UNITED STATES of America, Plaintiff-Appellee,
v.
Frankie Edward KIMBERLIN, Jr., Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Randall Gray PARKER, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Raymond FULLER, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Kenneth Wayne INSCORE, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
James David COCKRELL, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Sandra Lewis COCKRELL, a/k/a P Nut, Defendant-Appellant.
Nоs. 93-5113, 93-5125, 93-5150, 93-5226, 93-5227 and 93-5231.
United States Court of Appeals,
Fourth Circuit.
Argued Dec. 10, 1993.
Decided March 3, 1994.
ARGUED: David Ferris Tamer, Winston-Salem, North Carolina, for appellant Kimberlin; David Bruce Freedman, White & Crumpler, Winston-Salem, North Carolina, for appellant Parker; Ernest Raymond Alexander, Jr., Greensboro, North Carolina, for appellant Fuller; Thomas Kieran Maher, Rudolf & Mаher, Chapel Hill, North Carolina, for appellant Inscore; James B. Craven, III, Durham, North Carolina, for appellant James Cockrell; Walter C. Holton, Jr., Tisdale, Holton & Menefee, Winston-Salem, North Carolina, for appellant Sandra Cockrell. Lisa Blue Boggs, Assistant Unitеd States Attorney, Greensboro, North Carolina, for appellee. ON BRIEF: Benjamin H. White, Jr., United States Attorney, Gill P. Beck, Assistant United States Attorney, Greensboro, North Carolina, for appellee.
Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.
OPINION
WILKINSON, Circuit Judge:
Appellants raise several challenges to their convictions and sentences stemming from involvement in a drug distribution conspiracy. We find that the challenges lack merit and therefore affirm the convictions and sentences.
I.
Appellants in this case--Frankie Edward Kimberlin, Randall Gray Parker, Raymond Fuller, Kenneth Wayne Inscore, James David Cockrеll, and Sandra Lewis Cockrell--were all found guilty of conspiracy to possess with intent to distribute cocaine hydrochloride. See 21 U.S.C. Secs. 841(a)(1) & 846. Inscore and the two Cockrells pled guilty to the charges, while Kimberlin, Parker, and Fuller were found guilty by a jury after a trial in October 1992. Appellant Parker was also found guilty on two counts of carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1).
All of the convictions stem from a series of drug transactions spanning the period from July 1986 until at least August 1991, which resulted in the indictment of twelve defendants on conspiracy charges and a variety of other offenses. Although appellants were all significantly involved in the conspiracy, their individual roles ranged from major cocaine distributor to providing storage and a place of sale for the drugs. At trial, the government presented evidence that at least fifteen kilograms of cocaine were distributed during the course of the conspiracy.
Appellants now raise a number of challenges to their convictions and the resulting sentences. Because the contentions involve different facts, the facts relevant to each individual challenge are best related in the discussion of that particular challenge.
II.
Appellant Randall Parker contends that the district court erred by failing to grant his FED.R.CRIM.P. 29 motion for acquittal as to the chаrges of carrying a firearm during a drug trafficking crime. See 18 U.S.C. Sec. 924(c)(1). Section 924(c)(1) provides for an additional five years of imprisonment for anyone who, "during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a cоurt of the United States, uses or carries a firearm." Id. Parker claims that the government failed to produce evidence showing how Parker used a gun to facilitate drug transactions, and that no evidence was produced showing that he carried a gun during the July 1991 drug transaction alleged in Count Six.
Both these claims lack merit. In this case, the government presented evidence showing that a gun was in Parker's immediate vicinity during two specific drug transactions, one in October of 1990 and the other in late summer of 1991. In the first transaction, a pistol was locаted on the bed in Parker's bedroom when a drug transaction took place. In the second, Parker travelled during the course of his drug activities in a vehicle in which he placed a nine millimeter pistol in a little black bag. It is not necessary to show that Parker affirmativеly used a gun when completing a drug transaction, see United States v. Ivy,
Parker also contends that he is entitled to an acquittal on one оf the firearms charges because the government failed to present evidence that he carried a gun in connection with a drug trafficking crime alleged to have occurred in July of 1991. Parker bases his argument on language in Count Six of the indictment that the underlying drug violatiоn occurred "[i]n or about July, 1991, the exact date to the Grand Jurors unknown." Parker's contention, however, places too much reliance on the date indicated in the indictment. "Where a particular date is not a substantive element of the crime charged, strict chronological specificity or accuracy is not required." United States v. Morris,
III.
Appellant Raymond Fuller challenges the district court's denial of his Rule 29 motion for an acquittal. Fuller contends that he cannot be found guilty of Count One--сonspiracy to possess with intent to distribute "in excess of five kilograms of cocaine hydrochloride"--when his sentence was based on only 903 grams of cocaine. Fuller argues that inclusion of the "five kilograms" language in the indictment made the amount of drugs involved a substаntive element of the crime charged, and that the government has failed to prove his personal responsibility for that amount.
Fuller's argument, however, is unavailing. This court, like others, has held that "because the quantity of drugs only goes to the sentence rather than guilt, trial by jury as to that fact is not required." United States v. Engleman,
IV.
Appellants James Cockrell, Sandra Cockrell, and Raymond Fuller* contend that the district court improperly applied а 2-level enhancement to each of their base offense levels due to one of their co-conspirator's possession of a firearm. The district court applied the enhancement pursuant to U.S.S.G. Sec. 2D1.1(b), which requires a 2-level increase if a dаngerous weapon, including a firearm, was possessed. The appellants contend that the government failed to demonstrate their awareness that a firearm was carried by one of their co-conspirators, thus failing to prove their liability for possessiоn of a weapon.
We disagree. Section 1B1.3(a) of the Guidelines states that in calculating the guideline range for a particular defendant, "all reasonably foreseeable acts and omissions of others in furtherance of [a] jointly undertaken criminal aсtivity" are to be included. In applying this provision, courts have attributed weapons carried by co-conspirators to a defendant when "under the circumstances of the case, it was fair to say that it was reasonably foreseeable to [defendant] that his сo-participant was in possession of a firearm." United States v. White,
Contrary to appellants' assertions, this result is not affected by the fact that they were not individually charged with carrying firearms during a drug trafficking crime, see 18 U.S.C. Sec. 924(c)(1), although other defendants were so charged. Courts are not limited to considering only those activities resulting in a criminal conviction when determining a defendant's sentence. See United States v. Nelson,
V.
Appellant James Cockrell challenges the district court's addition of two points to his criminal history score at sentencing pursuant to U.S.S.G. Sec. 4A1.1(d). Section 4A1.1(d) requires a court to add two points "if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." Application Note 4 to Sec. 4A1.1 states that a "term of unsupervised probation" would be included as a criminal justice sentence. Cockrell admits that he was on unsupervised probation during a portion of the conspiracy period. In fact, Cockrell was placed on unsupervised probation several times during the term of the conspiracy, inсluding five years for nonsupport of children in 1987 and one year for vehicular speeding and marijuana possession in 1989. Despite the repeated probationary sentences, however, Cockrell argues that such "minor" infractions are not what the Sentencing Commission envisioned when constructing the probation enhancement of Sec. 4A1.1(d). He asserts that the application of Sec. 4A1.1(d) here is "overkill."
We disagree. Nowhere does it state in the Sentencing Guidelines that the probation enhancement is to be subjectеd to variable enforcement based on the severity of the crime giving rise to the probationary sentence. As the Ninth Circuit explained in United States v. McCrudden,
VI.
Appellants raise several other challenges to their sentеnces, asserting primarily that the district court held them accountable for a greater amount of cocaine than they were actually responsible for.
After reviewing the record, it would be impossible to label as clearly erroneous the district court's сareful factual findings as to the quantity attributable to each defendant. See United States v. Vinson,
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
Notes
Appellant Fuller presents this argument in a supplemental pro se brief. Leave to file the supplemental brief was granted on January 6, 1994