UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-5025

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BEVERLY ALLEN BAKER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever, III, 

Chief District Judge. (5:11-cr-00237-D-1)

Submitted: September 23, 2013 Decided: September 26, 2013

Before GREGORY, DAVIS, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North 

Carolina, for Appellant. Thomas G. Walker, United States

Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, 

Assistant United States Attorneys, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Beverly Allen Baker was convicted by a jury of 

conspiracy to distribute 280 grams or more of cocaine base 

(crack) in violation of 21 U.S.C. § 846 (2006), and nine counts 

of crack distribution, 21 U.S.C. § 841 (2006). She was 

sentenced to life imprisonment. Baker appeals her sentence, 

contending that the district court miscalculated her Guidelines 

range. We agree that the court made several procedural errors 

which cannot be deemed harmless. United States v. SavillonMatute, 636 F.3d 119, 123-24 (4th Cir. 2011). Consequently, we 

vacate the sentence and remand for resentencing.

Testimony at Baker’s trial established that she sold 

crack from her home between 2002 and 2011. At times, her 

boyfriend, her brother, and her sister also sold crack there. 

Government witnesses included two of her regular customers and 

several of her suppliers. In the presentence report, the 

probation officer attributed nineteen kilograms of crack to 

Baker based on written estimations by her suppliers of the 

amounts they sold to her. This information resulted in a 

recommended base offense level of 38. U.S. Sentencing 

Guidelines Manual § 2D1.1(c)(1) (2012). The probation officer 

also recommended offense level increases for possession of a 

firearm, see USSG § 2D1.1(b)(1), for being a leader or organizer 

in the offense, see USSG § 3B1.1(a), for involving minors while 
3

having an aggravated role, see USSG § 2D1.1(b)(14)(B)(i), and 

for obstruction of justice, see USSG § 3C1.1. Baker was in 

criminal history category III. Her Guidelines range was life 

imprisonment.

At the sentencing hearing, the government asserted 

that supplier Wayne Vick’s trial testimony, as opposed to his 

written statements, supported a finding that he supplied Baker 

with about six kilograms of crack rather than the fourteen 

kilograms recommended in the presentence report. The government 

argued that, even with the reduction, the total quantity of

crack attributable to Baker was more than 8.4 kilograms of 

crack. Without making specific findings to determine the 

quantity of crack attributable to Baker, the district court 

agreed that base offense level 38 applied. The court also 

overruled Baker’s objections to the remaining sentence 

enhancements. The court rejected Baker’s request for a downward 

variance to a sentence of thirty years and imposed a life 

sentence. 

We review sentences for procedural and substantive 

reasonableness under an abuse of discretion standard. Gall v. 

United States, 552 U.S. 38, 51 (2007). Miscalculation of the 

Guidelines range is a significant procedural error. Id. We 

review the district court’s factual findings for clear error and 
4

its legal determinations de novo. United States v. Llamas, 599 

F.3d 381, 387 (4th Cir. 2010).

Baker first argues on appeal that the amount of crack 

attributed to her was clearly erroneous because it was based on 

unreliable evidence. The government must prove the drug 

quantity attributable to the defendant by a preponderance of the 

evidence. United States v. Carter, 300 F.3d 415, 425 (4th Cir. 

2002). The district court may rely on information in the 

presentence report unless the information is inaccurate or 

unreliable. Id. A district court’s findings on drug quantity 

are generally factual in nature, and therefore are reviewed by 

this court for clear error. Id. In determining the amount of 

drugs attributable to the defendant, “[w]here there is no drug 

seizure or the amount seized does not reflect the scale of the 

offense, the court shall approximate the quantity of the 

controlled substance.” USSG § 2D1.1 cmt. n.5. 

Here, the district court estimated that Baker bought 

and sold more than 8.4 kilograms of crack, the threshold amount 

for base offense level 38. Baker argues that the district 

court’s finding that she was responsible for more than 8.4 

kilograms of crack was not supported by the evidence and that 

Wayne Vick’s testimony, in particular, was “so vague and 

inconclusive as to preclude any reliable estimate of the 

quantity of crack he supplied to Baker from 2002 to 2007 or 
5

2008.” We conclude that Baker is correct that the evidence of 

the amount of crack Wayne Vick supplied to her was inconsistent 

and the inconsistency was not resolved by the district court, 

with the result that the district court’s finding concerning the

drug amount was inadequate. 

In the presentence report, based on Wayne Vick’s 

written statement, the probation officer recommended that Wayne 

Vick supplied Baker with two ounces of crack every two weeks in 

2002, and four ounces of crack every two weeks from 2003 to 

2008, for a total of 14.9 kilograms of crack. At trial, Wayne 

Vick testified briefly that he started selling crack to Baker in 

2002 and that he sold her one or two ounces every one or two or 

three weeks. Wayne Vick said he sold to her for, “A couple 

years. From ’02 through probably ’07, ’08,” and that the 

amounts he sold her were not always the same. He said that, 

“eventually it got to like four [ounces] on the end.” The 

government did not inquire how long Wayne Vick sold four-ounce 

quantities to Baker. However, the government represented that, 

when Wayne Vick said “at the end,” he meant the entire last year 

that he sold crack to Baker.

On appeal, the government has changed its calculation 

again, and estimates in its brief that Wayne Vick sold Baker at 

least 2.2 kilograms of crack. The government also suggests in 

its brief a recalculation of the 2.4 kilograms of crack supplied 
6

by Malcolm Dowdy as stated in the presentence report, based on 

information that he sold her two ounces of crack every two weeks 

for twenty-two months. Dowdy’s sales to Baker were not 

addressed at sentencing.* The government now suggests that Dowdy 

sold Baker 5.4 kilograms of crack for twenty-four months based 

on his trial testimony that he sold Baker two ounces of crack 

every week from November 2002 to October 2003. 

Using its current estimates of the amounts Wayne Vick 

and Dowdy sold to Baker, which total 7.6 kilograms of crack, and 

in light of additional testimony by James Vick, Shawn Barber, 

and Michael Burrell, the government argues that the evidence

supported a finding that 8.4 kilograms of crack was properly 

attributed to Baker. However, to avoid double counting, the 

probation officer did not count crack sold by Barber, who

testified that Sabrina sometimes received crack from Baker, but 

did not say either he or Sabrina sold crack to Baker. Also to 

avoid double counting, the probation officer did not include 

crack Burrell bought from Baker between 2006 and 2009, before he 

became a confidential informant. Adding the 2.04 kilograms of 

crack James Vick said he sold to Baker to the government’s 

 *

Baker objected to the 2.4 kilograms of crack Dowdy sold her 

as reported in the presentence report, but did not challenge it 

at sentencing. On appeal, Baker does not contest the 2.4 

kilograms of crack attributed to her through Dowdy. 
7

current estimate would result in a total of 9.6 kilograms of 

crack. However, this calculation was not presented to the 

district court. When the resolution of a Guidelines issue 

depends on a factual determination, the district court must make 

that finding in the first instance. United States v. Davis, 679 

F.3d 177, 183 (4th Cir. 2012).

Both Wayne Vick and Dowdy gave significantly different 

information about the amount of crack they sold to Baker to the 

probation officer and in their trial testimony. Because the 

district court’s factual finding that Baker was responsible for 

8.4 kilograms of crack is unsupported by reliable evidence, and 

is thus clearly erroneous, we conclude that resentencing is 

required for the district court to make new findings to 

establish Baker’s base offense level. 

Baker also challenges the enhancement for possession 

of a firearm during the offense. A two-level increase is 

authorized under USSG § 2D1.1(b)(1) if “a dangerous weapon 

(including a firearm) was possessed” during the commission of 

the offense of conviction, “unless it is clearly improbable that 

the weapon was connected to the offense.” USSG § 2D1.1 & cmt. 

n.11(A). “[P]ossession of the weapon during the commission of 

the offense is all that is needed to invoke the enhancement.” 

United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). The 

defendant has the burden of showing that a connection between 
8

his possession of a firearm and his drug offense is “clearly 

improbable.” United States v. Slade, 631 F.3d 185, 189 (4th 

Cir. 2011).

None of the government’s witnesses were asked at trial 

whether they had seen Baker in possession of a firearm. 

However, many of the same witnesses testified before the grand 

jury that they had seen a firearm in Baker’s purse or in her 

home. A preponderance of the evidence established that Baker 

possessed a firearm during the conspiracy and she did not show 

that it was clearly improbable that the gun was connected to the 

offense. 

Baker contends that the district court clearly erred 

in finding that she was an organizer or leader in the offense. 

The district court’s determination that a defendant is a leader 

in the offense is a factual finding reviewed for clear error. 

United States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009). A 

defendant qualifies for a four-level adjustment if he or she 

“was an organizer or leader of a criminal activity that involved 

five or more participants or was otherwise extensive.” USSG 

§ 3B1.1(a). A “participant” is “a person who is criminally 

responsible for the commission of the offense,” whether or not 

he has been convicted. USSG § 3B1.1 cmt. n.1. “Leadership over 

only one other participant is sufficient as long as there is 

some control exercised.” United States v. Rashwan, 328 F.3d 
9

160, 166 (4th Cir. 2003). In drug cases, customers who are 

solely end users of drugs are not participants. United States 

v. Egge, 223 F.3d 1128 (9th Cir. 2000); United States v. BaezAcuna, 54 F.3d 634, 639 (10th Cir. 1995). 

Baker argues that there was no evidence that she 

“planned or organized the drug trafficking of others or 

exercised control and authority over others in the conspiracy.” 

We agree. At sentencing, although the evidence established that 

the conspiracy had more than five participants, there was no 

compelling evidence that Baker directed or exercised control 

over any of the participants. Initially, the presentence report 

stated that Baker “directed the activities of multiple coconspirators,” specifically, Sabrina and Ken Allen (her brother 

and sister), Timothy Warren, and her mother. When Baker 

objected to the leader adjustment, the probation officer 

responded that “Baker directed the activities of, at least, 

Timothy Warren, and her mother, Barbara Allen[.]” 

The district court decided that the conspiracy had 

more than five participants; that Baker took “the larger share” 

of the fruits of the crime; and that Warren “was getting paid by 

her to be the doorman . . . to take care of the dogs, and to 

just kind of be a handyman around her residence.” The court 

found that Baker was “the one who participated in planning or 
10

organizing the offense. She was running the show.” The court 

further found that:

[S]he did exercise control and authority over the 

others. She would go and do the deals to get the 

drugs from her suppliers and then had the operation 

set up in her residence, set the price, direct those 

who were handling the door for her, to the extent it 

wasn’t her directly, in the exchange of money for the 

crack.

With regard to Sabrina and Ken Allen, the evidence 

showed only that they sold crack in the same vicinity as Baker, 

and sometimes sold crack at her house, but not that they acted 

at her direction or under her control. Rather, the evidence 

appears to show that they all acted cooperatively. Barber 

testified that Sabrina obtained her crack from either Michael 

Williams or Baker, and sold crack at her own house and at 

Baker’s house. Michael Burrell testified that he saw Sabrina 

and Ken Allen at Baker’s house because she “let . . . certain 

people come over to make money,” but that he did not like to buy 

from them because they gave smaller amounts of crack for the 

same amount of money. 

As evidence that Baker directed the activity of 

Timothy Warren, the probation officer reported that “Warren 

testified before the grand jury regarding his knowledge of the 

drug-trafficking activities of Wayne Vick, Beverly Baker, and 

Ronnell Perry.” Warren also testified before the grand jury 
11

that he bought crack from Baker by knocking at her door and that 

either Baker or Sabrina would answer the door. 

In addition, the probation officer noted that Michael 

Burrell testified at trial that, during one his controlled 

purchases of crack from Baker, he encountered Warren at her 

door, gave his money to Warren, who passed it to Baker, who went 

to the rear of her trailer, and shortly afterward Baker’s niece 

brought the crack to Burrell. The probation officer further

noted that Shawn Barber testified at trial that “Warren was a 

‘door man’ at Baker’s residence.” However, Joe Davis, one of 

Baker’s regular customers, testified that, when he went to her 

house, “different people” would answer the door, including 

Baker, her brother or sister, and sometimes a child. He did not 

mention Warren. Ronnell Perry, who lived with Baker, testified 

at trial that Warren was a crack customer of Baker’s who did 

“odds and ends” of work around her house and was paid in cash or 

crack. There was no testimony or other evidence that 

established that Warren was actually employed by Baker or 

directed by her in any capacity relating to the offense. 

Instead, the evidence showed that Warren was a crack user who 

helped out around Baker’s house at times in order to obtain 

crack or money for crack, and sometimes opened the door if he 

was present when another customer arrived, but took no active 

part in the conspiracy.
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After Baker was arrested, she called her mother, 

Barbara Allen, from prison and asked her mother to collect $600 

owed to her by Joe Davis. Davis testified that he paid Baker 

whatever he owed her for crack when he received his disability 

payment each month. After Baker’s arrest, he said he first 

tried unsuccessfully to get in touch with Baker’s “people,” but 

that ultimately Baker’s mother and brother came to his bank, 

where he gave them the money he owed Baker. There was no 

evidence that Baker’s mother had any other part in the 

conspiracy. We conclude that this one recorded instance in 

which she did something Baker asked her to do is insufficient to 

qualify Baker for the four-level leader/organizer adjustment. 

The trial evidence established that Baker involved her 

niece, a minor, in her drug sales to a limited extent. However, 

the two-level enhancement under § 2D1.1(b)(14)(B)(1) applies 

only if the defendant also has an aggravating role in the 

offense. Because the evidence did not establish that Baker had 

such an aggravating role, the enhancement for use of minors was 

incorrectly applied.

Last, Baker challenges the adjustment for obstruction 

of justice. To impose a Guidelines adjustment for obstruction 

of justice based on perjury, “the sentencing court must find 

that the defendant (1) gave false testimony; (2) concerning a 

material matter; (3) with willful intent to deceive.” United 
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States v. Perez, 661 F.3d 189, 192 (4th Cir. 2011). This Court 

held in Perez that, “[i]f a district court does not make a 

specific finding as to each element of perjury, it must provide 

a finding that clearly establishes each of the three elements.” 

Perez, 661 F.3d at 193. 

The district court found that Baker testified falsely 

in 2009 before a grand jury that was investigating Michael 

Williams’ drug trafficking. The court reviewed her statements 

and found that each of them amounted to perjury and constituted 

obstruction of justice. The grand jury proceedings are not in 

the record on appeal, but Baker does not dispute that she 

testified falsely that she had never seen Williams in possession 

of cocaine or any illegal narcotics; said that Wayne Vick was 

not in the drug business; said she had never received crack or 

powder from Wayne Vick; and said she had never sold cocaine. 

Baker contends that the district court’s findings were 

inadequate because (1) the district court did not find that her 

false statements were material to the investigation of her own 

drug offense, and (2) failed to find that she had an intent to 

deceive. However, Baker does not dispute that, when she 

appeared before the grand jury, she was advised that the grand 

jury was investigating narcotics violations, that she had been 

named as being involved in the distribution of illegal 

substances, that she could later be charged with a federal drug 
14

violation, that she was advised of her rights, including her 

right not to incriminate herself, and that she was informed that 

she was under oath and subject to the penalty of perjury. In 

light of this uncontested information, although the district 

court failed to make specific findings on each element of 

perjury, we conclude that the court’s findings were adequate, 

and that application of the adjustment was not clearly 

erroneous. 

We note that the district court stated that it would 

impose the same life sentence as a variance if it had 

miscalculated the Guidelines range, citing Savillon-Matute, 636 

F.3d at 123 (holding that claimed procedural error in Guidelines 

calculation is harmless if (1) the district court would have 

imposed the same sentence even if it had decided the Guidelines 

issue the other way, and (2) the sentence imposed is 

reasonable). In this case, we cannot say that the life sentence 

imposed by the district court is reasonable because, on the 

record before us, Baker’s conduct was comparable to that of her 

co-conspirators rather than more culpable. Although we express 

no opinion as to the appropriate sentence, the district court 

may wish to reconsider its previous conclusion that the 

sentencing goals of 18 U.S.C. § 3553(a) (2006) require a life 

sentence rather than a thirty-year sentence. 
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For the reasons discussed, we vacate the sentence and 

remand for resentencing in accord with this opinion. We deny 

Baker’s motion for leave to file a pro se brief. We dispense 

with oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and 

argument would not aid the decisional process.

VACATED AND REMANDED