945 F.

2d 378

UNITED STATES of America, Plaintiff-Appellee,

v.
Winston Allston GRIFFIN, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Denva Hylton EDWARDS, Defendant-Appellant.
Nos. 90-8200, 90-8201.

United States Court of Appeals,

Eleventh Circuit.
Oct. 22, 1991.

Stephen A. Delaney, Howard and Delaney, Marietta, Ga., for Griffin.

Seth Kirschenbaum, Davis, Zipperman, Kirschenbaum & Lotito, Atlanta,
Ga., for Edwards.
Joe D. Whitley, U.S. Atty., James W. Kesler, Asst. U.S. Atty., Atlanta,
Ga., for the U.S.
Appeal from the United States District Court for the Northern District of
Georgia.
Before FAY and COX, Circuit Judges, and MORGAN, Senior Circuit
Judge.
MORGAN, Senior Circuit Judge:

This case concerns various issues pertaining to the sentencing of coconspirators

in a drug distribution operation. The district court concluded that transactions
with crack cocaine, the amount of cocaine involved, and a supervisory or
managerial function were factors enhancing the sentences. Upon review of the
record, we affirm.

I. BACKGROUND

Defendants-appellants Winston Allston Griffin and Denva Hylton Edwards

participated in a drug distribution conspiracy operating in the metropolitan
Atlanta, Georgia area.1 The drug operation acquired marijuana from Houston,
Texas, and cocaine from Miami, Florida. Rental vehicles were leased in Atlanta
and driven to these source cities to obtain the drugs, which were repackaged
and sold in Atlanta.

Following a high-speed chase and his arrest for traffic offenses, Charlton Bruff,
a resident alien from Jamaica who participated in the drug distribution and who
was on probation for a prior state marijuana felony conviction, agreed to
function as an informant within the drug operation. In October, 1988, Edwards
gave Bruff the downpayment to secure a metropolitan Atlanta apartment from
which Bruff could sell drugs. In November and December, 1988, Edwards
delivered varying quantities of marijuana to Bruff for sale from this apartment.
Bruff gave the marijuana to a Georgia Bureau of Investigation (GBI) agent,
who supplied Bruff with money for anticipated sales to create the impression
that Bruff actually was selling the drugs received from Edwards. Additionally,
Edwards had introduced Bruff to Griffin, a/k/a "Manager," in November, 1988.
Having been at Griffin's apartment on various occasions, Bruff knew that
Griffin sold marijuana, cocaine and crack cocaine from his apartment as well as
supervised the manufacture of crack cocaine there.

On November 24, 1988, Edwards and Bruff went to Houston to obtain

marijuana, and on November 27, 1988, and December 20, 1988, they traveled
to Miami to acquire cocaine. Bruff estimated that forty pounds of marijuana and
five kilograms of cocaine collectively were acquired on these trips. Edwards
paid for the drugs. On each of these trips, Bruff secreted the drugs in the
interior walls of the rental van.

Prior to the second trip to Miami for cocaine, a meeting was held in Griffin's
apartment to collect money and to make arrangements for the purchase of more
cocaine in Miami. On December 25, 1988, Edwards delivered to Bruff fourteen
"dime bags" containing suspected crack cocaine, which Bruff stated had come
from Griffin. Bruff gave authorities information enabling them to verify two
trips when Edwards traveled without Bruff to Houston to obtain marijuana. On
the second of these trips to Houston, Edwards and a coconspirator were
apprehended and arrested for the unlawful possession of approximately thirtysix pounds of marijuana.

On December 29, 1988, Bruff received twenty dime bags of suspected crack
cocaine from Griffin at Griffin's apartment. Bruff gave this cocaine to the GBI

case agent. An undercover Federal Bureau of Investigation (FBI) agent made

two cocaine purchases from Griffin at Bruff's apartment, and negotiated a third.
Undercover agents observed both Edwards and Griffin with firearms when drug
transactions were conducted.
7

Griffin and Edwards, together with other coconspirators, were indicted by a

federal grand jury for various offenses relating to an ongoing conspiracy to
transport marijuana from Houston and cocaine from Miami for distribution in
the Atlanta area. Pursuant to plea agreements, Griffin and Edwards pled guilty
to interstate travel to promote an enterprise involving the possession and
distribution of marijuana and cocaine in violation of 18 U.S.C. 1952(a)(3).
Griffin additionally was charged with using a telephone to facilitate a drug
distribution offense in violation of 21 U.S.C. 843(b). Griffin was sentenced to
imprisonment for 108 months,2 and Edwards was sentenced to imprisonment
for 120 months.3 Griffin and Edwards have appealed the propriety of their
sentences under the Sentencing Guidelines.

II. ANALYSIS
A. Standard of Review
8

When reviewing a sentence under the Sentencing Guidelines, "this Court

accepts the district court's findings of facts unless they are clearly erroneous
and gives due deference to a district court's application of the sentencing
guidelines to those facts." United States v. Marin, 916 F.2d 1536, 1538 (11th
Cir.1990) (per curiam) (citing 18 U.S.C. 3742(e)); see United States v.
Asseff, 917 F.2d 502, 505 (11th Cir.1990) (per curiam) (The clearly erroneous
review standard applies to the factual findings upon which a district court bases
a sentence under the Sentencing Guidelines.). Griffin and Edwards have raised
various issues concerning their respective sentences imposed by the district
court under the Sentencing Guidelines. After reviewing the record, we have
determined that only three claims regarding enhancement of the sentences
warrant analysis: the transactions with crack as opposed to powder cocaine, the
amount of cocaine involved, and a coconspirator's supervisory role.

9B. Rock or Powder?

10

Both Griffin and Edwards complain that their sentences improperly were
increased by two levels because the district court concluded that crack, as
opposed to powder cocaine, was distributed in the December 25 and 29, 1988
transactions. "Crack," or cocaine in free base form, is a solid, rock-like
substance, whereas the term "cocaine" generally refers to the powder form,

which contains hydrochloric acid. See United States v. Williams, 876 F.2d
1521, 1525 (11th Cir.1989). Under the Sentencing Guidelines Drug
Equivalency Tables, one gram of crack cocaine is treated as twenty grams of
heroin, whereas one gram of powder cocaine is equivalent to .2 grams of
heroin. This court has recognized that "the difference in penalties between
crack and other forms of cocaine demonstrated that Congress considered crack
to be a more powerful and dangerous drug." United States v. Catchings, 922
F.2d 777, 780 n. 3 (11th Cir.) (per curiam), cert. denied, --- U.S. ----, 111 S.Ct.
1633, 113 L.Ed.2d 729 (1991); see Williams, 876 F.2d at 1525 (Congress
"intended to enhance penalties for crack dealers."); see also United States v.
Robinson, 870 F.2d 612, 613 (11th Cir.1989) (per curiam) (This court held that
a small portion of crack cocaine could result in the permissible inference that
the possessor planned to distribute the crack, even if the same amount of
powder cocaine would not justify the distribution presumption.).
11

In concluding that the two transactions in question involved crack cocaine as

opposed to powder cocaine, Griffin and Edwards contend that the district judge
considered hearsay, rather than reliable evidence. The probation officer did not
compute the cocaine as crack in the respective presentence investigation reports
because the lab report merely indicated that the drug was cocaine, and did not
state the type or form of cocaine. At the sentencing hearing, the district judge
directed the GBI case agent to contact the chemist, who analyzed the cocaine,
to ascertain if a determination was made regarding the type of cocaine
involved. The agent reported that the chemist did not make such a
determination because Georgia law does not require a distinction between crack
and powder cocaine.

12

Bruff, the confidential informant who handled the cocaine package, told the
GBI agent to whom he gave the cocaine that it was crack. The GBI agent
testified that he identified the cocaine by sight because "it had the consistency
of crack cocaine." R6-6-140. In concluding that the cocaine was crack, the
district court reasoned:

13seems to the Court on that issue that Mr. Griffin--or it is established that Mr.
It
Griffin on occasions manufactured crack. That's an opportunity. Apparently, it was
given to Mr. Bruff with the representation that it was crack. He had the opinion that
it was--or belief that it was crack, and this agent confirmed it, so I find that it's crack.
14

R6-6-141.

15

"[B]oth the Sentencing Guidelines and case law from this circuit permit a
district court to consider reliable hearsay evidence at sentencing." United States

v. Query, 928 F.2d 383, 384 (11th Cir.1991); see Sentencing Guidelines
6A1.3(a) (A sentencing court "may consider relevant information without
regard to its admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability to support its
probable accuracy." (emphasis added)). This court has held that a sentencing
court may "consider any information, including reliable hearsay from the trial
of a third party, so long as the defendant has 'the opportunity to rebut the
evidence or generally to cast doubt upon its reliability.' " Query, 928 F.2d at
385 (quoting United States v. Castellanos, 904 F.2d 1490, 1496 (11th
Cir.1990)). Griffin and Edwards were given ample opportunity at the
sentencing hearing to challenge the testimony of Bruff and the GBI agent.4
Additionally, they have pursued their arguments in this appeal. Because the
district judge based his decision that crack instead of powder cocaine was
involved in two transactions on testimony sufficiently reliable to have probable
accuracy, we conclude that his determination was not clearly erroneous.
C. Determination of the Cocaine Quantity Involved
16
17

Griffin and Edwards contest the district court's sentencing determination that
two kilograms of cocaine were involved in the December 20, 1988 sale because
they contend that the court's conclusion regarding the cocaine amount was
based on unreliable testimony from Bruff. They assert that they pled guilty with
the understanding that one kilogram of cocaine would be attributed to the
December 20, 1988 transaction. Their respective presentence investigation
reports allocated the acquisition of two kilograms of cocaine to the first trip to
Miami on November 27, 1988, and three kilograms to the second Miami trip on
December 20, 1988. Bruff, who participated in both trips, and an FBI agent
testified concerning the cocaine amounts involved in the two trips at the
sentencing hearing.

18

Bruff testified that Edwards told him that three kilograms were in the cocaine
package obtained on the second Miami trip. Additionally, Bruff, who handled
the cocaine packages procured on the two Miami trips when he concealed them
in the interior walls of the van, testified that the second package was larger. The
FBI agent, who debriefed Bruff on December 23, 1988 regarding the second
Miami trip, testified that Bruff initially told him that three kilograms of cocaine
were obtained, and, in the course of the conversation, changed the amount to
two. Bruff, however, told the FBI agent that Edwards informed him that three
kilograms of cocaine were involved in the second Miami trip.

19

Griffin and Edwards attempt to discredit Bruff's testimony with his grand jury
testimony, wherein he testified to three kilograms obtained in the first Miami

trip and two kilograms acquired in the second Miami trip. When confronted
with this discrepancy in his testimony, Bruff admitted that he had been
incorrect in his grand jury testimony. In the cumulative cocaine quantity
calculation used in determining the respective sentences of coconspirators
Griffin and Edwards, the district court found that the factual discrepancy
regarding the cocaine amounts involved in the two transactions was a
distinction without a difference:
20 least amount you have proved through either one of these witnesses is five. It's
[T]he
just a question of which three and two it is.
....
21
22 you want me to accept the grand jury testimony of the other witness [Bruff] as
[I]f
being true, it's still five, whether it's three and two. If you want me to accept the trial
[sentencing] testimony, it's two and three.
....
23
24 view of the evidence is this: In discussing Mr. Bruff's testimony, it is the Court's
My
view of his testimony that ... he's managed to prove that at all times it was five kilos.
It's just a question of which transaction was the big one.... It is, in the Court's mind,
most likely that Mr. Bruff is confusing what happened in the November versus the
December trip. I don't think that the December amount is established with sufficient
reliability that I can find three kilos on that trip, but I have no doubt based on the
state of the record, that two is shown by a preponderance of the evidence.... [I]t is
the Court's view that the kilogram that was the subject of negotiation ought to be
attributed to the ... conspiracy, and I will do it, so that leaves the net amount the
same.5
....
25
I26have lowered the second trip to two kilos, but I have given the conspiracy credit for
the kilos--the kilo that was being negotiated ... that I don't believe the probation
officer has added in. The net effect is a wash.
27

R6-6-92, 122, 124; see Sentencing Guidelines 2D1.4 Application Note 1 ("If
the defendant is convicted of an offense involving negotiation to traffic in a
controlled substance, the weight under negotiation in an uncompleted
distribution shall be used to calculate the applicable amount," unless the court
finds that the defendant lacked the intent and ability to deal in the negotiated
amount. (emphasis in original)). Edwards was given the opportunity to testify
regarding the cocaine amount involved in the December 20, 1988 acquisition,

and elected not to do so.

28

"The determination of the quantity of drugs involved in a conspiracy for the

purpose of sentencing is a factual determination subject to the clearly erroneous
standard." United States v. Davis, 902 F.2d 860, 861 (11th Cir.1990); see
United States v. Robinson, 935 F.2d 201, 205 (11th Cir.1991) ("[T]he trial
court's determination of the quantity of drugs used to establish a base offense
level for sentencing purposes" is subject to the clearly erroneous review
standard.). As we have discussed herein, a sentencing court may consider
reliable hearsay testimony. Query, 928 F.2d at 384. The testimony of Bruff and
the FBI agent established that the drug conspiracy, of which Griffin and
Edwards were a part at all relevant times, involved either distribution of or
conspiracy to distribute at least five kilograms of cocaine.

29

The district judge carefully assessed the evidence and reasonably arrived at his
determination of two kilograms of cocaine having been involved in the
December 20, 1988 acquisition. Although differing from the kilogram amount
allocation of the presentence investigation reports, the court allowed for Bruff's
inconsistent grand jury and sentencing testimonies in making the final
calculations for sentencing. Conviction for possession or distribution of a
specified amount of drugs does not preclude the district court from
independently determining the amount of drugs involved in the overall offense
and using that amount to assign the defendant an initial base offense level. See
United States v. Scroggins, 880 F.2d 1204, 1210-11 (11th Cir.1989), cert.
denied, --- U.S. ----, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990); see also United
States v. Jacobo, 934 F.2d 411, 416-17 (2d Cir.1991) (In determining the
amount of cocaine involved, the sentencing court is required under the
Sentencing Guidelines to make an independent assessment of defendants' intent
and ability to deal in negotiated quantities.). Based upon the testimony, we
conclude that the district court's determination that the December 20, 1988
acquisition involved two kilograms of cocaine, which amount was calculated
together with two kilograms from the November 27, 1988, Miami trip, plus the
negotiation involving one kilogram of cocaine, to arrive at a cumulative amount
of five kilograms, was not clearly erroneous.D. Managerial or Supervisory Role

30

Edwards argues that his sentence should not have been increased by two levels
under the Sentencing Guidelines for being a manager or supervisor, since he
dealt with the government informant Bruff and was not shown to advance the
interests of the drug distribution conspiracy. The evidence revealed that
Edwards, a coconspirator in the drug distribution operation, financed the
apartment from which Bruff6 sold drugs, subsequently arranged for a
roommate "Tony" to help Bruff with the sale of marijuana and cocaine, had

drugs delivered to the apartment for these men and others to sell, collected the
money from drug sales, and planned and executed trips to obtain drugs with and
without Bruff. The Sentencing Guidelines provide for a two-level increase in a
sentence "[i]f the defendant was an organizer, leader, manager, or supervisor in
any criminal activity...." Sentencing Guidelines 3B1.1(c) (emphasis added).
31

At the sentencing hearing, the district judge explained his reasons for
considering Edwards to have functioned in a supervisory or leadership capacity,
when his attorney contended contrariwise:

32
When
they [Edwards and Bruff] went to Houston, didn't he [Edwards] boss Bruff
around? Do you deny that? Didn't he say, go here, go there, do this, do that? Are you
going to tell me that he did not set Bruff up in an apartment or give him rent money
or bring him drugs to sell?
....
33
34
That's
one, two, three, four, five, six, seven, eight transactions, not counting the two
crack transactions where he brought drugs to a lower person to sell. Are you going to
contend as a matter of law that that's not within the ambit of that level--that last level
[Sentencing Guidelines 3B1.1(c) ]?
....
35
I36have heard you out on these ... transactions, let me count them again, one, two,
three, four, five, six, seven, eight, nine, ten transactions, and assuming, for the sake
of argument, that this was not a part of the ... conspiracy, it is nevertheless criminal
activity for which he is responsible, and he clearly is a leader in those transactions.
....
37
38 I said to you, and let me be precise about it, is that the information contained
What
in the presentence report having to do with the beginning of the Bruff activity at that
house which then gives rise to transactions of 11/15, 11/22, 11/30, 12/9, 12/10,
12/12, 12/19, 12/19, 12/25, 12/29, which are distributions for resale by your client
[Edwards], and considering the surrounding circumstances of Bruff's coming to be
there, I believe that those facts alone would establish that he was a leader for the
purposes of the guidelines.
....
39
40 point ... is that all of this argument that we're having focuses on the word leader
The
or supervisor. It nowhere says that he's got to be a supervisor of a big dope ring.... It
just says he's got to be in a leadership capacity.....

41 question is, is he selling it [drugs] on the street corner, or has he got somebody
The
on the street corner selling it. If he is the person who has the 16-year-old kid on the
street corner, and he is supplying it to him for sale, then I would contend that he is a
leader or a supervisor of that person.
42

R6-6-168-69, 172, 179-80, 181-83 (emphasis added).

43

A sentencing court's determination of a defendant's role in a crime is a finding

of fact reviewed under the clearly erroneous standard. United States v. Asseff,
917 F.2d 502, 505 (11th Cir.1990) (per curiam). Among the factors given in
the commentary to section 3B1.1 to be considered by the district court in
determining a managerial or supervisory role are whether the defendant
exercised "decision making authority," and "the degree of control and authority
exercised over others." Sentencing Guidelines 3B1.1, Application Note 3;
United States v. Castillo-Valencia, 917 F.2d 494, 502 (11th Cir.1990), cert.
denied, --- U.S. ----, 111 S.Ct. 1321, 113 L.Ed.2d 253 (1991); see United States
v. Jones, 933 F.2d 1541, 1547 (11th Cir.1991) (The defendant's subordinate
role to the marijuana supplier nevertheless included the supervisory role of
"coordinating and managing the delivery and transportation of the marijuana
from Jamaica into the United States," which involvement demonstrated that he
"had the responsibility of ensuring that the contemplated smuggling venture
would succeed."). In United States v. Howard, 923 F.2d 1500, 1503 (11th
Cir.1991), the defendant, who became a government informant, properly had
his sentence enhanced for his managerial role because he acted as "a source of
credit" and "maintained at least constructive control" over the individual to
whom he provided the drugs and collected payment. Edwards functioned in the
same way, and it is apparent that his funds were derived from the drug
distribution conspiracy. For the purpose of enhancing his sentence for acting as
a manager or supervisor, it is sufficient that Edwards specifically directed the
participation of Bruff and his roommate in their operation in the drug
distribution conspiracy. "The defendant need not be a sole leader or a kingpin,
only a supervisor or manager."7 United States v. Smith, 918 F.2d 1501, 1513
(11th Cir.1990) (emphasis added). We conclude that the district court was not
clearly erroneous in evaluating Edwards's managerial or supervisory role in the
drug distribution operation and, thus, increasing his sentence by two levels.

III. CONCLUSION
44

For the reasons analyzed herein, we AFFIRM the district court's conclusions
under the Sentencing Guidelines concerning increased sentences for
transactions involving crack as opposed to powder cocaine, the amount of
cocaine, and Edwards's managerial role in the drug distribution conspiracy.

The drug distribution operation in which Griffin and Edwards participated

involved numerous individuals. In this appeal, we focus on the activities of
Griffin and Edwards

Griffin was subject to a 60-month maximum sentence under 18 U.S.C.

1952(a), and a 48-month maximum sentence under 21 U.S.C. 843(b)

Edwards was subject to a maximum sentence of 60 months for each of two

counts under 18 U.S.C. 1952(a)

We note that counsel for Griffin and Edwards had the opportunity specifically
to question the GBI agent regarding his ability to detect crack cocaine. R6-6138-40

The undercover FBI agent, who had purchased one ounce of cocaine
previously, met again on February 24, 1989, with the drug distribution leader,
who had advised that he was in the process of arranging for one kilogram of
cocaine to be acquired in Miami on February 26, 1989, to be delivered in
Atlanta on February 27, 1989. At the sentencing hearing, the district judge
stated that the probation officer was erroneous to have omitted this kilogram of
cocaine in calculating the cocaine quantity for the conspiracy, because the
evidence showed that the conspiracy intended to possess and distribute at least
this one kilogram of cocaine, although the transaction was not completed. R66-115, 117, 118

Edwards argues that his supervision of Bruff is inapplicable for determining his
managerial role because Bruff was a government informant. Bruff was an
active member in the drug distribution operation before he became a
government informant, and thereafter he continued to function in apparently the
same capacity as far as Edwards was concerned. See United States v. Smith,
918 F.2d 1551, 1558-59 (11th Cir.1990) (Because there was sufficient evidence
of a defendant and a coconspirator's participation in a cocaine importation
conspiracy before the coconspirator became a government informant, this court
found that recorded telephone conversations between the defendant and
government informant were admissible.). This court also has found that a
coconspirator, who was subordinate to the marijuana supplier and arranged for
the delivery and transportation of marijuana from Jamaica into the United
States, including coordinating the smuggling with an undercover GBI agent
posing as a pilot, had a supervisory role in ensuring the success of the
importation operation within the meaning of the Sentencing Guidelines
3B1.1. United States v. Jones, 933 F.2d 1541, 1547 (11th Cir.1991)

In United States v. Smith, 918 F.2d 1501 (11th Cir.1990), a confidential

informant explained that a coconspirator in a narcotics operation supervised
cocaine salesmen, including the provision and collection of money, and that he
was known as "Boss" or "Boss Man." This court concluded that the
coconspirator acted in a managerial or supervisory role, and reasoned: "The
subordinates need not have acted in concert with one another. There can exist
separate individual relations between defendant and the subordinates." Id. at
1513