UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4900

DAVID RAY CALLOWAY, a/k/a Tony

Montana,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4906

DANA SANDER,

Defendant-Appellant. 

Appeals from the United States District Court

for the Middle District of North Carolina, at Greensboro.

William L. Osteen, District Judge.

(CR-03-142)

Submitted: June 30, 2004

Decided: September 22, 2004

Before LUTTIG and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

Rehearing granted, March 8, 2005
COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,

North Carolina; H. Dean Steward, San Clemente, California, for

Appellants. Anna Mills Wagoner, United States Attorney, Paul A.

Weinman, Assistant United States Attorney, Winston-Salem, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

David Ray Calloway and Dana Sander pled guilty to conspiracy to

distribute more than 50 grams of cocaine base (crack), 21 U.S.C.

§ 846 (2000), and Calloway also pled guilty to using or carrying a

firearm during a drug crime, 18 U.S.C. § 924(c) (2000). Calloway

received a sentence of 170 months imprisonment for the conspiracy

and a consecutive sixty-month term for the § 924(c) count. Sander

was sentenced to a term of 210 months imprisonment. Both Calloway

and Sander appeal their sentences. We affirm. 

Calloway and Sander were arrested on February 11, 2003, after

Calloway sold 1.9 grams of crack to a confidential informant. Sander

had followed Calloway to the confidential informant’s home in a separate car and got into Calloway’s car immediately following the sale.

From Calloway’s car, law enforcement officers retrieved the marked

bills the confidential informant had paid him, an electronic scale, and

a loaded revolver with an obliterated serial number concealed in a can

disguised as a dog food can. They also found 14.2 grams of powder

cocaine, 143.1 grams of crack, plastic bags, and a crack pipe in hidden compartments in spray cans disguised as cans of furniture wax,

foot powder, and hair spray. Sander’s car contained an electronic

scale, as well as crack residue and plastic bags hidden in a hair spray

can. 

2 UNITED STATES v. CALLOWAY
Sander gave a statement after her arrest in which she said she met

Calloway at the confidential informant’s home to buy an eight-ball

(3.5 grams) of crack. She said she sold crack and that Calloway was

one of her sources. She said she bought an eight-ball of crack from

him at least three times a week and that she had driven him to Atlanta

three times in the preceding months so that he could buy crack, which

he later sold in North Carolina. 

In June 2003, Sander pled guilty to conspiring with Calloway to

distribute more than fifty grams of crack from December 2002 to February 11, 2003. On August 7, 2003, three days before his scheduled

trial date, Calloway entered a guilty plea to the conspiracy count and

a § 924(c) offense. Calloway and Sander were sentenced together.

Over Calloway’s objection, the district court awarded him a two-level

adjustment pursuant to U.S. Sentencing Guidelines Manual

§ 3B1.1(c) (2003) because he had organized the trips to Atlanta to

obtain drugs from a source known to him but not known to Sander.

The court found that Calloway had "generally timely accepted responsibility" and awarded him a two-level adjustment under § 3E1.1, but

declined to give him a three-level adjustment because his acceptance

was "not as full as it should be." The court determined that Sander

was responsible for all the drugs Calloway possessed when he was

arrested and for the 1.9 grams of crack he sold to the confidential

informant. 

On appeal, Calloway first contends that the district court erred in

refusing him a three-level adjustment for acceptance of responsibility

once it found that his acceptance was timely. We find no error, for the

following reasons. Although the probation officer used the 2002

Guidelines Manual in preparing the presentence report, Calloway was

sentenced on November 6, 2003, after the 2003 Guidelines Manual

went into effect. Therefore, the 2003 Guidelines Manual applied. See

United States v. Morrow, 925 F.2d 779, 782-83 (4th Cir. 1991);

USSG § 1B1.11(b)(1) (Guidelines Manual in effect on date of sentencing shall be used unless district court determines that its use

would violate Ex Post Facto Clause). 

Under both Amendment 649 to § 3E1.1, effective on April 30,

2003, and the 2003 Guidelines Manual, a defendant may receive a

two-level decrease in his offense level if the district court determines

UNITED STATES v. CALLOWAY 3
that he has demonstrated acceptance of responsibility for his crime.

USSG § 3E1.1(a). A three-level adjustment is possible under

§ 3E1.1(b) only if the offense level is 16 or more and the government

moves for the additional decrease "stating that the defendant has

assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea

of guilty, thereby permitting the government to avoid preparing for

trial . . . ." Application Note 6 currently explains that a formal government motion is required for the additional level because "the Government is in the best position to determine whether the defendant has

assisted authorities in a manner that avoids preparing for trial. . . ."

The government did not move for a three-level adjustment in Calloway’s case. Instead, it argued that Calloway had not demonstrated

acceptance of responsibility at all. 

Calloway argues on appeal that the district court had no discretion

to refuse him the three-level adjustment once it found that he had

accepted responsibility and that his guilty plea was timely. Under the

2002 version of § 3E1.1, his argument would have merit. However,

under the 2003 guideline, the district court could not grant more than

a two-level adjustment without a government motion. 

Calloway maintains that application of the amendment requiring a

government motion, effective on April 30, 2003, would violate the Ex

Post Facto Clause because his offense ended with his arrest in February 2003. A violation of the Ex Post Facto Clause occurs when the

guidelines in effect on the date of sentencing inflict a greater punishment than those in effect on the last date of the offense of conviction.

See USSG § 1B1.11, comment. (n.2). In Calloway’s case, the amendment requiring a government motion for a three-level adjustment

under § 3E1.1 did not increase the punishment for his offense. Therefore, the district court did not err in awarding only a two-level adjustment. 

Next, Calloway challenges the two-level role adjustment under

§ 3B1.1(c). We review the district court’s role determination for clear

error. United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). 

Calloway concedes that he sold drugs to Sander, but asserts that he

neither managed or supervised her, nor organized or led a joint crimi4 UNITED STATES v. CALLOWAY
nal activity in which they were both participants. Because Calloway

and Sander pled guilty to conspiring with each other to distribute at

least 50 grams of crack, there was no question that they were involved

in a joint criminal activity. The district court determined that Calloway was an organizer because he arranged the trips to Atlanta to

obtain crack; it was he who had a source there. Sander admitted that

she knew the purpose of the trips was for Calloway to buy drugs

which he intended to sell in North Carolina, that Calloway distributed

crack to her during the trips, and that she bought crack from him on

a regular basis in North Carolina. On these facts, the district court did

not clearly err in finding that the role adjustment was warranted on

the ground that Calloway was an organizer. It was not necessary that

he have directed or exercised control over Sander. 

Finally, Sander maintains that the district court clearly erred in

determining the amount of crack for which she was responsible under

USSG § 2D1.1. The district court’s determination of the quantity of

drugs attributable to a defendant for sentencing purposes is a factual

question reviewed for clear error. United States v. Randall, 171 F.3d

195, 210 (4th Cir. 1999). A defendant involved in a conspiracy is

responsible for all reasonably foreseeable conduct of others in furtherance of their jointly undertaken criminal activity, USSG

§ 1B1.3(a)(1)(B), unless those acts are beyond the scope of the defendant’s agreement. United States v. Gilliam, 987 F.2d 1009, 1012-13

(4th Cir. 1993). 

Sander argues that she was not responsible for the 145 grams of

crack Calloway possessed when they were arrested because her agreement with him was limited to acting as driver and companion on the

three trips to Atlanta where he obtained cocaine for himself. Because

there was no evidence of how much crack Calloway obtained on their

trips to Atlanta, Sander argues that the district court should have attributed to her only the approximately 5.5 grams of crack she received

from him for her personal use during the trips. 

Sander’s argument fails because Calloway’s crack sales in North

Carolina were within the scope of her agreement with him, as evidenced by her admission that she frequently bought crack from him

and resold it. Therefore, whatever quantities of crack he obtained in

Atlanta were also attributable to her as relevant conduct. Because

UNITED STATES v. CALLOWAY 5
there was no evidence that Calloway had any source other than the

person in Atlanta, the 145 grams of crack and 14.2 grams of cocaine

he possessed when arrested were correctly attributed to Sander. The

1.9 grams of crack Calloway sold to the confidential informant, while

not significant in the calculation of Sander’s base offense level, were

also properly attributed to her. Consequently, the district court did not

clearly err in determining the quantity of drugs for which Sander was

responsible. 

We therefore affirm the sentences imposed by the district court.

We 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

6 UNITED STATES v. CALLOWAY