* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JAY VAN JACKSON, III, aka Little Jay, Defendant-Appellant.

___________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. PAUL SHELDON CROMARTIE, aka Shy-lo; aka Paul Miller, Defendant-Appellant. No. 97-8056 (District of Wyoming) (D.C. No. 96-CR-78-2)

_______________ No. 97-8057 (District of Wyoming) (D.C. No. 96-CR-78-1)

ORDER AND JUDGMENT *1 Wilson’s appeal from his convictions and sentence h as been resolved in a

separate decision. See United States v. Wilson , No. 97-8069, 1998 WL 165120 (10th Cir. April 2, 1998) (unpublished decision). -2- Before BRORBY , BRISCOE, and MURPHY , Circuit Judges.

Defendants Jay Van Jackson and Paul Sheldon Cromart ie appeal from their convictions and sentences for various firearm charg es. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a ), this court affirms.
I. BACKGROUND Jackson, Cromartie, and co-defendant John Henry Wil son 1 were charged together in a seven-count indictment and were joint ly tried in February 1997. Jackson, Cromartie, and Wilson were charged with co nspiring to receive, possess, and transport stolen firearms, in violation of 18 U .S.C. § 371 (count one). Cromartie and Jackson were also charged with posses sion of a firearm in relation to a drug trafficking felony, in violation of 18 U. S.C. § 924(c) (count five), and possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) (counts two and six). Cromartie was further charged with p ossession of a firearm while under indictment, in violation of 18 U.S.C. § 922(n ) (count three), and unlawful manufacture of a firearm, in violation of 26 U.S.C. §§ 5822, 5861(f), and 5871 (count four).-3-

At trial, the government introduced evidence that J ackson, Cromartie, and Wilson had conspired to unlawfully possess, store, and transport firearms stolen by three juveniles. The three juveniles, Jayson, J erry, and Will, testified at trial that they escaped from the Goodwill Industries secu re facility on March 23, 1996. About three days after their escape, they stole a v ehicle and drove from Cheyenne to Centennial, Wyoming. There they burglarized app roximately six cabins, stealing primarily alcohol and small items such as gloves and flashlights, before stealing another vehicle and driving back to Cheyen ne. Once in Cheyenne, the juveniles met up with Jackson (Will’s cousin) and Cromartie, who were staying at the Quality Inn. Fr om this time through April 10, 1996, the time frame of the conspiracy as charged i n the indictment, Jackson and Cromartie stayed at a number of motels in Cheyenne, changing motels every few days. The juveniles stayed with Defendants in the motels for much of this time. During this period, the juveniles stole firearms fr om three homes around Cheyenne. On March 30, Jayson and Jerry burglarized a home onAmes Avenue (“Ames residence”), stealing a semi-automatic shotg un. After stealing the shotgun, they hid it in an abandoned garage. When they returned to the motel where Jackson and Cromartie were then staying, theytold Defendants about the shotgun. Jackson arranged for a friend to take Jer ry to retrieve the shotgun.-4-

After the shotgun was brought to the motel room, Cr omartie sawed off the barrel and stock of the shotgun with a hacksaw borrowed fr om the motel. Later that night, Jayson and Jerry burglarized a re sidence located on the F.E. Warren Air Force Base (“Air Force Base residen ce”). Jackson arranged for a friend, “Dirty Red,” to drive Jayson and Jerry onto the base for the burglary and to pick them up when they had finished. Jayson and Jerry stole six firearms from the home. Jayson testified that in return for fire arms taken from the Ames and Air Force Base residences, Jackson paid them in cas h and crack cocaine. A few days later, Jackson and Cromartie drove the t hree juveniles to a trailer they had been told contained firearms. Jac kson and Cromartie stayed behind in the car while the juveniles broke into th e trailer. The juveniles stole some personal items and drugs, but did not find anyfirearms. Later that night, Jayson and Jerry burglarized a home near the motel to obtain money for their motel room. Jerry was caught by the police that ni ght. On April 4, while Jackson and Cromartie were stayin g at the Days Inn, the motel manager called the police because Jackson, Cr omartie, and others were having a party. When the police arrived, Will and Jayson jumped out the window and ran away. Jackson and Cromartie were arrested. Jackson was released almost immediately; Cromartie was held in jail.-5-

Will and Jayson met Jackson again the next day thro ugh his friend “Dirty Red.” That night, Will and Jayson burglarized a re sidence on Sagebrush (“Sagebrush residence”). Jackson drove them to the residence and dropped them off in a nearby alley. They then burglarized the h ome and paged Jackson afterwards to pick them up. Will and Jayson stole six firearms and some knives from the Sagebrush residence. Jackson initially of fered Jayson a beeper and a pistol for the firearms, but Jayson declined the of fer because he wanted money for the guns. Jackson told him he would have to wait f or the money. The firearms were later moved to Wilson’s house. On April 10, Cheyenne police obtained a search warr ant and searched Wilson’s home for firearms taken in the burglaries of the Ames, Air Force Base, and Sagebrush residences. The police recovered mos t of the firearms stolen in the burglaries, including a sawed-off shotgun identifie d as the shotgun stolen from the Ames residence. The juveniles testified that before the burglaries, they discussed stealing firearms with Jackson and Cromartie and were told b y Defendants that if they got the guns, they would be paid well for them. There was also evidence presented at trial concerning Defendants’ transportation and sto rage of the firearms in the various motel rooms, and evidence that Defendants p lanned to transport firearms to Denver, Colorado and planned to put the firearms “on the street.”-6-

Following trial, Jackson and Cromartie were found g uilty of all the charges. Jackson was sentenced to imprisonment for 120 month s on count six, 60 months on count one, and 60 months on count five, all to b e served consecutively. Jackson also received supervised release and was or dered to pay a special assessment. Cromartie was sentenced to imprisonment for 110 months on count two and 58 months on count four, to be served conse cutively; 60 months on count one and 60 months on count three, to be served conc urrently; and 60 months on count five, to be served consecutively to the othersentences. Cromartie also received supervised release and was ordered to pay restitution, fines, and a special

assessment. II. DISCUSSION A. Evidence of Other Acts Jackson and Cromartie first argue the district court improperly admitted evidence of uncharged bad acts. Defendants primari ly challenge testimony concerning drug trafficking, including testimony th at many people came in and out of various motel rooms, that Jackson was sellin g drugs and always had large amounts of cash, that Jackson provided crack and other drugs and alcohol to minors (the juveniles), and that various people smo ked crack and other drugs in the motel rooms. Defendants also argue the distric t court improperly admitted2 Defendants also assert the district court improperl y admitted evidence

informing the jury that “one of the Defendants had exercised his constitutional rights to require a search warrant.” In support, D efendants cite a place in the record where the government sought to introduce the affidavit for a search warrant of co-defendant Wilson’s home. At trial, d efense counsel asserted that by seeking to introduce the affidavit, “they are setti ng forth and putting undue influence on the fact that Mr. Wilson exercised his constitutional rights to have a search warrant.” It is unclear exactly what eviden ce or testimony Defendants are challenging. Defendants have also not explained ho w this evidence could have prejudiced them. This court therefore rejects Defen dants’ challenge to this evidence. -7- evidence of firearms in Defendants’ control before the juveniles burglarized any homes for guns. 2 Defendants argue the challenged evidence had no rel evance to the offenses charged, as Defendants were not charged with drug trafficking or drug possession and the firearms referred to in the challenged test imony were not identified in the indictment. Defendants further argue that even if the evidence was relevant, it did not meet the requirements of Federal Rule of Ev idence 404(b). At trial, the court ruled that the evidence was admissible as “re s gestae.” See United States v. Kimball , 73 F.3d 269, 272 (10th Cir. 1995) (“Evidence of o ther crimes should not be suppressed when those facts come in as res gestae —as part and parcel of the proof of the offense [] charged in the indictment.” (alteration in original)(internal quotations omitted)). This court reviews the distr ict court’s evidentiary rulings for abuse of discretion. See United States v. Cestnik, 36 F.3d 904, 906 (10th Cir. 1994).-8-

Rule 404(b) applies only to evidence of acts extrin sic to the charged crimes. See United States v. Johnson , 42 F.3d 1312, 1316 (10th Cir. 1994). An uncharged act may not be extrinsic if it was “part of the scheme for which a defendant is being prosecuted” or if it was “‘inext ricably intertwined’ with the charged crime[s] such that a witness’[s] testimony ‘would have been confusing and incomplete without mention’” of the uncharged a ct. Id. (quoting United States v. Record, 873 F.2d 1363, 1372 n.5 (10th Cir. 1989)). Although Defendants were not charged separately with drug trafficking, the evidence of drug trafficking was intrinsic to the c harges contained in counts one and five. Count one of the indictment charged Defe ndants with conspiracy to receive, possess, and transport stolen firearms. T he indictment alleged that as part of the conspiracy, Defendants used various mot el rooms to plan and carry out the theft and storage of the firearms and offered t o pay juveniles in cash and crack cocaine for firearms stolen by the juveniles. Overt act number twelve in the indictment alleged that Defendants actually paid on e of the juveniles cash and crack cocaine as payment for stealing five firearms from two houses. Count five of the indictment charged Defendants with unlawfull y distributing crack cocaine in exchange for firearms. The drug trafficking tes timony challenged by Defendants thus involved conduct which was part of the overall scheme for which Defendants were being prosecuted. Cf. id.-9-

The evidence of drug trafficking was also “inextric ably intertwined” with the charged crimes. The evidence of Defendants’ dr ug trafficking was necessary to explain the circumstances of the conspiracy and to explain why illegal drugs were available to exchange for firearms. Further, the evidence formed an “integral and natural part of the witnesses’ accoun ts of the circumstances surrounding the offenses for which the defendant[s] [were] indicted.” United
States v. Foster , 889 F.2d 1049, 1054 (11th Cir. 1989) (internal qu otations omitted). Without the evidence, the witnesses’ tes timony concerning the exchange of firearms for drugs would have been conf using and incomplete. The challenged evidence of firearms in Defendants’ control before the juveniles burglarized any homes for guns was also r elevant and integral to the charged crimes. The evidence established, with the evidence of drug trafficking, that contrary to Defendants’ contention, the juveni les joined an ongoing conspiracy involving guns and drugs. Further, the presence of guns has been recognized as one of the “tools of the trade” in th e distribution of illegal drugs. United States v. Martinez , 938 F.2d 1078, 1083 (10th Cir. 1991). Therefore, as with the other evidence of drug trafficking, the ev idence of additional firearms not provided by the juveniles was admissible. Defendants also argue the challenged evidence shoul d have been excluded under Federal Rule of Evidence 403 because its prob ative value was substantially-10-

outweighed by the danger of unfair prejudice. “Evi dence is not unfairly prejudicial simply because it is damaging to an opp onent’s case.” Id. at 1082. Instead, to be unfairly prejudicial, it must have “ an undue tendency to suggest decision on an improper basis.” Id. (internal quotations omitted). Defendants have not demonstrated that the evidence was unfairl y prejudicial. This court thus concludes the district court did not abuse its disc retion in admitting the challenged evidence.

B. Admission of Lay Opinion Testimony Jackson and Cromartie argue the district court abus ed its discretion in allowing the juveniles to give lay opinion testimony concerning the crack cocaine they allegedly received in partial payment for the firearms taken in two of the burglaries. Defendants assert there was insufficie nt foundation for the witnesses’ testimony that the substance they received as payme nt for the firearms was crack cocaine. Defendants assert that because the juveni les were improperly allowed to testify that the substance was crack cocaine, an es sential element of count five under the indictment, the government failed to meetits burden of proof of establishing that Defendants exchanged firearms forcrack cocaine. See United
States v. Uwaeme , 975 F.2d 1016, 1019-20 (4th Cir. 1992) (noting go vernment must prove every element of the crime charged beyon d a reasonable doubt, including, in drug cases, the chemical make-up of t he drug).-11-

“The government need not introduce scientific evide nce to prove the identity of a substance. As long as there is suffi cient lay testimony or circumstantial evidence from which a jury could fin d that a substance was identified beyond a reasonable doubt, the lack of s cientific evidence does not warrant reversal.” United States v. Sanchez DeFundora , 893 F.2d 1173, 1175 (10th Cir. 1990) (citation omitted); see also United States v. Wright , 16 F.3d 1429, 1439-41 (6th Cir. 1994); United States v. Eakes , 783 F.2d 499, 504-05 (5th Cir. 1986); United States v. Dolan , 544 F.2d 1219, 1221 (4th Cir. 1976). Although lay testimony may be used to establish the identity of a certain substance, a foundation is of course necessary. Fe deral Rule of Evidence 701 specifically provides that a lay witness may testif y in the form of opinions or inferences when they are “(a) rationally based on t he perception of the witness and (b) helpful to a clear understanding of the wit ness’[s] testimony or the determination of a fact in issue.” A district court has “broad discretion to determine whether a lay witness is qualified under Rule 701 to testify on a matter of opinion.” United States v. Borrelli , 621 F.2d 1092, 1095 (10th Cir. 1980). Courts have allowed drug dealers and drug users to give their opinion that certain substances were illegal drugs, provided a f oundation was laid based on their past experience and personal observation of t he relevant events. See, e.g. , United States v. Cantley , 130 F.3d 1371, 1378-79 (10th Cir. 1997), cert. denied,-12-

118 S. Ct. 1098 (1998); Wright , 16 F.3d at 1439-41; United States v. Walters , 904 F.2d 765, 770-71 (1st Cir. 1990); Sanchez DeFundora , 893 F.2d at 1175-76; United States v. Paiva , 892 F.2d 148, 156-57 (1st Cir. 1989); United States v.
Brown , 887 F.2d 537, 542 (5th Cir. 1989); United States v. Tinsley , 800 F.2d 448, 450 (4th Cir. 1986). The government relied on the testimony of the three juveniles to establish that Defendants exchanged firearms for crack cocain e. Jayson was first to testify. Jayson testified that while they were at the Quality Inn, about fifteen or twenty people came into the motel room for a few minutes. These people would go into the bathroom for a short period of time. Some woul d then come out and smoke a substance on a can; others would leave quickly. Jayson further testified that Jackson gave him “roc k,” which he identified as crack cocaine, as payment for the guns taken fro m the Ames and Air Force Base residences. He testified that he knew it was crack because he smoked it later that night, although he stated that he had ne ver seen crack before that time. He also described how he smoked it using a pop can. He testified that “at the time [he] thought [the rock] was big because [he] r eally didn’t know nothing about it,” but that based on what he later learned it was probably less than $200 worth of crack. He also testified that he only smo ked crack a few times, including once with Cromartie at the Hitching Post Inn.-13-

Jerry, like Jayson, testified that people came in a nd out of the motel room buying drugs and that these people sometimes smokedthe drugs in the room after the purchase. He stated that the people were buyin g and smoking crack. He testified that he knew it was crack because he had seen and smelled it before, although he had not previously used crack at that t ime. Jerry testified that Jayson gave him $125 and “five 20 pieces of crack cocaine” for his participation in the gun thefts, a lthough he did not personally participate in the actual exchange of the guns for money and drugs between Jayson and Defendants. He explained that “five 20 pieces” meant “five $20 pieces” of crack. When asked how he knew what the substance was, he stated that “[i]t was pretty obvious to tell” and that he had seen it before. He demonstrated the approximate size of the pieces of crack cocaine he was given by tearing up paper and crumpling it up. He further d escribed the substance as “kind of smooth” with “lots of different sides to it” and as being hard and an “offwhite” color. Jerry testified he smoked the crack with Jayson that night and through the next day, and stated that this was the first time h e had smoked crack. He further described how crack cocaine is smoked using a can a nd described the high he experienced smoking the crack as different from the high he experienced when smoking marijuana. Jerry also testified that altho ugh he had seen crack cocaine-14-

before Jayson gave him the crack, he hadn’t seen cr ack before he escaped from Goodwill about a week earlier. Will testified that Jackson, his cousin, sold crack . He stated that he knew it was crack because he had seen it before, and he tes tified that he had been exposed to crack for “[m]aybe a year.” Will described how crack cocaine is sold, stating that “[y]ou can buy 20 pieces, 50 pieces, 100 piece s” or larger pieces. He stated that “crack cocaine” and “rock cocaine” are the sam e thing. He testified that Jackson was selling “20s, 50s, 100s,” although he s tated he wasn’t present during the sales. Will also testified that he got crack from Jackson and sold it, and he estimated he sold about $5000 of crack during the p eriod between his escape from Goodwill until he was captured by authorities. Wil l testified that on the day Jackson and Cromartie allegedly exchanged crack coc aine for guns, he saw Jayson with crack and Jerry with cash. He testified, howe ver, that he didn’t observe them actually receive the crack and cash from Defen dants, but instead saw them “[a]bout twenty minutes later.” Will also testifie d that Jayson gave Cromartie about a fifty-piece of crack to sell, but stated th at he didn’t know where Jayson got that crack and that he didn’t see Cromartie sel ling any crack.-15-

Will testified he had never used crack. He also te stified he had no knowledge of the alleged transfer by Jackson of gun s for drugs and stated he didn’t know why Jackson gave some cash and crack to Jayson. Based on the above testimony, the district court di d not abuse its broad discretion in determining there was adequate foundation for the witnesses to testify as to their opinion that the substance in q uestion was crack cocaine. The juveniles all testified they recognized the substan ce to be crack. Jerry and Will testified they had seen crack before this incident, and Jerry also testified he had smelled crack before, although all three witnesses testified they had not previously used crack cocaine. Jayson and Jerry de scribed smoking the crack that night and a few times later. Jerry described the appearance of the substance, stating it was hard, rock-like, and an off-white co lor. Both Jayson and Jerry described how it could be smoked using a pop can. Cf. Paiva , 892 F.2d at 157 (permitting drug user to express opinion that subst ance she found was cocaine when “opinion was based on her past experience withcocaine and her personal observations, the appearance and taste, of the subs tance”). Jerry and Will also demonstrated that they were familiar with how crackis sold. Cf. Tinsley , 800 F.2d at 450 (allowing opinion testimony from lay wi tnesses experienced in using methamphetamine and who were “familiar with its app earance and the economics of supplying, buying, and selling it”). Will furth er testified that he actually sold3 Defendants have not argued they were denied the opp ortunity to challenge

the juveniles’ knowledge of crack cocaine and theircharacterizations of the substance as crack cocaine on cross-examination. D efendants have also apparently not argued that the testimony, if proper ly admitted, was insufficient to allow the jury to find beyond a reasonable doubt th at the substance exchanged for the firearms was crack cocaine. -16- some crack that he got from Jackson. Cf. Wright , 16 F.3d at 1439-41 (allowing opinion from lay witnesses who testified they had u sed and sold crack cocaine); Sanchez DeFundora , 893 F.2d at 1176 (same). The juveniles’ testimony satisfied the requirements of Rule 701. Jayson, Jerry, and Will had firsthand knowledge of the even ts they described. Although only Jayson participated in the actual exchange of the crack and cash for the guns, Jerry testified that he was in the motel room while Jayson was receiving the crack in the back room, and testified that after it took place Jayson came back with money and crack. Will also testified that he saw J ayson and Jerry with money and crack about twenty minutes later. This, in connect ion with their descriptions of their knowledge of and experience with crack cocain e, met the requirement of Rule 701 that lay opinion be rationally based on th e perception of the witness. The testimony was also helpful to determine a fact in issue, whether crack cocaine was exchanged for stolen firearms, thus satisfying the second requirement of Rule 701. The district court thus did not abuse its bro ad discretion in admitting the lay opinions of Jayson, Jerry, and Will. 34 U.S.S.G. § 2k2.1(b)(1) provides that if the offense involved five to seven

firearms, the sentencing court should apply a two-l evel increase, and if the offense involved eight to twelve firearms, a three- level increase is required. -17- C. Sentencing
1. Cromartie Cromartie argues the district court erred in senten cing him for a conspiracy involving nine firearms when his relevant conduct i nvolved at most seven firearms. Cromartie asserts that at least two of t he guns were stolen by coconspirators after he had withdrawn from the conspi racy and while he was jailed on a separate matter. He therefore asserts his sen tence should not have been enhanced under U.S.S.G. § 2k2.1(b)(1)(C) by three l evels, but that any enhancement should have at most been two levels. 4
This court reviews the district court’s factual fin dings under a clearly erroneous standard, giving due deference to the dis trict court’s application of the Sentencing Guidelines to the facts. See United States v. Lacey , 86 F.3d 956, 967 (10th Cir.), cert. denied, 117 S. Ct. 331 (1996). Questions of law regardin g the application of the Sentencing Guidelines are review ed de novo. See id. At sentencing, Cromartie’s attorney argued that he should not be responsible for the burglary of the Sagebrush resid ence that took place after he was in jail because the burglary was spontaneous an d not planned. He further argued that “the facts of this case are that the pe ople joined a loose association-18-

which could be a conspiracy which operated from per iodic times that they met. And by [Cromartie’s] leaving, physically leaving th e area, I think that is a withdrawal.” The district court found that, based on the evidence presented at trial, Cromartie was a member of the conspiracy and “is responsible for the acts of the conspirators, which include the [Sagebrush] robbery, even though he was then in jail at the time.” The court further found there was no evidence Cromartie withdrew from the conspiracy. The Sentencing Guidelines provide that all relevantconduct should be taken into account at sentencing. U.S.S.G. § 1B1.3 (a)(1)(B) provides that such relevant conduct includes,

in the case of a jointly undertaken criminal activi ty (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reason ably foreseeable acts and omissions of others in further ance of the jointly undertaken criminal activity, that o ccurred during the commission of the offense of conviction. Pursuant to this section, a defendant is responsibl e both for acts in which he was directly involved and for all reasonably foreseeabl e acts of co-conspirators done in furtherance of the conspiracy of which he was a member. See United States v.
Ruiz-Castro , 92 F.3d 1519, 1538 (10th Cir. 1996). Absent any affirmative withdrawal, a defendant rema ins part of the ongoing criminal enterprise. See United States v. Torres , 53 F.3d 1129, 1144 n.15 (10th-19-

Cir. 1995). “Although a conspirator’s arrest or in carceration by itself is insufficient to constitute his withdrawal from the conspiracy, an arrest may under certain circumstances amount to a withdrawal.” United States v. Melton , 131 F.2d 1400, 1405 (10th Cir. 1997) (citation omitted). Ap art from referring to his incarceration on another matter at the time of the Sagebrush burglary when the two additional firearms were stolen, Cromartie has cited no evidence indicating he took affirmative steps to disassociate himself f rom the conspiracy. Instead, he argues generally that the criminal activity in whic h he was involved was a series of isolated burglaries involving juveniles. The di strict court properly stated at the sentencing hearing that this was an argument for th e jury. The record verifies the district court’s findings that Cromartie was a memb er of the conspiracy and that he did not withdraw from the conspiracy. Consequently, these findings are not clearly erroneous. Cf. Ruiz-Castro , 92 F.3d at 1538. The further theft of firearms by Cromartie’s co-con spirators, which continued the same pattern of criminal activity, wa s reasonably foreseeable and was within the scope and in furtherance of the cons piracy of which Cromartie was a member. The district court therefore did not errin holding Cromartie responsible for the acts of his co-conspirators andin applying a three-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(1)(C).
2. Jackson-20- a. Base Offense Level Jackson argues the district court erred in calculat ing his base offense level. Pursuant to U.S.S.G. § 2K2.1(a)(3), the district co urt set Jackson’s base offense level at 22 based on the presence of a sawed-off sh otgun and Jackson’s prior felony conviction for a crime of violence, a 1989 c onviction for simple robbery. Jackson first argues the district court improperly relied on the sawed-off shotgun in reaching the base offense level because the evidence showed he was not involved in sawing off the shotgun and was not present when the shotgun was altered. He also asserts it was improper to rely o n the sawed-off shotgun in determining his base offense level because he was n ot charged with sawing off a shotgun. For sentencing purposes, a defendant’s relevant con duct is not restricted to conduct for which the defendant was specifically ch arged and convicted. See U.S.S.G. § 1B1.3 background. Furthermore, as discu ssed above, in determining a defendant’s relevant conduct the sentencing court c onsiders the actions not only of the defendant but also of the defendant’s co-con spirators that were reasonably foreseeable and in furtherance of jointly undertake n criminal activity. In the indictment, the sawing off of the shotgun wa s included as one of the overt acts of the conspiracy for which Jackson was charged. At sentencing, the district court stated the evidence showed that Jack son and Cromartie were the two-21-

leaders in the activities being conducted from the various motel rooms and that at the time the shotgun was sawed off, Jackson was pre sent. The court further determined that Jackson was a participant in the al teration of the shotgun. The court’s determination that Jackson was responsi ble for sentencing purposes for the sawed-off shotgun was supported bythe evidence and was not in error. There was substantial evidence in the recor d to support the district court’s finding that Jackson and Cromartie were leaders in the conspiracy activities involving the stolen firearms. Although there was conflicting evidence as to whether Jackson was present in the motel room when the shotgun was sawed off, at least one witness, Will, testified that he, “Jay [Jackson,] . . . Jerry and Ja[y]son” were present when Cromartie cut down the shotgun. The evidence also indicated Jackson was aware of the sawed-off shotgu n after it was altered and was involved in transporting it to co-defendant Wilson’ s house, where it was recovered by police. Accordingly, we reject Jackso n’s argument that the district court improperly considered the sawed-off shotgun i n determining his base offense level. Jackson further argues the district court improperl y engaged in double counting by considering his prior conviction for si mple robbery in calculating both his base offense level under U.S.S.G. § 2K2.1( a)(3) and his criminal history category under U.S.S.G. § 4A1.1. We reject this ar gument. Even assuming the-22-

district court erred in considering Jackson’s priorconviction in determining his criminal history after considering it for purposes of determining his base offense level, the inclusion of the conviction in his crimi nal history did not affect Jackson’s criminal history level. Based on Jackson ’s prior criminal convictions, he had a total of nineteen criminal history points. Of these points, three were due to his prior robbery conviction. Under the Sentenc ing Guidelines, thirteen or more points establishes a criminal history categoryof VI. See U.S.S.G. Ch. 5, Pt. A. Therefore, even excluding the three points from his prior robbery conviction, his criminal history category would remain at VI. Moreoever, the Sentencing Guidelines permit the sen tencing court to consider a prior felony conviction in determining b oth a defendant’s base offense level and criminal history category. Application n ote 15 of U.S.S.G. § 2K2.1 expressly provides that “[p]rior felony conviction( s) resulting in an increased base offense level under subsection . . . (a)(3) . . . a re also counted for purposes of determining criminal history points.” See United States v. Wimbush , 103 F.3d 968, 970 (11th Cir.) (per curiam) (holding use of d efendant’s prior felony convictions to increase base offense level and to d etermine criminal history did not constitute impermissible double counting), cert. denied, 117 S. Ct. 1859 (1997); United States v. Hawkins , 69 F.3d 11, 13-15 (5th Cir. 1995). The district court therefore did not err in determining Jackson’ s base offense level.-23- b. Enhancement for Obstruction of Justice Jackson next argues the district court erred in app lying an enhancement for obstruction of justice under U.S.S.G. § 3C1.1 basedon evidence that Jackson threatened a witness. Although this witness testif ied both before the grand jury and at trial, she only testified concerning the thr eat before the grand jury. To counter the evidence of the alleged threat, Jackson introduced the statement of Matt Escobedo, the person who allegedly delivered t he threat to the witness, in which he denied threatening the witness. Jackson a rgues the district court erred in refusing to give weight to this denial by Escobe do. U.S.S.G. § 3C1.1 provides that a defendant’s offens e level must be increased by two levels “[i]f the defendant willful ly obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the in stant offense.” Such obstruction includes threatening a witness, “directly or indire ctly, or attempting to do so.” U.S.S.G. § 3C1.1 application note 3. In applying the obstruction-of-justice enhancement, the district court relied on both the witness’s grand jury testimony and the Presentence Report (“PSR”). The PSR described the circumstances surrounding the threat and explained that Escobedo admitted it had occurred but had been forc ed by Jackson to sign a statement recanting the information. The district court stated that the witness’s-24-

testimony before the grand jury confirmed the infor mation in the PSR and also indicated the witness was afraid of Jackson and fea red he would hurt her. The court further found that Escobedo’s unsworn stateme nt was not believable and was induced by Jackson. Based on the evidence contained in the PSR, which w as supported by the grand jury testimony, the district court did not cl early err in finding the Escobedo statement was not believable and that Jackson actua lly conveyed or attempted to convey a threat to a witness. The district court t herefore properly applied the enhancement.

c. Enhancement for Role in Offense Jackson finally argues the district court erred in enhancing his sentence based on his role as a leader in the offense becaus e the court did not articulate the four individuals over whom Jackson exercised contro l. The district court applied a two-level enhancement pursuant to U.S.S.G. § 3B1.1(c) based on Jackson’s role in the offense. U.S.S.G. § 3B1.1(a) provides for a four-level increase “[i]f the defendant was a n organizer or leader of a criminal activity that involved five or more partic ipants or was otherwise extensive.” U.S.S.G. § 3B1.1(c) provides for a two -level increase if the defendant was an “organizer, leader, manager, or supervisor” in any criminal activity involving fewer than five participants. A lthough there were five or more-25-

participants involved in this case, the PSR recomme nded, and the district court applied, a two-level enhancement under § 3B1.1(c) b ecause some of the participants were juveniles, resulting in a separat e two-level enhancement under U.S.S.G. § 3B1.4. Under the standards of either § 3B1.1(a) or (c), th e district court did not err in applying the enhancement. At sentencing, defens e counsel argued the enhancement did not apply because the evidence did not show that Jackson exercised control over four others and because the court had already found that Cromartie was a leader. Defense counsel apparentlydid not contest that there were at least five participants in the criminal act ivity. The court found that the evidence showed Jackson was a leader or organizer. The court also stated that based on the evidence, Jackson and Cromartie were t he two leaders in the activities conducted from the various motel rooms a round Cheyenne. The record supports the district court’s finding th at Jackson was a leader or organizer in the criminal enterprise. The juvenile s testified at trial that Jackson told them if they stole firearms he would pay them. There was evidence presented at trial that Jackson arranged for, or himself prov ided, transportation for the juveniles to and from burglaries; that he arranged for the movement and storage of the stolen firearms; and that he planned to tran sport the firearms across state lines and onto the streets. The record also establ ishes that the criminal enterprise-26-

involved at least five individuals. In addition to the three co-defendants who were each charged and convicted of conspiracy charg es, the indictment identified three juveniles involved in the activity. These ju veniles testified at trial concerning their involvement in the joint criminal activity and the leadership or organizational role of both Jackson and Cromartie. The district court’s finding that both Jackson and Cromartie were leaders does not preclude the enhancement. The Sentencing Guidelines explicitly provide that “[t]here can, of course, be more than one pers on who qualifies as a leader or organizer of a criminal association or conspiracy.” U.S.S.G. § 3B1.1 application note 4. In addition, to enhance for a leadership o r organizational role, the government need not establish that the defendant ex ercised control over four others. It is sufficient that the government prove the defendant exercised control over at least one of the participants. See United States v. Cruz Camacho , 137 F.3d 1220, 1224 (10th Cir. 1998) (for § 3B1.1(a) en hancement to apply, government most prove that five persons participate d in the criminal venture and that the defendant exercised leadership control ove r at least one person); see also U.S.S.G. § 3B1.1 application note 2. The record he re established that Jackson and Cromartie exercised control over the juveniles, who were participants in the criminal enterprise. The district court did not er r in applying the enhancement.-27- III. CONCLUSION For the reasons discussed above, this court AFFIRMS the convictions and sentences of Jackson and Cromartie.
ENTERED FOR THE COURT:

Michael R. Murphy Circuit JudgeNo. 97-8056, United States v. Jackson

No. 97-8057, United States v. Cromartie
BRISCOE , Circuit Judge, concurring and dissenting: I concur in part and dissent in part. I agree with the majority that the district court did not err in admitting evidence of uncharged bad acts or in sentencing defendants. However, I conclude the cou rt erred in allowing two of the three juvenile witnesses to provide lay opinion testimony that the substance involved in the conduct described in Count 5 was cr ack cocaine. Count 5 charged defendants with possession of a firearm in connecti on with a drug trafficking offense, in violation of 18 U.S.C. § 924(c), and sp ecifically alleged defendants unlawfully distributed crack cocaine in exchange fo r stolen firearms. Further, I conclude the court’s error in the admission of this lay opinion testimony was not harmless and I would reverse defendants’ conviction s on Count 5. I concur in affirming the balance of defendants’ convictions an d sentences for the reasons stated by the majority. Federal Rule of Evidence 701 governs opinion testim ony from lay witnesses: If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally bas ed on the perception of the witness and (b) helpful to a clea r understanding of the witness’ testimony or the determination of a fa ct in issue. As this language makes clear, there are two require ments for admission of lay-2-

opinion testimony. See 29 Charles Alan Wright & Victor James Gold, Federa l Practice and Procedure § 6254 at 126 (1997). First, lay opinion testimony must be “rationally based on the perception of the witne ss.” Id. Second, lay opinion testimony must be “‘helpful to a clear understandin g of the witness’ testimony or the determination of a fact in issue.’” Id. § 6255 at 147 (quoting Rule 701). I agree with the majority that the lay opinion test imony at issue was helpful to the determination of a fact in issue. I focus my attention instead on whether the testimony was rationally based on the perceptio n of the lay witnesses. The requirement that lay opinion be rationally based on the perception of the witness “is itself divisible into two parts: (1) the witnes s must have perceived with his senses the matters on which his opinion is based, and (2) there must be a rational connection between the witness’ opinion and his per ceptions.” Id. § 6254 at 16. Here, there is little question the three juveniles perceived with their senses the matters on which they based their lay opinions. Al l personally observed the substance about which they testified. Two of the j uveniles ingested the substance and testified it gave them a quick “rush” similar t o “an adrenaline rush,” which was different from the high they had previously exp erienced when they ingested marijuana. Therefore, the critical question is whe ther there was a rational connection between the witnesses’ perceptions and their opinions as to the identity of the substance.-3- Even if a witness has perceived a matter with his s enses, the second component of personal knowledge requires that he ha[ve] the experience necessary to comprehend his perceptions. In many cases, comprehension requires no more experience than thatpresumably universal to the human condition. However, where t he lay witness observes matters that can be comprehended only withspecialized experience, it may be necessary to demonstrate thatthe witness has such experience. For example, where the witness te stified that the substance he tasted was cocaine . . ., experience w ith th[is] substance[] is essential to showing that the opinio n is “based on the perception of the witness.” 29 Wright & Gold, supra§ 6254 at 133. In a limited number of cases, federal courts have a llowed lay witnesses, who are typically experienced drug users, to offer opinions concerning the nature of illegal substances. See United States v. Paiva , 892 F.2d 148, 156-57 (1st Cir. 1989) (no abuse of discretion in admitting lay opin ion testimony that substance was cocaine where lay witness based opinion on pastextensive personal experience with cocaine and personal observations); United States v. Osgood , 794 F.2d 1087, 1095 (5th Cir. 1986) (identification of controlled substance as cocaine sufficiently established through testimony of lay w itness who had previously used cocaine, was familiar with effects, had ingested th e substance at issue, and concluded it produced euphoric feeling similar to t hat previously experienced); United States v. Sweeney , 688 F.2d 1131, 1145-46 (7th Cir. 1982) (lay witne ss qualified to testify as to identity of drug based o n prior use and knowledge of particular drug, sampling of substance at issue, an d conclusion that effect of-4-

substance was similar to prior experience with thatparticular drug); Weaver v. United States , 111 F.2d 603, 606 (8th Cir. 1940); Pennacchio v. United States , 263 F. 66, 67 (2d Cir. 1920). In virtually all of these cases, the courts have relied on the lay witness’ past experiences with and perso nal knowledge of the substance at issue in deciding to allow the witness to offer opinion testimony.
See , e.g. , Paiva , 892 F.2d at 157 (“Although a drug user may not qu alify as an expert, he or she may still be competent, based on past experience and personal knowledge and observation, to express an opinion as a lay witness that a particular substance perceived was cocaine or some other drug.”). Of the three witnesses, William clearly had the mos t extensive personal experience with crack cocaine. He testified he had never used crack cocaine, but had been exposed to it “[i]n school, stuff like that” for “[m]aybe a year.” Record VII at 107. He could not state the specific numberof occasions he had seen it or had been around it. He did not describe the physic al appearance of crack cocaine, but he did testify he had sold approximately $5,000 worth of crack cocaine given to him by Jackson in the ten days following his esc ape from the juvenile detention facility and was familiar with the sizes in which i t was typically sold. Although this is a close question, I conclude the d istrict court did not abuse its discretion in allowing William to offer his opi nion concerning the identity of the substance. Unlike most of the lay witnesses in the above-cited cases, William-5-

was not an experienced crack cocaine user. However , given the fact he had sold a significant amount of crack cocaine, I conclude he had sufficient personal experience with the substance to offer a rational o pinion based on his observations. In contrast to William, Jayson and Jerry had little if any experience with crack cocaine. Jayson testified he had not seen cr ack cocaine prior to receiving it from Jackson in the exchange at issue in Count 5. Jerry testified he had seen and smelled crack in Jackson’s motel room, but admitted he had no experience with it prior to escaping from the juvenile detention facil ity in March 1996. Jerry did not explain how he knew the substance he saw and smelle d in Jackson’s motel room was crack cocaine. I conclude Jayson and Jerry lac ked sufficient experience with crack cocaine to enable them to link their percepti ons to the opinions offered at trial concerning identity of the substance given to them by Jackson. See 29 Wright & Gold, supra§ 6254 at 138 (“disputes over whether a lay opinio n is rationally based on perception initially must focus on the validity of the proposition that the witness used to link perceptio n to his opinion”). Accordingly, I conclude Jayson’s and Jerry’s opinio ns were inadmissible under Rule 701 and the court abused its discretion in con cluding otherwise. The question then becomes whether the district court’s error in allowing Jayson and Jerry to offer their opinions was harmle ss. United States v. Cass , 127-6-

F.3d 1218, 1225 (10th Cir. 1997) (“A trial court’s admission of inadmissible evidence will disturb a defendant’s conviction onlyif the error is not harmless.”), cert. denied118 S. Ct. 1101 (1998). Because the error did notrise to the level of constitutional error, I review the record de novo, United States v. Scroger , 98 F.3d 1256, 1261 (10th Cir. 1996), cert. denied117 S. Ct. 1324 (1997), and apply the following standard:

If, when all is said and done, the conviction [ sic ] is sure that the error did not influence the jury, or had but ve ry slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specif ic command of Congress. But if one cannot say, with fair assurance, after pondering all that happened without stripping the e rroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substa ntial rights were not affected. The inquiry cannot be merely whether the re was enough to support the result, apart from the phase affected b y the error. It is rather, even so, whether the error itself had subst antial influence. If so, or if one is left in grave doubt, the convictio n cannot stand. Kotteakos v. United States , 328 U.S. 750, 764-65 (1946) (emphasis added) (internal citation omitted). It is important to emphasize “this is not a sufficiency of the evidence test,” and “the government has the burden of proving that the nonconstitutional error was harmless.” Scroger , 98 F.3d at 1261. Count 5 charged defendants with unlawfully distributing crack cocaine in exchange for some of the stolen firearms. To find defendants guilty, the jury was instructed it had to find, in pertinent part, defen dants knowingly and intentionally distributed crack cocaine and defendants knew at th e time of the distribution that-7-

the substance distributed was crack cocaine. The g overnment’s proof concerning identity of the substance at issue was based entire ly on the three juveniles’ testimony. In particular, Jayson and Jerry were the only witne sses who offered direct evidence of the exchange of an illegal substance for stolen firearms. William testified Jackson generally obtained money by selling crack. He testified he saw Jayson with approximately $50 worth of crackon the night Jackson was alleged to have exchanged crack for stolen firearms . However, he did not explain the appearance of the substance possessed by Jayson . There was no other testimony concerning the characteristics of crack c ocaine (its general appearance, its use, or its effect on users). Thus, there was no evidence that would have allowed the jury to form its own opinion as to the identity of the substance based upon the admissible perceptions of Jayson and Jerry . As they could not opine that the substance was crack cocaine, the only admissibl e portion of their testimony was their description of how the substance looked and how it made them feel when they ingested it. I conclude admission of Jayson’s and Jerry’s lay op inions was reversible error. If I were applying a sufficiency of the evi dence standard, I would conclude William’s testimony was sufficient to support the j ury’s verdicts on Count 5. However, under the Kotteakos harmless error standard, I cannot say with fair assurance that the jury’s verdict was not substanti ally swayed by Jayson’s and-8-

Jerry’s inadmissible opinion testimony. I would re verse defendants’ convictions on Count 5, remand for new trial on Count 5, and a ffirm the balance of defendants’ convictions.