BI FENG LIU v. HOLDER
United States Court of Appeals, Sixth Circuit.
481
The Board determined that Rodriguez‘s motions were untimely and found “no basis to equitably toll the filing requirements for motions to reopen.” Generally, a party may file only one motion to reopen and that motion “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.”
If a motion to reopen is time-barred, “the doctrine of equitable tolling may be applied to permit reopening when the alien demonstrates that she received ineffective assistance of counsel and was prejudiced thereby.” Mezo v. Holder, 615 F.3d 616, 620 (6th Cir.2010). The IJ and Board did not abuse their discretion by finding that Rodriguez was not prejudiced by counsel‘s actions because the evidence showed that she entered the country on December 10, 1990. See Alizoti, 477 F.3d at 451-52.
Furthermore, the Board found that, even assuming ineffective assistance of counsel, Rodriguez failed to show the due diligence necessary to invoke equitable tolling. Rodriguez does not challenge this finding on appeal. Therefore, the issue is waived. See Dillery, 398 F.3d at 569.
The petition for review is denied.
UNITED STATES of America, Plaintiff-Appellee, v. Andre WILLIAMS, Defendant-Appellant.
No. 10-1558
United States Court of Appeals, Sixth Circuit.
April 6, 2012.
BEFORE: BATCHELDER, Chief Judge; CLAY and GILMAN, Circuit Judges.
BACKGROUND
On September 13, 2005, Williams was indicted by grand jury of conspiracy to utter and possess counterfeit securities of an organization, in violation of
Of the many standard and special conditions on Williams’ supervised release, several are relevant to the conduct and arrest at issue here. These include conditions that Williams abstain from:
- Commission of a federal, state, or local crime
- Possession of a firearm
- Possession of a controlled substance
- Frequenting a place where controlled substances are sold
- Failing to pay restitution1
- Submitting an untruthful report to the probation officer
- Associating with persons convicted of a felony
- Failing to provide notification of an arrest within 72 hours
Williams’ supervised release began on February 20, 2009 and was set to end in February 2012.
The Redford Township police department learned from a reliable informant that a large shipment of marijuana would be delivered during the week of August 23, 2009 to a house at 8452 Heyden Street, Detroit, Michigan. On August 27, 2009, Redford Township police officers executed a warrant to search for suspected drug activity at 8452 Heyden Street. At the time of the search, Williams and three other men were at the house. When the officers entered, at least one officer saw Williams on the stairs leading to the upstairs room. The other three male occupants were in the living room. All four were secured during the search.
The house was approximately 800 square feet in size. Although there were two bedrooms, which contained beds, and a living room with a couch, the house did not appear livable. It contained no refrigerator, stove, dishes, food, or washer and dryer. However, there was a telephone and a television with cable. In the house, officers found mail addressed to two different men.
As the officers searched one bedroom, they found two garbage bags that contained seventeen gallon-sized bags of marijuana. In the other bedroom, the officers found a black duffel bag with five gallon-sized bags of marijuana and several shotgun shells. The upstairs room contained a glass table with a digital scale, two razor blades, screw drivers, marijuana shake (i.e., residue), bubble wrap, and empty gallon-sized bags. In the living room, the officers saw a shotgun wedged between the couch and the wall, which was visible without moving the couch. In the basement, the officers recovered a white plastic bag containing marijuana from the rafters.
The officers arrested all four men. Each of the men had a prior felony conviction. When they arrested Williams, they found $10,100 in his front pants pocket, separated into several bundles. In Williams’ other pocket, they found keys to one of the two cars in the driveway.
Williams did not inform his probation officer of the arrest. Williams also failed to note the arrest in his monthly supervised release report.
B. Supervised Release Violation Hearing
Because Williams was arrested during his supervised release, the government filed a petition on February 17, 2010 alleging eight violations of his supervised release terms. The district court held an evidentiary hearing on March 24, 2010. Williams initially pleaded guilty to violating conditions in his supervised release that prohibited him from submitting an untruthful report to a probation officer and for failing to provide timely notification of an arrest. In addition to those admissions, the district court found that Williams violated the terms preventing Williams from committing another crime, possessing a controlled substance, and frequenting a place where controlled substances are sold.2 On April 2, 2010, the court sentenced Williams to two years of imprisonment for the five violations of his supervised release. Williams timely appealed.
DISCUSSION
We review a district court‘s determination that a condition of supervised release
Where the government alleges that a defendant violated a condition of his supervised release, the government must prove that violation by a preponderance of the evidence—not beyond a reasonable doubt—at an evidentiary hearing.
In this case, Williams was accused of violating several conditions of his supervised release. At issue on appeal are his alleged violations of two conditions: that he not commit a federal, state, or local crime and that he not possess a controlled substance. The government supported its allegations of these two violations by arguing that Williams possessed marijuana with intent to deliver it, in violation of Michigan state law. See
Under the Guidelines, a controlled substance offense that is punishable by a term of imprisonment exceeding one year is deemed a Grade A violation of supervised release conditions.
On appeal, Williams argues the narrow issue of whether the district court abused its discretion in finding that the government met its burden of proof on the marijuana offense. Williams argues that he would have received a lesser sentence if the court had not found that he committed the marijuana offense because the other violations of his supervised release terms did not carry such a high grade level or sentencing range.3
A. Marijuana Offense
The district court found that Williams possessed marijuana with the intent to deliver it, in violation of
[A] person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, or a counterfeit prescription form.... A person who violates this section as to ... [m]arihuana or a mixture containing marihuana is guilty of a felony----
B. Knowing Possession
In Michigan, possession may be actual or constructive. Cannon v. Lafler, 247 Fed.Appx. 796, 798 (6th Cir.2007); People v. Johnson, 466 Mich. 491, 647 N.W.2d 480, 486 (2002). In general, “[c]onstructive possession exists when the totality of the circumstances indicates a sufficient nexus between defendant and the contraband.” Johnson, 647 N.W.2d at 486 (citing Wolfe, 489 N.W.2d at 754). The Michigan Supreme Court has fully explained its constructive-possession doctrine, with reference to a Ninth Circuit decision:
We have stated that constructive possession may be demonstrated by direct or circumstantial evidence that the defendant had the power to dispose of the drug, or “the ability to produce the drug,” or that the defendant had the “exclusive control or dominion over property on which contraband narcotics are found.” Constructive possession may also be proven by the defendant‘s participation in a “joint venture” to possess a controlled substance. The ultimate question is whether, viewing the evidence in a light most favorable to the government, the evidence establishes a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised a dominion and control over the substance.
Wolfe, 489 N.W.2d at 754 (quoting United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986)) (alterations and internal quotation marks omitted); see Cannon, 247 Fed. Appx. at 798.
The Michigan Supreme Court has found that a defendant‘s mere presence at a location where contraband is present is insufficient to prove constructive possession, though additional evidence connecting the defendant to the contraband may be sufficient. Wolfe, 489 N.W.2d at 753-54. In Wolfe, the Michigan Court agreed with the District of Columbia Court of Appeals that “constructive possession [would be] shown where the defendant was found in a sparsely furnished apartment that contained cocaine packets and large sums of money lying about in plain view.” Id. (citing Thompson v. United States, 567 A.2d 907, 908-09 (D.C.1989)) (noting that, as in Thompson, “constructive possession exists when the totality of the circumstances indicates a sufficient nexus between the defendant and the contraband“); see also People v. Ford, No. 296142, 2011 WL 1045654, at *2, 2011 Mich.App. LEXIS 557, at *6 (Mich.Ct.App. Mar. 22, 2011) (noting that a defendant‘s presence in a sparsely furnished house plus evidence of drugs in plain view is sufficient to establish constructive possession); People v. Higgins, No. 269140, 2007 WL 1828798, at *2-3, 2007 Mich.App. LEXIS 1681, at *5-6 (Mich. Ct.App. June 26, 2007) (same). Finally, possession may also be joint or exclusive. People v. Fetterley, 229 Mich. App. 511, 583 N.W.2d 199, 202 (1998); Cannon, 247 Fed.Appx. at 798.
Williams was not found with marijuana on his person, so the government was required to show that he had constructive possession of it. The government offered testimony that the house at 8452 Heyden was essentially a drug house. Nearly every room had marijuana and drug packag-
Williams was employed off and on and received an income of only $125 per month. He alleged that he was unable to make restitution payments to the government and, over two years, had only been able to pay $50 of the $65,000 that he owed. Yet, he was found in the house with bundles of cash in his front pocket, amounting to over $10,000. There have been no other explanations for the large amount of cash.
This case is similar to the Thompson case, the rationale of which was adopted by the Michigan Supreme Court in Wolfe and the Michigan Court of Appeals in Ford and Higgins. The Thompson case held that constructive, knowing possession is properly shown where “the defendant was found in a sparsely furnished apartment that contained cocaine packets and large sums of money lying about in plain view.” Wolfe, 489 N.W.2d at 754 (citing Thompson, 567 A.2d at 908-09). Here, the Redford Township received notice that a large drug transaction would take place at 8452 Heyden, a sparsely furnished house that contained marijuana, drug measuring and packaging devices in plain view, and a large amount of cash—in Williams’ pocket. This evidence, taken in its totality, offers a sufficient nexus between Williams and the marijuana to prove his constructive possession over it. The district court did not abuse its discretion in finding that Williams knowingly and constructively possessed the marijuana by a preponderance of the evidence.
C. Intent to Deliver
The government must also prove that Williams’ possession of the marijuana corresponded with an “intent to deliver” it. The Michigan Supreme Court‘s decision in Wolfe also provides the rule for what constitutes an intent to deliver: “actual delivery of narcotics is not required to prove intent to deliver. Intent to deliver has been inferred from the quantity of narcotics in a defendant‘s possession, from the way in which those narcotics are packaged, and from other circumstances surrounding the arrest.” Wolfe, 489 N.W.2d at 755.
It is clear that Williams had an intent to deliver the marijuana, rather than an intent to engage in mere recreational use or some other purpose. First, there was a very large amount of marijuana. See Wolfe, 489 N.W.2d at 755. Second, there was a plethora of drug packaging materials, including plastic baggies, bubble wrap, black duffle bags, and black garbage bags, and measuring material, including a digital weighing scale with marijuana residue on it, two razor blades, and a screw driver. See id. Importantly, officers were informed of a drug transaction that would occur at the time and place where Williams was found with the drugs. See id. These facts clearly prove that the marijuana would be packaged and delivered.
In sum, we find that the district court did not abuse its discretion in finding that the government proved by a preponderance of the evidence that Williams knowingly and constructively possessed marijuana with the intent to deliver it, in violation of
CONCLUSION
For the reasons discussed above, this Court AFFIRMS the district court order finding that Williams violated five terms of his supervised release and sentencing Williams to two years of imprisonment.
UNITED STATES of America, Plaintiff-Appellee, v. Sean Lamonte LINDSAY, Defendant-Appellant.
No. 11-1674
United States Court of Appeals, Sixth Circuit.
May 9, 2012.
BEFORE: BOGGS and GRIFFIN, Circuit Judges; and BARZILAY, Judge.*
*The Honorable Judith M. Barzilay, Senior Judge, United States Court of International Trade, sitting by designation.
GRIFFIN, Circuit Judge.
Defendant Sean Lindsay pled guilty to one count of bank robbery and incidental crimes, in violation of