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United States v. Lewis

March 28, 1996

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

FAROD LEWIS,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 CR 436--John A. Nordberg, Judge.

Before CUMMINGS, RIPPLE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

ARGUED OCTOBER 30, 1995

DECIDED MARCH 28, 1996

Farod Lewis was charged in a multi-count second superseding indictment with various drug offenses, a firearms offense, money laundering offenses, and obstruction of justice. Lewis subsequently pled guilty to the indictment's first count, which addressed his participation in a cocaine distribution conspiracy between 1986 and late December 1991. In exchange for Lewis' plea, the government agreed to dismiss the indictment's remaining counts, all but one of which addressed acts that were alleged to be in furtherance of the narcotics distribution conspiracy. The district court then sentenced Lewis to a prison term of 188 months. In this appeal, Lewis raises three challenges to that sentence, but we find no error and therefore affirm.

I.

Lewis first contends that the district court erred in adding two points to his base offense level under Sentencing Guidelines section 2D1.1(b)(1) after finding that both he and a co-conspirator had possessed dangerous weapons during the commission of a narcotics offense. The district court applied the enhancement after hearing testimony from an undercover DEA agent and a confidential informant that Lewis and a co-conspirator each had possessed a firearm during the course of an October 3, 1991 cocaine transaction. The district court found that despite certain discrepancies brought out on cross-examination, the two witnesses had testified truthfully about the presence of these weapons. (R. 219, at 80-82.) In contesting this conclusion, Lewis argues that the government failed to prove by a preponderance of the evidence that any firearms were present. We review the district court's application of the firearm enhancement under section 2D1.1(b)(1) for clear error. United States v. Jones, 54 F.3d 1285, 1294 (7th Cir.), cert. denied, 116 S. Ct. 263 (1995); United States v. Montgomery, 14 F.3d 1189, 1199 (7th Cir. 1994).

The October 3, 1991 cocaine transaction was alleged by the government to have been undertaken in furtherance of the cocaine distribution conspiracy to which Lewis admitted his guilt. Although Lewis reserved his right to contest application of the firearm enhancement at sentencing, he admitted the following facts about the October 3, 1991 transaction in his plea agreement:

[O]n or about October 3, 1991, an individual named Lawrence Strickland arranged to sell a 1/4 kilogram of cocaine for a purchase price of $6,000, to two confidential informants ("the CIs") and a DEA Special Agent who was acting in an undercover capacity ("undercover agent"). On that day, the CIs and the undercover agent met with Strickland at Strickland's residence located at 6628 South Winchester, Chicago, Illinois. Defendant was waiting outside of the residence when the undercover agent and the two CIs arrived. Defendant had a firearm in his possession and displayed the firearm to the CIs and the undercover agent. While defendant remained outside the residence, the two CIs entered Strickland's residence and met with Strickland and another individual. Strickland delivered approximately 248 grams of cocaine to the CIs in exchange for $6,000 in cash. The other individual inside the residence had a firearm with him at the time of the purchase of the cocaine. (R. 180, at 4.)

At the sentencing hearing, moreover, the government presented the testimony of two participants in the October 3, 1991 transaction--DEA Agent Antonio Smith and confidential informant Clarence Glenn. Smith first explained that after he and the confidential informants arrived at the Strickland residence on October 3, Lewis approached the driver's side of their vehicle, where Smith was seated. Lewis had his arms folded across his chest, and when he was within two feet of the vehicle, he leaned toward the driver's side window, allowing Smith to see a semiautomatic weapon hidden under Lewis' left armpit. Glenn, who was in the back seat, also saw the weapon when Lewis leaned over. Indeed, Glenn had first seen the firearm shortly after Lewis' arrival on the scene. Glenn testified that Lewis came to Strickland's residence with a second individual in a black BMW. Lewis exited from the passenger side and spoke to Strickland, who was standing on the porch. At the same time, Lewis reached behind him and pulled a "nine millimeter Glock" from the back of his pants. According to Glenn, Lewis removed the weapon from his pants with his right hand and stuck the weapon under his left armpit as he approached the driver's side of Smith's car. Lewis then leaned toward the driver's side window, and Glenn again saw the firearm under Lewis' left armpit. In addition, Glenn testified that he later went into Strickland's residence to complete the transaction and that he and the other informant found themselves in the kitchen with Strickland and another individual. Lewis and Smith remained outside. Glenn indicated that during this meeting in the kitchen, Strickland's companion was holding a .38 caliber revolver. The only other evidence addressed to the firearm enhancement came in the form of a stipulation that Anthony Price, who had been charged as one of Lewis' co-conspirators, would testify that he had been present during the October 3, 1991 transaction and that he had not seen Lewis with a firearm.

Needless to say, Lewis' admissions in the plea agreement and the testimony of Smith and Glenn at the sentencing hearing provide an adequate evidentiary basis for application of the section 2D1.1(b)(1) enhancement. To accept Lewis' argument, we would be required to disregard his own admissions in the plea agreement, as well as the district court's express finding at sentencing that Smith and Glenn had testified credibly. We can do neither on this record. There was no clear error in the district court's application of the firearm enhancement under section 2D1.1(b)(1).

II.

Lewis next maintains that the district court erred in finding that he was an organizer, leader, manager, or supervisor of criminal activity under section 3B1.1(c). The court found that although Lewis may not have held a supervisory role over the others involved in the October 3, 1991 cocaine transaction, he had supervised members of his own family who were involved in the money laundering activities. Counts five through ten of the indictment addressed Lewis' use of relatives and friends to launder the proceeds derived from his role in the narcotics distribution conspiracy. Those money laundering activities were also alleged in count one as acts committed in furtherance of the cocaine distribution conspiracy. The district court found that Lewis' own admissions in his plea agreement and other information contained in the presentence report established that Lewis at least was an organizer, leader, manager, or supervisor in that laundering activity under section 3B1.1(c). (R. 219, at 94-95.) We review the district court's finding as to Lewis' aggravated role for clear error. United States v. Johnson-Dix, 54 F.3d 1295, 1309 (7th Cir. 1995); United States v. Billops, 43 F.3d 281, 287 (7th Cir. 1994), cert. denied, 115 S. Ct. 1389 (1995).

Count five charged a conspiracy between Lewis, his mother Harriette Beverly, his brother Augie Lewis, and his brother-in-law Reginald Searcy to obstruct and impede the Internal Revenue Service and the Drug Enforcement Administration from carrying out their lawful functions. That count detailed the steps Lewis had taken to conceal the proceeds of his narcotics trafficking. For example, the government alleged that Lewis had directed his brother to file a federal tax return detailing a purported interest in real estate that Lewis himself owned, and that he had directed Searcy to execute documents for the purchase of an automobile when Lewis was the actual purchaser. Counts six through ten addressed the structured purchase of cashier's checks by Lewis and others acting on his behalf and the subsequent use of those checks to purchase real estate and personal property. Because these ...


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