UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-5014

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAYVON GREGORY BROWN, a/k/a Ray-Ray,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Harrisonburg. Glen E. Conrad, District

Judge. (5:06-cr-00029-gec)

Submitted: July 31, 2008 Decided: September 26, 2008

Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit

Judge.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for

Appellant. John L. Brownlee, United States Attorney, Jean B.

Hudson, Assistant United States Attorney, Charlottesville,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Rayvon Gregory Brown appeals his 324-month sentence after

pleading guilty to conspiracy to distribute and possess with intent

to distribute more than fifty grams of cocaine base, in violation

of 21 U.S.C.A. §§ 841(b)(1)(A), 846 (West 1999 & Supp. 2008), four

counts of possession with intent to distribute cocaine base, in

violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C), and two counts of

possession with intent to distribute more than five grams of

cocaine base, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(B).

Brown claims the district court erred in calculating the amount of

drugs attributable to him and by imposing sentencing enhancements

for possession of a firearm and his role within the conspiracy.

Brown also asserts his sentence is unreasonable in light of the

Supreme Court’s ruling in Kimbrough v. United States, 128 S. Ct.

558 (2007), and the recent amendments to the Sentencing Guidelines

for crack cocaine offenses. After reviewing the record, we find

the district court did not err in determining Brown’s base offense

level or by imposing the sentencing enhancements. However, because

the district court did not have the benefit of the Kimbrough

decision or the amendments to the crack cocaine Guidelines at the

time of Brown’s sentencing, we remand this case to allow the

district court an opportunity to reconsider Brown’s sentence.
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I

Appellate review of a district court’s imposition of a

sentence is for abuse of discretion. Gall v. United States, 128 S.

Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007). This court “must first ensure that the

district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the [18 U.S.C.A.] § 3553(a) [(West 2000 & Supp. 2008)] factors,

selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence — including an

explanation for any deviation from the Guidelines range.” Gall,

128 S. Ct. at 597.

If there are no procedural errors, we next consider the

substantive reasonableness of the sentence. Id. “Substantive

reasonableness review entails taking into account the totality of

the circumstances, including the extent of any variance from the

Guidelines range.” Pauley, 511 F.3d at 473 (internal quotation

marks and citation omitted). While this court may presume a

sentence within the Guidelines range to be reasonable, we may not

presume a sentence outside the range to be unreasonable. Id.

“Even if we would have reached a different sentencing result on our

own, this fact alone is ‘insufficient to justify reversal of the

district court.’” Id. at 474 (quoting Gall, 128 S. Ct. at 597).
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II

A

Brown’s first claim challenges the district court’s

determination of his base offense level. He asserts that the

amount of drugs held attributable to him was based on hearsay

statements provided by co-defendants “who hoped to curry favor with

the Government” in order to reduce their own sentences. Pursuant

to U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.3(a)(1) (2005),

in determining the proper base offense level to apply to a

defendant involved in a drug conspiracy, the defendant is

responsible for his own acts, as well as for “all reasonably

foreseeable acts” of his co-conspirators taken in furtherance of

the joint criminal activity. See United States v. Randall, 171

F.3d 195, 210 (4th Cir. 1999); United States v. Gilliam, 987 F.2d

1009, 1013 (4th Cir. 1993). The Guidelines do not require precise

calculations of drug quantity, as the district court’s

approximation is not clearly erroneous if supported by competent

evidence. Randall, 171 F.3d at 210. If the district court relies

on the drug quantity included in the pre-sentence report (“PSR”),

the defendant bears the burden of establishing that the information

is incorrect, as “mere objections are insufficient.” Id. at 210-

11.

According to the PSR, as well as the summary of evidence

submitted by the Government in support of Brown’s guilty plea, the
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conspiracy was responsible for a minimum of 896 grams of crack

cocaine and a maximum of 2,688 grams. The probation officer

estimated that during Brown’s involvement in the conspiracy, an

estimated 2.126 kilograms of cocaine base were transported from

Washington, D.C., to a residence in Luray, Virginia, where it was

then repackaged and distributed. The probation officer reached

this estimate based on proffers made by a number of Brown’s codefendants who had pled guilty. DEA Agent Kenneth Rosel testified

that, according to the co-defendants’ accounts, Brown originally

transported one to two ounces of crack cocaine each week from

Washington, D.C.; however, the amount eventually increased to three

or four ounces a week. Probation Officer W.R. Good also testified

that the accounts given by the co-defendants were “very consistent”

with one another and with their prior statements to authorities.

While Brown contends the district court erred by relying

on hearsay statements provided by his co-defendants, a sentencing

court may consider any relevant information, including hearsay

evidence, provided the information has “sufficient indicia of

reliability to support its probable accuracy.” USSG § 6A1.3(a);

see also United States v. Love, 134 F.3d 595, 607 (4th Cir. 1998)

(no bar on use of hearsay at sentencing). In this case, Agent

Rosel and Probation Officer Good both testified that the drug

amounts were calculated based on statements provided by a number of

co-conspirators, all of whom had first-hand knowledge of the
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narcotics operation and were found by the officers to be “very

consistent” and “very credible.” While Brown testified that the

total amount of drugs brought in each week was far lower than the

Government’s estimate, the district court found the statements

provided by his co-conspirators were sufficiently reliable to

support the Government’s estimate of the total drug amount. See

United States v. Sampson, 140 F.3d 585, 591 (4th Cir. 1998) (in

reviewing Guidelines sentence, appellate court assesses district

court’s credibility determinations for clear error). Accordingly,

the district court did not err in finding that Brown was

responsible for at least 1.5 kilograms of cocaine base.

B

Brown next contends the district court erred by imposing

a four-level enhancement for his role within the conspiracy. A

four-level enhancement for the defendant’s role in the offense is

appropriate when “the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was

otherwise extensive.” USSG § 3B1.1(a). Factors distinguishing a

“leadership” or “organizational role” from that of a manager or

supervisor include: 

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.
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USSG § 3B1.1, comment. (n.4).

According to the PSR, Brown was the “hub” of the

conspiracy, as he developed a reliable source of cocaine base in

Washington, D.C., and transported and distributed the cocaine

throughout Page County, Virginia, with the assistance of his coconspirators. Brown was described as having “almost complete

authority and control” over the conspiracy, as he “fronted drugs to

members of the conspiracy, maintained the source of supply, set

prices, meeting dates and times, recruited others and profited

substantially from the activities of the conspirators.” At the

sentencing hearing, Agent Rosel testified that the accounts

provided by the co-defendants indicated that Brown was the source

for the crack cocaine and the head of the conspiracy. Agent Rosel

and Probation Officer Good also detailed an incident in which Brown

held a gun to the head of one of the co-conspirators and threatened

to kill him after Brown discovered that he was stealing crack

cocaine and replacing it with “soap powder.”

Again, Brown asserts the enhancement imposed by the

district court was based solely on hearsay accounts provided by

unreliable informants and co-conspirators. At the sentencing

hearing, Brown testified that he did not direct or organize the

conspiracy, and notes there was no evidence he received a greater

share of the proceeds. However, in light of the statements

provided by his co-defendants, the district court found Brown’s
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testimony to not be credible. See Sampson, 140 F.3d at 591. Based

on the information contained in the PSR and the summary of

evidence, as well as the testimony provided by Rosel and Good, the

district court had reliable evidence that Brown maintained the

source of narcotics, organized the transportation of the cocaine

base from Washington, D.C., into Page County, recruited coconspirators to repackage and distribute the drugs, directed others

to procure firearms for use in the conspiracy, and exercised

control and authority over his co-conspirators through threats of

violence. Accordingly, the district court did not err in

determining that Brown was a leader or organizer within the

conspiracy.

C

Brown also contends the district court erred by imposing

a two-level enhancement for possession of a firearm. Under USSG

§ 2D1.1(b)(1), a two-level offense level enhancement shall be

imposed if a dangerous weapon, including a firearm, was possessed

during the narcotics offense. The adjustment is applied “if the

weapon was present, unless it is clearly improbable that the weapon

was connected with the offense.” USSG § 2D1.1, comment. (n.3). In

order to demonstrate that a weapon was present, the Government need

show only that “the weapon was possessed in connection with drug

activity that was part of the same course of conduct or common

scheme as the offense of conviction.” United States v. McAllister,
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272 F.3d 228, 233-34 (4th Cir. 2001) (internal quotation marks and

citation omitted). Pursuant to USSG § 1B1.3(a)(1)(B), a defendant

may be held responsible for a firearm possessed by another member

of the conspiracy if possession of the firearm was reasonably

foreseeable to the defendant and in furtherance of the jointly

undertaken criminal activity. See United States v. Kimberlin, 18

F.3d 1156, 1159-60 (4th Cir. 1994).

According to the PSR, Brown and his co-defendants

“regularly used and carried firearms in furtherance of the

conspiracy.” Brown’s co-conspirators noted occasions when he would

become “highly volatile” while in possession of a firearm and would

use his gun to threaten them. Brown also recruited one of his coconspirators to serve as an armed “enforcer” in order to provide

security during transportation or distribution of the narcotics.

Agent Rosel testified that almost all of the co-conspirators had

seen Brown in possession of multiple firearms, including a .45

caliber handgun with a laser sight. Brown also used a firearm to

threaten a co-conspirator after Brown caught him stealing crack

cocaine.

On appeal, Brown relies on the fact that no firearms were

ever recovered from him or any other member of the conspiracy.

However, such evidence is not required in order to impose a

sentencing enhancement for possession of a dangerous weapon;

rather, the district court need only find the evidence presented
1

Prior to sentencing, Brown filed a sentencing memorandum in

which he requested the district court consider reducing his

sentence to account for the disparities in sentencing between crack

cocaine and powder cocaine offenses.

2

After Brown was sentenced in October 2007, the Supreme Court

decided that “it would not be an abuse of discretion for a district

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has “sufficient indicia of reliability to support its probable

accuracy.” USSG § 6A1.3(a). In this case, Brown’s co-conspirators

provided consistent statements to investigating officers regarding

Brown’s procurement, possession, and use of firearms during the

course of the conspiracy, both for protection and enforcement.

Despite Brown’s testimony that he neither possessed a firearm nor

saw any member of the conspiracy with a gun, the accounts provided

by his co-conspirators were sufficiently reliable for the district

court to determine that Brown’s testimony was not credible.

Accordingly, the district court did not err in imposing a two-level

enhancement for possession of a firearm in furtherance of the

conspiracy.

D

Finally, Brown contends his sentence is unreasonable in

light of the Supreme Court’s ruling in Kimbrough and the recent

amendments to the Sentencing Guidelines for crack cocaine

offenses.1 The Government acknowledges the district court did not

have the benefit of the Kimbrough decision at the time of Brown’s

sentencing and concedes the case should be remanded for

resentencing.2

 
court to conclude when sentencing a particular defendant that the

crack/powder disparity yields a sentence ‘greater than necessary’

to achieve § 3553(a)’s purposes, even in a mine-run case.”

Kimbrough, 128 S. Ct. at 575. Kimbrough thus abrogated this

Court’s decision in United States v. Eura, 440 F.3d 625, 634 (4th

Cir. 2006) (holding that 100:1 ratio cannot be the basis of a

variance), vacated, 128 S. Ct. 853 (2008). Furthermore, on

November 1, 2007, the United States Sentencing Commission lowered

the base offense level for drug offenses involving crack cocaine.

See USSG § 2D1.1 (2007); USSG App. C, Supp. Amend. 706. Upon

remand, these amendments would be applicable.

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Accordingly, while we affirm the district court’s

determination of the total drug amount for which Brown should be

held responsible and the imposition of the relevant sentencing

enhancements, we vacate the sentence imposed and remand this matter

in order to allow the district court an opportunity to reconsider

Brown’s sentence in light of Kimbrough and the amendments to the

Sentencing Guidelines. 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 IN PART;

VACATED AND REMANDED IN PART