IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 92-4218

 

UNITED STATES OF AMERICA

Plaintiff-Appellee,

v.

TERRENCE GADISON and

EARNEST EUGENE FERRELL,

Defendants-Appellants.

 

Appeals from the United States District Court 

for the Eastern District of Texas

 

(November 15, 1993)

Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER,* 

 District Judge.

DUPLANTIER, District Judge:

Defendants Terrence Gadison and Earnest Eugene Ferrell were

convicted of conspiracy to distribute more than 50 grams of cocaine

base in violation of 21 U.S.C. §§ 841 (a)(1) & 846. They both

appeal their convictions and sentences. We affirm Gadison's

conviction but vacate his sentence and remand for resentencing. We

affirm Ferrell's conviction and sentence.

I. Sufficiency of the Evidence.

Both defendants contend that the district court erred in

denying their motions for judgment of acquittal based upon the

insufficiency of the evidence. The convictions of both Gadison and

____________________ 
2

* District Judge of the Eastern District of Louisiana, sitting by

designation. 

Ferrell are based, in large measure, upon the testimony of their

alleged co-conspirators, Tarolynn Scott and William Simpson.

Defendants contend that the testimony of these individuals was

incredible as a matter of law and that therefore, the evidence was

insufficient to support their convictions. Gadison also argues

that the evidence did not establish the amount of cocaine base for

which he was convicted. Ferrell contends that even considering the

co-conspirators' testimony, the evidence at trial proved only that

he associated with members of a drug conspiracy and was often

present at a notorious drug haunt.

In assessing the sufficiency of evidence, "we determine

whether, viewing the evidence and the inferences that may be drawn

from it in the light most favorable to the verdict, a rational jury

could have found the essential elements of the offenses beyond a

reasonable doubt." United States v. Pruneda-Gonzalez, 953 F.2d

190, 193 (5th Cir.), cert. denied, 112 S.Ct. 2952 (1992). In order

to support a conviction, the evidence need not eliminate all

possible hypotheses of innocence or be wholly inconsistent with

every conclusion except guilt, provided a reasonable trier of fact

could find that the evidence establishes guilt beyond a reasonable

doubt. Id. In assessing the sufficiency of evidence, a reviewing

court is not to make determinations concerning the credibility of

witnesses. United States v. Casel, 995 F.2d 1299, 1303 (5th Cir.

1993).
 

1 "'[C]ircumstances altogether inconclusive, if separately

considered, may, by their number and joint operation . . . be

sufficient to constitute conclusive proof.'" United States v.

Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989)(quoting Coggeshall

v. United States (The Reindeer), 69 U.S. (2 Wall.) 383, 17 L.Ed.

911, 914-15 (1865)).

 

2 Scott is a recovering drug addict and suffers from an

emotional disorder which requires her to continually take

medication to prevent mood swings.

3

A detailed discussion of the evidence is unnecessary. Suffice

it to say that the testimony of both of the alleged 

co-conspirators, Scott and Simpson, (some of which is discussed in

detail hereafter), if believed by the jury, was amply sufficient to

establish that each defendant voluntarily agreed together and with

others to possess 50 grams or more of cocaine base with intent to

distribute the drug. See United States v. Rodriguez, 993 F.2d

1170, 1175 (5th Cir. 1993). Moreover, the circumstantial evidence

to corroborate that testimony was strong,1 and the testimony of

both defendants to the contrary was incredible in many respects.

A. Incredibility of the Government's Witnesses

Both Gadison and Ferrell contend that the testimony of Scott

and Simpson, their alleged co-conspirators who testified pursuant

to plea agreements, was incredible as a matter of law because it

was uncorroborated, often contradictory, and given in connection

with plea agreements with the government. Additionally, both

defendants contend that the jury should have disregarded Scott's

testimony on account of her various disabilities.2
4

It is well established that a conspiracy conviction may be

based upon the uncorroborated testimony of a co-conspirator, even

when that testimony is from one who has made a plea bargain with

the government, provided that the testimony is not incredible or

otherwise insubstantial on its face. United States v. Osum, 943

F.2d 1394, 1405 (5th Cir. 1991). Because the jury is the ultimate

arbiter of witness credibility, "[t]he test for 'incredibility' of

a witness is an extremely stringent one." Casel, 995 F.2d at 1304.

To be considered incredible as a matter of law, a witness'

testimony must "assert[] facts that the witness physically could

not have observed or events that could not have occurred under the

laws of nature." Osum, 943 F.2d at 1405. 

There is nothing in the testimony of Simpson and Scott which

indicates that either of them testified as to facts that they could

not have possibly observed or which challenge the laws of nature.

Therefore their testimony can not be considered incredible as a

matter of law. See Casel, 995 F.2d at 1304-05.

Defendants' arguments regarding Scott's disabilities speak

only to her credibility, not the admissibility of her testimony.

See, e.g., United States v. Garner, 581 F.2d 481, 485 (5th Cir.

1978)(explaining fact that witness is drug user bears upon witness

credibility). We reiterate that we are "concerned only with the

sufficiency--not the weight--of evidence." United States v.

Garcia, 995 F.2d 556, 561 (5th Cir. 1993). 

Because the jury was the final arbiter of the credibility of

the government's two primary witnesses, the jury's decision to
5

credit the testimony of Scott and Simpson cannot be disturbed on

appeal. See id.

B. Fifty Grams of Cocaine Base--Gadison

Gadison contends that the government's evidence is

insufficient to support a finding that the conspiracy for which he

was convicted involved 50 grams or more of cocaine base, as charged

in the indictment. Gadison emphasizes his view that the only

evidence with respect to the amount of cocaine base involved in the

conspiracy was with respect to the amount seized when Scott and

Simpson were arrested, 36.30 grams. 

Contrary to Gadison's assertions, the record contains ample

evidence to support the jury's conclusion that more than 50 grams

of cocaine base were involved in this conspiracy. Tarolynn Scott

testified that the 36.30 grams seized from the car when she was

arrested had an approximate value of $1,400.00. She also testified

that on another of the seven to eight trips she made to Port Arthur

to sell crack cocaine for Gadison, she had observed Gadison count

out $3,200.00 in drug proceeds. The reasonable inference to be

drawn from this testimony is that at least one of Scott's trips to

Port Arthur involved over 80 grams of cocaine base. Viewed

favorably to the verdict, Scott's testimony alone established that

the conspiracy involved 50 grams of cocaine base. Simpson also

testified that the amount of crack cocaine sold on each of the five

trips he made to Port Arthur was approximately an ounce and onehalf or approximately 42 grams per trip. After a careful review of
6

the record, we conclude that, based upon the testimony of Scott and

Simpson, a rational jury could find beyond a reasonable doubt that

the conspiracy of which Gadison was a member involved at the very

least 50 grams of cocaine base.

II. Denial of Appointment of Investigator--Ferrell.

Prior to trial, Ferrell's counsel filed a motion pursuant to

18 U.S.C. § 3006A(e)(1) for the appointment of a private

investigator at the government's expense. In this motion, counsel

asserted that Ferrell was unable financially to employ

investigative services and that an investigation was required

because "the charges include allegations of offenses which

supposedly took place in December, 1990 and January, 1991, and some

of which may have occurred in Harris County, Texas." The district

court denied Ferrell's motion. Ferrell contends that the district

court erred in denying his request for the appointment of an

investigator and that he was prejudiced because witnesses who were

to testify on his behalf could not make the trip from Houston to

Beaumont. 

We review the district court's refusal to appoint an

investigator "'in light of only the information available to the

trial court at the time it acted on the motion.'" United States v.

Davis, 582 F.2d 947, 951 (5th Cir. 1978)(quoting United States v.

Theriault, 440 F.2d 713, 715 (5th Cir. 1971)), cert. denied, 441

U.S. 962, 99 S.Ct. 2408 (1979). To justify the authorization of

investigative services under § 3006A(e)(1), a defendant must
7

demonstrate with specificity, the reasons why such services are

required. Id. 

In Davis, we held that a request for investigative services

did not pass muster under § 3006A(e) where the defendant failed to

provide an explanation of the relevance of witnesses he wished to

contact, he failed to identify any leads he wished to follow, and

he did not demonstrate that he had exhausted other investigative

efforts. 582 F.2d at 951-52.

The motion filed by Ferrell's counsel did not show with any

specificity that investigative services at the government's expense

were merited. No indication was made that any prospective

witnesses or other evidence existed in Harris County likely to be

relevant to Ferrell's defense. Moreover, no showing was made that

defense counsel had ferreted out information through his own

efforts which was likely to lead to the discovery of relevant

evidence. Without such specificity, the district court could not

adequately appraise Ferrell's need for investigative services. The

trial court did not abuse its discretion in denying Ferrell's

motion.

III. Prior Conviction--Ferrell.

In September of 1990, Ferrell was convicted in Texas state

court of unlawful possession of cocaine. In the present case,

Ferrell filed a motion in limine at trial seeking to prevent any

reference to this prior conviction at trial. Outside of the

presence of the jury, the government offered Ferrell's prior
8

conviction under Fed. R. Evid. 404(b) to establish his knowledge,

motive or intent in the charged offense. The district court ruled

that Ferrell's prior conviction was relevant to the issue of intent

under Fed. R. Evid. 404(b), and overruled defense counsel's

objection that its probative value was outweighed by the danger of

unfair prejudice under Fed. R. Evid. 403. The court permitted the

government to introduce the conviction for the limited purpose of

showing Ferrell's state of mind or intent. Ferrell argues that the

district court erred in admitting his prior conviction for

possession of cocaine because it was not relevant to the offense

charged and its prejudicial effect outweighed its probative value.

The district court admitted Ferrell's prior conviction under

Rule 404(b), which provides:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to

show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of . . .

intent.

 

Fed. R. Evid. 404(b). In considering whether to admit extrinsic

offense evidence to show intent, a court must engage in a two-step

inquiry: 

First, it must be determined that the extrinsic offense

evidence is relevant to an issue other than the

defendant's character. Second, the evidence must possess

probative value that is not substantially outweighed by

its undue prejudice and must meet the other requirements

of [Fed. R. Evid.] 403.

United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)(en

banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244 (1979). The

district court's ruling under Rules 403 and 404(b) is reviewed for

abuse of discretion. See United States v. Hutchins, 818 F.2d 322,
9

328-29 (5th Cir. 1987), cert. denied, 484 U.S. 1041, 108 S.Ct. 772

(1988). 

We conclude that the district court did not abuse its

discretion in finding Ferrell's prior conviction for possession of

cocaine relevant to his intent in the charged offense and more

probative than prejudicial. Ferrell put his intent at issue when

he entered his plea of not guilty to the conspiracy charge in the

indictment. See United States v. Prati, 861 F.2d 82, 86 (5th Cir.

1988)("in a conspiracy case the mere entry of a not guilty plea

raises the issue of intent sufficiently to justify the

admissibility of extrinsic offense evidence"). A prior conviction

for possession of cocaine is probative of a defendant's intent when

the charge is conspiracy to distribute. United States v. Vaquero,

997 F.2d 78, 87 (5th Cir. 1993). 

Alternatively, we conclude that any error from the admission

of evidence of Ferrell's prior offense was harmless. "In a

harmless error examination, '[w]e must view the error, not in

isolation, but in relation to the entire proceedings.'" United

States v. Williams, 957 F.2d 1238, 1244 (5th Cir. 1992)(quoting

United States v. Brown, 692 F.2d 345, 350 (5th Cir. 1982)). We

must decide whether the inadmissible evidence actually contributed

to the jury's verdict; we will reverse a conviction only if the

evidence had a "substantial impact" on the verdict. United States

v. El-Zoubi, 993 F.2d 442, 446 (5th Cir. 1993). 

We conclude that the admission of Ferrell's prior conviction

had no substantial influence on the jury's decision to convict. In
10

addition to the detailed testimony of the two co-conspirators,

there was a significant amount of strong circumstantial evidence

establishing Ferrell's membership in the conspiracy and negating

his defense. Thus, the admission of Ferrell's prior conviction

added little to the government's case. No detailed explanation of

the facts underlying the prior conviction was made; the only

mention made of the conviction after its introduction by the

government was during defense counsel's direct examination of

Ferrell. Finally, the district court minimized any potential undue

prejudice by instructing the jury that they were not to consider

the conviction in deciding whether Ferrell committed the charged

offense, but only for the purposes of establishing intent and

assessing credibility. See, e.g., United States v. Gordon, 780

F.2d 1165, 1174 (5th Cir. 1986)(holding improper admission of

extrinsic act evidence may be cured by limiting instruction). In

light of the record as a whole, we conclude that the jury's verdict

was not substantially influenced by the admission of Ferrell's

prior conviction.

IV. Sentencing. 

We next consider the various challenges made by the defendants

to their respective sentences. Gadison argues that the district

court erroneously considered a prior misdemeanor conviction for

theft by check in determining his criminal history score. He also

contests the district court's determination that he displayed a

leadership role in the conspiracy. Ferrell argues that the
11

district court erred in determining that he was not entitled to a

reduction in his sentence as a minimal or minor participant in the

offense.

The factual findings of the district court regarding

sentencing matters are entitled to substantial deference, and we

will disturb those findings only if they are clearly erroneous.

United States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir. 1992). A

factual finding is clearly erroneous only where it is implausible

in light of the record read as a whole. Id. We review the

district court's interpretation of the Sentencing Guidelines de

novo. United States v. Madison, 990 F.2d 178, 182 (5th Cir. 1993).

A. Criminal History--Gadison

Gadison pleaded guilty in 1990 to the Texas state offense of

theft by check and was sentenced by the Texas state court to pay a

$200.00 fine. Based on this prior conviction, the district court

added one point to Gadison's criminal history score pursuant to

section 4A1.1(c) of the Sentencing Guidelines. This boosted

Gadison's criminal history category from category I to category II

under section 4A1.1 of the Guidelines. Gadison contends that

pursuant to section 4A1.2(c), his prior conviction for theft by

check should not have been counted in computing his criminal

history score, because it is similar to an exempted offense. We

review the district court's application of the Sentencing

Guidelines de novo. United States v. Moore, 997 F.2d 30, 34 (5th

Cir. 1993).
12

 Misdemeanor offenses and petty offenses are generally

considered in calculating a defendant's criminal history score.

U.S.S.G. § 4A1.2(c). However, section 4A1.2(c)(1) provides that

certain enumerated offenses and "offenses similar to them" are to

be disregarded unless "(A) the sentence was a term of probation of

at least one year or a term of imprisonment of at least thirty

days, or (B) the prior offense was similar to an instant offense."

U.S.S.G. § 4A1.2(c)(1). One of the enumerated offenses is

"[i]nsufficient funds check". Id. Because Gadison received only

a $200.00 fine as a result of his prior conviction for theft by

check, and because theft by check is not similar to the instant

drug offense, his prior conviction should not have been included in

his criminal history if that conviction is similar to the offense

of "insufficient funds check". Id.

In United States v. Hardeman, 933 F.2d 278 (5th Cir. 1991), we

established a "common sense" approach to determine when a prior

offense is "similar" to one of the enumerated exempted offenses in

§ 4A1.2(c)(1). The Hardeman approach requires the district court

to assess all factors of similarity, including

a comparison of punishments imposed for the listed and

unlisted offenses, the perceived seriousness of the

offense as indicated by the level of punishment, the

elements of the offense, the level of culpability

involved, and the degree to which the commission of the

offense indicates a likelihood of recurring criminal

conduct.

Hardeman, 933 F.2d at 281. A court employing the Hardeman factors

should do so cognizant of the fact that the criminal history

factors are designed to take into account the relative severity of
13

a prior offense as well as the degree to which it indicates the

likelihood of future criminal behavior. Id. at 281-82. We are

mindful that the Hardeman "factors should assist the district court

in determining whether it makes good sense to include the offense

in question in the defendant's criminal history score." Id. at 281

(emphasis in original). Applying the Hardeman factors, we

conclude that the facts involved in Gadison's prior conviction of

the Texas state offense of theft by check constitute a "similar

offense[] to" the offense of "insufficient funds check", U.S.S.G.

§ 4A1.2(c)(1), and should not have been considered in calculating

Gadison's criminal history score. 

The redactors of the Guidelines Manual could not have listed

by title the crimes established by statute in the fifty states and

the United States Congress. Instead, they used generic terms such

as "insufficient funds check", without attempting to define the

"generic" crimes. Texas' name for the "insufficient funds check"

crime is apparently "issuance of bad check". Tex. Penal Code Ann.

§ 32.41 (Vernon 1989 & Supp. 1993). 

Under a comparative punishment analysis, Gadison's prior

conviction for theft by check is identical to the Texas offense of

issuance of a bad check. We base this conclusion upon the facts

underlying Gadison's state offense, including lack of evidence

submitted by the government (see note 3 infra), the class of the

theft by check offense for which he was convicted, and the sentence

he received. Our holding is fact specific; how a Guidelines

sentence might be affected by a theft by check offense under other
 

3 Gadison's presentence report does not provide any of the

facts underlying his prior conviction for theft by check. 

However, Gadison asserted in his written objections and again at

sentencing that he had pleaded guilty to a Class C misdemeanor

for theft by check. A document attached to Gadison's written

objections indicates that Gadison did in fact plead guilty to a

Class C misdemeanor. The government, which has the burden of

proving the facts supporting an enhancement of a defendant's

sentence, United States v. Sanders, 942 F.2d 894, 897 (5th Cir.

1991), offered no evidence to the contrary. 

14

facts, including the class of conviction and sentence, is not

before us. Texas law categorizes the offense of issuance of a bad

check as a Class C misdemeanor. Tex. Penal Code Ann. § 32.41(f).

In 1990, when Gadison was convicted in the Texas state court, the

penalty for a Class C misdemeanor was a fine not to exceed $200.00.

Tex. Penal Code Ann. § 12.23 (Vernon 1974). On the other hand,

classification of theft by check under Texas law ranges from a

Class 1 felony to a Class C misdemeanor depending on the value of

the property involved. Tex. Penal Code Ann. § 31.03(e) (Vernon

1989 & Supp. 1993). Based on the $200.00 fine imposed by the Texas

state court, and on the only evidence at his sentencing hearing, we

conclude that Gadison pleaded guilty to a Class C misdemeanor.3

"The level of punishment imposed for a particular offense serves as

a reasonable proxy for the perceived severity of the crime."

Hardeman, 933 F.2d at 282. The fact that Gadison received merely

a fine of $200.00 indicates that the State of Texas views the

offense to which Gadison pleaded guilty as similar to issuance of

a bad check. 

 Comparing the elements of insufficient funds check and the

Texas state offense of theft by check leads us also to the
15

conclusion that the two offenses are sufficiently similar to

warrant exclusion of Gadison's theft by check conviction from

Gadison's criminal history score. Under Texas law, a person

commits the offense of "issuance of bad check"

if he issues or passes a check or similar sight order for

the payment of money knowing that the issuer does not

have sufficient funds in or on deposit with the bank or

other drawee for the payment in full of the check or

order as well as all other checks or orders outstanding

at the time of issuance.

 

Tex. Penal Code Ann. § 32.41(a). The Texas Penal Code provides

that a person commits theft "if he unlawfully appropriates property

with intent to deprive the owner of property." Tex. Penal Code

Ann. § 31.03(a). The Texas theft statute also states that 

[i]f the actor obtained property or secured performance

of service by issuing or passing a check or similar sight

order for the payment of money, when the issuer did not

have sufficient funds in or on deposit with the bank or

other drawee for the payment in full of the check or

order as well as all other checks or orders then

outstanding, his intent to deprive the owner of property

under Section 31.03 of this code (Theft) . . . is

presumed.

Tex. Penal Code Ann. § 31.06(a)(Vernon 1989 & Supp. 1993)(emphasis

added). 

The principal distinction between the Texas state offense of

theft by check and the Texas state offense of issuance of a bad

check is that theft by check requires the additional element of a

specific bad result--that defendant acquire property of a

particular value from the victim. Cheney v. State, 755 S.W.2d 123,

128 (Tex. Crim. App. 1988)(en banc)(quoting Christiansen v. State,
16

575 S.W.2d 42, 44 (Tex. Crim. App. 1979)). We conclude that such

a distinction does not render the two offenses sufficiently

dissimilar to warrant inclusion of the Class C misdemeanor theft by

check offense in Gadison's criminal history score under section

4A1.2(c)(1).

Hardeman directs that we consider "the level of culpability

involved." 933 F.2d at 281. We regard the Guideline "offense" of

"insufficient funds check" and the Texas misdemeanor "theft by

check" as involving comparable degrees of culpability. Finally, we

conclude that Gadison's conviction for theft by check does not

"indicate[] a likelihood of recurring criminal conduct," Hardeman,

933 F.2d at 281, especially since to qualify as a Class C

misdemeanor, the theft involved under $20.00. See Tex. Penal Code

Ann. § 31.03(e)(1). "[T]he seriousness of the offense is one

indication of whether the offense has any predictive capacity for

future criminality." Hardeman, 933 F.2d at 283. 

In sum, we conclude that the offense of theft by check to

which Gadison pleaded guilty is "similar" to the offense which the

Guidelines refer to as "insufficient funds check" for purposes of

section 4A1.2(c)(1). Therefore, the district court erred by

including Gadison's prior theft by check conviction in his criminal

history score under section 4A1.2(c), and we must remand for

resentencing.
17

B. Leadership Role--Gadison

Gadison's presentence report ("PSR") concluded that he was a

leader or organizer of a conspiracy involving five or more

participants and therefore recommended the enhancement of Gadison's

base offense level by four levels pursuant to § 3B1.1(a) of the

Sentencing Guidelines. Prior to the sentencing hearing, Gadison's

counsel filed a motion for an evidentiary hearing on his objections

to the PSR, including the recommended four level enhancement.

Gadison requested the hearing primarily for the purpose of crossexamining an individual who did not testify at trial, but who

provided information included in the PSR concerning Gadison's role

in the offense. The district court denied Gadison's motion and

enhanced his base offense level as suggested by the PSR. 

Gadison contends that there was insufficient evidence to find

either that five individuals were involved in the conspiracy, or

that Gadison was a leader or organizer. Gadison also argues that

the district court's failure to provide him with an evidentiary

hearing concerning his leadership role effectively deprived him of

his due process rights under the Fifth Amendment and his right to

confront his accusers under the Sixth Amendment. 

We first address Gadison's challenge to the sufficiency of the

evidence underlying the district court's factual findings. An

enhancement under section 3B1.1(a) must be supported by a factual

finding that, with respect to the transaction which serves as the

basis for the conviction, "the defendant was an organizer or leader

of a criminal activity that involved five or more participants or
18

was otherwise extensive." In measuring the number of participants

in a criminal enterprise, the sentencing court's focus is upon "the

number of transactional participants, which can be inferentially

calculated provided that the court does not look beyond the offense

of conviction to enlarge the class of participants." United States

v. Barbontin, 907 F.2d 1494, 1498 (5th Cir. 1990)(emphasis in

original). However, the "offense" to be considered "is broader

than the offense charged, and includes the 'contours of the

underlying scheme itself.'" United States v. Kleinebreil, 966 F.2d

945, 955 (5th Cir. 1992)(quoting United States v. Mir, 919 F.2d

940, 945 (5th Cir. 1990)). In other words, "the scope to be

considered . . . encompasses . . . the underlying activities and

participants that directly brought about the more limited sphere of

the elements of the specific charged offense." United States v.

Manthei, 913 F.2d 1130, 1136 (5th Cir. 1990). 

In the instant case, there was substantial evidence to

establish Gadison as an organizer or leader in a criminal activity

involving four other participants, and Gadison himself may be

counted as a participant for purposes of § 3B1.1(a). Barbontin,

907 F.2d at 1498. Tarolynn Scott and William Simpson admitted that

they were participants in the conspiracy. Scott also testified

that Ms. Emma, the owner of the Family Diner, safeguarded drug

proceeds for Gadison. Clearly, Ms. Emma can be considered a

"participant" for purposes of section 3B1.1(a) inasmuch as her

actions "directly brought about . . . the elements of the specific

charged offense." Manthei, 913 F.2d at 1136. Her role formed an
19

inseparable part of the larger distribution scheme. Finally, codefendant Ferrell may be counted as the fifth participant. We

conclude that the evidence at trial adequately supported the

district court's finding that the conspiracy involved at least five

persons. 

Gadison also contends that the evidence was insufficient to

support the district court's determination that he was a leader or

organizer. In determining whether a defendant was a leader or

organizer, the sentencing court should consider 

the exercise of decision making authority, the nature of

participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger

share of the fruits of the crime, the degree of

participation in planning or organizing the offense, the

nature and scope of the illegal activity, and the degree

of control and authority exercised over others. 

U.S.S.G. § 3B1.1, Application note 3; see United States v.

Rodriguez, 897 F.2d 1324, 1325-26 (5th Cir.), cert. denied, 498

U.S. 857, 111 S.Ct. 158 (1990).

Applying these factors to the present case, we have no

difficulty in concluding that Gadison orchestrated almost every

aspect of this conspiracy. There was evidence that Gadison:

- decided when trips to Port Arthur would take place.

- set the sale price of the crack cocaine.

- enlisted the assistance of Ferrell, Simpson and Scott.

- processed the crack cocaine for distribution.

- prepared his own vehicle to transport the crack cocaine

 by secreting the drugs and a firearm therein.

- contacted Scott to tell her when trips to Port Arthur

 would take place. 
20

- often accompanied his co-conspirators on junkets to 

 Port Arthur.

 

- collected the drug proceeds and paid Scott and Simpson

 therefrom. 

Because the evidence at trial was amply sufficient to support

the district court's conclusion that Gadison exercised a leadership

role in a conspiracy involving at least five participants, the

district court did not err in refusing to grant Gadison an

evidentiary sentencing hearing.

C. Relevant Conduct--Ferrell

Ferrell's PSR held him accountable for 291 grams of cocaine

base, the estimated amount delivered by Tarolynn Scott when she was

accompanied by Ferrell and Gadison. The PSR also held Ferrell

responsible for the .32 caliber revolver confiscated from Scott and

Simpson. However, in calculating Ferrell's offense level under

section 1B1.3 of the Sentencing Guidelines, the district court held

him accountable only for the 36.30 grams of cocaine seized when

Scott and Simpson were arrested, not the additional cocaine, and

not the revolver. The district court concluded that the drugs

seized from Scott and Simpson were being delivered in furtherance

of the conspiracy and that their delivery was reasonably

foreseeable by members of the conspiracy, but Ferrell could not

have reasonably foreseen that his co-defendants would be carrying

a firearm. 

Ferrell argues that the district court erred in determining

that it was reasonably foreseeable for him to know that Scott and
 

4 We may consider the November, 1992, revisions because the

Sentencing Commission, by amending section 1B1.3, intended merely

to clarify the scope of relevant conduct under § 1B1.3. United

States v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993).

21

Simpson were delivering 36.30 grams of crack cocaine on the date

they were arrested. Ferrell argues that if he could not foresee

that the firearm would be in the car, he could not have known that

the conspiracy involved 36.30 grams of cocaine base. 

Under the version of section 1B1.3 in effect at the time of

Ferrell's sentencing, a district court could hold a defendant

accountable for "all acts and omissions committed or aided and

abetted by the defendant, or for which the defendant would be

otherwise accountable." U.S.S.G. § 1B1.3(a)(1)(1991). Conduct for

which a defendant would be otherwise accountable includes "conduct

of others in furtherance of the execution of the jointly-undertaken

criminal activity that was reasonably foreseeable by the

defendant." U.S.S.G. § 1B1.3, Application note 1 (1991). The

application notes to the present version of § 1B1.3, effective

November 1, 1992,4 stress that "the scope of the criminal activity

jointly undertaken by the defendant . . . is not necessarily the

same as the scope of the entire conspiracy, and hence relevant

conduct is not necessarily the same for every participant."

U.S.S.G. § 1B1.3, Application note 2 (1992). 

It is clear from the record that the conduct of Scott and

Simpson in transporting the 36.30 grams seized by the authorities

was within the scope of the jointly-undertaken activity to which

Ferrell agreed and was reasonably foreseeable by him. The jointly-
22

undertaken activity to which Ferrell agreed was the transportation

of crack cocaine, often in amounts well over 36.30 grams, from

Houston to Port Arthur for distribution outside the Family Diner.

Ferrell's agreement can be fairly inferred from his conduct. The

evidence at trial showed that on more than one occasion, Ferrell

accompanied Tarolynn Scott and William Simpson to Port Arthur in

order to sell crack cocaine. 

Furthermore, the evidence revealed that Ferrell worked closely

with Gadison, the leader of the conspiracy, was present when crack

cocaine was being processed, and sold crack cocaine outside the

Family Diner. Thus, the record clearly shows that Ferrell was

aware of the extent of drug distribution involved in the

conspiracy. The district court's refusal to hold Ferrell

accountable for the revolver placed in the car by Gadison is not

inconsistent with and does not affect the court's decision with

respect to the amount of crack cocaine for which Ferrell can be

held accountable. In contrast to the substantial evidence

indicating Ferrell's knowledge as to the amounts distributed in

furtherance of the conspiracy, there was no evidence presented at

trial which indicated that Ferrell was ever aware that a firearm

was used in furtherance of the conspiracy.

D. Minimal or Minor Role--Ferrell

Ferrell contends that the district court should have reduced

his offense level under § 3B1.2 of the Sentencing Guidelines

because his participation in the conspiracy was minimal, or at most
23

minor. Ferrell's claim is based upon the contention that he was a

"peripheral member" of the conspiracy who lacked complete knowledge

or understanding of the scope of the conspiracy.

Section 3B1.2 provides that a district court must reduce a

defendant's offense level by four levels if it determines that the

defendant is a minimal participant in the offense for which he was

convicted, U.S.S.G. § 3B1.2(a), or by two levels if the defendant

was a minor participant. U.S.S.G. §3B1.2(b). A defendant who is

"plainly among the least culpable of those involved in the conduct

of a group" is characterized as a "minimal participant". U.S.S.G.

§ 3B1.2, Application note 1. A defendant should be considered a

"minor participant" if he is "less culpable than most other

participants, but [his] role could not be described as minimal."

U.S.S.G. §3B1.2, Application note 3. A downward adjustment under

§ 3B1.2 is generally appropriate only where a defendant was

"'substantially less culpable than the average participant.'"

United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.

1989)(emphasis in original)(quoting U.S.S.G. § 3B1.2, Commentary),

cert. denied, 495 U.S. 923, 110 S.Ct. 1957 (1990). A court "need

not accept the defendant's self-serving account of his role in [a]

drug organization." Id.

The trial testimony provides ample support for the district

court's determination that Ferrell did not play a minimal or minor

role in the conspiracy for which he was convicted. In fact,

Ferrell was a significant member of the conspiracy, and his

culpability was comparable to that of his co-conspirators. The
24

evidence showed that crack cocaine was processed for distribution

in Ferrell's home, making it a base of operation for the

conspiracy. Ferrell also accompanied Gadison and other coconspirators on several trips to Port Arthur for the purpose of

distributing crack cocaine. Significantly, Ferrell sold crack

cocaine outside the Family Diner. Ferrell's own testimony showed

him to be a close aide to Gadison, the leader of the conspiracy.

Based upon this evidence, the district court's finding that

Ferrell's role was neither minimal nor minor was not clearly

erroneous, and Ferrell was not entitled to an adjustment under §

3B1.2.

V. Conclusion

For the foregoing reasons, we AFFIRM Gadison's conviction but

VACATE his sentence and REMAND for resentencing. We AFFIRM

Ferrell's conviction and sentence.