Appellant Clarence Clay (“Clay”) appeals his convictions and sentences imposed by the United States District Court for the Middle District of Alabama. In addition, the government cross-appeals from the district court’s refusal to impose a two-level enhancement to Clay’s sentence. For the reasons that follow, we affirm.
I. BACKGROUND
After a trial, a jury found Clay guilty of conspiracy to distribute and possess with intent to distribute four kilograms of cocaine hydrochloride, 50 or more grams of cocaine base, and 1,000 or more kilograms of marijuana, all in violation of 21 U.S.C. §§ 841(a)(1) and 846, and with unlawful use of a communication facility, a telephone, in violation of 21 U.S.C. § 843(b). The jury was, however, unable to agree on the amount of drugs that shоuld be attributed to Clay. The district court sentenced Clay to 56 months imprisonment, but permitted him to remain free on bond pending the outcome of this appeal.
John W. Barnes (“Agent Barnes”) is a Senior Special Agent with the United States Customs Service. At the time of the events in this case, Agent Barnes was assigned to the High Intensity Drug Trafficking Area (“HIDTA”) task force in Montgomery, Alabamа. The HIDTA task force is a federally funded investigative task force composed of federal, state, and local law enforcement officers. HIDTA’s stated mission is to locate, identify, and dismantle drug smuggling/trafficking organizations.
In December 1997, Agent Barnes received a request from Bill Baker (“Agent Baker”), a fellow Customs agent in Cincinnati, Ohio, seeking information about аn individual by the name of “John Riley” in Montgomery, Alabama. Agent Barnes requested and received information from the Montgomery Police Department, which he forwarded to Agent Baker in Cincinnati. Agent Barnes confirmed that the John Riley, who was the subject of Agent Baker’s interest, was also the John Riley identified through the Montgomery Police Department. Thereafter, Agents Barnes and Baker began working together in a narcotics investigation that impacted Alabama and Kentucky.
In April 1998, Tony Montoya (“Montoya”), a cooperating individual (“Cl”), assisted Agents Barnes and Baker, along with others, in arranging a controlled meeting between Montoya and Riley. The purpose of the meeting was for Riley to deliver money to Montoya for marijuana that had previously been delivered to Riley. When the meeting occurred, Agent Barnes and others through the use of surveillance equipment were able to monitor Riley giving Montoya $77,500. In addition to monitoring Riley, the agents monitored the money that Riley gave to Montoya as it left Montgomery and traveled across the border into Mexico through Lаredo, Texas. The following month, a second delivery occurred. After arriving in Montgomery, Montoya contacted Riley via pager and cell telephone. Agent Barnes supervised these
Unable to identify Riley’s local co-conspirators, Agent Barnes decided to obtain pen registers for Riley’s cellular telephone with the hopes of obtaining authorization to intercept Riley’s telephone conversations. Records obtained through subрoena revealed that Clay subscribed to the cellular telephone number used by Riley to communicate with Montoya and other CIs, and the cellular phone bills went to Clay’s home address at 1030 Lynwood Drive, Montgomery, Alabama. Based on this information about the unlawful use of the cellular telephone subscribed to by Clay, the government sought and obtained а wire tap order. On June 3, 1999, eleven days into the wire tap, agents intercepted a conversation between Clay and Riley. During this conversation, Clay complained about the poor quality of the marijuana and his inability to sell it. Riley tried to relieve Clay’s anxiety by promising to pick up the marijuana and give him some new marijuana when the next shipment camе in. Additionally, Clay and Riley used numbers that were consistent with those used by Riley in a conversation with unin-dicted co-conspirator, Louis Calvin Cook (“Cook”), when Riley and Cook talked about marijuana.
When Riley realized that he was being followed by agents, he met with Clay and gave him the cellular telephone. Clay took the cellular telephone to a locаl Powertel office and changed the number. Additionally, Clay specifically requested that the SIM card (i.e., a computer chip that identifies the phone number with that card) be changed, resulting in the termination of the first court authorized wiretap for that particular cellular telephone. While in possession of the cellular telephone, Clay аnswered the telephone and identified himself as Riley’s “partner” and promised to deliver a message to Riley. After changing the number to the aforementioned cellular telephone, Clay returned it to Riley.
On July 15, 1999, agents executed several search warrants at locations associated with Riley, including Clay’s residence at 1030 Lynwood Drive, Montgomery, Alabama. The agents also searched Riley’s stash house at 1702 French Street, Montgomery, Alabama, and Riley’s main address at 5713 Portsmouth Drive, Montgomery, Alabama. Agents seized several firearms from each of these locations (i.e., two from Clay’s residence, eight from Riley’s home residence, and four from Riley’s stash house).
The evidence produced at trial demonstrated that Clay was the subscriber for the telephone that Riley used to conduct his drug trafficking business from 1996 to 1999 through which Riley possessed and distributed thousands of pounds of marijuana, more than fifty grams of cocaine base, and four kilograms of cocaine hydrochloride. During the trial, the government also presented the testimony of co-conspirator Rodеrick Blanding (“Blanding”), who testified that he worked for Riley. According to Blanding, Clay was one of Riley’s regular customers.
II. ISSUES
1. Whether the district court erred in concluding that the prosecutor’s comments before the grand jury did not substantially influence the grand jury’s decision to return the superseding indictment in this case.
2. Whether the evidence was sufficient to sustain Clay’s conviction for the unlаwful use of a communication facility, to wit,
3. Whether drug quantity becomes an element of the offense under federal drug trafficking statutes only when it may be used to impose a sentence above the applicable statutory maximum.
CROSS-APPEAL
1. Whether the district court committed clear error when it overruled the government’s objection to enhance Clay’s offense level by two points because Clay’s co-conspirators possessed dangerous weapons during the drug conspiracy.
III. STANDARDS OF REVIEW
This court reviews the district court’s denial of a defendant’s motion to dismiss an indictment based
on
prosecutorial misconduct before the grand jury under an abuse of discretion standard.
United States v. Waldon,
“Whether the record contains sufficient evidenсe to support the jury’s verdict is a question of law subject to
de novo
review.”
United States v. To,
This court will review
de novo
appeals alleging error in an indictment under
Apprendi,
1
but we will reverse only for harmful error.
United States v. Sanchez,
CROSS-APPEAL
We review
for
clear error the district court’s findings of fact regarding whether a defendant should receive an enhanced sentence under the United States Sеntencing Guidelines.
United States v. Gallo,
IV. ANALYSIS
After reviewing the record, reading the parties’ briefs, and having the benefit of oral argument, we affirm issues one and two of Clay’s appeal without further discussion. 2 We feel compelled, however, to address Clay’s drug quantity issue and the government’s cross-appeal sentence enhancement issue.
A. Drug Quantity
Clay argues, for the first time on appeal, that his conviction should be reversed because the jury that unanimously found him guilty of being a member of a drug conspiracy could not unanimously agree that the amount of drugs alleged in the superseding indictment should be attributed to him. We have held that a defendant who has not presented his objection to the district court must show plain error on direct appeal.
United States v. Hasson,
Clay contends that his conspiracy conviction should be reversed because the jury could not unanimously agree that the amount of drugs alleged in the supersed
Clay recognizes that in
Sanchez,
we held that drug type and quantity are not required to be alleged in the indictment, submitted to the jury, and proved beyond a reasonable doubt, as long as the statutory maximum punishment is not excеeded.
See Sanchez,
Had the district court sentenced Clay to a term of imprisonment above the 60-month maximum for any detectable quantity of drugs,
see
§ 841(b)(1)(A) (maximum sentence of life if 1000 kg or more of marijuana); § 841(b)(1)(B) (40-year maximum if more than 100 of marijuana), Clay would have a point under
Apprendi.
However, recognizing that the failure of the jury to agree on a specific drug quantity limited the type of sentence it could impose on Clay, the district court sentenced him to only 50 months, which is below the 60-month maximum that he could have received pursuant to § 841(b)(1)(D). Therefore, in light of our reasoning in
Sanchez,
the 50-month sentence was in the permissible range and the district court did not plainly err.
See also United States v. Richards,
B. Cross-Appeal — Enhancement Under U.S.S.G. § 2Dl.l(b)(l)
During the trial, the government presented evidence that in July 1999, pursuant to a search warrant, authorities seized drugs and various firearms from Riley’s French Street residence. Authorities also seized numerous firearms from Riley’s main residence located at Portsmouth Drive. Information regarding the search of Clay’s residence, however, was not presented at trial because the district court previously had granted Clay’s motion to suppress the search of his residence. The government also presented Blanding’s testimony that he had passed out drugs for Riley and that, between 1996 and 1999, Clay had picked up drugs at Riley’s French Street residence on a weekly basis. The district court, however, later found at the sentencing hearing that Blanding’s testimony was not fully credible, particularly with regard to the number of drug trans
At sentencing, the government objected to the presentence investigation report’s fаilure to recommend a two point enhancement to the offense level for possession of a firearm. The government explained that firearms were seized from the closet of Clay’s residence during a search warrant, and that, although the items seized were suppressed before trial, information regarding them was admissible for sentencing purposes. The government also reasoned that Riley possessed firearms at his French Street residence, the “stash house for the drugs,” where, it asserted, Clay received drugs for distribution. The district court overruled the government’s objection. The court found that it was clearly improbable that the firearms found in the closet of Clay’s residence were conneсted to the offense of conviction. The court also found that the firearms found in Riley’s residence were not reasonably foreseeable to Clay.
On appeal, the government argues that the firearms found at co-conspirator Riley’s French Street residence and Portsmouth Drive residence were reasonably foreseeable tо Clay, asserting that possession of firearms is a common tool of the drug trafficking trade. The government also contends that Clay qualifies for the firearm enhancement because (1) the conspiracy involved a significant amount of drugs; (2) during the conspiracy, Clay repeatedly picked up drugs from the French Street residence, where firearms were found; (3) Clay subscribed to a cellular telephone that Riley used to conduct his drug trafficking business; and (4) Clay possessed two firearms at his residence from where he discussed drugs with Riley. Clay responds that his role was simply to provide cellular telephone service to Riley; thus, the firearms were not foreseeable to him.
Under U.S.S.G. § 2Dl.l(b)(l), the court may adjust upward a defendant’s base offense level by two levels “[i]f a dangerous weapon (including a firearm) was possessed.... ” “The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, comment, (n. 3). In order for a district court to apply a § 2Dl.l(b)(l) enhancement based on a co-cоnspirator’s possession of a firearm, the government must prove by a preponderance of the evidence that “(1) the possessor of the firearm was a co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the defendant was a member of the conspiracy at the time of possession,
and
(4) the eo-conspirator[’s] possession was reasonably foreseeable by the defendant.”
Gallo,
After reviewing the record, we conclude that the district court did not clearly err in finding that Riley’s possession of the firearms was not foreseeable to Clay. Blanding had stated in an interview that Clay regularly picked up drugs at the “stash house;” however, the district court found that Blanding’s testimony was not fully credible because of the way in which he testified. “We accord great deference to the district court’s credibility determinations.”
United States v. Gregg,
Finally, we note that
United States v. Freyre-Lazaro,
With regard to the firearms found in the closet of Clay’s residence, the government fails to challenge on appeal the district court’s finding that it was improbable that the firearms were connected to the drug conspiracy offense, except to assert that Clay used the telephone at his own residence to discuss drugs with Riley. However, no evidence exists that drug-related objects were found in рroximity of the firearms. By contrast, in
United States v. Hall,
For the foregoing reasons, we affirm Clay’s convictions and sentences.
AFFIRMED.