United States v. Dewberry
2015 U.S. App. LEXIS 10628
| 10th Cir. | 2015Background
- Kennin Dewberry supplied powder cocaine to Virok Webb from summer 2009–March 2010; Webb’s crew in Junction City converted some powder into crack and cut/diluted other powder for resale.
- Dewberry was indicted with co-defendants for two conspiracies: (Count 1) conspiracy to distribute 280+ grams of crack; (Count 2) conspiracy to distribute 5+ kilograms of powder. Co-defendants pled; Dewberry went to trial and was convicted on both counts with jury special findings as to quantity.
- Trial evidence relied largely on cooperating witnesses (drivers Megan Fuller and Michael Lillibridge) who testified Dewberry supplied only powder but that Webb converted some powder into crack; Lillibridge testified he witnessed Dewberry and Webb cook powder into crack once (about 3.5 g).
- At sentencing the PSR attributed to Dewberry weekly supplies (4.5–9 oz) over 21 weeks, converting portions to crack (1,488.375 g) and accounting for tricked/diluted powder (2,381.40 g), resulting in a Guidelines offense level 34 and range 168–210 months; statutory mandatory minimum of 20 years applied on Count 1 due to a prior felony.
- District court sentenced Dewberry to 240 months on Count 1 (mandatory minimum) and 168 months on Count 2, to run concurrently. Dewberry appealed on sufficiency of evidence (conspiracies and crack quantity), sentencing as to Count 2, and denial of his initial pretrial severance motion.
Issues
| Issue | Dewberry's Argument (Plaintiff) | Government's Argument (Defendant) | Held |
|---|---|---|---|
| 1) Sufficiency of evidence for Counts 1 & 2 (conspiracy) — witness corroboration/credibility | Convictions rested on uncorroborated, incredible cooperating-witness testimony; insufficient prima facie proof of conspiracy | Cooperator testimony suffices; credibility is for the jury; uncorroborated accomplice testimony can support conviction | Affirmed: conviction upheld; uncorroborated accomplice testimony permissible and credibility is jury province |
| 2) Sufficiency of evidence that Dewberry was accountable for 280+ g of crack (element increasing mandatory minimum) | No evidence Dewberry handled large crack quantities; single small cook (3.5 g) insufficient to support foreseeability of 280+ g | Dewberry’s extensive powder supply, Webb’s conversion of powder to crack, and Lillibridge’s testimony that Dewberry participated in a cook support reasonable foreseeability of 280+ g | Affirmed: reasonable jury could find 280+ g was within scope and reasonably foreseeable |
| 3) Sentencing on Count 2 (168-month within Guidelines) — attributable crack quantity for Guidelines calculation | District court erred attributing 1,488.375 g of crack (should be far less), producing higher Guidelines range | Court relied on PSR and finding of foreseeability based on trial testimony; government met preponderance standard for relevant conduct | Affirmed: district court’s drug-quantity findings were plausible and not clearly erroneous; 168 months reasonable |
| 4) Denial of initial motion to sever (pretrial) | Denial caused unnecessary delay and Speedy Trial/Sixth Amendment prejudice | Court later granted second motion to sever; no showing of prejudice from initial denial; Rule 14 factors not implicated | Affirmed: no abuse of discretion and inadequate briefing of Speedy Trial/Sixth Amendment claim; no demonstrated prejudice |
Key Cases Cited
- United States v. Vigil, 523 F.3d 1258 (10th Cir. 2008) (standard of review for Rule 29 denial)
- United States v. Hale, 762 F.3d 1214 (10th Cir. 2014) (sufficiency-of-the-evidence standard; view evidence in light most favorable to government)
- United States v. Ivy, 83 F.3d 1266 (10th Cir. 1996) (conviction may stand on uncorroborated coconspirator testimony)
- United States v. Arias-Santos, 39 F.3d 1070 (10th Cir. 1994) (defendant accountable for quantities within scope of agreement and reasonably foreseeable)
- United States v. Dickey, 736 F.2d 571 (10th Cir. 1984) (inference of broader venture from involvement in large-drug transactions; joining ongoing conspiracy imputes liability for related acts)
- United States v. Akins, 746 F.3d 590 (5th Cir. 2014) (defendant can be held responsible for drug quantities of a type he dealt less directly if he had substantial role and relationship to co-conspirators)
- United States v. Torres, 53 F.3d 1129 (10th Cir. 1995) (government bears preponderance burden to prove drug quantities at sentencing; clear-error standard on quantity findings)