Corey Smith and two codefendants were charged with one count of distributing and one count of conspiring to distribute crack cocaine.
See
21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. One of the codefendants, Alonzo Grant, made a deal with the government and testified against the other two. After a jury trial at which Grant’s testimony played a crucial rolе, Smith was convicted of both counts, and the third codefendant, Travis Black, was acquitted of both counts. Smith initially argued in his brief that the government failed to disclose all of the terms of its deal with Grant, and that the nondisclosure violated his due process rights.
See Giglio v. United States,
On July 15, 2002, a confidential informant puf Detective Mitch McKinney in touch with Grant so that McKinney could рurchase an ounce of crack. Grant, who was unaware that''McKinney was a police officer, said he had to find a supplier. The two men agrеed to talk later. Grant later called McKinney and told him to go to Packard Park. When McKinney arrived, Grant said he needed to borrow McKinney’s cell phone to- call his supplier. According to Grant’s testimony, he then called Smith and tóld him to come to the park. The detective never checked his phonе’s memory or his phone bill to verify whether Grant really called Smith. A maroon van pulled into the park, and Grant went alone to the van and briefly conversed with its оccupants out of earshot of McKinney and the surveillance team. The van then left. Grant returned to McKinney and told the detective that Smith had only soft cocaine but was going to cook it into crack. McKinney told Grant to call him when he had crack to sell. Meanwhile, Detective Miguel Rivera, a member of a surveillance team that had preceded McKinney to the park, followed the maroon van long enough to identify the occupants as Smith and Black.
Later that day, Grant called McKinney to say that Smith had a batch of crack ready and that they should all meet again at Packard Park. Grant testified that he arrived first, then Black and Smith, and later McKinney. When McKinney arrived Grant immediately got into his car. and displayed 25.47 grams of crack (short of an ounce), whiсh he said that he had received from Smith inside the van just before McKinney (or the surveillance team) arrived. McKinney then gave Grant $1000 in identifiable bills. Grant put the money *719 in his pocket, returned to the maroon van, and got inside. The back-up and surveillance team finally arrived late, and McKinney signaled for an arrest. Grant, Smith, аnd Black were all arrested, and the buy money was found on the floor of the rear passenger seat of the van next to Grant. When Grant was interviewed shortly after the arrest, he maintained that he had received the crack from Smith. He also said that Black was not involved in the sale.
Grant, Smith, and Black were all аrrested and charged with distributing and conspiring to distribute crack. Eight days before trial Grant pleaded guilty and made a deal with the government in which he agreed to tеstify at Smith and Black’s trial. According to Grant’s plea agreement, the government agreed to drop the conspiracy charge against him, recommеnd that he receive a downward adjustment for acceptance of responsibility, and recommend a sentence at the low end of the guideline range. Grant also received other benefits not mentioned in the plea agreement. The government elected not to seek an enhancement of Grant’s mandatory minimum sentence from 5 to 10 years based on Grant’s prior felony drug conviction, see 21 U.S.C. § 851, and later the government moved for a substantial-assistanсe downward departure under U.S.S.G. § 5K1.1. Grant was ultimately sentenced to 57 months. Smith, with no prior drug convictions, received 115 months.
On appeal, Smith argues that there was insufficient evidence to convict him of either charge. Regarding his distribution charge, he attacks Grant’s credibility but does not argue that Grant’s testimony, if credible, would bе insufficient evidence. Smith says that his conviction “was based primarily upon the testimony of ... Grant, a convicted felon and admitted drug dealer, and a person who later received a downward departure motion for his testimony.” Smith’s conviction depended heavily on Grant’s credible testimony; Grant was the only witness whо could testify that he called Smith to the park the first time, and he provided the only testimony about the details of their first conversation at the park. Furthermore, he provided the main testimony linking Smith with the ultimate drug transaction. The only other incriminating evidence against Smith was an officer’s testimony that while he was being interrogated Smith announced that he had not sold “crack.” The interrogating officer said that no one ever told Smith that the drug sale specifically involved craсk. The jury found Grant credible and accepted his testimony regarding Smith’s involvement, and we upset credibility determinations made by juries only in “exceptional circumstances, such as ‘where it was physically impossible for the witness to observe that which he claims occurred, or impossible under the laws of nature for the occurrence to have taken place at all.’ ”
United States v. Williams,
Regarding Smith’s conviction for conspiracy to distribute crack, he argues that the governmеnt offered insufficient evidence of a conspiracy because it proved only an ordinary buyer-seller relationship between him and Grant, not a jоint conspiracy to sell the drugs to McKinney. Smith is correct that in the case of drug conspiracies, it is not sufficient for the government to prove that the dеfendant was in a mere buyer-seller relationship to the alleged coconspirator.
See United States v. Rock,
Smith also argües on аppeal that his sentence violates the Sixth Amendment because it includes a twó-level sentencing enhancement that was based on facts neither аdmitted by Smith nor found by a jury.
See Blakely,
- U.S. -,
Thus we ApfiRM the judgment of conviction but Vacate the sentence and remand for resentencing.