UNITED STATES of America, Plaintiff–Appellee, v. Dwayne Travoy DILLARD, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Ashley Nehemiah Scaife, Defendant–Appellant.
Nos. 03-2518, 03-2519
United States Court of Appeals, Eighth Circuit
Submitted: March 10, 2004. Filed: June 7, 2004.
370 F.3d 800
Robert D. Sicoli, argued, Minneapolis, MN, for Scaife.
David P. Steinkamp, argued, Minneapolis, MN, for appellee.
Before MURPHY, HEANEY, and SMITH, Circuit Judges.
MURPHY, Circuit Judge.
Dwayne Travoy Dillard and Ashley Nehemiah Scaife pled guilty to conspiracy to distribute in excess of fifty grams of crack cocаine in violation of
The sentencing hearing produced evidence that Dwayne Dillard, his cousin Ashley Scaife, Domenique Cary, Charles Griffin, Cedric Shepard, Deandre Hill, and Prezont Martin sold crack cocaine in north Minneapolis. Testimony showed that they belonged to the Gangster Disciples, a multistate street gang often involved in drug distribution. The district court found that Dillard facilitated his group‘s drug business in Minneapolis by supplying the majority of the crack cocaine it sold.2 Group members would introduce friends and relatives interested in becoming dealers to Dillard, who would then supply them with crаck cocaine for distribution.
Dillard met Prezont Martin, a member of the Indiana Gangster Disciples, at Glen Mills Schools, a residential school in Pennsylvania for young men referred by the courts. After their release from Glen Mills, Dillard supplied crack to Prezont for sale in Minneapolis. Prezont introduced Dillard to his cousin, Damian Walker, and Dillard also began supplying Walker with crack for further distribution.
Later that evening under police supervision, Walker called Dillard and arranged to purchase two ounces of crack from him at a designated location in north Minneapolis. Walker and the officers went to the location, and Dillard arrived with Charles Griffin. The policе intercepted them before the sale could occur. Dillard and Griffin were arrested, searched, and each found to possess one ounce of crack. They were taken to jail, and Walker was dropped off at another location by one of the officers.
At the Hennepin County Jail, Dillard was placed in a holding cell with Marques Martin, Walker‘s cousin, who had been arrested a few days earlier. On his first night in jail, Dillard told Marques, “your cousin snitched me off, he‘s got to go.” Marques, unaware of his cousin‘s actions, denied that Walker had snitched on Dillard, and Dillard responded, “Man, that‘s how motherfuckers get killed . . . man that‘s how motherfuckers go.” Police records indicate that Dillard made at least one phone call from the jail tо fellow gang member Domenique Cary.
The next day, on August 31, 2001, Cedric Shepard, another member of the group called Marques’ brother, Prezont Martin, and asked him to go along to pick up his car which had been impounded by the police. At this point, Prezont did not know that his cousin Damian Walker had cooperated with the police in the controlled buy from Dillard. He willingly went with Shepаrd whose car was being held in Prezont‘s name. A group of men, including Scaife, Cary, and Deandre Hill, met Shepard and Prezont at the impound lot. They confronted Prezont, and Scaife accused him of being responsible for Dillard‘s arrest because he had introduced Dillard to Walker. After they attacked Prezont, beating and kicking him to the ground, Cary pointed a gun at him, forced him into а car, and ordered him to take them to Walker. Prezont directed the group to Walker‘s residence in Brooklyn Park, but Walker was not there when they arrived.
After Walker called Prezont‘s cell phone, the group located him at the home of Prezont‘s parents at 710 Newton Avenue North, Minneapolis. When they arrived at the house, Scaife yelled for Walker to come out and talk to him. Walker came to the door, and Scaife yelled, “Nigga, you snitched on my cousin” and tried to grab him. Walker ran inside and escaped by jumping out a second story window. After this incident, Walker contacted Detective Straunch, with whom he had worked on the Dillard investigation. Walker reported that he had been jumped by the gang and escaped, but that he feared that Dillard planned to kill him and had already put out an order on his life.
On September 4, 2001, Dillard was released from jail, and three days later, he arranged to meet the Martin brothers (Prezont and Marques) at a Kentucky Fried Chicken (KFC) restaurant in north Minneapolis. Prezont and Marques met Dillard, Scaife, and Hill in the KFC parking lot. Dillard complained to Prezont that, “Your cousin set me uр. You introduced us, it‘s your fault.” He repeatedly said that Prezont needed to “take care of it,” and added that, “people get killed for doing shit like this, snitching on me.”
On September 22, 2001, Walker was shot and killed while sitting in the driver seat of a vehicle parked in front of a house at 2802 Colfax Avenue North in Minneapolis. Shortly after his cousin‘s death, Marques went to the police and reported that Dillard had made several threats on Walker‘s life. Marques identified Dillard and Scaife in police lineups, and the police used jail records to corroborate his story.
After Marques’ interview with the police about Walker‘s death, Scaife confronted him on October 3, 2001 as he was leaving his mother‘s house. Scaife warned Marques that “You better make my name taste like shit in your mouth or it‘s going to taste like that when you are dead.” Marques contacted the police about the threats and told them that Scaife had also threatened him in front of his mother, Ethel Walker, on another occasion. Marques explained that Scaife had told him, “Don‘t be telling people I killed Damian Walker because I didn‘t do it.” The police later interviewed Ethel Walker, and she confirmed that she overheard Scaife telling Marques not to tell people on the street that he killed Walker.
On October 23, 2001, police arrested Scaife for tampering with a witness. Police interviewed Scaife at that time, and his statements corroborated those made by the Martin brothers. Scaife admitted that he thought Walker had set up Dillard. He acknowledged that he beat up Prezont at the impound lot and that Cary had had a gun there.
Dillard, Scaifе, Cary, and Tachara Monique Fallon were indicted on November 20, 2001. Dillard and Scaife were charged with conspiracy to distribute in excess of fifty grams of crack cocaine and conspiracy to distribute in excess of 5,000 grams of crack cocaine, in violation of
The district court issued written findings based on the evidence produced at the hearing and sentenced Dillard to 235 months imprisonment after applying a two level enhancement for possession of a dangerous weapon under United States Sentencing Guidelines [U.S.S.G.]
Based on its written findings from the evidentiary hearing, the district court sentenced Scaife to 188 months after applying a two level enhancement for possession of a dangerous weapon under
On appeal, Dillard аnd Scaife challenge their sentencing enhancements for possession of a gun and obstruction of justice. Dillard also challenges the enhancement for his role in the offense. A district court‘s application of the guidelines to the facts is reviewed de novo and its factual findings for clear error. United States v. Willey, 350 F.3d 736, 738 (8th Cir. 2003).
Dillard and Scaife argue that the district court erred in enhanсing each of their offense levels by two points for possession of a firearm under
Section
The district court did not err in enhancing both sentences for possession of a firearm. Scaife admitted when he was questioned by the police that Cary had a gun during their stop at the impound lot. He acknowledged that they used the gun to kidnap and intimidate Prezont because they believed he was responsible for Dillard‘s arrest. There was also evidence that Scaife waived a gun and threatened Prezont and Marques in a drive by near their house. The fact that this second gun was never recovered is immaterial because the testimony of the Martins was sufficient to establish Scaife‘s possession of a firearm. Id. Their testimony that Dillard was with Scaife when he used the gun to threaten them was also enough to show that Dillard had constructive possession of the firearm. Id. at 1214. The display of both firearms was in furtherance of the drug conspiracy since the guns were used to discourage cooperation with law enforcement and to intimidate the Martins. The evidence supported the findings that Scaife and Dillard possessed a firearm and that it was connected with their offense.
Appellants assert that the district court erred in applying a two point enhancement for obstruction of justice under
A defendant‘s offense level will be increased two levels for obstruction of justice under
The district court found that Scaife and Dillard threatened Walker and the Martins several times after Dillard‘s arrest for drug possession. Testimony at the evidentiary hearing showed that the group did not tolerate informants and that the threats made by Dillard and Scaife were consistent with the Gangster Disciples rule against informing. Prezont described this rule as “stitches for snitches” or “snitches in ditches.” Threatening incidents implicating appellants occurred at the Hennepin County Jail, the impound lot, the KFC, and at the home of the Martins’ mother before and after Walker‘s killing. Police records indicate that Dillard called Cary from the Hennepin County Jail shortly before the incident at the impound lot where Cary displayed a gun and Prezont was beaten. Scaife admitted to police that he and his associates went to the impound lot because Dillard had been arrested and Prezont was responsible. Once released from jail, Dillard arranged a meeting at the KFC to confront Prezont about his responsibility for the arrest and to prompt him to take care of Walker. There was evidence that Dillard and Scaife tried to silence Walker and intimidate his relatives by displaying firearms, yelling death threats, and beating them on a number of occasions.
Scaife relies on United States v. Stolba, 357 F.3d 850 (8th Cir. 2004), to argue that his enhancement was imрroper because he did not know that he was being investigated at the time of any obstructive conduct. The facts of this case are very different from Stolba, however, because there the defendant‘s obstructive behavior undisputedly occurred well before any investigation into his offenses. Id. at 851. Here, the investigation into the drug conspiracy began with the arrest of Damian Wаlker and his arranged sale with Dillard. Scaife was involved in the same conspiracy as Dillard and the evidence showed that the conspirators knew Dillard had been arrested. When questioned by police, Scaife admitted that he knew there was an ongoing investigation of the drug activities. This case is more like Vaca, where the court found that the defendant‘s attempt to silence an informant and intimidate others showed that he believed he was under investigation. Id. at 1049. The threatening actions by Scaife and other conspirators after Dillard was jailed for possession with intent to distribute support the finding that Scaife knew an investigation of their drug activities was underway. Id.
After studying the record, we conclude that the district court did not err in enhancing the sentences of Dillard and Scaife for obstruction of justice. Although Dillard and Scaife argue that the court should have granted them acceptance of responsibility adjustments since they pled
Dillard also argues that the district court erred in granting a two level enhancement based on his role in the offense because even if he was a gang leader, he was not a leader in the drug conspiracy. He contends that the government has not met its burden of showing that he was a leader in the offense and that the district court based its finding on his expensive car. He points out that the probation officer correctly characterized him as an average participant. Under
The district court found that Dillard was a leader in the offense, that he was at the top of this particular Gangster Disciples group, and that he directed its activities, which included its crack cocaine distribution. These finding are not clearly erroneous and are supported by the record. Several witnesses, including Scaife, told police that Dillard supplied crack cocaine to other gang members for distribution. Scaife, Prezont, and Marques identified Dillard as being at the top of the gang‘s hierarchy, and Scaife explained that Dillard controlled the craсk distribution by determining who he would hire to deal the drugs. Prezont‘s testimony corroborated this, for he testified that he introduced Walker to Dillard as a potential drug dealer. The inference could also be made from the evidence that Dillard procured the aid of other gang members after he was arrested by informing them that Walker had set him up. The evidence suggests that the othеr gang members were acting either to protect Dillard or at his behest, in intimidating Walker and Prezont for breaking the code against informants. Scaife stated that they went to the impound lot because Dillard had been set up, that after the KFC incident he knew Walker would die, and that it was Dillard‘s idea to have Walker killed. The district court did not err by enhancing Dillard‘s sentence two levеls for his leadership role.
After our de novo review of the district court‘s application of the guidelines to factual findings supported by the record, we conclude that it did not err in enhancing appellants’ sentences. We therefore affirm the judgments of the district court.
DIANA E. MURPHY
CIRCUIT JUDGE