Filed: Aug. 25, 2003
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 03-4087 CRUSO R. WALLACE, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 03-4217 GUISEPPE L. WALLACE, a/k/a Big, a/k/a Big Joe, Defendant-Appellant. Appeals from the United States District Court for the Southern District of West Virginia, at Beckley. Charles H. Haden II, District Judge. (CR-02-101) Submitted: August 6, 2003 Decided: August
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 03-4087 CRUSO R. WALLACE, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 03-4217 GUISEPPE L. WALLACE, a/k/a Big, a/k/a Big Joe, Defendant-Appellant. Appeals from the United States District Court for the Southern District of West Virginia, at Beckley. Charles H. Haden II, District Judge. (CR-02-101) Submitted: August 6, 2003 Decided: August 2..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4087
CRUSO R. WALLACE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 03-4217
GUISEPPE L. WALLACE, a/k/a Big,
a/k/a Big Joe,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, District Judge.
(CR-02-101)
Submitted: August 6, 2003
Decided: August 25, 2003
Before TRAXLER and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. WALLACE
COUNSEL
Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Jonathan D. Bryne, Legal
Research and Writing Specialist, Charleston, West Virginia; J. Steven
Hunter, STEVEN HUNTER ASSOCIATES, L.C., Lewisburg, West
Virginia, for Appellants. Kasey Warner, United States Attorney, John
L. File, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Cruso R. Wallace appeals from his 188-month sentence for con-
spiracy to distribute crack cocaine, and Guiseppe L. Wallace, Sr.
appeals from his conviction for conspiracy to distribute crack cocaine.
Finding no reversible error, we affirm both defendants’ convictions
and sentences.
I.
From December 1999 to January 2002, Guiseppe, Sr. and his sons,
Guiseppe L. Wallace, Jr. and Cruso, sold cocaine base in and around
Guiseppe’s, Sr.’s residence. Guiseppe, Jr. and Cruso pled guilty to
conspiracy to distribute cocaine base. Guiseppe, Sr. went to trial,
where Guiseppe, Jr. testified that each of the Wallaces assisted the
others in providing cocaine base to customers and that Guiseppe, Sr.
and Cruso each sold about a gram of cocaine base a day. The jury also
heard recorded conversations of negotiations with the confidential
informant and saw videotapes of drug transactions. In addition, the
confidential informant testified that the Wallaces worked together to
sell cocaine base.
UNITED STATES v. WALLACE 3
Guiseppe, Sr. was convicted of conspiracy to distribute cocaine
base, two counts of distribution of cocaine base, and three counts of
aiding and abetting the distribution of cocaine base. He was sentenced
to 235 months imprisonment.
At Cruso’s sentencing hearing, he moved the court to reduce his
sentence based on his poor health, his minor role in the offense, and
the disparity in his potential sentence and that of Guiseppe, Jr. The
court denied Cruso’s motions, finding that his health was not extraor-
dinary enough to warrant departure, that he did not have a minor role
in the offense, and that sentencing disparity is not a proper ground for
departure. Cruso was sentenced to 188 months imprisonment.
II.
Guiseppe, Sr. contends that there was insufficient evidence to sup-
port his conspiracy conviction. He asserts that there was never an
agreement between him and his sons and that they each operated their
own separate business.
The standard of review is whether, viewing the evidence in the
light most favorable to the prosecution, there is sufficient evidence to
support the verdict. Glasser v. United States, 315 U.S. 60, 80 (1942).
To prove the conspiracy, the Government must establish that (1) an
agreement to violate the federal drug laws existed between two or
more persons, (2) the defendant knew of the conspiracy, and (3) the
defendant knowingly and voluntarily became a member of the con-
spiracy. United States v. Burgos,
94 F.3d 849, 857 (4th Cir. 1996) (en
banc). Conspiracies are often proven wholly by circumstantial evi-
dence, including the "defendant’s relationship with other members of
the conspiracy, the length of this association, [the defendant’s] atti-
tude [and] conduct, and the nature of the conspiracy."
Id. at 858
(internal quotation marks omitted).
The evidence shows that, over a period of several years, Guiseppe,
Sr. provided a place where drug deals were arranged and often
occurred and that, when he could not fill an order, he would refer the
customer to one of his sons. The confidential informant testified that
the Wallaces worked together to fill orders and cooperated together
to make sure the customers were satisfied. While perhaps not the most
4 UNITED STATES v. WALLACE
rigidly structured organization, the conspiracy operated with the aim
of "sustaining the overall enterprise of catering to the ultimate
demands of a particular drug consumption market."
Id. Thus, we find
that the evidence was sufficient to support the jury’s verdict that
Guiseppe, Sr. was a member of the charged conspiracy.
III.
Cruso contends that the district court erred in refusing to depart on
the basis of the disparity in sentences between himself and Guiseppe,
Jr. However, "[u]nder the law of this circuit, disparate sentences
among codefendants is an impermissible ground for departure."
United States v. Perkins, 108 F.3d 512, 515 (4th Cir. 1997). Thus, the
district court’s refusal to depart was proper.
IV.
Cruso next argues that the district court erred in denying his
request for a downward adjustment for his minor role in the offense,
pursuant to U.S. Sentencing Guidelines Manual § 3B1.2 (2002). A
two-level reduction may be made when a defendant is a minor partici-
pant, that is, one "who is less culpable than most other participants,
but whose role could not be described as minimal." USSG § 3B1.2(b),
comment. (n.5). The district court’s determination concerning the
defendant’s role in the offense is a factual issue reviewed for clear
error. Perkins, 108 F.3d at 518.
Counsel (and Cruso in his supplemental brief) contend that Cruso
was hospitalized for portions of the conspiracy period and living with
his girlfriend for other portions and, thus, was not as consistently
involved in the conspiracy as his brother and father. Nevertheless, in
a drug conspiracy, a defendant who sells the drugs is generally not a
minor participant. See United States v. Brooks,
957 F.2d 1138, 1149
(4th Cir. 1992). Because Cruso admitted that he sold drugs (and, in
fact, he stated that he sold more drugs than his father and that he sold
drugs almost every day), we find that the district court did not clearly
err in denying Cruso’s request for a downward adjustment for his role
in the offense.
UNITED STATES v. WALLACE 5
V.
Cruso has also filed a motion to file a supplemental brief, raising
more sentencing issues. After careful consideration, we grant the
motion to file a supplemental brief, but we find that the new issues
raised therein are meritless.
Based on the foregoing, we affirm Guiseppe, Sr.’s and Cruso’s
convictions and sentences. We dispense with oral argument, because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
