Filed: Sep. 14, 1992
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 91-3639 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS FRANK H. BETHLEY, Defendant-Appellant. _ Appeal from the United States District Court For the Middle District of Louisiana _ (September 14, 1992) Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges. DAVIS, Circuit Judge: Frank H. Bethley was charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1). After a jury trial, he was
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 91-3639 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS FRANK H. BETHLEY, Defendant-Appellant. _ Appeal from the United States District Court For the Middle District of Louisiana _ (September 14, 1992) Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges. DAVIS, Circuit Judge: Frank H. Bethley was charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1). After a jury trial, he was ..
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 91-3639
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANK H. BETHLEY,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
For the Middle District of Louisiana
____________________________________________________
(September 14, 1992)
Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.
DAVIS, Circuit Judge:
Frank H. Bethley was charged with possession of cocaine with
intent to distribute, in violation of 21 U.S.C. 841(a)(1). After
a jury trial, he was convicted and sentenced to 120 months
imprisonment, to be followed by three years of supervised release.
We find no error and affirm.
I.
As part of an investigation into the criminal activities of
Betty Chube, the Drug Enforcement Administration obtained the
assistance of Detective Willie Turner, Livingston Parish Sheriff's
Office, to act in an undercover capacity as a cocaine purchaser.
On January 18, 1991, the undercover agent negotiated with Betty
Chube by phone to purchase five ounces of cocaine. After Chube
agreed to make the sale she telephoned Frank Bethley, and asked him
to come to her residence and help complete the transaction.
When Turner arrived at Chube's residence, Bethley walked out
of the residence and approached Turner, indicating that he had the
cocaine. Before Bethley delivered the cocaine, Bethley noticed
other agents approaching the residence. He immediately went back
into the residence, pulled a bag from his jacket, and threw it into
the lap of Bertell Roddy, who lived with Chube. The agents secured
this bag, which contained 139.9 grams of cocaine.
Bethley's trial revealed that, for six months prior to this
offense, Bethley had purchased cocaine from Chube five to six times
a month, in quantities ranging from one to three ounces.
Bethley challenges his conviction on two grounds. First, he
argues that he was denied due process because Bertell Roddy, a
government witness, failed to disclose a federal felony conviction.
Second, he argues that the evidence is insufficient to support his
conviction. Bethley also contends that the district court erred in
calculating his sentence under the Guidelines. We consider all of
these arguments below.
II.
A.
Bethley argues first that his conviction resulted from the
perjured testimony of Bertell Roddy, which the government knowingly
failed to correct. During Bethley's trial, the following exchange
occurred between counsel for Bethley and Bertell Roddy:
Q. Within the last ten years, how many crimes have you
been convicted of, felony?
A. One.
2
Q. One, in state court?
A. That I know of.
Despite the fact that Roddy disclosed his state felony conviction,
he did not disclose that, just months earlier, he had pleaded
guilty to a federal felony charge as well.
The government must not withhold potentially exculpatory
evidence from the accused. Giglio v. United States, 405 U.S. 150,
154,
92 S. Ct. 763,
31 L. Ed. 2d 104 (1972). Moreover, the government
must not deliberately use perjured testimony or encourage the use
of perjured testimony. Napue v. Illinois,
360 U.S. 264, 269-70,
79
S. Ct. 1173, 1177-8,
3 L. Ed. 2d 1217 (1959); United States v.
Cervantes-Pacheco,
826 F.2d 310, 315 (5th Cir. 1987).
The record shows that the United States gave Bethley a copy of
Roddy's state and federal rap sheets, as well as a copy of Roddy's
plea agreement for the federal offense. Moreover, the district
court told the jury that Roddy had entered a plea of guilty to a
federal offense. It is not clear whether Roddy understood that a
conviction following a plea agreement is just that--a conviction.
However, counsel for Bethley did not follow up on Roddy's response
about his convictions by directing Roddy's attention to the plea
agreement. The record belies Bethley's argument that the
government withheld material evidence from Bethley, or that
Bethley's conviction resulted from perjured testimony.
B.
Bethley argues next that the evidence is insufficient to
support his conviction under 18 U.S.C. § 841(a)(1). In reviewing
this challenge, our task is to determine whether any reasonable
3
jury could have found Bethley guilty on the evidence presented. In
considering the permissible inference we must view the evidence in
a light most favorable to the verdict. United States v. Black, 644
F.2d 445 (5th Cir. 1981).
Betty Chube testified that she told Bethley that she had five
ounces of cocaine inside a paper sack. She told him that her new
customer to whom the cocaine was to be delivered was a relative of
one of their mutual acquaintances. After Willie Turner, the
undercover officer, arrived, Chube reminded Bethley of the amount
of cocaine in the sack and the price per ounce of cocaine that he
was to obtain from Turner. The defendant took the sack containing
the cocaine to meet Turner.
Turner testified that when he arrived at Chube's house,
Bethley came out, approached him, and told him that he had the
merchandise and was ready to deal with him. Bethley pointed to a
bulge in his jacket as he spoke to Turner. Bethley then tried to
enter Turner's car to complete this transaction, repeating his
earlier statement to Turner. Turner, however, replied that he
preferred to deal with Betty Chube. During this exchange, unmarked
cars, which Bethley suspected were occupied by police, slowly
approached Chube's house. Seeing these unmarked vehicles, Bethley
turned around and quickly returned to the residence where he threw
the bag to Bertell Roddy. Before doing so, he told Chube that
"they" were coming.
Bertell Roddy testified that after Turner's arrival and before
Bethley left the house to meet him, Chube told Bethley that she had
4
five ounces of cocaine and wanted $1,100 per ounce. Officers found
approximately five ounces of cocaine in the paper sack.
The above evidence is adequate to support the jury's verdict
that Bethley possessed cocaine with the intent to distribute, in
violation of 21 U.S.C. 841(a)(1).
III.
Bethley argues that the district court made three errors in
calculating Bethley's sentence under the Federal Sentencing
Guidelines. First, Bethley contends, the district court improperly
calculated the amount of cocaine for sentencing purposes by
including cocaine that Bethley had purchased in previous
transactions. Second, Bethley argues that the district court
improperly refused to grant Bethley minimal or minor participant
status, which would have resulted in a reduction of the base
offense level by either 4 or 2 points. Third, Bethley argues that
the district court improperly raised Bethley's base offense level
by 2 points for obstruction of justice. We consider these
arguments below.
A.
The district court found that Bethley had distributed a
minimum of 30 ounces of cocaine during the six months prior to the
offense for which Bethley was convicted. Based on this finding,
the district court included 30 ounces of cocaine as relevant
conduct under § 1B1.3(a)(2) of the Guidelines and increased the
base offense level by eight points. Bethley disputes both the
amount calculated and its relevance to the offense of conviction.
Chube testified at trial that she sold Bethley between one and
5
three ounces of cocaine, five or six times a month, for the six
months prior to the incident for which Bethley was convicted. The
evidence also revealed that Bethley possessed a pager from July
1990 to January 18, 1991, and that his only employment for several
years before January 18, 1991 was assisting his mother with her
home day care service, in return for her financial assistance. A
May, 1990 police search of Bethley's bedroom in his residence
revealed $1,200 cash, a .45 caliber automatic pistol, and a small
plastic bag of cocaine.
Bethley objected to the district court's use of the additional
30 ounces of cocaine. He stated that he consumed the cocaine he
purchased from Chube. He told the probation officer that he used
cocaine at least three times per week. However, an officer from
the Drug Enforcement Administration testified at the sentencing
hearing that the amount of cocaine that Bethley purchased from
Chube was not consistent with personal consumption. The district
court was entitled to reject Bethley's statement that he consumed
this relatively large quantity of cocaine. Bethley argues that his
indigence indicated that he did not distribute cocaine. But the
district court was entitled to find that a cocaine distributor who
also has a cocaine habit does not universally enjoy financial
success.
To account for Bethley's likely personal use of the cocaine,
the district court made a conservative estimate of the amount that
Bethley distributed; the court assumed that Bethley distributed
five ounces per month for six months, resulting in a total quantity
6
of 30 ounces. The district court's findings underlying this
calculation are not clearly erroneous.
Bethley argues alternatively that even if we accept the
district court's finding that he distributed 30 ounces of cocaine,
the court nevertheless erred in including this as "relevant
conduct" under the Guidelines.
U.S.S.G. § 1B1.3(a)(2) governs this issue. It mandates that:
[T]he base offense level where the guideline specifies
more than one base offense level . . . shall be
determined on the basis of the following:
(2) solely with respect to offenses of a character for
which § 3D1.2(d) would require grouping of multiple
counts, all such acts and omissions that were part of the
same course of conduct or common scheme or plan as the
offense of conviction.1
We must therefore determine whether the district court clearly
erred in finding that Bethley distributed the 30 ounces of cocaine
as part of "the same course of conduct or part of a common scheme
or plan as the count of conviction." United States v. Byrd, 898
F.2d 450, 452 (5th Cir. 1990).
To qualify as relevant conduct, the prior conduct must pass
the test of similarity, regularity and temporal proximity. United
States v. Hahn, 960 F.2d 903, 910 (9th Cir. 1992). In other words,
there must be "'sufficient similarity and temporal proximity to
reasonably suggest that repeated instances of criminal behavior
constitute a pattern of criminal conduct.'" United States v.
Santiago,
906 F.2d 867, 872 (2d Cir. 1990) (quoting William W.
1
The term "offenses of a character for which § 3D1.2(d) would
require grouping in multiple counts" does not require the
defendant, in fact, to have been convicted of multiple counts.
U.S.S.G. § 1B1.3, Application Note 2.
7
Wilkins, Jr. and John R. Steer, Relevant Conduct: The Cornerstone
of the Federal Sentencing Guidelines, 41 S.C.L.Rev. 495, 515-16
(1990)). "When one component is absent, . . . courts must look for
a stronger presence of at least one of the other components."
United States v. Hahn, 960 F.2d 903, 910 (9th Cir. 1992).
Bethley's cocaine distribution activities took place within
six months of the offense for which he was convicted. Moreover,
those activities were of a continuous nature. The quantities
involved were similar--ounce quantities. Finally, the source and
type of drug were the same. The district court's conclusion that
Bethley's distribution of 30 ounces of cocaine was relevant conduct
to his offense of conviction is not clearly erroneous. See United
States v. Moore, 927 F.2d 825 (5th Cir.), cert. denied, ___ U.S.
___,
112 S. Ct. 205,
116 L. Ed. 2d 164 (1991).
B.
Bethley argues next that his participation in the offense for
which he was convicted was minimal, or at least minor. He
therefore argues that the district court improperly refused to
downwardly adjust his offense level under U.S.S.G. § 3B1.2.
Section 3B1.2 of the Guidelines tells the sentencing judge to
decrease the defendant's offense level by 4 levels "if the
defendant was a minimal participant in any criminal activity," or
by 2 levels "if the defendant was a minor participant in any
criminal activity." A "minimal participant" is one who is "plainly
among the least culpable of those involved in the conduct of a
group." U.S.S.G. § 3B1.2(a), Application Note 1. A "minor
participant" is a participant who is "less culpable than most other
8
participants, but whose role could not be described as minimal."
U.S.S.G. § 3B1.2(b), Application Note 3.
The introductory commentary to § 3B explains that "[t]he
determination of a defendant's role in the offense is to be made on
the basis of all conduct within the scope of § 1B1.3 (Relevant
Conduct), . . . and not solely on the basis of elements and acts
cited in the count of conviction." See United States v. Rodriguez,
925 F.2d 107, 111 (5th Cir. 1991). We use the "clearly erroneous"
standard when reviewing a district court's findings of a
defendant's status during a criminal offense. United States v.
Mejia-Orosco,
867 F.2d 216, 221 (5th Cir.), cert. denied,
493 U.S.
866,
110 S. Ct. 187,
107 L. Ed. 2d 142 (1989).
We have already concluded that the district court did not
clearly err when it counted Bethley's prior cocaine distribution as
related conduct under § 1B1.3 of the Guidelines. Therefore, the
district court properly considered Bethley's prior cocaine
distribution in its determination under § 3B1.2 of the Guidelines
that Bethley was not a minimal or minor participant.
We have held that a "mule" or transporter of drugs may not be
entitled to minor or minimal status. United States v. Buenrostro,
868 F.2d 135, 137-38 (5th Cir. 1989), cert. denied,
495 U.S. 923,
110 S. Ct. 1957,
109 L. Ed. 2d 319 (1990). And Bethley's activity was
not limited to a single delivery of drugs. He regularly purchased
cocaine and sold it during the six months preceding his arrest.
The district court did not clearly err in declining downward
adjustment for minor or minimal status.
C.
9
Bethley contends finally that the district court improperly
concluded that he obstructed justice within the meaning of U.S.S.G.
§ 3C1.1. Thus, he argues, the district court should not have
upwardly adjusted his offense level by two points under that
section.
Section 3C1.1 of the Guidelines directs a district court to
increase a defendant's offense level by 2 points "if the defendant
willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the investigation,
prosecution, or sentencing of the instant offense."
Application Note 3 provides a "non-exhaustive list of
examples" of the type of conduct that this guideline contemplates.
That list includes:
(a) threatening, intimidating, or otherwise unlawfully
influencing a co-defendant, witness, or juror, directly
or indirectly, or attempting to do so;
(b) committing, suborning, or attempting to suborn
perjury;
(c) producing or attempting to produce a false, altered,
or counterfeit document or record during an official
investigation or judicial proceeding;
(d) destroying or concealing or directing or procuring
another person to destroy or conceal evidence that is
material to an official investigation or judicial
proceeding . . ., or attempting to do so.
Effective November 1, 1990, part (d) of Application note 3 has been
amended to include the words:
if such conduct occurred contemporaneously with arrest
(e.g., attempting to swallow or throw away a controlled
substance), it shall not, standing alone, be sufficient
to warrant an adjustment for obstruction unless it
resulted in a material hindrance to the official
investigation or prosecution of the instant offense or
the sentencing of the offender;
10
A district court's determination that a defendant has
obstructed justice within the meaning of U.S.S.G. § 3C1.1 is
subject to the clearly erroneous standard of review. United States
v. Paden, 908 F.2d 1229, 1236 (5th Cir. 1990), cert. denied, ___
U.S. ___,
111 S. Ct. 710,
112 L. Ed. 2d 699 (1991).
The district court concluded that Bethley ran from the
officer, removed the drugs from his jacket, and put the drugs in
the hands of Bertell Roddy. The court then concluded that these
three actions, taken together, constituted obstruction of justice
within the meaning of § 3C1.1 and Application Note 3(d).
Specifically addressing the "standing alone" language at the end of
Application Note 3(d), the district court said that it did not base
its finding on the removal and the running from the officer
"standing alone," but, in addition, "the placing of the particular
bag which included the cocaine into the hands of another
defendant." This action, the court said, was a "material
consideration," within the meaning of § 3C1.1.
The district court also accepted Ms. Chube's testimony that
Bethley contacted her on at least five occasions attempting to
persuade her to sign an affidavit swearing he was not involved in
the offense, and that, on one occasion, he told her "I would do it
for you." The court then held that this conduct constituted
obstruction of justice within the meaning of § 3C1.1 and
Application Notes 3(b) and 3(a).
We uphold the district court's finding of obstruction of
justice, based on the combination of Bethley's placing the bag of
cocaine into the hands of Bertell Roddy and his attempts to get
11
Chube to sign a false affidavit. Therefore, we need not decide
whether Bethley's actions at the time of his arrest, alone, were
sufficient to constitute obstruction of justice within the meaning
of § 3C1.1.
IV.
For the reasons stated above, we affirm Bethley's conviction
and sentence.
AFFIRMED.
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