United States v. Ivory
706 F. App'x 449
| 10th Cir. | 2017Background
- Johnny Lee Ivory was indicted for (1) conspiracy to distribute >280 g cocaine base, (2) possession with intent to distribute ≥28 g cocaine base, and (3) unlawful possession of ammunition; convicted on all counts and sentenced to the 20-year mandatory minimum plus 10 years supervised release.
- Pretrial motions: Ivory moved to dismiss under the Speedy Trial Act; sought suppression of CSLI obtained under 18 U.S.C. § 2703(d); and moved to suppress evidence from a warrant search of his residence.
- District court granted an ends-of-justice continuance (tolling the Speedy Trial Act), admitted some historical CSLI obtained without a warrant for preliminary admissibility determinations, and denied suppression of the residence search (finding probable cause).
- Jury received a reasonable-doubt instruction using the phrase "firmly convinced," "only requires," and describing reasonable doubt as a "real possibility" of innocence; Ivory did not object at trial.
- At sentencing the PSR attributed 2.47 kg of cocaine base to Ivory; court adopted PSR findings, applied the 20-year mandatory minimum for the conspiracy count, and imposed the sentence; Ivory did not object to the PSR or guideline calculations at sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Speedy Trial Act continuance | District court improperly tolled time; dismissal required | Court made sufficient ends-of-justice findings to toll time | Affirmed — continuance valid; convictions stand |
| Admissibility of CSLI under §2703(d) | §2703(d) unconstitutional; CSLI is private and requires 4th Amendment protection | Users lack reasonable expectation of privacy in historical CSLI; §2703(d) seeks records, not a search | Affirmed — §2703(d) constitutional; CSLI admissible for preliminary proceedings |
| Suppression of residence search | Warrant lacked probable cause for evidence seized | Affidavits supported probable cause; intercepted calls provenance adequately proven pretrial | Affirmed — denial of suppression was correct |
| Reasonable-doubt jury instruction | "Firmly convinced" and "only" diminished burden; instruction failed to say lack of evidence may establish reasonable doubt | Instruction tracks Tenth Circuit pattern and is legally adequate | Affirmed (plain-error review) — instruction not constitutionally deficient (Petty controls) |
| Mandatory minimum and drug-quantity findings at sentencing | Mandatory 20-yr minimum requires jury finding on drug quantity; PSR findings insufficiently particularized | Government ultimately conceded error on mandatory minimum application; PSR lacked particularized findings tying quantity to Ivory’s agreement | Convictions affirmed; sentence VACATED — remand for resentencing with required findings |
Key Cases Cited
- Victor v. Nebraska, 511 U.S. 1 (1994) (no required form of words for reasonable-doubt instruction; ask whether instruction likely permits conviction on insufficient proof)
- United States v. Petty, 856 F.3d 1306 (10th Cir. 2017) (upheld materially identical reasonable-doubt instruction; controls here)
- United States v. Conway, 73 F.3d 975 (10th Cir. 1995) (‘‘firmly convinced’’ language acceptable in reasonable-doubt instruction)
- United States v. Figueroa-Labrada, 720 F.3d 1258 (10th Cir. 2013) (district court must make particularized findings tying others’ acts and quantities to defendant under USSG §1B1.3 when adopting PSR)
- United States v. Wolfname, 835 F.3d 1214 (10th Cir. 2016) (plain-error standard for unpreserved jury-instruction challenges)
- United States v. Sharp, 749 F.3d 1267 (10th Cir. 2014) (plain-error standard for sentencing challenges)