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No. 95-5261
No. 95-5281
COUNSEL
Ronald Schwartz, Cincinnati, Ohio; Walter T. Johnson, Jr., Greensboro, North Carolina, for Appellants. Walter C. Holton, Jr., United
States Attorney, David B. Smith, Assistant United States Attorney,
Timika Shafeek, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Jesse Rowland, Jr., and Patrina Ann Parker both pled guilty to conspiring, from the summer of 1991 to October 1994, to possess more
than 50 grams of crack cocaine with intent to distribute, 21 U.S.C.A.
846 (West Supp. 1996). Rowland was sentenced to a term of 210
months imprisonment. Parker received a sentence of 235 months
imprisonment. Both challenge their sentences on appeal. We affirm
Parker's sentence and affirm Rowland's sentence in part. However,
we vacate Rowland's sentence in part and remand for resentencing
because the district court clearly erred in determining that he was a
manager in the offense.
The district court found that Rowland and Parker were nearly equal
participants in the conspiracy, but that Rowland managed their assets
and property. The court gave Rowland a 2-level adjustment for being
a manager in the offense. However, under the applicable guideline, a
defendant must have managed or supervised another participant to
qualify for the adjustment. United States Sentencing Commission,
Guidelines Manual 3B1.1(b), comment, (n.2) Nov. 1994). The government concedes error and requests resentencing on this issue.
Because the commentary authorizes an upward departure, where
appropriate, for a defendant who "exercised management responsibil2