Unitеd States of America, Appellee, v. Geno Webb, Appellant. United States of America, Appellee, v. Micaiah Rey, also known as Joshua Sanders, also known as Cal, Appellаnt.
No. 08-1331, No. 08-1332
United States Court of Appeals FOR THE EIGHTH CIRCUIT
October 28, 2008
Submitted: September 23, 2008. Appeals from the United States District
Before LOKEN, Chief Judge, WOLLMAN, and SMITH, Circuit Judges.
WOLLMAN, Circuit Judge.
Micaiah Rey and Geno Webb were convicted of conspiracy to distribute cocaine bаse in violation of
I.
Between April 2005 and November 2006, law enforcement agencies in southeastern Iowa investigated Webb‘s and Rey‘s sales of cocainе base, also known as crack cocaine. Throughout the investigation, officers enlisted several cooperating individuals to purchase crack cocaine in contrоlled buys. Typically, a cooperating individual called either Webb or Rey to arrange a meeting time and place. Officers provided pre-serialized money to the cooрerating individual, searched the individual before and after the buy, and monitored the exchange. The individual met with either Webb or Rey, purchased the drugs, and returned the drugs to the officers. The ongoing investigation also involved three warrant-based searches. Rey was present for all three searches, and Webb was present for two. These searches uncovered drugs, drug paraphernalia, and approximately $14,000 cash. Each stash of money included pre-serialized bills from the controlled buys. A grand jury charged Webb and Rey in a five-count superseding indictment, including one count of conspiracy to distribute at least fifty grams of a mixture or substance containing cocaine base.
The government presented several witnesses who testified to buying crack сocaine from Webb and Rey, either for their personal use or in controlled buys. Various law enforcement officers testified regarding the controlled buys and the searches. The physical evidence that the government submitted included audio recordings of cooperating individuals arranging controlled buys with Webb or Rey; crack cocaine purchased in the controlled buys; drugs, drug paraphernalia, and photos of money seized during the searches; and cellular phone records. The jury found both Webb and Rey guilty of conspiracy to distribute crack cocaine, as charged in the indictment. In response to an interrogatory, the jury found beyond a reasonable doubt that the amount of cocaine base involved in the conspiraсy was more than five grams but less than fifty grams.
At the first sentencing hearing, the district court found by a preponderance of the evidence that the conspiracy involved more than fifty and less than 150 grаms of crack cocaine. The court found that the witness testimony regarding drug purchases for personal use was credible and that the money was evidence of drug dealing beyond that fоund by the jury. Accordingly, the court assigned a base offense level of 30 to both Webb and Rey. After denying all requests for adjustments, the district court concluded that both defendants’ criminal history categоry was III, resulting in an advisory guidelines sentencing range of between 121 and 151 months. The court sentenced Webb to 130 months’ imprisonment. At a later hearing, the court found that Rey‘s prior Illinois state convictiоn qualified as a felony drug offense and that he was subject to the mandatory minimum sentence set forth in
II.
Webb and Rey argue that the distriсt court erred at sentencing by applying a preponderance of the evidence standard to determine drug quantity in excess of that found by the jury beyond a reasonable doubt. We review this issue de novo, in light of our case law interpreting
A preponderance of evidence standard of proof applies to judicial fact finding at sentencing, a standard that sаtisfies both the Fifth Amendment‘s guarantee to due process and the Sixth Amendment right to trial by jury. United States v. Cole, 537 F.3d 923, 929 (8th Cir. 2008). Drug type and quantity determine the statutory sentencing range in cases charged under
The sentences imposed in this case were appropriate because they did not exceed the statutory maximum of the convicted offense and the evidence supported the district court‘s drug quantity finding. As stated аbove, the jury found beyond a reasonable doubt that Webb and Rey conspired to distribute between five and fifty grams of cocaine base. The penalties set forth in
Moreover, the district court‘s drug quantity determination was not clearly erroneous. See United States v. Titlbach, 300 F.3d 919, 923 (8th Cir. 2002) (reviewing for clear error the district court‘s drug quantity determination). Webb and Rey concede that the physical evidence showed that the conspiracy involved about thirty-five grams of cocaine base, which was the total amount purchased in the controlled buys and seized in the related searches. The district court found credible the witness testimony regarding drug buys for personal use and found that the seized money was evidence оf drug dealing beyond that which the jury found. Based on the record before us, a preponderance of the evidence supported the district court‘s drug quantity determination.
Similarly, Rey urges us to adopt the Second Circuit‘s opinion in United States v. Gonzalez, 420 F.3d 111, 115 (2nd Cir. 2005), and hold that drug quantities are elements of an offense under
Finally, Webb and Rey argue that the district court‘s drug quantity determination violated the Fifth Amendment‘s prohibition on double jeopardy. The double jeopardy clаuse generally has no application in the sentencing context. Monge v. California, 524 U.S. 721, 728 (1998). Because drug quantity is not an element of the offense in this case, the sentences did not subject Webb or Rey to new jeopardy for previously committed crimes, and thus no constitutional error occurred.
Conclusion
The sentences are affirmed.