UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4199

ENRICO FERRIANTE COTTEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, Chief District Judge.

(CR-95-161)

Submitted: March 4, 1997

Decided: March 24, 1997

Before WIDENER, HALL, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

W. Gregory Duke, BLOUNT & DUKE, Greenville, North Carolina,

for Appellant. Janice McKenzie Cole, United States Attorney, Jane H.

Jolly, Assistant United States Attorney, Raleigh, North Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Enrico Ferriante Cotten appeals from his conviction and sentence

for conspiracy to possess with intent to distribute and to distribute

cocaine base ("crack") in violation of 21 U.S.C. §§ 841, 846 (1994).

We affirm.

Cotten contends that the evidence at trial showed the existence of

several conspiracies, but the indictment alleged a single conspiracy.

The indictment charged that Cotten conspired with Christopher

Andrew McLachlan, Maurice Johnson, Steve Moodie, DuJuan Marquis Lofton, James Arthur Sutton, and other persons both known and

unknown. In support of his multiple conspiracy theory, Cotten cites

McLachlan's dealings with Andre Johnson and Antonio Reese, beginning in 1987, and his subsequent delegation of the drug sales to Mark

St. Anthony Sinclair and Moodie. Cotten also cites McLachlan's testimony that he did not deal with Cotten in 1992, Sinclair's statement

that Cotten was involved in dealing drugs with him in 1992, and

Moodie's statement that he did not meet Cotten until 1994. Cotten

points to a third conspiracy evidenced by Maurice Johnson's testimony that he did not know McLachlan, Sinclair, or Moodie, although

he dealt with Cotten until 1994, and Sinclair and McLachlan were not

involved with Cotten after 1992.

Although not all members participated in every facet of the conspiracy or knew the full scope and membership of the organization,

the evidence at trial proved the allegations of the indictment that a

single, ongoing conspiracy to supply drugs in the Kinston, North Carolina area existed. See United States v. Banks, 10 F.3d 1044, 1054

(4th Cir. 1993) (upholding drug conspiracy conviction on showing of

"loosely-knit association of members" with goal to supply particular

market, even where members did not know all other members);

United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988) (coconspirator need not be involved in every aspect of conspiracy). The

evidence at trial showed that McLachlan, Sinclair, and Cotten had an

agreement as early as 1988, when Cotten began selling crack for

McLachlan and--when McLachlan ceased active participation--indirectly for Sinclair. Although members dropped out of the

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conspiracy, the conspiracy continued. See United States v. West, 877

F.2d 281, 289 (4th Cir. 1989). As the trial court properly determined,

the evidence showed that McLachlan, Sinclair, Anthony Carmichael,

and Lee supplied drugs to Cotten, who supplied drugs to Johnson;

however, there was one conspiracy because they all were part of an

agreement to supply crack to a "particular drug consumption market."

See Banks, 10 F.3d at 1054.

Cotten also argues that the trial court erred in refusing his request

to instruct the jury on the law of multiple conspiracies. However, a

multiple conspiracy instruction is required only if the proof truly

shows that more than one conspiracy existed. United States v.

Kennedy, 32 F.3d 876, 878 (4th Cir. 1994); United States v. Mills, 995

F.2d 480, 485 (4th Cir. 1993). This court will generally defer to the

district court's decision to withhold such an instruction because the

trial judge is in a better position to evaluate the evidence presented

at trial. United States v. Gray, 47 F.3d 1359, 1368 (4th Cir. 1995).

As previously discussed, there was but one conspiracy. Although

the conspiracy was loosely-knit and all members did not know each

other, they shared the common goal of supplying drugs to the Kinston, North Carolina area. We find that the district court did not abuse

its discretion in refusing to give the proposed multiple conspiracies

instruction. See United States v. Russell, 971 F.2d 1098, 1107 (4th

Cir. 1992).

Cotten asserts that the sentencing judge failed to make findings of

fact as required by Fed. R. Crim. P. 32 after he objected to the probation officer's attribution of more than 1.5 kilograms of crack to him.

However, after hearing evidence presented on the amounts of crack

that Cotten purchased and sold, the court stated: "I think the probation

officer has got it right. There's more than enough there that enough

crack cocaine involved and I so find." Because the district court judge

heard the evidence and then expressed his agreement with the recommendation in the presentence report, we find that the district court

made an independent determination of the amount of crack attributable to Cotten. United States v. Morgan, 942 F.2d 243, 245 (4th Cir.

1991) (adoption of facts in presentence report sufficient if judge states

that his independent determination of the fact coincides with presentence report). Further, we find that the quantity of drugs attributable

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to Cotten was not clearly erroneous. See United States v. Hicks, 948

F.2d 877, 881 (4th Cir. 1991).

Cotten contends that the sentencing court erred by not making the

requisite factual findings to enhance his sentence for possessing a

firearm pursuant to USSG § 2D1.1(b)(1)* and for his role as a supervisor or manager pursuant to USSG § 3B1.1(c). With regard to the

possession of a firearm, the sentencing court stated: "I think the probation officer got it right, unless you want to put on some evidence."

As to Cotten's role as a manager or supervisor, the court stated: "I

think the probation officer has properly analyzed it under the law, and

I so find and agree with him. He's right." We find that these findings,

like the finding as to the amount of crack attributable to Cotten, are

adequate under Rule 32. See Morgan, 942 F.2d at 245.

Cotten additionally challenges the sufficiency of the evidence in

support of the sentencing court's conclusions that Cotten used and

possessed a firearm or that he exercised a supervisory or managerial

role in the offense.

Cotten cites "contradictory" evidence from the trial, noting that

McLachlan testified that Cotten used a .38 caliber pistol during a dispute over a drug debt, but Maurice Johnson testified that he never saw

Cotten carry a gun. We find that the sentencing court did not err in

crediting McLachlan's testimony that he saw Cotten brandish a gun,

rather than determining that Cotten did not carry a gun because one

co-conspirator never saw it. We further find that the two-level

enhancement was proper because the gun was connected to the

offense.

We also find that the two-level enhancement for Cotten's status as

an organizer, leader, manager, or supervisor of the offense was not

clearly erroneous. See United States v. Powell , 886 F.2d 81, 85 (4th

Cir. 1989). Sutton and Lofton provided statements to the probation

officer that they both made trips to New York to obtain crack for Cotten. Sutton reported that Cotten paid his expenses and provided some

crack in payment. Lofton also reported that he distributed crack for

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*United States Sentencing Commission, Guidelines Manual (Nov.

1995).

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Cotten in 1994. We find that based on these statements, the district

court did not clearly err in finding that Cotten exercised authority

over these two individuals and in enhancing his sentence under USSG

§ 3B1.1(c). See United States v. Veilleuz, 949 F.2d 522, 525 (1st Cir.

1991); United States v. Smith, 914 F.2d 565, 569-70 (4th Cir. 1990).

In conclusion, we affirm Cotten's conviction and sentence. 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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