PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4833

LEONARD ANDREW SAYLES, JR, a/k/a

Leno,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4859

ROBERT JARED SMITH,

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-99-198)

Argued: May 9, 2002

Decided: July 10, 2002

Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed in part and vacated and remanded in part by published opinion. Judge Motz wrote the opinion, in which Judge Wilkins and Judge

Michael joined. 
COUNSEL

ARGUED: Brian Alexander Glasser, BAILEY & GLASSER, L.L.P.,

Charleston, West Virginia; John G. Hackney, Jr., Charleston, West

Virginia, for Appellants. John J. Frail, Assistant United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Kasey

Warner, United States Attorney, Charleston, West Virginia, for

Appellee. 

OPINION

DIANA GRIBBON MOTZ, Circuit Judge: 

A jury convicted Leonard Sayles and Robert Jared Smith of various

drug offenses; Sayles was also convicted of a related firearm violation. The district court sentenced Sayles to 295 months of imprisonment, followed by a five-year term of supervised release; the court

sentenced Smith to life imprisonment, followed by a five-year term

of supervised release. Sayles and Smith appeal, challenging their convictions and sentences. We affirm their convictions, vacate their sentences, and remand for resentencing. 

I.

At trial, a number of law enforcement officers testified regarding

their investigation and surveillance of drug distribution activities at

the City Park apartment complex on Roseberry Circle in Charleston,

West Virginia. On January 28, 1999, two officers conducting video

surveillance observed both Smith and Sayles engaging in "hand-tohand" transactions involving substances that appeared to be illegal

drugs. 

The officers videotaped Smith carrying "a plastic bag containing a

white tan hard substance," apparently selling illegal drugs to others.

Smith then drove away from Roseberry Circle in a purple Maxima.

Law enforcement officers stopped the Maxima; a subsequent search

yielded $1,690 on Smith’s person and digital scales with cocaine residue in the center console of his car. Officers also recovered nearby

2 UNITED STATES v. SAYLES
3.7 grams of crack, which had been thrown from the Maxima by one

of Smith’s passengers, John Clements, immediately prior to the stop.

At the police station, Smith asked an officer "how are you going to

hold me after [Clements] done told you the dope was his?" 

As to Sayles, on January 28, 1999, the officers at Roseberry Circle

videotaped him attempting to give money to another co-defendant and

carrying "a plastic bag with a [large amount of] white tan substance

up against his shirt." Nine months later, on September 22, 1999, officers stopped a white Mustang, in which Sayles was a passenger. Officers recovered one weapon underneath the driver’s seat, which the

driver admitted was his, and a second weapon, a Lorsin .380 pistol,

underneath the passenger seat where Sayles had been riding; officers

also recovered digital scales from Sayles’s seat. At the police station,

officers found 4.01 grams of crack on Sayles. In addition, one officer

testified at trial that Sayles admitted that the gun under the passenger

seat was his and told the officers that he carried the gun because

"some of his boys . . . were getting shot." 

The prosecution’s expert testified that drug dealers (not users)

carry digital scales and crack amounts greater than three-and-a-half

grams. Other named co-defendants who pled guilty to various related

drug charges also testified against Smith and Sayles. Arbera Ross, an

admitted drug dealer, testified that he sold crack to Smith "four or five

times" during 1998, ranging from 100 grams to a "dub" (i.e., $200

worth of cocaine for $100). Ross also testified that he had sold Sayles

crack "[a]bout ten times . . . from a hundred grams and the rest would

be ounces." Marvin Garrett, another drug dealer, testified that he "lost

count" of the times he had seen Smith distributing crack to others and

had obtained from six grams to an ounce of crack from Smith on ten

to twenty occasions from 1995 to 1999. Garrett also testified that he

and Sayles had cooked cocaine into crack "numerous times . . . [f]or

resale on the streets." According to Garrett, he received "a hundred

dub" or "a couple grams" of crack from Sayles "[a]bout ten or more

times" and had observed Sayles distributing crack to others "[m]ore

than 20 times" from 1995 to 1999. 

In his defense, Smith proposed to call John Clements, the coconspirator who was Smith’s passenger during the January 28 traffic

stop. But the district court permitted Clements’s attorney to assert

UNITED STATES v. SAYLES 3
Clements’s Fifth Amendment right to refuse to testify. Smith then

called Herman James, another co-defendant, who also asserted his

Fifth Amendment privilege. Neither Smith nor Sayles called any other

witnesses. 

The jury convicted Sayles of one count of conspiracy to distribute

fifty grams or more of cocaine base in violation of 21 U.S.C.A. § 846

(West 1999), two counts of possession with intent to distribute

cocaine base in violation of 21 U.S.C.A. § 841(a)(1) (West 1999), and

one count of carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C.A. § 924(c)(1)(A) (West 2000).

The jury convicted Smith of one count of conspiracy to distribute fifty

grams or more of cocaine base in violation of 21 U.S.C.A. § 846, and

one count of aiding and abetting possession with intent to distribute

cocaine base in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A.

§ 2 (West 2000). 

At sentencing, the district court applied a four-level enhancement

to Smith, as an "organizer or leader," and sentenced him to life

imprisonment on the drug conspiracy count and twenty years on the

aiding and abetting count, to be served concurrently, followed by five

years’ supervised release. The district court applied a two-level

enhancement to Sayles for his lesser aggravating role and sentenced

him to 235 months on each of the three drug counts, to be served concurrently, a 60-month consecutive sentence on the firearm count, and

five years’ supervised release. 

Smith and Sayles challenge both their convictions and sentences on

several grounds. Only two of these challenges merit extended discussion. 

II.

Smith contends that the district court erred in permitting John

Clements’s counsel to invoke Clements’s Fifth Amendment privilege

against self-incrimination and so allowing Clements to avoid testifying on Smith’s behalf. (Smith makes no similar claim with respect to

Herman James’s proposed testimony.) 

4 UNITED STATES v. SAYLES
Smith’s counsel attempted to elicit testimony from Clements, who

had entered into a plea agreement as to a distribution count of the

same indictment in which Smith and Sayles were charged. Clements’s

attorney stated that Clements would "take the Fifth" if called. His

attorney explained that Clements had a "good faith basis" to do so

because, inter alia, "there could be issues raised . . . that would concern uncharged conduct for which Mr. Clements does not have immunity." The district court then held a hearing outside the presence of

the jury, in which Smith’s counsel stated that his inquiries "would be

limited to the question of whether [Smith] aided and abetted [Clements] in a distribution" as alleged in the indictment, particularly

regarding the money officers seized from Smith during the traffic stop

on January 28, 1999. Smith’s counsel proffered: 

that if he had taken the stand, Mr. Clements would have testified that Mr. Smith did not aid and abet him in the distribution which is alleged in count 5. It is also my understanding

that his testimony would have been that at the time he was

arrested on January 29th or 28th, 1999 that he had in his

possession certain sums of money and that Mr. Smith had

certain sums of money and that when that money was found,

the officers, particularly Officer Rinehart[,] took the money

— took all of the money from the two of them and told the

two of them that they were going to put the drugs on Mr.

Clements and the money on Mr. Smith. 

The court noted that it had not yet accepted Clements’s plea or sentenced Clements, and Clements’s counsel stated that "because there

is no termination of prosecution clause [in Clements’s plea agreement] . . . it’s possible that he could be prosecuted for other activities." Clements’s attorney then asked Clements, under oath, "if you

were called as a witness in this trial and were asked questions by

either the defense or the prosecution, would you invoke your Fifth

Amendment right to silence." Clements answered, "[y]es," and the

court excused him. 

The Sixth Amendment grants a defendant the right to compel testimony by witnesses in his defense. When a defendant’s right to compel testimony conflicts with a witness’ privilege against selfincrimination, however, a court must "make a proper and particularUNITED STATES v. SAYLES 5
ized inquiry into the legitimacy and scope of the witness’ assertion of

the privilege." Gaskins v. McKellar, 916 F.2d 941, 950 (4th Cir.

1990). A court can excuse a witness from testifying "only if the court

finds that [the witness] could legitimately refuse to answer any and

all relevant questions." Id.; accord Hoffman v. United States, 341 U.S.

479, 486-88 (1951); Rogers v. United States, 340 U.S. 367, 374

(1951). 

In this case, we need not determine if the district court erred in failing to make a more specific inquiry to determine whether Clements

could claim a valid Fifth Amendment privilege. This is so because

even if the court did err, that error was harmless. 

An error is harmless if it is "clear beyond a reasonable doubt that

a rational jury would have found the defendant guilty absent the

error." Neder v. United States, 527 U.S. 1, 18 (1999). Even if the district court had conducted a more particularized inquiry, and that

inquiry had resulted in Clements being permitted to testify, and Clements had testified that Smith did not aid and abet him in possessing

and distributing crack on January 28, 1999, we believe it clear beyond

a reasonable doubt that a jury nevertheless would have found Smith

guilty of that crime. 

Law enforcement officers testified to seeing Smith, Sayles, Clements, and others, including Arbera Ross and Marvin Garrett, engaged

in illegal drug distribution activity at the Roseberry Circle complex

for several hours on January 28, 1999. Officers videotaped Smith and

Clements engaging in these activities, and the prosecution then played

important portions of those videotapes to the jury. Eventually officers

reported that Smith and Clements left the area in a purple Maxima —

with Smith driving and Clements in the passenger seat. After a police

cruiser activated flood lights and sirens to stop the Maxima, officers

testified that "an arm came out of the passenger window" and threw

an object out; that an officer within five minutes recovered the object,

which police later tested and found to be 3.7 grams of crack. The

police searched Smith and found $1,690, mostly in twenty dollar bills,

and drug scales in his car. Two of Smith’s and Clements’s coconspirators, Ross and Garrett, substantiated the police officers’

account of Smith and Clements’s drug activity on January 28, 1999.

Given this evidence, even if Clements had testified as Smith proffered

6 UNITED STATES v. SAYLES
he would, it is clear beyond a reasonable doubt that any reasonable

jury would have convicted Smith of aiding and abetting Clements in

possession with intent to distribute cocaine on January 28, 1999.1

III.

Both Smith and Sayles argue that the district court erred in increasing their offense levels at sentencing. The district court assessed a

four-level increase on Smith for his aggravating role as an "organizer

or leader" in the drug conspiracy, and a two-level increase on Sayles

for his lesser aggravating role in the conspiracy. We review a district

court’s decision to apply a sentencing adjustment based on a defendant’s role in the offense for clear error. United States v. Sheffer, 896

F.2d 842, 846 (4th Cir. 1990). 

To qualify for a four-level increase under § 3B1.1(a) of the Sentencing Guidelines, like that imposed on Smith for his role in the conspiracy, a defendant must have been "an organizer or leader of a

criminal activity that involved five or more participants or was otherwise extensive." U.S. Sentencing Guidelines Manual (U.S.S.G.)

§ 3B1.1(a) (1999). The Guidelines provide for a three-level increase

if a "defendant was a manager or supervisor (but not an organizer or

1Sayles maintains that insufficient evidence supports his conviction for

the firearm offense, using or carrying a weapon during and in connection

with a drug trafficking offense in violation of 18 U.S.C.A. § 924(c). We

can set aside his conviction only if no reasonable jury could have concluded beyond a reasonable doubt that he committed this crime. See

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). At

trial, the prosecution offered more than sufficient evidence to satisfy this

standard, including the handgun found beneath the passenger seat where

Sayles had been seated while carrying more than four grams of crack

prepared for individual sale, and Sayles’s admission that the gun was his

and that he carried it for protection because "some of his boys . . . were

getting shot." See Muscarello v. United States, 524 U.S. 125, 126-27

(1998) (holding that one carries a firearm within the meaning of

§ 924(c)(1) if he carries the firearm anywhere inside a vehicle); United

States v. Mitchell, 104 F.3d 649, 654 (4th Cir. 1997) (stating that "if a

firearm is carried for protection or intimidation, it is carried ‘in relation

to’ the drug trafficking offense within the meaning of § 924(c)(1)" (citation omitted)). 

UNITED STATES v. SAYLES 7
leader) and the criminal activity involved five or more participants or

was otherwise extensive." U.S.S.G. § 3B1.1(b). Finally, § 3B1.1(c)

provides for a two-level increase when a court finds, as the district

court did with respect to Sayles, that a defendant "was an organizer,

leader, manager, or supervisor in any criminal activity other than that

discussed in [§ 3B1.1] (a) or (b)." U.S.S.G. § 3B1.1(c). 

Neither Smith nor Sayles argues that the charged conspiracy

involved fewer than five participants. Rather, each of them raise a single contention: the Government did not produce evidence that he

functioned as any sort of "organizer, leader, manager or supervisor"

in the conspiracy. 

The Sentencing Commission has indicated that a court should consider seven factors in determining a defendant’s "leadership and organizational role." U.S.S.G. § 3B1.1, cmt. n.4. These include: "[1] the

exercise of decision making authority, [2] the nature of participation

in the commission of the offense, [3] the recruitment of accomplices,

[4] the claimed right to a larger share of the fruits of the crime, [5]

the degree of participation in planning or organizing the offense, [6]

the nature and scope of the illegal activity, and [7] the degree of control and authority exercised over others." Id.

The district court made abbreviated findings in support of its decision to increase Smith and Sayles’s offense levels. With respect to

Smith, the court simply stated: 

Mr. Smith has an elevated role in this organization, he is at

the level just below Mr. Ross and Mr. James, and he shares

on the same level with the absent Mr. Groom, and he is

involved as an organizer and leader in an organization that

involves five or more people and, consequently, the court

sets the 4 points on that. 

When Smith’s counsel objected that "no evidence" had been "offered"

at the sentencing hearing "to support" the four-level increase, the district court responded that it relied on the findings in the presentence

report and the evidence at trial. The probation officer’s presentence

report, in turn, contains only the following "finding" as to "Adjustment for Role in the Offense": 

8 UNITED STATES v. SAYLES
The evidence suggests that Mr. Smith was a leader in criminal activity involving five or more participants. The participants include Arbera Ross, Simernon Rogers, Calvin Dyess,

as sources of supply for the defendant’s distribution and

Ronald Tinsley, and Ivan Lee as distributors for the defendant. If the court finds Mr. Smith held an aggravating role,

the probation officer believes a 4-level increase is appropriate. 

In Sayles’s case, the presentence investigation report recommended

that because the conspiracy involved five or more participants and

Sayles "had at least three sources of supply for crack cocaine and one

person stated that he sold crack for Mr. Sayles on approximately 20

occasions,"(emphasis added),2 Sayles was "by definition a leader in

criminal activity involving five or more participants" and, therefore,

"a 4 level increase is appropriate." The district court adopted these

findings but rejected the recommendation, explaining that "the testimony supported" Sayles’s contention that he was "a lesser player in

this conspiracy." For this reason, the district court assessed Sayles

"only a two-point enhancement, pursuant to 3B1.1(c)." 

These are the only findings supporting the role adjustments

assessed against Smith and Sayles. No matter how generously these

findings are read, the sole justification offered for imposition of an

adjustment for a leadership or management role on Smith and Sayles

is that they bought and sold crack. But being a buyer and seller of illegal drugs, even in league with more than five or more other persons,

does not establish that a defendant has functioned as an "organizer,

leader, manager or supervisor" of criminal activity. See United States

v. Anderson, 189 F.3d 1201, 1212 (10th Cir. 1999); United States v.

Medina, 167 F.3d 77, 80-81 (1st Cir. 1999); United States v. Vargas,

16 F.3d 155, 160 (7th Cir. 1994). Cf. United States v. Bartley, 230

F.3d 667, 673-74 (4th Cir. 2000) (affirming § 3B1.1 adjustment and

noting "[t]his is not a case in which a defendant simply supplied drugs

2This statement and a similar statement quoted above in Smith’s presentence report reference only drug sales by Smith and Sayles; the Government does not contend that Smith or Sayles controlled their buyers,

nor does the trial testimony establish that Smith or Sayles controlled

those who purchased drugs from them. 

UNITED STATES v. SAYLES 9
and negotiated their sale"); United States v. Perkins, 108 F.3d 512,

518 (4th Cir. 1997) (affirming § 3B1.1 adjustment and rejecting

defendant’s contention that "he only had a buyer/seller relationship

with his codefendants"). 

The Government does not contend to the contrary. Nor does the

Government argue that it introduced evidence that Smith or Sayles

"exercise[d] decision making authority." See U.S.S.G. § 3B1.1, cmt.

n.4; Perkins, 108 F.3d at 518 (affirming § 3B1.1 adjustment when

defendant facilitated criminal enterprise by "renting apartments,

acquiring pagers, hiring a lawyer for a codefendant, and paying for

the bond of another codefendant"); United States v. Brooks, 957 F.2d

1138, 1152 (4th Cir. 1992) (affirming § 3B1.1(b) adjustment when

defendant, inter alia, paid employees of the drug operation and "effectively ran the operation while her husband was ill"). 

Similarly, the Government does not claim that its evidence demonstrated that Smith or Sayles "plan[ned] and organize[d]" the drug trafficking or "exercise[d] . . . control and authority over others" in the

conspiracy. Compare U.S.S.G. § 3B1.1, cmt. n.4; Bartley, 230 F.3d

at 673-74 (affirming § 3B1.1(b) adjustment when defendant directed

others as to where to mail and transport drugs, set prices and terms

of payment, arranged logistics of deliveries, and gave advice as to

how to market the product); United States v. Al-Talib, 55 F.3d 923,

932 (4th Cir. 1995) (affirming § 3B1.1(b) adjustment when defendant

"acted as a manager in a large criminal enterprise, supervising the

preparation of marijuana for shipment and sending out his inferiors to

deliver the drugs"); United States v. Kincaid, 964 F.2d 325, 329 (4th

Cir. 1992) (affirming § 3B1.1(c) adjustment when defendant "exercised control" over "co-conspirator . . . by providing him with specific

instructions on the circumstances under which he could sell narcotics

from [defendant’s] residence," directed other drug transactions, and

instructed another as to abduction of a drug dealer and how to obtain

a refund for unsatisfactory cocaine). 

The Government does, however, contend that it offered evidence

proving two of the factors relevant to an aggravating role determination as to Smith and one as to Sayles. Specifically, the Government

argues that its evidence established that both Smith and Sayles "recruited" drug couriers and that Smith retained "a larger share of the

10 UNITED STATES v. SAYLES
proceeds" of the drug conspiracy. See U.S.S.G. § 3B1.1, cmt. n.4.

Such evidence could provide the basis for a § 3B1.1 adjustment only

it if demonstrated that Sayles was an organizer, leader, manager or

supervisor of people. See United States v. Capers, 61 F.3d 1100, 1109

(4th Cir. 1995); see also Bartley, 230 F.3d at 673-74 (affirming

§ 3B1.1(b) adjustment where the evidence showed the defendant

"controlled the activities of other participants" and "exercised management responsibility," by, inter alia, "handling proceeds" and "direct[ing] others to wire proceeds from the drug distribution activities

or to receive such transfers of funds on his behalf"). In this case, evidence of recruitment and retention of a larger share of the proceeds

cannot demonstrate this since such evidence does not exist. 

Neither in its brief nor at oral argument could the Government provide any record citation supporting its contention that it offered such

evidence. Smith and Sayles included the entire trial transcript in the

joint appendix to support their contentions that the Government failed

to produce evidence of recruitment or Smith’s retention of a larger

share of the proceeds. We have carefully reviewed that transcript and

can only agree. 

The trial was short, with testimony consuming only part of two

days; as the district court noted prior to instructing the jury, the evidence was "rather briefly presented." For the most part, the Government relied on the testimony of ten law enforcement officers and

employees, who related what they observed on January 28, 1999, and

September 22, 1999, displayed the video tapes made on the former

date, described the searches resulting from these observations, provided chain of custody evidence, and presented expert opinions. None

of these witnesses would seem to be in a position to have actual

knowledge as to Smith’s or Sayles’s possible aggravating roles; in

any event, none of these witnesses were questioned on those matters.

The Government did also offer the testimony of co-conspirators

Ross and Garrett, who presumably might have been able to supply

evidence as to Smith and Sayles’s respective roles in the conspiracy,

if they had been asked to do so. But they were never asked about this.

Rather, in response to the prosecutor’s questions, Ross simply identified Smith and Sayles and testified that he had sold crack to both of

them; Garrett also identified Smith and Sayles and testified that he

UNITED STATES v. SAYLES 11
and Sayles "converted cocaine powder to crack," that he purchased

crack from Sayles and Smith, and that he observed Sayles sell crack

and Smith buy crack from others. Neither Ross nor Garrett were questioned about, or testified to, recruitment efforts by either Smith or

Sayles or whether Smith took a larger share of the profits from the

drug conspiracy. 

In sum, the Government certainly produced ample evidence that

both Smith and Sayles bought and sold significant amounts of cocaine.3

But the Government offered no evidence that either defendant

recruited drug couriers or that Smith claimed a larger share of the

fruits of the conspiracy. Of course, this is not to say Smith and Sayles

did not recruit others, or that Smith did not retain a larger share of the

drug conspiracy profits, or, for that matter, that Smith and Sayles did

not act as decision-makers or exercise control over others. Smith and

Sayles may have done some or all of these things, but at their short

trial, the Government failed to present such evidence. Given the total

absence of evidence as to Smith’s or Sayles’s aggravating role, we

must conclude that the district court clearly erred in its application of

U.S.S.G. § 3B1.1. See United States v. Harriott, 976 F.2d 198, 202

(4th Cir. 1992) (vacating and remanding for resentencing when district court clearly erred in applying U.S.S.G. § 3B1.1). Accordingly,

we vacate their sentences and remand for resentencing in accord with

this opinion.4

3Sayles’s contention that the district court erred in determining the

quantity of controlled substances attributable to him as relevant conduct

clearly fails. The district court attributed to Sayles 940 to 960 grams of

crack. Sayles argues that Ross’s testimony on this point at trial conflicted

with his testimony at Sayles’s sentencing hearing. Even if we agreed,

Garrett’s consistent testimony at trial and at sentencing provided evidence fully supporting the threshold quantity of crack needed to sustain

the sentence. See United States v. Uwaeme, 975 F.2d 1016, 1018 n.8 (4th

Cir. 1992). 

4Sayles has filed a pro se motion to amend his appellate brief, which

we have granted. He argues in his amendment that his indictment violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The argument is

meritless. See United States v. Roberts, 262 F.3d 286, 291 (4th Cir. 2001)

(holding no Apprendi error existed when none of defendant’s concurrent

sentences exceeded the statutory maximum) (citing United States v. Kinter, 235 F.3d 192, 201-02 (4th Cir. 2000)). 

12 UNITED STATES v. SAYLES
IV.

For the foregoing reasons, we affirm Smith and Sayles’s convictions, but vacate their sentences and remand for resentencing.

AFFIRMED IN PART AND VACATED

AND REMANDED IN PART

UNITED STATES v. SAYLES 13