(caption unavailable)

* Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 94-10002
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARVIL ERWIN, and
JACKY LEE JACKSON,
Defendants-Appellants.
_______________________________________________
Appeal from the United States District Court
For the Northern District of Texas
___________________________________
(4:93-CR-108-A-1)
(January 12, 1995)
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Arvil Erwin appeals his conviction for operation of a
continuing criminal enterprise in violation of 21 U.S.C. § 848(c)
(1988), alleging that the evidence was insufficient to support the
jury's verdict. Jacky Lee Jackson appeals his 121-month sentence
for conspiracy to manufacture, possess with intent to distribute,
and distribute amphetamine on the grounds that his sentence was

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incorrectly calculated under the guidelines and unconstitutionally
disproportionate to his offense. Finding ample evidence to support
Erwin's continuing criminal enterprise conviction and no reversible
error in Jackson's sentence, we affirm.
Erwin and Jackson were convicted for their roles in an
amphetamine manufacturing and distribution operation. The evidence
at trial depicted an expansive drug operation that spanned several
states, involved large quantities of amphetamine and money, and
implicated numerous participants. Erwin was one of the two
founding "partners" in the operation and played a central role
throughout. Jackson's role was more limited; he helped with the
manufacturing process, specializing in cleaning lab equipment and
burying chemical containers.
A jury found Erwin guilty of (1) conspiracy to manufacture,
distribute, and sell amphetamine; (2) four counts of possession
with intent to distribute amphetamine; (3) three counts of
manufacturing amphetamine; and (4) engaging in a continuing
criminal enterprise. The court sentenced Erwin to seven 240-month
terms of imprisonment and one 300-month term of imprisonment, all
to run concurrently. The jury found Jackson guilty of conspiracy
to manufacture, distribute and sell amphetamine, and the court
sentenced him to a 121-month term of imprisonment.
Erwin argues that the record contains insufficient evidence to
support his continuing criminal enterprise conviction. "The
standard of review for sufficiency of evidence is whether any
reasonable trier of fact could have found that the evidence

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1 Title 21, chapter 13 includes provisions concerning federal narcotics
offenses.
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established guilt beyond a reasonable doubt." United States v.
Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992) (citing Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979)), cert. denied, ___ U.S. ___, 113 S. Ct. 1346, 122 L. Ed. 2d
728 (1993). We construe all inferences in favor of the jury
verdict, and we will not supplant the jury's determination of
credibility with our own. Id. at 161.
A person engages in a "continuing criminal enterprise" if:
(1) he violates any provision of [Title 21, chapter 13],1
the punishment for which is a felony, and (2) such
violation is part of a continuing series of violations of
[Title 21, chapter 13] (A) which are undertaken by such
person in concert with five or more other persons with
respect to whom such person occupies a position of
organizer, a supervisory position, or any other position
of management, and (B) from which such person obtains
substantial income or resources.
21 U.S.C. § 848(c) (1988). To prove a violation of § 848(c), the
"[g]overnment need only prove . . . that the defendant organized,
supervised, or managed at least five other persons; the section is
disjunctive in that respect." United States v. Phillips, 664 F.2d
971, 1013 (5th Cir. 1981), cert. denied, 457 U.S. 1136, 102 S. Ct.
2965, 73 L. Ed. 2d 1354 (1982), superseded on other grounds as
stated in United States v. Huntress, 956 F.2d 1309, 1317 (5th Cir.
1992), cert. denied, ___ U.S. ___, 113 S. Ct. 2330, 124 L. Ed. 2d
243 (1993). Furthermore, "[s]uch relationships need not have
existed at the same moment in time; it is sufficient if there exist
separate, individual relations of control with at least five

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persons." Id.
Erwin argues that the record contains insufficient evidence
that he occupied a managerial role with respect to five other
participants in the operation. He argues that his co-conspirators
were not "employees," but rather "partners" or "independent
contractors" (depending on their role). There is ample evidence in
the record, however, to support a finding that Erwin supervised and
directed the activities of at least the following five of the
numerous participants in the operation: Laura Moore, Jacky Lee
Jackson, Yvonne Jamison, Charles Lee Tolliver, and Richard Leija.
Moore testified that she delivered amphetamines for Erwin, and
that she helped Erwin manufacture amphetamine, doing "whatever
[Erwin] told [her] to do." The evidence at trial also shows that
Erwin supervised Jackson. Moore specifically testified that Erwin
directed Jackson in the manufacture of amphetamine. Jamison
testified that Erwin instructed her to obtain chemical ingredients
used in the manufacture of amphetamine, and that she later learned
the manufacturing process and spent two or three months at Erwin's
lab. Finally, Tolliver testified that Erwin told him and Leija
what to do when they moved an amphetamine lab from Texas to
Washington. Tolliver also testified that Erwin directed him and
Leija when they assembled the lab in Washington.
While the record contains additional evidence to support a
finding that Erwin supervised other participants in the operation,
§ 848(c) requires that he supervise, manage, or organize only five.
Viewed in the light most favorable to the prosecution, the evidence

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was more than sufficient to support the jury's guilty verdict on
the continuing criminal enterprise count.
Jackson challenges his sentence on two grounds, both of which
are frivolous. First, Jackson argues that his ten-year sentence
for conspiracy to manufacture, possess with intent to distribute,
and distribute amphetamine was so disproportionate to the
seriousness of his offense as to violate the Eighth Amendment's
prohibition on cruel and unusual punishment. In determining
whether the proportionality of Jackson's sentence violates the
Eighth Amendment, we follow the approach explained in McGruder v.
Puckett, 954 F.2d 313 (5th Cir. 1992), cert. denied, ___ U.S. ___,
113 S. Ct. 146, 121 L. Ed. 2d 98 (1992). As a threshold matter, we
compare the gravity of Jackson's offense to the severity of his
sentence. See id. at 316. "Only if we [conclude] that the
sentence is grossly disproportionate to the offense will we then
. . . compare the sentence received to (1) sentences for similar
crimes in the same jurisdiction and (2) sentences for the same
crime in other jurisdictions." Id.
The district court sentenced Jackson at the bottom of the
range dictated by the United States Sentencing Commission
Guidelines Manual ("Sentencing Guidelines"). In United States v.
Sullivan, 895 F.2d 1030 (5th Cir. 1990), cert. denied, 498 U.S.
877, 111 S. Ct. 207, 112 L. Ed. 2d 168 (1990), we deferred to a
court's sentence that fell within the applicable guideline range
and explained that the Sentencing Guidelines, "[d]eveloped from
empirical research with the goal of making the punishment fit the

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2 See also United States v. Prudhome, 13 F.3d 147, 150 (5th Cir.),
cert. denied, ___ U.S. ___, 114 S. Ct. 1866, 128 L. Ed. 2d 487 (1994) (rejecting
Eighth Amendment challenge to sentence imposed under the Sentencing Guidelines);
United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993) (same);
United States v. Francies, 945 F.2d 851, 853 (5th Cir. 1991) (same).
3 Section 3B1.2 of the Sentencing Guidelines provides: "Based on the
defendant's role in the offense, decrease the offense level as follows: (a) If
the defendant was a minimal participant in any criminal activity, decrease by 4
levels. (b) If the defendant was a minor participant in any criminal activity,
decrease by 2 levels. In cases falling between (a) and (b), decrease by 3
levels." United States Sentencing Commission, Guidelines Manual, § 3B1.2 (Nov.
1994).
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crime, . . . are a convincing objective indicator of
proportionality." Id. at 1032.2 Jackson cites no cases, and we
have found none, in which a court held a sentence within, let alone
at the bottom of, the guideline range to be unconstitutionally
disproportionate. Jackson played a role, even if minor, in a
large-scale amphetamine manufacturing operation, and we cannot
conclude that his ten-year prison sentence is "grossly
disproportionate to the offense." McGruder, 954 F.2d at 316.
Jackson also argues that the court should have reduced his
offense level by four levels to account for what Jackson calls the
court's "finding" that he was a "minimal participant." Jackson's
presentence report ("PSR") recommended a decrease of two levels
based on a determination that Jackson was a "minor participant" in
the drug operation.3 Jackson did not object to this recommendation
at his sentencing hearing, and his counsel informed the court that
all of Jackson's concerns with the PSR had been resolved. The
district court then adopted the PSR's findings as its own.
After adopting the findings contained in the PSR, including
the determination that Jackson was a minor participant, and after

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defense counsel had made a statement on Jackson's behalf, the Court
explained:
I don't think this defendant had a real significant role
in the overall offense conduct, and it occurs to me even
the bottom of the guideline might be a little too much,
but I don't really think there's a basis for a departure
in this case. But I am going to the very bottom of the
guideline.
The Court orders and adjudges that the defendant be
committed to the custody of the Bureau of Prisons to
serve a term of imprisonment of 121 months. The Court
further orders and adjudges that the defendant serve a
term))and I might add to what I just said, there do not
appear to be any aggravating factors that would cause in
determining where to go in the guideline, for me to go
above the bottom, as far as I'm concerned, and it's the
minimal participation that has caused me to go to the
bottom.
Supplemental Record on Appeal, vol. 1, at 6 (emphasis added).
Jackson seizes on the emphasized portion of the above-quoted
passage to argue that the Court determined that he was a "minimal
participant" under § 3B1.2(a) and consequently should have reduced
his offense level by four instead of two levels. This argument is
frivolous. The context of the court's remarks, combined with the
court's express adoption of the PSR's findings of fact and offense
level recommendation, makes clear that it was not making an
independent determination that Jackson was a minimal participant.
For the foregoing reasons, we AFFIRM.

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