*1 America, STATES UNITED
Plaintiff-Appellee, Defendant-Appellant. HIGGINS,
Oliver
No. 08-5114. Appeals, Court
Sixth Circuit. 21, 2009.
Argued: Jan. Feb. and Filed:
Decided 4,May 2009.*
Rehearing Denied
* Judge Clay adheres to his dissent.
session with intent to distribute cocaine base, possession with intent to distribute cocaine, possession with intent to distrib- marijuana, ute possession of counterfeit currency defraud, with intent to felon in possession firearm, of a possession a firearm in connection with a drug-traf- trial, ficking crime. Before moved suppress all of the stemming evidence from the search of apartment on the grounds that the warrant lacked *4 cause. The district court denied this mo- trial, tion. At jury Higgins convicted (all of five of the six counts of the counts third, except crime). marijuana-based The district court Higgins sentenced to an effective sentence of imprisonment life plus years. five appeal, On Higgins argu- raises two First, ments. Higgins asserts that district court in denying erred his motion Golden, ARGUED: Keith E. Golden & to suppress because the search warrant Meizlish, Columbus, Ohio, Appellant. for Second, lacked cause. Higgins Kitchen, Jerry R. Assistant United States presents arguments three why for the dis- Attorney, Jackson, Tennessee, for Appel- trict court erred in imposing a sentence of Golden, lee. ON BRIEF: Keith E. Gold- (1) imprisonment: life although Meizlish, Columbus, en Ohio, & Appel- for convicted Higgins of an offense involving Jerry Kitchen, lant. R. Assistant United base, his sentence violated the Jackson, Attorney, Tennessee, Sixth Amendment because it was based on Appellee. judicial a finding that the offense involved MOORE, CLAY, Before: and (2) cocaine; Higgins’s sentence was KETHLEDGE, Judges. Circuit greater than necessary, and the district court failed factors; to consider mitigating MOORE, J., opinion delivered the (3) the district court improperly en- CLAY, 399-400), court. (pp. J. delivered hanced Higgins’s sentence prior based on separate opinion joins which Part II.A.2.a convictions. For the reasons discussed be- but dissents from Part II.A.2.b. low, we AFFIRM Higgins’s conviction and KETHLEDGE, 401), (pp. J. delivered a sentence. separate opinion joins which all but Part II.A.2.a. I. BACKGROUND
OPINION KAREN MOORE, NELSON Circuit The chain leading of events Judge. began conviction when an investi- Oliver Higgins (“Higgins”) gator with the Department Jackson Police indicted and charged with pos- six counts: and an Attorney Assistant District contact- Oliver (“Car- belonged to motorcycle which Carneal Investigator William ed Narcotics with Metro Officers Higgins. De- County Sheriffs neal”) Madison at the belonging motorcycle as identify the told Carneal did investigator partment. which located Police to Oliver Henderson officer that an Street, drugs Apartment Campbell about information had Department County. Carneal stated Jackson, The driver in Madison Tennessee. sold being in his transpired narcotics from purchased events explained the he had for a application supporting purchased had affidavit previously location September warrant: search in his vehicle the cocaine re- check of Sgt. Higgins. Carneal A 2005 from Oliver September On Henderson history from the criminal of Oliver ceived information (Chester County) re- felony convictions for Department prior Police two showed in that stop conducted County, a traffic garding trafficking Hardin narcotics Phil Willis in which Officer jurisdiction Tennessee, in and 1998. re- Department the Henderson Police (Carneal (“J.A.”) at 36 Appendix Joint of cocaine amount large covered Aff.). stated Officer cocaine base. Willis affidavit, Madi- solely on this Based driving suspect stopped
he *5 Judge issued County General Sessions son informed Willis influence. Officer the at5 1336 apartment to search a warrant ap- suspect had that the Sgt. Carneal According to Carneal’s Campbell Street. cocaine, powder grams 15 of proximately police the searched testimony, trial when base. of cocaine grams along with cocaine, they found crack apartment, (Both positive field tested substances cocaine, money, a marijuana, gun, powder cocaine). had two ad- also suspect The mail ad- scales, papers, and digital rolling All in the vehicle. passengers ditional dis- After the officers Higgins. dressed in- separated were and three individuals of crack grams more than covered the Chester separately terviewed and took cocaine, Higgins they arrested The driv- Department. County Sheriffs Complex. Justice him to the Criminal vehicle, name has been the whose er of the discovered contraband Based picked he Judge, stated disclosed to search, grand a federal during this in Madi- from a location up the cocaine charg- superseding indictment delivered address of 1336 gave an County son possession counts: Higgins with six ing 5, Jackson, Street, Apartment Campbell of grams 531.8 to distribute with intent Tennessee, location for pick up as the U.S.C. of 21 in violation base He identified also the narcotics. to dis- 841(a)(1); with intent possession § as Oliver selling the narcotics person violation of cocaine in grams 250.1 tribute was corrobo- This information Higgins. 841(a)(1); possession § 21of U.S.C. of the vehicle by passengers rated both marijuana grams to distribute intent the driver they rode with who stated 841(a)(1); pos- § of 21 U.S.C. in violation Officers Street location. Campbell intent currency with of counterfeit session transport Narcotics did from Metro 472; § of U.S.C. violation to defraud Campbell of the vehicle driver in violation a firearm possession of felon in the exact loca- to confirm address Street aof possession § 922(g); of 18 U.S.C. Officers with transaction. tion of the drug-traffick- awith in connection firearm corroborated Narcotics Unit Metro U.S.C. of 18 crime violation ing of the by given the driver the address 924(c)(l)(2). of a vehicle, description along with the indicted, After he was moved to proceeded case to trial. gov- suppress all of the evidence that was ernment’s first Lynn witness was Jessica during above; Marquez, seized the search described Tennessee Bureau of Investi- gation employee. all Marquez of the he statements made the scene testified that one later, government’s exhibits search or while in contained custody; grams cocaine, 250.1 that another and all con- by observations made enforce- law grams marijuana, tained and that a ment during officers search. third grams contained 531.8 of cocaine argued that search improper be- base. Additionally, Marquez explained cause the warrant lacked cause that cocaine base was by made boiling sufficiently did not corroborate the water, cocaine, powder baking soda statements made the informant. The together and that dried, when the mixture government responded the affidavit it was “hard and rock-like.” J.A. at 112 provided probable cause because the infor- (Trial 6). Tr. at During testimony, her mant’s name was disclosed to judge, Marquez substance tested was referred to given information was based on the as both cocaine base and as crack cocaine. personal informant’s knowledge, officers Marquez herself called the substance co- corroborated the fact that Higgins lived at base, caine but prosecutor when the asked location, the named and Higgins had two her to state “the total amount of crack prior felony convictions for traffick- drug cocaine” that tested, she had Marquez ing. Additionally, government assert- stated that the total was 531.8 with- ed that corroboration was not necessary out making any distinction between crack because the informant was “providing in- (Tri- cocaine and cocaine base. J.A. at 113 formation in hopes leniency past 7). al Tr. at *6 crimes.” J.A. at 40 (Resp. to Mot. to Marquez, After Carneal testified regard- 4). Suppress at ing the search of Higgins’s apartment. The district court hearing held a on Carneal explained also the difference be- Higgins’s suppress motion to at which Car- powder tween cocaine and crack cocaine neal was the sole witness. Carneal’s testi- and described how crack cocaine is made. mony was consistent with the information Carneal stated that Higgins was in the contained the affidavit. After argument apartment at the time of the search and counsel, from Higgins court reviewed told officers that he was the the facts occupant. contained in the sole The government’s affidavit and next wit- noted that ness Joseph (“Cavitt”), “the informant was Cavitt identified” a Unit- and that ed the States Secret provided information he Service special agent, “was who testified corroborated him by taking regarding and the others counterfeit to currency found in Higgins’s apartment. the address” and the identification of Higgins’s motorcycle. J.A. at 100 (Hr’g Cavitt, After the government called Ter- 27). Tr. at The district court denied the ry Hopper (“Hopper”), a task officer with motion and found “an identified infor- Drug the Administration, Enforcement mant providing corroborated information” the Hopper stand. testified that he was established cause.1 J.A. at 101 present when the search warrant was exe- 28). (Hr’g Tr. at cuted Higgins’s at apartment. Hopper ex- ruling, Higgins After this filed an amended assistance of counsel. The district court de- suppress motion to and a reopen motion to nied these motions. suppression the hearing based on ineffective offense,” Higgins should trolled substance made and cocaine was how crack plained Offender as a Career be classified “over 550 stated sold, Hopper (PSR at at 232-33 § 4B1.1. J.A. U.S.S.G. found were cocaine” of grams 9-10). Career calculations Using the quantity apartment a Higgins Offenders, assigned the PSR at $50,000. J.A. about worth drugs was also report The of 37. offense level total 193). Hop- According to (Trial Tr. at catego- Higgins that because stated was worth found cocaine powder the per, Offender, criminal as a Career rized told Hopper Additionally, $30,000. about summarizing category was VI. history apart- in the items found the jury that the the sentencing options, district court’s Higgins “was him that indicated ment on 21 based U.S.C. noted that PSR (Trial J.A. crack cocaine.” selling 851(a)(1), 841(b)(1)(A) 1 car- count & §§ 194). Tr. at sentence mandatory-minimum ried charged then court The district Similarly, under imprisonment. life charges “Count explained that 924(c)(l)(A)(l), Higgins’s convic- U.S.C. about on or Higgins, defendant, Oliver in connec- of a firearm possession tion for knowingly 2005, unlawfully, September (count crime a drug-trafficking tion with intent to with intentionally possessed 6) least five of at required sentence 531.8 approximately distribute consecutive- to run imprisonment years J.A. base, or crack cocaine.” The PSR sentences. his other ly with 239). jury found (Trial Tr. at range was guidelines stated counts with of five of six guilty Higgins years con- plus five life 360 months acquitted but charged, had he been which However, imprisonment. secutive marijuana-based him of count statutory based on asserted that PSR 1, the count In connection charge. above, the district described minimums jury to answer required form verdict a sentence impose required court was 1 of “On First: Count questions. two to run years plus five imprisonment of life the defen- indictment, we, jury, find consecutively. ” at 71-72 J.A. Higgins.... dant Oliver PSR, district reviewing After Form). (Verdict jury checked box sides. both argument court heard guilty found indicating it jury had argued that because *7 defendant you “If find 1. Second: count in involved the substance that not found of cocaine amount what on Count guilty cocaine, the district 1 was crack count reasonable beyond a you do find base on Higgins based not could sentence court Id. The possessed?” that defendant doubt crack-cocaine- intended enhancements grams. 531.8 it found jury responded that coun- government The offenses. based questions similar answered jury The and cocaine” “crack the that terms tered remaining charges. the interchange- been used base” had “cocaine overruled sentencing district court began trial. The ably at district court The objection because con- reviewing the conclusions hearing by in (“PSR”). evidence “there was found that report court presentence in the tained possessed the substance ad- the combined this record asserted The PSR fact, was, the crack form by According defendant level was justed offense and because base” of- instant of cocaine PSR, “[Higgins’s] because as defined base was guidelines, felony controlled is a conviction fense (Trial atTr. at 196-97 cocaine. J.A. has [Higgins] offense substance 287-88). of a con- felony convictions prior least two
Next, Higgins and government pre- life, gest but even more importantly, arguments sented regarding the propriety statute in your requires case [21 life. of a imprisonment. sentence of life 841(b)(l)(A)(iii) § U.S.C. provides ] government focused on the fact that the penalty for grams or more of cocaine appropriate penalty was harsh not because and, base column, the next ... pro- of a sentencing disparity powder between vides for a mandatory sentence life in cocaine, cocaine and crack but because prison you if prior have two convictions Higgins awas career offender. The dis- for a felony drug offense. clearly You trict court noted 21 U.S.C. have those prior two felony convictions, 841(b)(iii) § required a sentence of life im- you were convicted in this case of prisonment because had been con- more than grams of cocaine base. victed of more than possessing So, statute, under the the court has no cocaine base and had two prior drug-relat- impose alternative but to a sentence of ed convictions. continued to ar- life. gue although this statute used the The statute requires also five-year base,” term “cocaine the district court additional sentence to be consec- served could impose a mandatory life sentence utively for the firearm. absent finding that drug in- volved was crack cocaine because the stat- So, Higgins, Mr. considering all the utory minimum of imprisonment life factors of [18 U.S.C. 3553] meant for offenders involved in crack co- guidelines, it’s my judgment you caine. be committed to custody of the Bu- reau of Prisons for a term imposing sentence, of life im- the district court prisonment on noted count guidelines thirty years im- just were one prisonment factor on for the twenty court to count years consider and that imprisonment here guidelines on count “suggest[ed] ... years fifteen mandatory imprisonment sentence of life in on prison plus count all of those five years more for the sentences firearm.” J.A. served concurrently (Trial 304). Tr. at other, district court each followed a five-year considered the circumstances the of- sentence consecutive count which fense, focusing on guns the fact that will be served consecutively life. a large quantity drugs were found at The effective is, sentence therefore, life Higgins’s apartment. Additionally, imprisonment plus years. five district court considered history (Trial J.A. at 306-07) (em- Tr. at and noted that he had a serious and added). phasis lengthy criminal record. The district court stated that On there appeal, Higgins were no appropri- raises argu- two *8 ate alternative First, sentences ments. available and asserts that determined that Higgins’s district sentence was court erred denying in his motion proportional to the sentences of suppress other in- to because the search warrant dividuals who had committed similar was not supported by probable cause. crimes. Finally, the district Second, court noted Higgins presents three arguments the importance of deterring large-scale contending that the district court erred in drug dealers and imposed the following imposing a sentence imprisonment: of life sentence: (1) although convicted Higgins of
In looking your what at sentence an involving base, offense his sen- should actually be, guidelines sug- tence violated the Sixth Amendment be-
389
Miller, 314
place.”
particular
in a
finding found
judicial
aon
based
it
cause was
marks
(internal
(2)
quotation
at 268
cocaine;
F.3d
involved
the offense
omitted).
held
Supreme Court has
than neces-
greater
sentence
ana
of a warrant
is
sufficiency
to consid-
court failed
district
sary, and the
totality-of-the-circumstances
using a
(3)
lyzed
factors;
the district
mitigating
er
court
duty
reviewing
of a
“the
approach;
Higgins’s sen-
enhanced
improperly
court
mag
[issuing]
that the
simply to
ensure
convictions.
prior
on
based
tence
...
basis
had a ‘substantial
istrate
cause existed.”
probable
II. ANALYSIS
concluding]’ that
238-39,
Gates,
213,
103
v.
462 U.S.
Illinois
Suppress
to
A. Motion
(1983)
2317,
(quoting
527
76 L.Ed.2d
S.Ct.
of Review
1. Standard
States,
257, 271,
U.S.
v. United
362
Jones
(1960)).
725,
When
391 been no show- affidavit; there has and of that an the fruits evidence from sion obviously defi- so the warrant was ing that excep- However, good-faith the search. objec- on it was reliance that official (1) cient in four situations: inapposite is tion tively unreasonable. misled magistrate was issuing the where that the in an affidavit by information is inquiry good-faith “[O]ur have would false or was knew affiant objectively ascertainable the confined reckless for his except false known was reasonably well trained a question (2) truth; the where for the disregard the search that have known would officer wholly abandoned issuing magistrate magistrate’s author despite the illegal was act in neutral a and failed judicial Leon, role n. 23. at 922 468 U.S. ization.” fashion, merely as serving and detached reliance on that officers’ conclusion (3) where police; stamp for the re reasonable objectively a rubber was warrant than a nothing more than demanding showing was the affidavit ‘“a less quires pro- did not required that affidavit basis” threshold “bare bones” “substantial ” probable a substantial cause.’ existence of magistrate prove the vide the Carpenter, 360 F.3d determining existence v. States basis United banc) Cir.2004) (en (6th (quoting Unit the affidavit cause, where or probable (4th 192, 195 Bynum, v. probable States lacking in indicia ed was so Cir.2002)). case, had police In this in its belief official to render cause as a infor (4) named from information unreasonable; and received entirely existence that admitting who, the course in mant on the war- reliance officer’s where crime, police a told had committed he objectively faith good not in rant was drugs purchased had he is the warrant reasonable, such as where As day. discussed earlier address facially deficient. worked with above, had not police Rice, F.3d v. States United wheth not know and did before informant Cir.2007) (internal marks (6th quotation seen inside sold or had been drugs er omitted); Herring see also citations and residence, magistrate did but — -, States, 129 S.Ct. U.S. facts included on the based a warrant issue (2009). 695, 172 L.Ed.2d holdings This circuit’s the affidavit. in Part majority holds Although a place a nexus between indicate sup this warrant II.A.2.a that may to be seized and the item searched be cause, ma separate by probable ported See United inferred. sometimes ex good-faith that the Leon jority holds Williams, F.3d an makes exclusion ception applies a sufficient contained Here the warrant Nei remedy in this case. inappropriate ac drug Higgins’s home between link issue, there is but discusses the party ther reasonably well-trained tivity such that are circumstances any no evidence known that not have officer would good-faith negate would Carpenter, present illegal. See search Car- evidence that Accordingly, There is no we conclude exception. the affi evi inappropriate information false neal included that exclusion magis should from the search davit; stemming that the is no evidence there dence stamp; rubber partisan suppressed. as a not be trate acted not bare weak, it is but the affidavit Apprendi Claim B. are not bones, precedents this court’s appeal sentencing and on At “entirely unreason to make it clear as so found because argued that on such cause based to find able” *11 392
his crime involved cocaine
841(b)(1)(A)
§
base but
not
did
part
as
of the Anti-Drug
cocaine,
(“the
find that
it
Act”).
involved crack
the Abuse Act of 1986
Kim
See
—
district court committed
brough
States,
error
Ap
-,
United
U.S.
prendi v.
Jersey,
New
566-67,
530 U.S.
128 S.Ct.
120
1. Statutory Ambiguity (iii)”). problem that, chemically, Congress created the penalties enhanced “cocaine” and “cocaine base” mean the for crimes involving cocaine base contained thing. same 2. Although quotation 841(b)(1)(A)(iii), deals § except (B)(iii) applies 841(b)(l)(B)(iii), there is no difference be- to individuals convicted of involving crimes here, tween this and the section one at quantities issue smaller of drugs. and could substances *12 involved flammable alka- naturally occurring is a
Cocaine
This
dangerous explosions.
result
in the leaves
is, a base—-found
loid—that
of
high price
with
along
typically
danger,
leaves
The
plant.
the coca
of
cocaine,
popularity.
before
freebase’s
processing
limited
extensive
undergo
Processors
States.
the United
reaching
mid-1980s,
of
a new form
In the
a
them with
mash
leaves and
shred
widely avail-
became
cocaine
smokable
(like
(like lime), a solvent
alkali
strong
name “rock”
by the
Known
street
able.
result
The
kerosene),
acid.
and sulfuric
easier to
“crack,”
form was much
this
or
containing cocaine
paste
brown
light
ais
free-
forms of
than other
manufacture
(cocaine
alkaloid
natural
in its
base
did
involve
process
base because
form)
chemicals.
other
a number of
and
Also,
“tra-
unlike the
volatile chemicals.
hy-
processed
paste is
The cocaine
freebase,
making
of
ditional” method
salt, cocaine
acid to create
drochloric
to make
method” used
“baking soda
pow-
or off-white
a white
hydrochloride,
and
impurities
did not remove
crack
is
usually
powder
is
der.
It
powder.
in the
present
adulterants
States,
it is
where
to the
shipped
pro-
combined
characteristics
These
“cocaine.”
colloquially as
known
form of smokable
highly
addictive
duce
powdered
consume
generally
Users
cheaper than
was far
either
cocaine that
cocaine
snorting it. Since
cocaine
ever been.
freebase had
or
powder
soluble, the nasal
is
hydrochloride water
limited co-
previously
had
cost
While
chemical,
absorb
membranes
mucous
means, crack
of
people
use to
caine
and
the blood stream
it to enter
allowing
large
numbers
it
made
available
can
Users
the brain.
eventually reach
users.
low-income
young and
mucous
other
powder
apply
also
through
rapidly
several
spread
Crack
and
it in
membranes,
water
or dissolve
1986, Congress passed
cities.
large
they
But
cannot
intravenously.
inject it
Act of
Anti-Drug Abuse
at which
temperature
it.
smoke
3207, with-
99-670, 100 Stat.
No.
Pub.L.
is
evaporates
hydrochloride
cocaine
processes
deliberative
such normal
out
which its
temperature
than
higher
reports.
hearings and
committee
as
down.
ingredient breaks
active
measures,
pur-
the statute
Among other
hand, can
base,
other
on the
Cocaine
higher sentences
impose much
ported
ability to smoke
be smoked.
cocaine.
powdered
than for
smoking pro-
drug
important because
quantities
established
The statute
shorter,
in-
more
quicker,
duces
that would
“cocaine,
...”
its salts
it
makes
snorting. This
than
high
tense
rath-
tiers. But
penalty
various
trigger
cocaine
Smoking
addictive.
much more
name
by street
describing crack
er than
base, is
cocaine
contains
paste, which
the statute
process,
manufacturing
in the
but rare
in the Andes
common
any
lower thresholds
gener-
established
cocaine
because
United States
Be-
base.”
containing cocaine
“mixture
nonsmok-
powdered,
ally imported
its
carry
base”
and “cocaine
cause “cocaine”
able form.
(the word
meaning
chemical
the same
1970s,
early
Ameri-
in the
Beginning
to the fact
merely refers
“base”
several
developed
drug
can
dealers
base),
appears
statute
is a
cocaine
co-
base
to free cocaine
methods
sets
different
two
providing
ambiguous,
that it could
so
hydrochloride
caine
If the
same offense.
for the
penalties
method
common
The most
smoked.
unresolved,
rule
ambiguity remains
cocaine
this “freebase”
produce
used to
lenity
suggest
would
imposition
(b)(1)(A)
argues
(ii)
(iii)
pun-
lower sentence.
ish chemically identical substances differ-
ently by offering the same
Brisbane,
(footnote
mandatory mín-
imums for
involving
crimes
omitted);
Hollis,
citations
see also
cocaine base as for
(“[C]oeaine
those involving 5 kilo-
F.3d at 1156
and cocaine base
grams of cocaine. Higgins urges us to
are chemically
any
identical.
If
form of
resolve the ambiguity
give
effect to
qualifies
base
for the enhanced
*13
Congress’s intent
to punish only “crack
penalties
statute,
under the
then subsec-
cocaine” more harshly by
(iii)
(ii).”).
applying the
tion
swallows subsection
penalties that the statute reserves for “co-
The situation is
complicated
further
caine
exclusively
base”
when the jury finds
the meaning of
term
“cocaine base” as
that
the cocaine base involved is crack
used in the Sentencing Guidelines. The
cocaine. Higgins
argues
then
that because
.Anti-Drug
Act
Abuse
of
“adopted
1986
”
did not find that the drug involved
ratio,’
100-to-l
which
Supreme
in his
cocaine,”
case
“crack
Court has
as a penalty
described
scheme
court
Apprendi
violated
when
exposed
it
every
“that treated
gram of crack cocaine
him to a higher penalty
judicial
based on a
equivalent
as the
of
100
powder
finding that the drug involved
cocaine” and which resulted in significantly
cocaine.
higher penalties for individuals convicted
of crimes involving crack
powder
than
co-
There is a circuit split as to how this
caine. Kimbrough,
Higgins’s Apprendi claim hinges on the the definition of “cocaine base.” United ambiguity remaining §in Jackson, States v. (2d 968 F.2d 162 841(b)(1)(A)(iii), § U.S.C. sentence amend Cir.1992). the Guidelines After refers cocaine ‘cocaine base’ phrase seemingly reaf ment, Circuit the Second crack.” United constitutes of base limit the definition refusal its firmed Edwards, F.3d Fields, 113 States base. United cocaine similarly Cir.2005). Ninth Circuit (2d Third 313, 325 F.3d indictment requiring the § “as read ap Circuit’s the Second adopted Circuit trig- find ‘crack’ to jury to and the charge argument rejected proach, associated penalties enhanced ger its influence should amendment Guidelines “ Hollis, at 1156. base.” ‘cocaine decision, concluded the ‘literal’ “rejected] The D.C. Circuit forms of cocaine all encompasses base’ limit the defini- refusing to approach” when formula chemical same with the base Brisbane, of “cocaine base.” tion sentences mandatory minimum court concluded The Brisbane at 913. 841(b)(1) implicated.” are 21 U.S.C. *14 by §in 841 ambiguity the it resolve Barbosa, could 271 F.3d v. States United cocaine” as “crack “cocaine base” defining Cir.2001). Circuit (3d Fourth 466-67 co- “any as “cocaine base” by defining and con Circuit the Second also followed to smokable,” but declined is caine that to not intend did Congress that cluded a hold- such because approach adopt either its beyond “cocaine base” the term limit necessary to the resolution not ing was States meaning. United chemical known at 914. it. Id. before (4th case Cir. Ramos, 462 F.3d v. that concluded
2006). Fifth Circuit this precedent, have examined We to appear substance does “[ajlthough a have courts that those agree with and we be cocaine, may it nevertheless that the ambiguous and § that 841 held meaning of within base cocaine § means 841 “cocaine base” phrase Butler, 988 841(b).” v. States § also note “crack cocaine.” We Cir.1993). (5th Finally, the F.2d as base” “cocaine have defined Guidelines “ ‘cocaine base’ held Circuit Tenth cocaine,” holding our will “crack distinguishable sufficiently defined consistency Guidelines between create prevent forms of cocaine from other written, currently As statute. and the discriminatory enforce arbitrary chemical possession punishes § 841 Easter, 981 F.2d States ment.” United substances, cocaine and ly identical (10th 1549, 1558 However, clear that it is base, differently. pen that the enhanced intended Congress limited circuits3 have other Five apply base” would “cocaine § 841. alties “cocaine base” definition Kim involving cocaine.” “crack Circuit, the Elev- crimes the Second contrast Avant, 566-67; brough, 128 S.Ct. at failing to block by held that enth Circuit ambiguity resolve 626. We of “co- at definition Guidelines the amended intent Congress’s give effect it base,” indicated that “Congress caine as base” “cocaine the term holding to include base’ term ‘cocaine intends the Ac “crack cocaine.” § means 21 used in Munoz-Realpe, cocaine.” only crack the en before Apprendi, cordingly, reviewing the circuit After F.3d at 377. apply, can §of penalties hanced concluded Circuit the Seventh split, jury must charge and must indictment mandatory minimum purposes “for Circuit, issue. We, Eighth are along with 3. this yet address only that have circuits beyond
find a reasonable doubt that indictment describes count 1 as follows: defendant committed crime involving “On or 10, 2005, about September in the crack cocaine. Tennessee, Western District of the defen- dant, Higgins, Oliver unlawfully, did know-
2. Case ingly and intentionally possess with the Having held that the enhanced intent to distribute approximately 531.8 penalties §of 841 require that (crack cocaine base co- ” find that the defendant committed a crime caine) (Indictment .... 1) J.A. at 17 cocaine, involving crack we must consider added). (emphasis Given the fact that the sentence Ap- violates indictment clearly defines “cocaine base” prendi. “This court reviews a constitu as “crack and that cocaine”4 the verdict tional challenge to a defendant’s sentence form indictment, references the we con- de wherever novo the defendant preserves clude the jury beyond found a reason- the claim for appellate review.” United doubt able that Higgins possessed crack Copeland, cocaine. Accordingly, the district court did Cir.2003). Higgins preserved Appren- not commit Apprendi error it when sen- di challenge by making argument tenced based on the enhanced his sentencing hearing. If the jury’s ver penalties contained in dict nothing includes more than finding *15 Higgins possessed base, cocaine to C. Reasonableness of Sentence day’s holding would require us to vacate Higgins’s sentence. Higgins next argues that his to
According form, the sentence was verdict the unreasonable because it is Higgins greater found guilty of than necessary count 1 and to also achieve the goals found that in of sentencing connection with count Hig- and because the dis gins possessed grams 531.8 of trict court “cocaine failed to consider mitigating base.” (Jury factors, J.A. at 71 namely Verdict Form at age made 1). Although the verdict form him unlikely does not to become a recidivist the contain the term cocaine,” “crack disparity refer- its between sentencing for crack and ences count 1 incorporate to powder the definition cocaine.5 Reasonableness review of “cocaine base” as “crack cocaine.” Both has components, two procedural and sub questions that the jury required was to reasonableness, stantive and was described answer explicitly refer to count 1. Supreme the Court in Gall v. United indictment, 4. In addition Vonner, to the the district (6th Cir.2008) F.3d court also defined "cocaine (en base” as banc). "crack Higgins’s procedural-unreason- cocaine.” When the charged district court ableness claims subject plain-error are not to jury, the it stated charges that “Count 1 the review because the district court failed to ask defendant, Higgins, Oliver Sep- on or about any if he had objections additional tember 2005 unlawfully, knowingly and the sentence after the district had court im- intentionally possessed with intent to distrib- sentence, posed required by as Vonner. Id. ute approximately 531.8 Additionally, Higgins's as to claim that his base, (Trial crack or cocaine.” J.A. at 175 Tr. longer sentence was necessary than comply 239) added). (emphasis 3553(a), § with 18 U.S.C. litigant “[a] has no duty object to the 5. though Higgins 'reasonableness' the Even object failed to to the length (or of a sentence presumption the sentencing procedure district court's after the sentence, reasonableness) imposed during court Higgins's sentencing hearing.” sentencing- Id. at reasonableness claims are not limited to plain-error review light of United “(1) — the district court find that must panel U.S. -, S.Ct. States, advisory applicable the (2007): calculated properly L.Ed.2d 445 (2) the other range; considered Guidelines the sentence Regardless 3553(a) parties’ as factors well the § as the Guide- outside inside or is imposed outside the must for a sentence arguments court appellate the range, lines (3) adequately an abuse-of- artic- range; sentence Guidelines review first en- must par- It reasoning imposing standard. diseretion its ulated no committed court that the district chosen, any sure re- including ticular sentence error, as fail- such procedural significant for an arguments parties’ of the jection (or calculat- improperly calculate ing to any deci- sentence outside-Guidelines treating range, ing) Guidelines advisory Guide- sion to deviate failing to mandatory, con- as Guidelines Bolds, range.” United States lines 3558(a) factors, selecting sider ar- clearly erroneous sentence based sentence the district court’s gues that explain facts, adequately failing to because reasonable procedurally explana- including an chosen sentence— to consider court failed district from the Guide- any deviation tion between sentencing disparity and the age that the district Assuming range. lines mitigating cocaine as powder procedur- sentencing decision court’s factors. court should sound, appellate ally substantive reason- then consider assuming that Even imposed under sentence ableness sentencing its discretion court abused When standard. an abuse-of-discretion Hig inappropriate. Higgins, remand will, of review, court conducting this statutory ato gins pursuant sentenced totality course, into account take remand, that on mandatory minimum such circumstances, the extent including *16 have the dis not court would “the district from the Guidelines any of variance impris of a term impose to shorter cretion is within the sentence range. If Smith, 419 States onment.” appellate court range, Guidelines denied, (6th Cir.2005), cert. 521, 532 F.3d to, apply required is not may, but L.Ed.2d 163 126 S.Ct. U.S. ifBut of reasonableness. presumption (2006); also United see the Guidelines is outside the sentence Cir.2006) 603, 612 Paige, 470 may apply pre- the court not range, Booker (“[R]emand required by not is may It unreasonableness. sumption of to has been sentenced defendant when the deviation, but of the extent consider the sen mandatory minimum statutory to due deference give must case, if the tence.”). even Higgins’s 3553(a) § fac- that the decision court’s sentences changed Higgins’s court district whole, the extent tors, justify on a carry a statuto not that the counts did appellate fact that variance. minimum, these sentences mandatory ry reasonably have concluded might court term of with the run concurrent would still appropri- was a different sentence by Higgins’s mandated imprisonment life reversal justify insufficient to is ate Accordingly, even 1. on count conviction district court. is not sentence
assuming
Higgins’s
Reasonableness
1. Procedural
not the
reasonable,
is
remand
procedurally
sentence
Higgins’s
remedy, and
proper
Higgins’s sen
To conclude
reasonable,
this must stand.
procedurally
tence
2. Substantive Reasonableness
on Shepard
States,
v. United
544 U.S.
125 S.Ct.
(2005),
CLAY, Judge, Circuit evi- introduction of government’s bar dissenting part. acting in by police officers dence obtained a search on reasonable reliance objectively the lead II.A.2.a of in Part I concur ” invalidated.’ subsequently warrant submit- the affidavit holding opinion McPhearson, 469 F.3d v. States United did not Carneal William ted Officer Cir.2006) (6th (quoting Higgins’ to search probable cause establish Laughton, States However, disagree I apartment. Cir.2005)). police determining whether articulated in United exception faith good faith, “inquiry is confined good acted Leon, 104 S.Ct. 468 U.S. question objectively ascertainable to the (1984), suppression prevents officer reasonably trained well Part II.A.2.b evidence, and I dissent search known that have would official finds that which opinion of the lead authoriza- magistrate’s illegal despite objectively not the warrant was rebanee on 23, 104 Leon, n. at 922 468 U.S. tion.” unreasonable. S.Ct. 3405. con- opinion’s lead Thus, contrary to the Leon Court in Supreme Although “majority holds clusion that of evidence suppression concluded applies,” Op. exception good-faith Leon remedy un- appropriate always an finding alone in opinion is the lead searches, Supreme Court constitutional the evi- exclusion of prevents that Leon four circumstances also established joins Part Kethledge Judge dence. While the issued reliance which an officer’s he resolves opinion, the lead II.A.2.b of where cannot reasonable warrant challenge denial Higgins’ appropriate: thus remains suppression by concluding suppress motion to *18 was (1) magistrate issuing where the by probable supported was search warrant in an affidavit information by misled Keth- Accordingly, Judge since cause. would false or affiant knew was that the prop- magistrate ledge determines his except for was false have cause, it seem known probable would erly found (2) truth; disregard for reckless issue of to reach the not entitled that he is wholly issuing magistrate where the exception applies the Leon —ex- judicial role faded abandoned dicta. as matter cept perhaps fashion, and detached in a act neutral words, only one view my it is other stamp a rubber merely as Moore, serving actually sup- vote, Judge (3) police; where affidavit was not have believed that the affidavit provid- than nothing more “bare bones” affida- aed basis for establishing probable cause. vit that provide did not the magistrate tipA from just-arrested “informant,” with a substantial basis determining reliability whose and veracity are unknown cause, probable existence of or to the officer magistrate, Hig- where lacking the affidavit was so gins had sold drugs particular at a address probable indicia of cause as to render would not lead a reasonable officer to con- official belief in its existence entirely clude that probable cause existed to search (4) unreasonable; and where the offi- Higgins’ apartment. McPhearson, See cer’s reliance on the warrant was not 526; in F.3d at Helton, United States v. cf. good faith objectively reasonable, or (6th Cir.2003) (con- 314 F.3d such as where the warrant is facially cluding that an unreliable tips informant’s deficient. “do not merit weight much probable determination”). cause Further, the affi- Hython, United States v. 443 F.3d davit contained no (6th Cir.2006). corroboration While there is no evidence criminal Higgins’ details of alleged activi- that Officer Carneal included false infor- ties, and contained no indication that a mation in the affidavit or that the magis- search would drugs uncover Hig- inside of failed “to act trate in a neutral and de- gins’ apartment. The affidavit fashion,” id., did not tached the officer’s reliance state that the affiant drugs observed on the warrant support the search of drug transactions Higgins’ inside apart- Higgins’ apartment was “objectively ment, nor did the affidavit attest to the Therefore, reasonable.” Officer Carneal informant’s reliability. A reasonably well reliance, cannot “assert reasonable nor [a] trained officer would understand fur- good find eourt[ ] faith.” United States v. ther corroboration —such Hodson, independent as 543 F.3d surveillance or further questioning of the As the opinion lead recognizes, affi- informant to determine whether he had davit submitted Officer Carneal did not drugs seen Higgins’ inside of apartment— set forth a “substantial basis” mag- for the was needed probable before cause could be probable istrate find cause that evidence established to search apartment. See of drug-trafficking would be found in Hig- Leake, United States gins’ apartment. Nonetheless, the lead (6th Cir.1993) (concluding that an of- opinion upholds the admission of the evi- ficer “could not properly placed have ob- dence on the basis of the Leon exception, jective good faith reliance on the warrant” finding that “the warrant contained a suffi- because a reasonably well trained police link cient between Higgins’s home and officer would have known that additional drug activity such a reasonably well corroboration of an informant’s tip trained officer would not have known that cause). needed to establish the search was illegal.” atOp. I disagree. For reasons, these I dissent Leon’s,
For the same reasons that the opinion’s warrant lead conclusion that good not supported cause, by probable exception “a faith applies. Because I would reasonably well trained officer would have reverse the district court’s denial Hig- known that the search was illegal despite gins’ motion suppress and remand the magistrate’s authorization,” Leon, case to the district court for pro- further *19 at 922 U.S. n. 104 S.Ct. ceedings, inasmuch I would not reach the sentencing aas reasonably well trained officer could issues that raises on appeal. ul- Judge with Moore My disagreement KETHLEDGE, Judge, Circuit much, matter since the timately does concurring. disposition of the not affect our issue does in all opinion Moore’s Judge I concur holds, join holding, I her case. She that suffi- hold I would but one: respects exception applies Leon good-faith the district supported evidence cient here. cause. finding court’s reasons, I all join but section For these five Here, court considered opinion. Moore’s Judge II.A.2.a of that, “in the taken when of evidence pieces denial likely support [its most light v. States suppress],” United motion to (6th Cir.2008),
Davis, First, the court finding.
support Second, identity. the informant’s
knew in the grams of found 41 police Third, said the informant car. informant’s CLUB, Petitioner, SIERRA day earlier that the cocaine up picked he address, police which the specific from Fourth, residence. Higgins’ to be
verified ENVIRONMENTAL STATES UNITED in- separated and passengers two AGENCY; Lisa Jack- —when PROTECTION infor- independently' terviewed Administrator, Respondents, son, —said Higgins’ resi- them had driven mant Cooperative, Kentucky Power East fifth, the informant day. And dence Inc., Intervenor-Respondent. seller, dis- Higgins as identified purchased narcotics that he had closed No. 07-4485. on another residence from Appeals, States Court United as well. occasion Sixth Circuit. case brings the within evidence This 10, 2008. Argued: Dec. Allen, purview of in 26, 2009. and Filed: Decided Feb. reliable; was a “known he formant sources corrob independent two person”; his regarding his statements
orated informant day; and the
whereabouts con prior criminal to his own
admitted a factual founda There was also
duct. claim witness for the informant’s
tion Namely, he a recent crime:
ing cocaine, which
caught red-handed just purchased he had own account “a neutral Consequently, Higgins. magistrate [could] believe detached [would] a crime evidence of id., residence, Higgins’
found” his motion denied properly court
district suppress.