US v. Lonnie Smith

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:09-cr-00027-FPS-JES-1 Copies to all parties and the district court/agency. [998732291].. [10-4503, 10-4504]

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

Page: 1 of 15

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4503

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LONNIE ANTHONY SMITH, a/k/a Timmy,
Defendant - Appellant.

No. 10-4504

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LONNIE ANTHONY SMITH, a/k/a Timmy,
Defendant - Appellant.

Appeals from the United States District Court for the Northern
District of West Virginia, at Wheeling.
Frederick P. Stamp,
Jr., Senior District Judge.
(5:09-cr-00027-FPS-JES-1; 5:09-cr00007-FPS-JES-1)
Argued:

October 27, 2011

Decided:

November 30, 2011

Before TRAXLER, Chief Judge, and GREGORY and KEENAN, Circuit
Judges.

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

Page: 2 of 15

Affirmed by unpublished opinion.
Judge Gregory wrote the
opinion, in which Chief Judge Traxler and Judge Keenan joined.

ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC,
Covington, Kentucky, for Appellant.
Randolph John Bernard,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia,
for Appellee.
ON BRIEF: Stephen D. Herndon, Wheeling, West
Virginia, for Appellant.
William J. Ihlenfeld, II, United
States Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

Page: 3 of 15

GREGORY, Circuit Judge:
This consolidated case comes on appeal from the conviction
and

sentencing

conspiracy

to

of

appellant

possess

with

Lonnie
intent

Anthony

to

Smith

distribute

for:

(1)

heroin,

(2)

causing a person to travel in interstate commerce to promote the
distribution of heroin, (3) the use of a telephone to facilitate
the distribution of heroin, and (4) conspiracy to escape.

In

his appeal, Smith challenges the sufficiency of the evidence for
the conspiracy and interstate travel convictions.
contends

that

the

failure

of

the

Government

to

Smith also
recommend

a

sentence at the bottom end of the Guidelines range as promised
in

Smith’s

reasons

plea

that

agreement

follow,

we

constitutes

find

that

plain

Smith’s

error.

For

the

arguments

have

no

merit.

I.
On February 3, 2009, a grand jury issued an indictment in
the Northern District of West Virginia charging Smith with the
violation of a number of federal statutes, and on April 7, 2009,
a

superseding

offenses.

indictment

was

returned

charging

the

instant

While awaiting trial, Smith plotted to escape from

the Northern Regional Jail in Moundsville, West Virginia, and he
pled guilty to a charge of conspiracy to escape.

3

Appeal: 10-4503

Document: 69

At

Smith’s

Date Filed: 11/30/2011

bench

trial,

a

Page: 4 of 15

number

testified according to plea agreements.

of

co-conspirators

The testimony showed

that Smith was a participant in and distributor for a heroin
ring.

Smith would frequently meet his customers at hotel rooms

rented

for

him

by

his

distributees

in

the

Pittsburgh,

Pennsylvania, area, where he would sell heroin multiple times
each

day,

knowing

that

the

heroin

would

be

resold

in

the

Northern District of West Virginia, among other places.
On January 29, 2010, the district court found Smith guilty
of all three counts.

Smith was sentenced to 262 months for his

conspiracy count, 60 months for his violation of the Travel Act,
18 U.S.C. § 1952 (2006), 48 months for the use of a telephone to
distribute heroin, and 60 months for his escape conviction.
district

court

concurrently.
Smith
counts:

ordered

Smith

to

serve

all

The

sentences

Smith then filed his notice of appeal.

appeals

the

sufficiency

of

the

evidence

of

two

conspiracy to possess with intent to distribute and to

distribute one kilogram of heroin, and aiding and abetting the
interstate travel of a person with the intent to carry on heroin
distribution.
conviction.

Smith also appeals the sentence on his escape
Because

of

the

fact-intensive

nature

of

this

appeal, we address the salient factual details of the heroin
conspiracy in the analysis on the merits of Smith’s appeal.

4

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

Page: 5 of 15

II.
Smith challenges the sufficiency of the evidence for his
conspiracy and Travel Act convictions.

This Court must uphold a

verdict

evidence”

where

reasonable

there

finder

is
of

“substantial
fact

could

accept

as

such

that

adequate

“a
and

sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.”

United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc), cert. denied, 519 U.S. 1151 (1997).
In doing so, this Court must look at the evidence as a “complete
picture, viewed in context and in the light most favorable to
the Government.”

Id.

We treat each challenge in turn, finding

that neither has merit.
A.
To prove conspiracy to possess with intent to distribute,
the government must show that (1) an agreement to possess heroin
with intent to distribute existed between two or more persons;
(2) the defendant knew of the conspiracy; and (3) the defendant
knowingly

and

voluntarily

became

a

part

of

the

conspiracy.

Burgos, 94 F.3d at 857.
Whether there is a single conspiracy or multiple
conspiracies depends upon the overlap of key actors,
methods, and goals. However, one may be a member of a
conspiracy without knowing its full scope, or all its
members, and without taking part in the full range of
its activities or over the whole period of its
existence.
Also, it is not necessary that the
conspiracy
have
a
discrete,
identifiable
organizational
structure.
Often,
the
single
5

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

Page: 6 of 15

conspiracy is comprised of a loosely-knit association
of members linked only by their mutual interest in
sustaining the overall enterprise of catering to the
ultimate demands of a particular drug consumption
market.
United

States

(internal

v.

Nunez,

citations

and

432

F.3d

573,

quotation

578

marks

(4th

Cir.

omitted).

2005)

Once

a

conspiracy has been established, the government need only show a
slight

connection

between

the

Burgos, 94 F.3d at 861.

defendant

and

the

conspiracy.

Furthermore, competition in the drug

market among some conspirators does not preclude a finding of a
United States v. Jeffers, 570 F.3d 557, 568

single conspiracy.
(4th Cir. 2009).

As is frequently the case in drug distribution trials, most
of the salient evidence came from co-conspirator testimony.
district

court

gave

testifying

under

nonetheless

the

concluded

credible.

plea

testimony
agreements

that

the

of

those

“greater

The

co-conspirators
scrutiny”

co-conspirators’

testimony

and
was

United States v. Smith, No. 5:09CR7-01, slip op. at

33 (N.D. W. Va. January 28, 2010).
Precedent and the facts are squarely on the side of the
Government.

The district court made extensive findings of fact,

detailing the operation of the conspiracy.
conspiracy

had

distribution
Virginia;

of

they

a

financial

heroin
shared

in
the

interest

the
goal
6

Northern
of

All members of the
in

the

District

“sustaining

the

continued
of

West

overall

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

Page: 7 of 15

enterprise of catering to the ultimate demands of a particular
drug consumption market.”

Nunez, 432 F.3d at 578.

market was the area around Weirton, West Virginia.

That drug
See Smith,

at 28 (“It was in the mutual interest of defendant Smith and
various members of the conspiracy to promote and continue heroin
drug trafficking in the Northern District of West Virginia and
elsewhere.”).
All

of

the

members

of

the

conspiracy

knew

of

the

significant quantity of heroin that Smith kept on hand, which
implies a distribution scheme.

Furthermore, the repetitive drug

transactions

rented

at

hotel

rooms

for

Smith

by

the

co-

conspirators establish the regular and continuing nature of a
drug-distribution
(“Additionally,

Cf.

Jeffers,

showed

that

conspiracy.

the

evidence

570

the

F.3d

at

multiple

568
drug

dealers at Shriver’s Motel engaged in ‘a consistent series of
smaller

transactions,’

which

comprised

a

single

conspiracy.”)

(quoting United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.
1993)).
The testimony of Kenneth Salters, Smith’s childhood friend
and co-conspirator, establishes the conspiracy and corroborates
the

incriminating

testimony

of

the

other

witnesses

and

co-

conspirators.

Salters saw Smith sell heroin to customers on a

daily

including

basis,

some

of

the

co-conspirators.

A

reasonable inference from Salters’s testimony is that Smith knew
7

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

Page: 8 of 15

that at least some of his co-conspirators were redistributing
heroin in West Virginia.

And Smith even helped Salters start

selling heroin by giving Salters a customer list that included
buyers from the Northern District of West Virginia, and the two
began a referral system for heroin demand that they individually
could not meet.

Likewise, Salters corroborated testimony that

Smith paid heroin to co-conspirators who would rent motel rooms
and cars for Smith to further his drug activity and to hide
their

identities

if

the

police

investigated.

Salters

also

testified that the phone numbers discussed by other witnesses
were ones used to deal heroin.
United States v. Banks is instructive.

Banks involved,

like this case, a loose organization of drug distributors and
suppliers

charged

in

a

single

conspiracy

in

which

not

all

participants knew the identities of the others participating,
but nevertheless were engaged with a common enterprise whose aim
Banks, 10 F.3d at

was to supply drugs to a discrete region.
1053-54.

The

Court

affirmed

the

convictions,

rejecting

the

defendant’s view that the government had proved numerous small
conspiracies but not a large overarching conspiracy.
1050-56.

Id. at

The evidence supporting such a finding “essentially

consist[ed] of testimony about a great number of discrete buysell

transactions

conspirators,

and

between

various

ones

nothing

either

directly

8

of

the
or

alleged

co-

inferentially

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

Page: 9 of 15

probative of any discernible hierarchical organization in which
they were linked.”

Id. at 1053.

The prosecution put on evidence sufficient for a reasonable
trier

of

fact

to

conclude

that

Smith

agreed

with

his

co-

conspirators to distribute heroin in the Weirton area of West
Virginia.

In addition to Salters’s testimony, co-conspirator

Grimes testified that Smith knew she was redistributing heroin
in West Virginia because she had told Smith about the sales and
that she told him that she was charging her customers twice what
she

paid

Smith.

Grimes

also

testified

that

she

saw

Smith

possess large amounts of cash and heroin and sell heroin to
other customers.

She told the court that Smith said that he was

worried because some of his customers were being indicted in
West Virginia.
Satathite,

another

West

Virginia

dealer,

testified

that

Smith knew Satathite was redistributing heroin and that one time
Smith

remarked

pretty quick.”

that

Satathite

must

be

“moving

[the

heroin]

Additionally, Satathite testified that Smith met

him in West Virginia in the parking lot of the Weirton Medical
Center in June 2008 and sold him three bricks of heroin, further
establishing Smith’s ties to the redistribution of heroin in
West Virginia.
Additional circumstantial evidence that Smith knew that his
customers were coming from West Virginia includes the area code
9

Appeal: 10-4503

of

Document: 69

the

phone

transactions

Date Filed: 11/30/2011

numbers

and

the

used

to

license

Page: 10 of 15

call

plates

Smith
of

to

arrange

vehicles

used

drug

by

co-

heroin

to

conspirators to pick up drugs.
Furthermore,

Smith

once

McLaughlin, a co-conspirator.
resale.

offered

to

front

Fronting drugs shows knowledge of

See Nunez, 432 F.3d at 578 (citing the fact that drugs

were fronted as evidence of a conspiracy to distribute).
Many

co-conspirators

testified

to

the

same

few

meeting

locations for deals with Smith, and many rented hotel rooms and
cars in exchange for heroin.
phones

showed

frequent

conspirators.

Pen registers for Smith’s cell

phone

calls

to

a

number

of

the

co-

Many co-conspirators also testified as to the

presence of trademark bag markings indicating different brands
of

heroin

distributed

demonstrate

the

similar

by

Smith.

methods

and

All
means

of

the

used

foregoing

by

the

co-

conspirators and Smith to conduct the conspiracy.
The evidence here is at least as strong as that presented
in Banks.

We therefore affirm the conspiracy conviction.
B.

A conviction under the Travel Act, 18 U.S.C. § 1952 (2006),
must have three elements:

(1) interstate travel, (2) an intent

to promote an unlawful activity (a business enterprise), and (3)
performance or attempted performance of an unlawful act.
States v. Gallo, 782 F.2d 1191, 1194 (4th Cir. 1986).
10

United
Section

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

Page: 11 of 15

1952(b) defines “unlawful activity” as “any business enterprise
involving . . . narcotics or controlled substances (as defined
in

section

102(6)

of

the

Controlled

Substance

Act)

violation of the laws . . . of the United States.”
§ 1952(b) (2006).
U.S.C.

§ 2’s

. . .

in

18 U.S.C.

Smith’s liability for this violation is 18

prohibition

against

“causing”

or

aiding

and

abetting a violation of federal law.
Elements (2) and (3) above are clearly established by the
facts discussed above in connection with the sufficiency of the
conspiracy charge.

The question is whether Smith did aid, abet,

and cause Bryan Cottrill, a confidential informant, to travel
interstate.
The

illegal

inducement

September 26, 2008.

of

interstate

travel

occurred

on

On that day, Cottrill, cooperating with

police, called Smith from West Virginia in order to arrange a
buy

in

Pennsylvania.

The

call

was

recorded.

Since

2003,

Cottrill had bought heroin from Smith three or four times per
week.

The usual pattern, followed in this instance, is that

Smith would tell Cottrill to “come up” to the “Robinson, Green
Tree”

area

of

Pittsburgh,

Pennsylvania;

Cottrill

would

call

Smith once he arrived in the area, and Smith would tell him the
meeting location -- in this case, the Robinson Mall.

On this

particular call, Cottrill told Smith that he was “about to leave
the shop” and “jump on the highway,” but that he wanted to make
11

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

sure that it was “all good.”

Page: 12 of 15

Cottrill went on to describe the

details of the purchase at the Robinson Mall.
Admittedly, there was no direct evidence produced during
the Cottrill direct examination that Smith knew where Cottrill
lived, that a phone with a West Virginia area code was used, or
that a car with West Virginia plates was used.
sufficient

evidence

beyond

reasonable

a

occasion,

violated

for

a

reasonable

doubt
the

that

trier

Travel

Smith,
Act.

Yet there is

of

on

fact

this

The

to

find

particular

district

court

reasonably concluded that Smith violated the Travel Act based on
(1) the history of the relationship between Smith and Cottrill,
(2) the imputed knowledge of Smith that many of his purchasers
came

from

West

Virginia,

(3)

the

timing

of

the

phone

calls

suggesting the distance traveled by Cottrill, and (4) the use of
the phrases “come up” and “jump on the highway” suggesting that
Smith knew Cottrill was coming from West Virginia, and (5) the
fact that that Smith encouraged Cottrill to do so in order to
sell Cottrill heroin.
Court

precedent

bolsters

this

conclusion.

Smith

argues

that Rewis v. United States, 401 U.S. 808 (1971), controls.

In

that case, a mere customer did not facilitate the business he
patronized.

The

Supreme

Court

agreed

that

“intent

to

. . .

facilitate” requires more than a mere “desire to patronize the
illegal activity.”

Id. at 811.
12

The evidence here, however,

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

Page: 13 of 15

established that Cottrill frequently distributed heroin in West
Virginia purchased from Smith.

Cottrill had more than a mere

patronage relationship with Smith.
In any case, the Rewis Court cites approvingly to a number
of circuit court cases “in which federal courts have correctly
applied § 1952 to those individuals whose agents or employees
cross state lines in furtherance of illegal activity.”
401 U.S. at 813.

Rewis,

As this Circuit noted in United States v.

Baker, 611 F.2d 961, 963 (4th Cir. 1979), one such case cited,
United States v. Zizzo, 338 F.2d 577, 580 (7th Cir. 1964), held
the

proprietor

of

a

gambling

operation

liable

despite

his

contention that he did not travel interstate and did not even
know of the interstate travel of his employees.

The Zizzo court

said it was “clear that the gambling business . . . caused the
interstate travel by the three employees,” and that a jury could
properly

infer

that

the

proprietor

employees lived out-of-state.

knew

that

some

of

Zizzo, 338 F.2d at 580.

his
This

Circuit in Baker found its facts -- an interstate trip made by a
prostitute at the direction of her boss -- were “analogous to
the employee-agent cases approved in Rewis [sic],” and upheld
the Travel Act conviction.
We

affirm

the

Baker, 611 F.2d at 963.

Travel

Act

conviction

because

of

the

reasonable inference from the record that Smith knew Cottrill

13

Appeal: 10-4503

Document: 69

Date Filed: 11/30/2011

Page: 14 of 15

was coming from West Virginia and because of the overwhelming
evidence of the purpose of the call.

III.
Appellant next argues that he should be allowed to withdraw
his guilty plea because of the Government’s failure to move for
a sentence at the bottom of the Guidelines range for his escape
conviction.
The plain error standard governs here because Smith did not
raise this claim below.

To prove plain error, “the appealing

party must show that an error (1) was made, (2) is plain . . . ,
and (3) affects substantial rights.”
F.3d 572, 577 (4th Cir. 2010).
“affected

the

outcome

of

United States v. Lynn, 592

The third prong means the error

the

district

court

proceedings,”

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

“Fourth

and finally, if the above three prongs are satisfied, the court
of appeals has the discretion to remedy the error -- discretion
which

ought

affect[s]

to

the

be

exercised

fairness,

judicial proceedings.”

only

integrity

if
or

the

error

public

seriously

reputation

of

Id. (citations ommitted).

Smith argues on appeal that the government breached its
contract -- Smith’s plea agreement for his escape charge -- when
the government failed to recommend a sentence at the low end of
the

Guidelines

range

for

that
14

offense.

Surely,

Smith

has

Appeal: 10-4503

Document: 69

established

that

Date Filed: 11/30/2011

the

error

was

Page: 15 of 15

made

and

that

it

was

plain.

However, Smith cannot demonstrate it “affected his substantial
rights” because the outcome was not affected by the error.
Smith was sentenced according to the grouping requirements
of

U.S.S.G.

§ 3D1.2(c),

which

combines

conduct

for

charges into a single tally for sentencing purposes.

multiple
The court

sentenced Smith to 262 months for the conspiracy charge, which
was at the lowest end of the Guidelines range for the grouped
offense, and he was ordered to serve time for all of his counts
concurrently.
escape
because

charge,
he

So while Smith was sentenced to 60 months for his
a

lower

sentence

would

still

be

would

serving

the

sentence for his conspiracy conviction.

not

have

helped

concurrent

him

262-month

It therefore cannot be

said that the error violated Smith’s substantial rights.
Because Smith has not shown that the error affected his
substantial

rights,

we

affirm

the

sentence

of

the

district

court.
AFFIRMED

15