18 U.S.C. § 841 and the Sentencing
Guidelines create an ambiguity in the manner in which they distin-
guish cocaine base from powder cocaine for sentencing purposes. He
urges that under the rule of lenity he should therefore have been sen-
tenced under provisions applicable to powder cocaine, and the refusal
to do so violates the Equal Protection Clause.

In recent decisions, we have directly addressed and rejected these
arguments. See United States v. Fisher, 58 F.3d 96 (4th Cir.), cert.
denied, 116 S. Ct. 329 (1995); United States v. Jones, 18 F.3d 1145
(4th Cir. 1994). For the reasons given in Fisher and Jones, we again
reject the arguments here.

AFFIRMED

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