United States v. AndersonUnited States v. Anderson
Finally, Solomon contends that there is a material question of fact as to whether Duncan publicly supported the sale as promised. The bankruptcy court was satisfied that he had done so by not opposing the sale at the time of the agreement. Duncan also explains that his attorney issued an endorsement of the sale, on his behalf, in Crain‘s business magazine. Even if Solomon‘s claim is not a misstatement of the facts, this argument, like the forgoing, fails to satisfy Rule 60(b)(6).
III.
For the foregoing reasons, we AFFIRM the bankruptcy court‘s judgment.
OPINION
COLE, Circuit Judge.
Defendants-Appellants Caesar Anderson and Clarence Remble appeal their sentences for conspiracy with intent to distribute in excess of 50 grams of methamphetamine, in excess of 50 grams of cocaine base (“crack“), in excess of 500 grams of cocaine, and an amount of marijuana in violation of
I. BACKGROUND
The instant case arises from a large drug conspiracy, involving the transport of drugs from California into the Southern District of Ohio and the transport of drug proceeds from the Southern District of Ohio back to California. In 2000, Earl Owens (“Owens“) began traveling from California to Zanesville, Ohio, to sell crack cocaine. Later, Owens and his long-time friend, Clarence Remble (“Remble“), set up a joint operation in Ohio whereby Remble would send powder cocaine from California to various cities in Ohio, where Owens would process the powder cocaine into crack for resale. Owens and Remble would then split the profits from the sale evenly.
In November 2004, Remble began to supply his co-conspirator, John Wayne Jones, with crack, xanax, and methamphetamine. Jones was a known drug dealer in Middletown, Ohio. Thereafter, Remble sold crack and methamphetamine to other members of the conspiracy: Justin Lawson, John Cassanova, C.J. Roland Martin, John Woodward, and Adonia Hogsten for personal use and distribution in Middletown, Ohio.
In December 2004, Remble approached co-conspirator Jamie Covington about traveling from California to Zanesville to sell crack. In January 2005, Covington traveled to Zanesville by bus where he met Owens and Remble‘s cousin, Jeff Remble. Owens found Covington an apartment where he could distribute drugs and provided him with a half ounce of crack to sеll. Two days after Covington arrived in Zanesville, Remble arrived at his apartment and inquired into the amount of money he was making selling drugs.
Another co-conspirator, Antwan Atkins, testified that he was living in Los Angeles, California when he agreed to travel to Zanesville by bus to sell drugs. Owens and Caesar Anderson picked him up from the bus station in Zanesville and took him to an apartment. The next day, Owens gave Atkins crack to sell. A month after Atkins‘s arrival in Zanesville, Remble approached him and instructed him about selling drugs. During the conspiracy, Remble gave Atkins a half ounce of crack to sell.
Remble also recruited co-conspirator Caesar Anderson to travel from California to Ohio to sell drugs. In Ohio, Owens provided Anderson with a residence for the selling of drugs. Initially, Owens provided Anderson with one quarter ounce of crack cocaine to sell. Anderson lived in Ohio for approximately six weeks before returning to California.
On July 21, 2005, following the arrests of various members of the conspiracy on drug charges, a federal grand jury issued a sealed indictment against the members of the conspiracy, including Remble and Anderson. On July 5, 2006, a jury convicted Remble of conspiracy to possess with intent to distribute in excess of 50 grams of methamphetamine, in excess of 50 grams of cocaine base (“crack“), in excess of 500 grams of cocaine, and an amount of marijuana in violation of
Anderson рleaded guilty to conspiracy to possess with intent to distribute in excess of 50 grams of methamphetamine, in excess of 50 grams of crack, in excess of 500 grams of cocaine, and an amount of marijuana in violation of
On appeal, Remble challenges his conviction, arguing that the district court erred in denying his motion to suppress evidence obtained as a result of a search warrant for his residence, and improperly admitted evidence depicting his children with drug proceeds, evidence of his past membership in gangs and threats made against a witness, which he alleges created an unfair prejudice against him. Remble also challenges the reasonableness of his life sentence. Anderson, likewise, challenges his sentence, arguing that the district court improperly sentenced him to the mandatory minimum of ten years for violating
II. ANALYSIS
A. Remble‘s Conviction
We review a district court‘s factual findings regarding a motion to suppress for clear error and its legal conclusions de novo. United States v. Watson, 498 F.3d 429, 430-31 (6th Cir.2007). On appeal, we must determine whether, in light of the totality of the circumstances, the magistrate judgе had a “substantial basis” for concluding that evidence of a crime or contraband would be found at the place to be searched. United States v. Greene, 250 F.3d 471, 478 (6th Cir.2001) (quoting United States v. Davidson, 936 F.2d 856, 859 (6th Cir.1991)). Remble argues that the affidavit supporting the search warrant did not support a finding of probable cause because: (1) it relies almost entirely on unreliable and conclusory hearsay from other law enforcement; (2) it relies on stale information, including information concerning large amounts of money seized from Owens, and information about Theopolis Niles (not a party to this conspiracy) from 2001; and (3) it provides no information about the reliability of the confidеntial informant or other law enforcement officers, who are the primary source of the statements that incriminated Remble. We disagree.
Here, Special Agent Peter Lakes‘s affidavit detailed information which, in light of the totality of the circumstances, provided the magistrate judge with a substantial basis for concluding that evidence of a crime or contraband would be found at Remble‘s 469 West Raymond Street residence. In particular, the affidavit contained evidence linking that residence to ongoing criminal activity. Even if certain information were stale, recent information corroborating the otherwise stale information may be taken into account during the probable cause analysis where, as here, the place to be searched is linked to ongoing continuous criminal activity. See United States v. Henson, 848 F.2d 1374, 1381-82 (6th Cir.1988) (holding that “recent information corroborates otherwise stale information” in an affidavit and that “time is of less significance” where the “affidavit recites activity indicating protracted or continuous conduct“). Moreover, detailed truthful information of suspicious or criminal activity that is obtained from reliable police investigations and which link the
In the affidavit, Agent Lakes averred that he spoke with various officers involved in a multi-jurisdiction investigation of Remble and others in the conspiracy on a daily basis and detailed his own efforts to corroborate the officers’ information. Lakes also averred, among other things, that from February 2005 to the date of the affidavit, he was in contact with Detective Mike LeCocq of the Muskingum County Sheriff‘s Department in Zanesville. From weekly conversations with LeCocq, Lakes stated that he learned that on October 31, 2003 and January 27, 2004, Muskingum County Sheriff‘s Department seized $24,190 and $45,960 respectively from Earl Owens. He alsо learned that on November 8, 2004, two money orders each in the amount of $1,000.00 were sent from “Chris Owens” or “C. Owens” of 923 Curtis Street, Zanesville to Maurnisha Cobene and Clarence Remble, respectively, at the 163rd Street premises. Then on December 3, 2004, four money orders were sent from “Chris Owens” of 923 Curtis Street to Derrick Braggs at the West 163rd Street premises. Later, Lakes read an incident report by the Ohio Highway Patrol dated September 25, 2004, and learned that on that date Derrick Braggs and Remble were stopped by the Ohio Highway Patrol and found to be in possession of four kilograms of cocaine and other drugs. Lakes also stated that, on or about July 8, 2005, he learned through a Choicepoint Online query that Cobene resided at 469 West Raymond Street, and Remble resided at the West 163rd Street premises. Lakes also detailed information from March 2005 when Muskingum County Sheriff‘s deputies discovered a large quantity of crack cocaine and a handgun during a traffic stop of Jamie Covington. The deputies then recovered $5,800 in cash when they searched Covington‘s hotel room. Agent Lakes stated that he learned through a confidential source that Covington was distributing drugs in Ohio on behalf of Remble. On July 26, 2005, he learned from FBI Agent K.W. Wong that on that day law enforcement officers saw Remble leaving the 469 West Raymond residence in a vehicle that had been parked in front of that address since the previous night.
Because of the unexplained money found in the hotel and the drugs found in the car, along with the other information about Remble‘s connection to Owens and Braggs, the repeated nature of the transactions, and the information linking the 469 West Raymond Street address to the suspicious activities, the magistrate judge had a substantial basis for concluding that Remble was engaged in ongoing drug trafficking, and by extension, that evidence of illegal activity would be found at his residence. See United States v. Laughton, 409 F.3d 744, 747-49 (6th Cir.2005) (determining that prоbable cause may exist to search the residence of a suspected drug dealer where there is a “connection between the residence to be searched and the facts of criminal activity that the officer set out in [the] affidavit“); see also United States v. Jones, 159 F.3d 969, 974-75 (6th Cir.1998)
Moreover, the affidavit, twelve pages in length, is nоt so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The district court properly concluded, therefore, as an alternative basis for its ruling, that denial of the suppression motion was justified under the good faith exception recognized in United States v. Leon, 468 U.S. 897 (1984). See United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.2004) (en banc) (finding Leon exception applicable where affidavit facts, albeit insufficient to establish probable cause, “were not so vague as to be conclusory or meaningless“).
B. District Court‘s Admission of Evidence
Next, Remble contends that the district court erred by (i) admitting certain photographs and a video depiсting his son and step-son in the presence of large bundles of cash, (ii) admitting evidence of his association with a gang, and (iii) admitting testimony that Remble had attempted to bribe a witness, Antwan Atkins, into not testifying at trial. We review the district court‘s “decision to admit relevant, but potentially prejudicial, evidence” for abuse of discretion. United States v. Schrock, 855 F.2d 327, 333 (6th Cir.1988). Even if the trial court abused its discretion in admitting evidence, the defendant is not entitled to reversal of his conviction if admission of the evidence was harmless under
At trial, the district court admitted photographs and video of Remble‘s son and step-son because they either: (1) were generated on a phone subscribed to by Remble; (2) depict the kitchen table at 469 West Raymond Street, an address connected to Remble; (3) permitted the witnesses to identify the children, demonstrating that they personally knew Remble; and (4) depict unexplained cash wrapped in black rubber bands, which are purportedly proceeds of drug sales from the Ohio area. Because that evidence was introduced to prove that Remble played a role in the conspiracy, not to cast aspersions on his character, the evidence was properly admitted. See United States v. Hester, 140 F.3d 753, 759-60 (8th Cir.1998) (upholding the admission of photographs of defendant‘s minor children in the presence of narcotics and weapons). The risk of unfair prejudice was particularly slight as the Government did not emphasize the minor children‘s association with the drug conspiracy such that it became а central issue of the case. In any event, given the overwhelming evidence linking Remble to the conspiracy, there is little chance that the admission of the photographs or video unduly prejudiced the defense.
The district court also did not err in permitting Atkins to testify that Remble, during prison church services, attempted to bribe Atkins into not testifying at trial. Atkins‘s testimony was admissi-
Finally, Remble argues that the district court abused its discretion by admitting evidence of his association with the Dodge City Crips. This Court has held that “evidence of gang affiliation is admissible to establish the defendant‘s opportunity to commit a crime, [United States v. Jobson, 102 F.3d 214, 221 (6th Cir.1996)], or where the interrelationship between people is a central issue in the case, United States v. Gibbs, 182 F.3d 408, 430 (6th Cir.1999),” United States v. Tolbert, 8 Fed.Appx. 372, 378-79 (6th Cir.2001), but is inadmissible if there is no connection between the gang evidence and the charged offense, United States v. Hendrix, No. 94-1404, 1995 WL 218472, at *3 (6th Cir. Apr. 12, 1995). Even if the trial court abused its discretion in admitting gang evidence, however, a defendant is not entitled to reversal of his conviction if admission of the evidence was harmless. See Schrand, 851 F.2d at 157.
Assuming arguendo that the district court erred in admitting the evidence of Remble‘s association with the Dodge City Crips, we cannot find that the error warrants reversal of Remble‘s conviction. Any such error was harmless because Remble‘s gang affiliation was not central to the prosecution‘s case and the other testimony establishing Remble‘s guilt was so overwhelming that the contested evidence could not have аffected the outcome of the trial. See Gibbs, 182 F.3d at 430.
C. Remble‘s Sentence
1. Career Offender Status
Remble contends that since his parole for both felony offenses, which occurred outside the fifteen-year time period for career offender status, was revoked at the same time and for the same conduct, only one of those sentences should be counted, and, therefore, he should not be classified as a career offender. The United States Sentencing Guidelines Manual Section 4B1.1(a) designates a defendant as a career offender if: (1) the defendant was at least 18 years old at the time of the instant offense; (2) the instant offensе is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. A prior conviction counts if imprisonment exceeding one year and one month was imposed within fifteen years of the defendant‘s commencement of the instant offense.
2. Calculation of Remble‘s Base Offense Level
Remble contends that the district court erroneously calculated his base offense level to be 38. In particular Remble maintains that the district court improperly determined that he was responsible for in excess of 15 kilograms of crack. The Government responds that contrary to Remble‘s argument, the testimony elicited at trial provided a sufficient basis from which the district court could cоnclude that Remble was responsible for the amount determined. A district court‘s drug-quantity determination is a factual finding that we review for clear error. United States v. Sandridge, 385 F.3d 1032, 1037 (6th Cir.2004). If the exact amount of drugs is undetermined, “an estimate will suffice, but ... a preponderance of the evidence must support the estimate.” United States v. Walton, 908 F.2d 1289, 1302 (6th Cir.1990); United States v. Hernandez, 227 F.3d 686, 699 (6th Cir.2000) (“Approximations are completely appropriate.“). Generally, a defendant involved in a drug-conspiracy is responsible for the drug quantities for which he is directly involved, and any quantity that is a reasonably foreseeable consequence of the conspiracy. United States v. Caver, 470 F.3d 220, 246 (6th Cir.2007). However, the district court must make individualized findings for each member of the conspiracy regarding the scope of the conspiracy and the duration and nature of each conspirator‘s participation. United States v. Carter, 45 Fed.Appx. 339, 352 (6th Cir.2002).
Here, the district court did not err in determining that a preponderance of the evidence shows that Remble could reasonably foresee that Owens would convert the powder cocaine into crack for resale. At trial, Atkins testified that Remble dispatched him to Ohio to sell drugs and he described a direct buy of crack from Remble in Zanesville. Covington testified that Remble sent him to Zanesville to sell drugs, that he sold crack, and that Remble told him Zanesville was a good place to
However, though not raised on appeal, we conclude that it is necessary to remand for resentencing in light of the U.S. Supreme Court‘s decisions in Kimbrough v. United States, 552 U.S. 85 (2007) and Spears v. United States, 555 U.S. 261 (2009). See United States v. Johnson, 553 F.3d 990, 996 (6th Cir.2009). In Spears, the Supreme Court held “that district courts are entitled to reject and vary categorically frоm the crack-cocaine Guidelines based on a policy disagreement with those guidelines.” Spears, 555 U.S. at 265-66. According to Spears, district courts may reject and vary categorically from the crack-cocaine Guidelines “even in a mine-run case where there are no particular circumstances that would otherwise justify a variance from the Guidelines sentencing range.” Johnson, 553 F.3d at 995 (quoting Spears, 555 U.S. at 263) (internal quotation marks omitted).
Here, the district court did not have the benefit of that authority when sentencing Remble to life imprisonment. See Johnson, 553 F.3d at 996 (vacating defendant‘s sentence and remanding for resentencing in light of Spears); see also United States v. Fox, 548 F.3d 523, 533 (7th Cir.2008) (holding that it is appropriate to vacate the defendant‘s sentence аnd remand for resentencing if the defendant did not raise the crack-to-powder cocaine ratio as an issue before the district court or initially on appeal) and United States v. Taylor, 520 F.3d 746, 748-49 (7th Cir.2008) (same). During the sentencing hearing, the district court stated: “[i]t‘s the duty of the Court to impose a sentence that is sufficient but not greater than necessary to achieve the statutory goals of sentencing. The guidelines recommend a sentence of life in prison for Remble.” (Sentencing Hr‘g Tr., Supplemental Joint Appendix 37 (emphasis added).) As in Johnson, we cannot determine from the record before us whether the district judge would have imposed the samе sentence had she known that she had discretion to vary categorically from the crack-cocaine guidelines based on policy disagreement. Johnson, 553 F.3d at 996 n. 1. Further, the district court did not specify the Guidelines used to calculate Remble‘s base offense level, although we note that the presentence investigation report (“PSR“) calculated the offense level using the 2005 amendments to the Guidelines. However, the November 1, 2007 amendments to the Guidelines retroactively reduced the base offense levels for crack cocaine.
Anderson relies primarily on United States v. Colon-Solis, 354 F.3d 101 (1st Cir.2004), to argue that he was not eligible to be sentenced to the ten-year statutory minimum under
Under the first prong of the plain-error test, we must determine whether an error occurred. Unlike Colon-Solis, whose guilty plea “left open” the amount of drugs with which he was involved, Colon-Solis, 354 F.3d at 102, Anderson specifically admitted—both during his change of plea, and at sentencing—that he “conspired with a number of individuals in distributing in excess of 50 grams of cocaine base and other narcotics in the Southern District of Ohio and elsewhere.” (JA 194, 332-33.) And, Anderson never contradicted this admission before the district court. Despite Anderson‘s limited role in the conspiracy, we must take Anderson at his word. Accordingly, Anderson‘s admission obviates the need for the “further fact-finding” required by Colon-Solis. See United States v. Ortiz-Torres, 449 F.3d 61, 73 (1st Cir.2006) (holding that the district court did not clearly err in determining the appropriate sentence for defendant based on his stipulation to the amount of drugs specifically attributable to him). Here, other than the single clause in Anderson‘s PSR providing that the Government estimated Anderson as only being involved with the distribution of between 20 and 35 grams of cocaine base, Anderson has put forth no evidence that would show that further fact-finding by the court would have resulted in his receiving a lower sentence. In sum, because Anderson cannot show the occurrence of any error, we need not decide the reach of Colon-Solis in this circuit. For these same reasons, we need not reach the government‘s argument that, after this Court‘s decision in United States v. Robinson, 547 F.3d 632 (6th Cir.2008), a district court may sentence a defendant involved in a conspiracy to the statutory mandatory minimum prison term, regardless of the amount of drugs personally attributable to him.
As to Anderson‘s claim that his trial counsel violated his Sixth Amendment right to counsel by failing to object to the trial court‘s imposition of a ten-year mandatory minimum sentence, we generally will not review an ineffective-assistance-of-counsel claim raised by a defendant for the first time on direct appeal because “[s]uch claims are best brought by a defendant in a post-conviction proceeding under
III. CONCLUSION
For the reasons explained above, we AFFIRM Anderson‘s sentence and Remble‘s conviction, but VACATE Remble‘s sentence and REMAND to the district court for resentencing.
OPINION AND ORDER
PER CURIAM.
The State of Ohio has scheduled the execution of Daniel Wilson for 10:00 a.m. on Wednesday, June 3, 2009. On April 8, 2009, Wilson filed an action under