UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4569

TYHEIM SHAWNDALE LITTLE, a/k/a

Israel, a/k/a Is,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4586

TREVOR LITTLE, a/k/a Tragedy, a/k/a

Trag,

Defendant-Appellant.

Appeals from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-95-198)

Submitted: July 15, 1997

Decided: September 11, 1997

Before HALL, MURNAGHAN, and NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Daniel S. Corey, Poca, West Virginia; Christopher J. Havens,

Charleston, West Virginia, for Appellants. Rebecca A. Betts, United

States Attorney, Monica K. Schwartz, Assistant 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Unpublished opinions are not binding precedent in this circuit.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:

In these consolidated appeals, Tyheim Shawndale Little (No. 96-

4569) and Trevor Little (No. 96-4586) appeal from their multiple jury

convictions after a four-day trial for various drug trafficking crimes

and their resulting life sentences. Because we find that the trial court

did not err in any of its evidentiary rulings during trial, that the evidence is sufficient to support the convictions, and that Appellants

were properly sentenced, we affirm Appellants' convictions and sentences.

Construed in the light most favorable to the Government, the evidence discloses that Appellants were engaged in a drug trafficking

network in which they acquired quantities of cocaine and cocaine

base in New York City and then distributed the drugs in Charleston,

West Virginia. The two organized numerous persons to support the

drug trafficking conspiracy in various ways, including couriers, distributors, runners, protectors, and chauffeurs. The drug trafficking

operation began to unravel in 1995 when some of their minions were

arrested.

In December 1995, Trevor was finally arrested after engaging

police in a high speed chase through residential areas of Charleston.

Several police officers in several cars were involved in the chase, dur-

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ing which the vehicle in which Trevor fled drove onto a sidewalk to

avoid hitting a police vehicle parked in an intersection. One police car

blew out a tire during the chase and narrowly avoided hitting a bus.

When the vehicle finally came to a stop, Trevor exited with a loaded

semi-automatic handgun and attempted to flee on foot. In the course

of his flight, Trevor fell off a cliff and injured his back. Trevor was

hospitalized for approximately one week due to his injuries.

The officer who arrested Trevor after his fall ("Harper") advised

him of his Miranda rights at the scene. He testified that he found Trevor to be conscious and attentive and that Trevor stated he understood

his rights. Trevor later testified at a suppression hearing that he did

not remember being told his rights at the scene but acknowledged that

he knew what his Miranda rights were because he had been arrested

before.

The police guarded Trevor at all times during his hospitalization.

During this time, he made several incriminating statements to police

officers which he later sought to suppress. The district court denied

the suppression motion after a two-day hearing. Both Appellants

assert that the court improperly denied the suppression motion

because Trevor was unable to understand his Miranda warnings due

to his injuries and his subsequent hospitalization and treatment.

This court reviews the district court's factual findings on Appellants' motion to suppress for clear error. United States v. McCraw,

920 F.2d 224, 227 (4th Cir. 1990). Whether Trevor knowingly and

intelligently waived his Fifth Amendment rights is also a question of

fact which this Court reviews for clear error. United States v. Gordon,

895 F.2d 932, 939 (4th Cir. 1990). The Court reviews the district

court's legal conclusions de novo. United States v. Daughtrey, 874

F.2d 215, 217 (4th Cir. 1989).

After hearing testimony, the district court found as matters of fact

that Harper advised Trevor of his Miranda rights when he was

arrested; that Trevor knew what his Miranda rights were and that Trevor knew he was indicted. The court also found that Trevor was

advised of his right to counsel; that he was alert, responsive, and talkative while hospitalized even though he was medicated; that Trevor

was again advised of his Miranda rights in the hospital; and that he

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"volunteered" the incriminating statements he made to police officers

who guarded him in the hospital. We find that none of these factual

findings is clearly erroneous. We further conclude that these findings

support the court's decision to admit Trevor's incriminating statements under 18 U.S.C. § 3501 (1994) in the prosecution of both

Appellants.

Both Appellants assert that the evidence was insufficient to support

their convictions of conspiracy. The jury's verdict must be upheld if

there is substantial evidence, taking the view most favorable to the

government, to support the finding of guilt. United States v. Jackson,

863 F.2d 1168, 1173 (4th Cir. 1989). The necessary elements to support a conspiracy conviction include: (1) an agreement among the

defendants to do something illegal; (2) knowing and willing participation in the agreement; and (3) an overt act in furtherance of the purpose of the agreement. United States v. Meredith , 824 F.2d 1418,

1428 (4th Cir. 1987). Knowledge and participation in the conspiracy

may be proved by circumstantial evidence. Id. 

Construing both direct and circumstantial evidence in the light

most favorable to the Government, we find it sufficient to support the

jury's verdicts that both Appellants engaged in a conspiracy to distribute crack cocaine. It is clear from trial testimony that Trevor and

Tyheim worked together to obtain and to distribute the drugs.

Both Appellants also assert that the district court erred in permitting the Government to introduce into evidence plea agreements of

co-defendants Spence and Adkins. Neither raised this objection at

trial, however, and we find no plain error. See United States v. Olano,

507 U.S. 725, 731-32 (1993); Fed. R. Crim. P. 52(b). Appellants fail

to establish error at all, plain or otherwise. Government witnesses'

plea agreements may be admitted to explain the government's procedures and the relationship between it and its witnesses, and the admission of such plea agreements does not constitute improper

"bolstering." See United States v. Lewis , 10 F.3d 1086, 1089 (4th Cir.

1993).

Both Appellants also assert that the sentencing court erred in applying an enhanced sentence for "crack" pursuant to USSG § 2D1.1

because the Government did not establish by a preponderance of the

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evidence that the cocaine base they distributed was crack rather than

another form of cocaine base. Again, we review this claim for plain

error because Appellants did not raise this objection below. We find

Appellants have failed to establish plain error in this respect.

Both Appellants continue that the sentencing court relied upon

unreliable hearsay testimony to determine drug quantities for sentencing purposes. They allege that the findings contained in the presentence reports, which the sentencing court adopted, are clearly

erroneous because they are based on inaccurate testimony.

The Government need only establish quantity by a preponderance

of the evidence, and this court accepts those findings of fact unless

they are clearly erroneous. United States v. Williams, 986 F.2d 86, 90

(4th Cir. 1993). The sentencing court may consider all evidence

before it at sentencing in determining quantity. United States v.

Wilson, 896 F.2d 856, 858 (4th Cir. 1990). The court may rely upon

any relevant information without regard to its admissibility under the

rules of evidence provided that the information has sufficient indicia

of reliability to support its probable accuracy. United States v.

Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992). With these standards

in mind, we find that a preponderance of the evidence supports the

court's calculations of quantity, and that the Littles' claims to the contrary are meritless.

Both Appellants also assert that the Government violated due process by issuing indictments that did not specify a definite quantity of

crack which they allegedly distributed. They maintain that because of

this failure to specify an amount in the indictments, they were not

notified that they might be subjected to enhanced penalties under 21

U.S.C. § 841(b). The quantity of drugs is a sentencing factor which

the Government need only establish by a preponderance of the evidence at sentencing. Williams, 986 F.2d at 90. Drug quantity is not

a substantive element of a § 841 offense. United States v. Fletcher, 74

F.3d 49, 53 (4th Cir.), cert. denied, #6D 6D6D# U.S. ___, 65 U.S.L.W. 3260

(U.S. Oct. 7, 1996) (No. 95-9447). Therefore, we conclude there is no

requirement that the indictment set forth a specific quantity of controlled substance.

Appellants also object to the sentencing court's imposition of sentencing enhancements for their roles in the offense and for possession

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of firearms. It is within the discretion of the district court to determine

that a defendant was an organizer or leader of criminal activity that

involved five or more participants for purposes of a four-level

increase in offense level under USSG § 3B1.1. United States v.

Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995), cert. denied, ___ U.S.

___, 64 U.S.L.W. 3708 (U.S. Apr. 22, 1996) (No. 95-8395). This

court reviews the district court's factual determination regarding the

defendants' roles in the offense under § 3B1.1 for clear error. Id.

Since there was ample evidence presented at trial and at sentencing

that supported the district court's conclusion that Appellants were

"equal partners" in leading a drug possession and distribution conspiracy with "five levels" in the possession and distribution ring, we find

no clear error.

This court also reviews a weapon enhancement under USSG

§ 2D1.1(b)(1) for clear error. United States v. Rusher, 966 F.2d 868,

880 (4th Cir.), cert. denied, 506 U.S. 926 (1992). Under that Guidelines section, the sentencing court applies a two-level enhancement if

a dangerous weapon was possessed. Since there was ample evidence

that both Trevor and Tyheim carried and used firearms in the course

of their drug trafficking exploits, the court's§ 2D1.1 enhancement

was not clearly erroneous.

Trevor alleges that the court improperly enhanced his sentence

under USSG § 3C1.2 for reckless endangerment during flight. That

section provides for a two-level increase in offense level "[i]f the

defendant recklessly created a substantial risk of death or serious bodily injury to another person" while fleeing from a police officer. We

review the district court's determination that Trevor's flight from law

enforcement presented a reckless risk of endangerment for clear error.

United States v. Chandler, 12 F.3d 1427, 1433 (7th Cir. 1994). We

find no clear error here. Trevor, who was armed with a loaded handgun, evaded capture by authorities in a high speed chase that involved

several vehicles. His willful, reckless conduct during flight clearly

could have caused injury to others.

Trevor also asserts that the court improperly adjusted his sentence

for obstruction under USSG § 3C1.1 because there was insufficient

evidence that his conduct was "obstructive." Whether Trevor's conduct amounted to obstruction of justice is a legal question which we

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review de novo, United States v. Saintil, 910 F.2d 1231, 1232 (4th

Cir. 1990), but we review the underlying factual findings for clear

error. Daughtrey, 874 F.2d at 217.

As the court observed, there was "abundant evidence" presented to

support this two-level increase in offense level. One of the Government's witnesses who testified against the Little brothers stated that

Trevor threatened him and that he seriously considered not testifying

as a result of the threats, and the witness was transferred to another

jail because of the threats. We conclude that Trevor's intimidating

comments to the witness support the court's sentencing enhancement

for obstruction.

Finally, Tyheim asserts that the court clearly erred in attributing

4829.18 grams of cocaine base to him because the court failed to find

that the full amount was reasonably foreseeable or jointly undertaken

by him under USSG § 1B1.3. We find the court's quantity calculation

adequately supported by the record.

For these reasons, we affirm both Appellants' convictions and sentences. We deny Trevor Little's motion for oral argument and dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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