United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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 No. 97-1643

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United States of America, *

Plaintiff - Appellee, *

 v. * District Court for the 

Heath Leon Ayers, also known as *

“He-Dog,” *

Defendant - Appellant. *

*

* Appeals from the United States

* Northern District of Iowa.

*

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 No. 97-2189

 ___________

United States of America, *

Plaintiff - Appellee, *

 v. *

Roderick Williams, *

Defendant - Appellant. *

*

*

*

*

*

 ___________

 Submitted: October 21, 1997

 Filed: March 6, 1998

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The Honorable Michael J. Melloy, Chief Judge, United States District Court for 1

the Northern District of Iowa.

Ayers was charged with three counts of distributing crack cocaine, in violation 2

of 21 U.S.C. § 841. Williams was charged with one count of the use of a

communication facility in causing and facilitating the distribution of crack cocaine, in

violation of 21 U.S.C. § 843(b), one count of distributing and aiding and abetting the

distribution of crack cocaine, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, and

one count of possession with the intent to distribute crack cocaine, in violation of 21

U.S.C. § 841. 

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Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.

___________

HANSEN, Circuit Judge.

In these consolidated appeals, we consider Heath Leon Ayers’ and

Roderick Williams’ challenges to their respective sentences imposed for

conspiracy to distribute crack cocaine. Ayers claims the district court1

erred in determining the quantity of drugs attributable to him for

sentencing purposes and in failing to grant “judicial” immunity to a

witness at his sentencing hearing. Williams claims the district court

erred in enhancing his sentence under the United States Sentencing

Guidelines for being a manager or supervisor of criminal activity involving

five or more participants, see U.S. Sentencing Guidelines Manual § 3B1.1

(1995), and in failing to grant him a three-level decrease in his base

offense level for acceptance of responsibility pursuant to Guidelines §

3E1.1(b)(2). We affirm both sentences.

I.

A grand jury charged Ayers and Williams, along with seven other

codefendants, with one count of conspiracy to distribute and possession

with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 846,

841(a)(1), and 841(b)(1)(A) (1994). In the same indictment, Ayers and

Williams were also each charged with three other felony counts relating to

the distribution of crack cocaine. Ayers signed a plea agreement on 2
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December 2, 1996, the first day of trial, and then pleaded guilty on

December 4, 1996, to conspiracy to distribute crack cocaine. The

government then dismissed the remaining drug counts against Ayers as

provided by the plea agreement. Williams pleaded guilty to conspiracy to

distribute crack cocaine on December 2, 1996, the first day of trial, and

the government dismissed the remaining charges against Williams pursuant

to the plea agreement. 

At Ayers’ lengthy sentencing hearing held over the course of three

days, the parties presented evidence of the drug quantities involved in the

conspiracy and Ayers’ role in the offense. The district court determined

that at least 500 grams but less than 1.5 kilograms of crack cocaine were

attributable to Ayers. The court reached this result by totaling specific

quantities of crack it found attributable to Ayers. First, the court

relied on Ayers’ admission that he received 85 grams of crack from

codefendant David Johnson. Next, the court credited the testimony of

special agent Greg Brugman that Ayers participated in three controlled buys

of crack involving 23.3 grams, 23.1 grams, and 26.6 grams, respectively.

The court attributed another 49 grams based on codefendant Luther Batte’s

testimony that he purchased 7 one-quarter-ounce packages of crack from

Ayers. Although Eric Moss testified that he saw Ayers obtain 5 one-ounce

packages of crack on two separate occasions from codefendant Gerald Leach,

the court conservatively estimated that Ayers was responsible for 5 ounces,

or 140 grams, of crack based on these transactions. Antiono Watkins stated

he bought 17.71 grams of crack from Ayers. Antonio Lucas testified he saw

Ayers sell 7 grams of crack. Derrick Ware, whose testimony the district

court discounted based on his lack of credibility, stated that he observed

Ayers sell packages of crack ranging in size from one-quarter-ounce to oneounce five times per week for nine months, a total of roughly 1,260 grams

of crack. Based on the collective testimony of Ware, Watkins, and Lucas,
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the court found there was at least another 155 grams of crack attributable

to Ayers, putting the total quantity above 500 grams but below 1.5

kilograms. See USSG § 2D1.1(c). After determining that the sentencing

range was between 262 months and 327 months, the district court sentenced

Ayers to 262 months’ imprisonment.

Williams admitted during his plea hearing that he was involved in a

conspiracy to distribute crack cocaine with Gerald Leach, Luther Batte,

Lester Batte, David Johnson, Eric Moss, and Christopher Cungtion. At

Williams’ sentencing hearing, Officer Douglas Larison of the Cedar Rapids

Police Department testified that Williams and codefendant Gerald Leach were

the leaders of the crack cocaine distribution organization in Cedar Rapids,

Iowa. Larison stated that Williams was the source that supplied crack

cocaine to the organization. Williams admitted that on numerous occasions

he traveled to Chicago, or directed someone to go to Chicago for him, to

obtain crack cocaine for the conspiracy. Codefendant David Johnson

testified that he became involved in drug trafficking through Williams.

Johnson also stated that he obtained the crack he sold from Williams and

that Williams directed to whom and for what price the crack was to be sold.

The district court determined that Williams was a manager or

supervisor of criminal activity involving five or more participants and

thus subject to a three-level enhancement under USSG § 3B1.1(b). The court

also found that Williams had accepted responsibility for his offense and

decreased his offense level by two levels pursuant to USSG § 3E1.1(a). The

court denied Williams the additional third level decrease authorized by

USSG § 3E1.1(b)(2). After determining that the sentencing range was 360

months to life, the district court sentenced Williams to 360 months’

imprisonment.
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II.

We first consider Ayers’ appeal. Ayers challenges the district

court’s drug quantity findings, claiming the court arbitrarily assessed the

amount of crack cocaine attributable to him. We review the district

court's determination of a drug quantity for sentencing purposes for clear

error. 18 U.S.C. § 3742(e) (1994); United States v. Payne, 119 F.3d 637,

645 (8th Cir.), cert. denied, 118 S. Ct. 454 (1997).

 

Our review of the record convinces us that the district court did not

commit clear error in determining the amount of crack cocaine attributable

to Ayers. Contrary to Ayers’ assertion, the district court did not

arbitrarily determine the amount of crack attributable to Ayers. The

district court heard extensive testimony and made factual findings

regarding drug quantities based on its assessment of the evidence. As we

explained earlier, the district court calculated the amount of crack

cocaine attributable to Ayers by totaling the amounts from various drug

transactions described by witnesses, discounting some testimony based on

its credibility findings, and approximating certain amounts based on all

the evidence. It was proper for the district court to reasonably estimate

the total drug quantities based on its assessment of the evidence. See

USSG § 2D1.1, comment. (n.12); United States v. Newton, 31 F.3d 611, 614

(8th Cir. 1994) (court “may estimate total drug quantity based on evidence

that reasonably supports a factual finding”). We see no reason to disturb

the district court’s drug quantity determination.

Ayers next claims that the district court should have granted

“judicial” immunity to a witness, Toyon Valentine, who asserted his Fifth

Amendment right not to testify when called by Ayers at the sentencing

hearing. Ayers proffered that Valentine would have testified that Ayers

was not involved in certain drug transactions that a government witness

claimed were attributable to Ayers. Ayers argues that the district court’s

refusal to grant immunity to Valentine violated Ayers’ rights to compulsory

process under the Sixth Amendment and due process under the Fourteenth

Amendment. 
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We reject this argument. “The district court did not have the authority

to grant [Valentine] immunity because this court has consistently refused

to recognize the concept of judicial immunity.” United States v. Stewart,

122 F.3d 625, 627 (8th Cir. 1997) (citing United States v. Warfield, 97

F.3d 1014, 1020 (8th Cir. 1996), cert. denied, 117 S. Ct. 1119 (1997)); see

also United States v. Dierling, 131 F.3d 722, 732-33 (8th Cir. 1997)

(declining to recognize authority of court to grant immunity to a witness);

United States v. Robaina, 39 F.3d 858, 863 (8th Cir.1994) (same); United

States v. Capozzi, 883 F.2d 608, 613-14 (8th Cir. 1989) (same), cert.

denied, 495 U.S. 918 (1990); United States v. Doddington, 822 F.2d 818, 821

(8th Cir. 1987) (same); United States v. Hardrich, 707 F.2d 992, 994 (8th

Cir.) (same), cert. denied, 464 U.S. 991 (1983). The district court

properly refused to grant Valentine immunity. 

III.

We next consider Williams’ appeal. Williams first claims that the

district court erred in enhancing his sentence by three levels based on its

finding that he was a manager or supervisor in a criminal activity

involving more than five participants. See USSG § 3B1.1(b). The district

court’s determination of a participant’s role in the offense is a factual

finding that we review for clear error. United States v. Flores, 73 F.3d

826, 835 (8th Cir.), cert. denied, 116 S. Ct. 2568 (1996). 

Our review of the record leads us to conclude that the district court

did not commit clear error in determining that Williams was a manager or

supervisor of five or more participants in the crack cocaine conspiracy.

First, it is clear from the record that the court did not err in finding

that the criminal activity involved five or more participants. At his plea

hearing, Williams admitted to being involved in a conspiracy to distribute

crack cocaine involving six other individuals. Counting his own

involvement there were seven. Second, the court properly found that

Williams exercised such control over others in the criminal organization

to easily qualify as a manager or supervisor. The record clearly supports

this determination. Williams set
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the price of the crack sold by coconspirator David Johnson. See USSG §

3B1.1, comment. (n.4) (factor in determining whether defendant is a manager

or supervisor includes “degree of control and authority exercised over

others”). Williams also determined to whom Johnson would sell the crack.

See id. Williams was the source of crack for the Cedar Rapids conspiracy

and could therefore control the amount of crack sold by the conspirators.

Williams also recruited David Johnson to come to Cedar Rapids to sell drugs

for the conspiracy. See id. (factor in determining whether defendant is

a manager or supervisor includes “the recruitment of accomplices”).

Williams next argues that the district court erred in failing to grant

him a three-level decrease in his sentence for acceptance of

responsibility. See USSG § 3E1.1(b). We give “great deference” to a

district court’s finding of whether a defendant has accepted responsibility

for his offense and will reverse only for clear error. United States v.

Thompson, 60 F.3d 514, 517 (8th Cir. 1995); USSG § 3E1.1, comment. (n.5).

The district court granted Williams a two-level decrease for acceptance of

responsibility pursuant to USSG § 3E1.1(a), but declined to grant him the

additional one-level decrease authorized by USSG § 3E1.1(b)(2). Williams

claims the court erred in failing to grant him this additional decrease.

Section 3E1.1(b)(2) provides an additional one-level decrease to a

defendant who: (1) has accepted responsibility for his offense under §

3E1.1(a); (2) has an offense level greater than 16; and (3) has, “by timely

notifying authorities of his intention to enter a plea of guilty, . . .

permitt[ed] the government to avoid preparing for trial and permitt[ed] the

court to allocate its resources efficiently.” Williams met the first two

requirements, but the district court ruled the third element was lacking.

The commentary to § 3E1.1 explains that “to qualify under subsection

(b)(2), the defendant must have notified authorities of his intention to

enter a plea of guilty at a sufficiently early point in the process so that

the government may avoid preparing for trial and the court may schedule its

calendar efficiently.” USSG § 3E1.1, comment. (n.6). Williams did not

plead guilty until the morning of his first day of trial. By this time the
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government had prepared for trial, a jury was waiting to serve, and the

district court had set aside two weeks on its docket for the trial. We

easily conclude that the district court did not err in denying Williams an

additional one-level decrease in his adjusted offense level under § 3E1.1.

See Thompson, 60 F.3d at 517 (denying decrease under § 3E1.1(b)(2) where

defendant did not give notice of his intent to plead guilty until

government had “essentially already completed its preparation for trial”);

United States v. McQuay, 7 F.3d 800, 803 (8th Cir. 1993) (denying decrease

under § 3E1.1(b)(2) where defendant notified the government of his

intention to plead on the day before his second trial).

IV.

We have considered and rejected all of Ayers’ and Williams’ arguments

challenging their sentences. Accordingly, we affirm the judgments of the

district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.