UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4295

ANTHONY CANNON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4307

EDWARD STEVE GIDNEY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4312

DONNELL DECOL GARDNER,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of North Carolina, at Shelby.

Lacy H. Thornburg, District Judge.

(CR-95-3)

Submitted: March 17, 1998

Decided: November 18, 1998

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert C. Ervin, BYRD, BYRD, ERVIN, WHISNANT, McMAHON

& ERVIN, P.A., Morganton, North Carolina; Aaron P. Buda,

SCHAD, BUDA, LUCIA & COOK, L.L.C., Cincinnati, Ohio; R.

Andrew Murray, LEDFORD & MURRAY, P.C., Charlotte, North

Carolina, for Appellants. Mark T. Calloway, United States Attorney,

Deborah A. Ausburn, Assistant United States Attorney, Asheville,

North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Anthony Cannon, Edward Steve Gidney, Donnell Decol Gardner,

and numerous codefendants were charged with conspiring to possess

cocaine and crack cocaine with intent to distribute between 1992 and

1994. See 21 U.S.C. § 846 (1994). Cannon, Gidney and Gardner were

tried together and convicted. Cannon received a sentence of 324

months imprisonment, Gidney received a sentence of 84 months, and

Gardner received a sentence of 188 months. Cannon and Gardner

appeal their convictions and sentences. Gidney appeals only his sentence. For the reasons explained below, we affirm Cannon's and

Gardner's convictions and the sentences imposed on all three appellants.

The central figure in the conspiracy, John Oglesby, testified at

Appellants' joint trial, as did six other conspirators. Briefly summarized, the government's evidence showed that in the fall of 1992,

Oglesby obtained crack from Gardner on a regular basis for several

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months. Oglesby then found two sources in New Jersey and New

York and began receiving shipments of cocaine powder by courier,

some of which he sold as crack and some as powder. After that,

Oglesby fronted crack and cocaine powder to Gardner. In the spring

of 1993, Oglesby began storing cocaine and cash at Gidney's house.

Oglesby knew Gidney through his daughter, who was Oglesby's girlfriend. Harvey Stewart sold crack for Oglesby. Cannon assisted Stewart in selling crack during the summer of 1993. On one occasion,

Stewart introduced Cannon to Oglesby, and Oglesby fronted Cannon

$400-$500 worth of drugs. However, Oglesby refused to deal directly

with Cannon again because Cannon did not return any money to him.

I. Cannon

Cannon first contends that the district court abused its discretion in

refusing to give several jury instructions he offered to support his

defense that he dealt with the conspirators but was not a member of

the conspiracy. Such a buyer-seller instruction need not be given

when the evidence shows that the defendant's relationship with his

codefendants went further than a simple buy-sell transaction. See

United States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993) (facts

showed that defendant shared common conspiratorial purpose with

conspirators); see also United States v. Dortch , 5 F.3d 1056, 1065-66

(7th Cir. 1993) (defendant's ongoing relationship with conspiracy

members and receipt of drugs on credit may be evidence that he is a

member of the conspiracy). Here, Cannon was the first person to volunteer information about the conspiracy to the police. He initially

gave a statement in which he said he had participated in selling drugs

and described Oglesby's organization. Cannon later disavowed this

statement and gave another statement in which he identified Oglesby

and Stewart as drug traffickers but did not admit selling any drugs

himself. However, Stewart testified that Cannon sold drugs for him

every day for several months, working from Stewart's house on Wilson Street in Shelby, North Carolina. Oglesby testified that, on Stewart's recommendation, he fronted drugs to Cannon.

Cannon concedes the damaging nature of Stewart's testimony to

his buyer-seller defense, but argues that the requested jury instructions should have been given to inform the jury how to evaluate the

evidence in the event they found Stewart's testimony not credible.

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Because there was no clear reason why Stewart's testimony was

unworthy of belief, and the evidence given by Oglesby and Stewart

did not support Cannon's theory, we cannot find that the district court

abused its discretion in refusing to give the buyer-seller instructions.

Next, Cannon disputes the district court's finding that he was

accountable for 60 ounces of crack for sentencing purposes, which

gave him a base offense level of 38 (1.5 kilograms or more of crack).

See U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) (1995). The

government has the burden of proving, by a preponderance of the evidence, the quantity of drugs for which a defendant is held responsible

at sentencing. See United States v. Gilliam, 987 F.2d 1009, 1013 (4th

Cir. 1993). When a defendant has not admitted or stipulated to an

amount of drugs and objects to the amount recommended in the presentence report, the government must meet its burden by presenting

sufficient evidence at the sentencing hearing to establish the amount

attributable to him. Id. The district court's determination that the government has met its burden of proof is reviewed under the clearly

erroneous standard. See United States v. McDonald, 61 F.3d 248, 255

(4th Cir. 1995). We are not persuaded that the district court clearly

erred in finding that the government had proved Cannon's involvement with 60 ounces (1701 grams) of crack.

The probation officer recommended that Cannon be held responsible for 60 ounces of crack on the assumption that he had sold an

ounce a day for two months while working for Stewart. Cannon

objected that the government had not proved that amount at trial. At

the sentencing hearing, Agent John Felton of the Bureau of Alcohol,

Tobacco and Firearms testified that Stewart had stated in an interview

that "Cannon helped him sell for approximately two months during

the summer of '93 every day between $1,300 and $5,600 packages of

cocaine base with a $1,300 package being equivalent to about one

ounce." From this statement, Felton estimated that Cannon sold an

ounce a day for two months. While Oglesby testified that Stewart sold

$3000 to $5000 worth of crack a week for him, his testimony was

clearly tentative, and Oglesby himself admitted that he could be

underestimating the amount of crack involved. In addition, Felton

indicated at Cannon's sentencing hearing that Stewart and Cannon

received additional crack from suppliers other than Oglesby. Moreover, Stewart's trial testimony suggests that Stewart and Cannon may

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have received as much as $14,000 worth of crack each week from

Oglesby, an amount that clearly exceeds seven ounces, whether an

ounce of crack was worth $1300, $1400, or slightly more than $1500,

as Stewart variously testified. Given that the testimony of Oglesby

and Stewart was not necessarily inconsistent, and that the district

court could reasonably have credited Stewart over Oglesby even if it

was, we do not believe that we can find clear error here.

II. Gidney

Gidney first contends that the district court failed to understand its

authority to depart on the ground that his criminal history category

overstated his past criminal conduct. See USSG § 4A1.3, p.s. While

a discretionary decision against departure is not reviewable, see

United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990), a decision

not to depart based on lack of legal authority is a legal decision which

we review de novo. See United States v. Hall, 977 F.2d 861, 863 (4th

Cir. 1992). Gidney bases his argument on a comment made by the

district court in response to Gidney's request that he be allowed to

remain free on bond after sentencing. The district court replied that

the law required that Gidney be confined, and commented, "[J]ust like

with these sentencing guidelines, I don't have the discretion. I have

to stay within that framework." Gidney mischaracterizes the court's

general comment about the guidelines as a decision that it lacked the

legal authority to depart under USSG § 4A1.3. That guideline explicitly affords the sentencing court the authority to depart if it finds that

the defendant's criminal history has been overstated. In hearing Gidney's argument in favor of a departure and in ruling on his request,

the court gave no indication that it believed it lacked authority to

depart in the right circumstances. Therefore, we find this issue without merit.

Next, Gidney contends that the district court clearly erred in denying him a minimal or minor role reduction. A minimal participant is

one who is "plainly among the least culpable of those involved in the

conduct of a group." USSG § 3B1.2, comment. (n.1). The factors to

be considered are "the defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities

of others" involved. (Id.) A minor participant is one who "is less culpable than most other participants, but whose role could not be

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described as minimal." USSG § 3B1.2, comment. (n.2). Gidney

claimed that he had minimal knowledge of and involvement with the

conspiracy. However, Gidney's house was one of two places where

Oglesby stored drugs and money because he was afraid to keep drugs

in his own house. The service Gidney rendered to Oglesby was an

important one. In return, Gidney received a small amount of crack to

sell. Moreover, Gidney's daughter was Oglesby's girlfriend, a fact

which makes it more likely than not that Gidney knew the scope of

the conspiracy. We therefore find no clear error in the court's ruling.

Gidney also maintains that the court failed to make an adequate

finding concerning his role in the conspiracy. See Fed. R. Crim. P.

32(c)(1); United States v. McManus, 23 F.3d 878, 887 (4th Cir. 1994)

(district court must resolve objections to presentence report); USSG

§ 6A1.3(b) (court shall resolve disputed sentencing factors in accordance with Rule 32(a)). Where a disputed issue remains unresolved,

a remand is necessary. McManus, 23 F.3d at 887. Here, however, the

court resolved the disputed issue against Gidney, though without discussion. The court thus implicitly adopted the government's arguments. We find that the court's finding complied with Rule 32 and

USSG § 6A1.3(b).

Last, Gidney argues that the government failed to prove by reliable

evidence that more than one kilogram of cocaine powder was stored

at his house. He contends that only Oglesby's testimony was reliable

enough to consider. Oglesby testified that he took ten ounces of

cocaine to Gidney for storage on two occasions--a total of 567 grams

of cocaine. The district court found that a base offense level of 26

(500 grams to 2 kilograms of cocaine) applied. See USSG

§ 2D1.1(c)(7). Because Gidney concedes his responsibility for more

than 500 grams of cocaine, the calculation was necessarily correct.

III. Gardner

Gardner argues that his conspiracy conviction must be overturned

because the indictment failed to charge the mens rea element of the

conspiracy or the § 841 violation, i.e., that he "knowingly" conspired

or "knowingly" possessed cocaine and crack with intent to distribute.

The indictment charged that Gardner "did unlawfully and willfully

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. . . conspire . . . with others . . . to unlawfully possess with intent to

distribute cocaine and cocaine base, a Schedule II controlled substance, a violation of Title 21, United States Code, Section 841(a)(1),

in violation of Title 21, United States Code, Section 846."*

In order to be legally sufficient, "[a]n indictment must contain the

elements of the offense charged, fairly inform a defendant of the

charge, and enable the defendant to plead double jeopardy as a

defense in a future prosecution for the same offense." United States

v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992). To prove a § 846 conspiracy, the prosecution "must establish that: (1) an agreement to possess [the drugs] with intent to distribute existed between two or more

persons; (2) the defendant knew of the conspiracy; and (3) the defendant knowingly and voluntarily became part of the conspiracy."

United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (in banc),

cert. denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997)

(No. 96-6868).

It is significant that Gardner failed to challenge the indictment in

the district court. A post-verdict challenge to the sufficiency of an

indictment is reviewed under a more lenient standard than a preverdict challenge. See United States v. Vogt, 910 F.2d 1184, 1200-01

(4th Cir. 1990). "When a post-verdict challenge to the sufficiency of

an indictment is made, `every intendment is then indulged in support

of . . . sufficiency.'" Id. (quoting Finn v. United States, 256 F.2d 304,

307 (4th Cir. 1958)). A challenge based on the absence of an element

of the offense will be rejected if the indictment contains "words of

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*Section 846 states:

Any person who attempts or conspires to commit any offense

defined in this subchapter shall be subject to the same penalties

as those prescribed for the offense, the commission of which was

the object of the attempt or conspiracy.

Section 841(a)(1) states:

Except as authorized by this subchapter, it shall be unlawful

for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled substance.

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similar import." Finn, 256 F.2d at 306 (emphasis in original). Here,

the indictment charged that Gardner acted "unlawfully and willfully."

These are words of similar import to those of the statute and they

served to put Gardner on notice of the charge against him. He does

not allege that he was unaware of the charge facing him or that his

defense was hindered by the absence of the term"knowingly." Nor

could he be prosecuted for the same offense again. We therefore

reject his challenge to the sufficiency of the indictment.

Finally, Gardner contests the two-level sentencing enhancement he

received for possession of a firearm during the offense. See USSG

§ 2D1.1(b)(1), comment. (n.3). At sentencing, a federal agent testified

that a co-conspirator, Russell Huskey, had described a shotgun with

a pistol grip which Gardner carried in his car in 1993 while he was

selling drugs. Gardner asserts that this information was unreliable, but

made no specific showing of unreliability. Gardner testified that he

did not own a firearm; however, the district court did not credit his

testimony. Because the government produced evidence that Gardner

possessed a shotgun during the offense, the district court did not

clearly err in making the enhancement. See United States v. Apple,

915 F.2d 899, 914 (4th Cir. 1990) (standard of review).

For the reasons discussed, we affirm the convictions of Cannon and

Gardner and the sentences imposed on Cannon, Gardner and Gidney.

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

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