United States v. Jeriel Brooks

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UNITED STATES оf America, Plaintiff-Appellee v. Jeriel Malachi BROOKS, Defendant-Appellant.

No. 12-3588

United States Court of Appeals, Eighth Circuit.

July 18, 2013

Rehearing and Rehearing En Banc Denied Aug. 13, 2013.

717 F.3d 1105

Submitted: April 11, 2013.

patched to Rice‘s residence again in response to a report of “[d]isorderly conduct оr a possible assault.” Deputy Hand knew that he had observed Chevallier driving a four-wheeler away from Rice‘s trailer. He knew of Rice‘s statement that Chevallier “kept taunting him” and that Chevallier “wanted to fight him.” Further, he knew, according to the district court‘s recitation of undisputed facts, that Chevallier admitted “that he had contact with the alleged victim and had ‘been over thеre,’ presumably to the alleged victim‘s property or thereabouts.”

Chevallier, 884 F.Supp.2d at 811.

Deputy Hand stated in deposition testimony that he arrested Chevallier for criminal trespass and disorderly conduct. Under Arkansas law, “a person commits criminal trespass if he or she purposely enters unlawfully in or upon: . . . [t]he premises of another person.” Ark.Code Ann. § 5-39-203(a)(2). Viewing the facts in the light most favorable to Chevallier, we hold that it is “arguable” that Deputy Hand “ha[d] reasonably trustworthy information that is sufficient to lead a person of reasonable caution to believe that [Chevallier] hа[d] committed [the] crime” of criminal trespass. See

Veatch, 627 F.3d at 1257 (citing

Brinegar, 338 U.S. at 175, 69 S.Ct. 1302;

United States v. Parish, 606 F.3d 480, 486 (8th Cir.2010)). Chevallier‘s admission sufficiently corroborated Rice‘s statement to establish arguable probable cause when coupled with the history of animosity between Chevallier and Rice and Deputy Hand‘s observation of Chevallier on the four-wheeler. Consequently, Deputy Hand met his burden of showing arguable probable сause, and he is entitled to qualified immunity with respect to Chevallier‘s false arrest claim.

III. Conclusion

Accordingly, we reverse the order of the district court and remand with instructions to enter an order grаnting Deputy Hand‘s motion for partial summary judgment.

Michael Moroni, argued, Bloomfield, MO, for appellant.

H. Morley Swingle, AUSA, argued, Cape Girardeau, MO, Timothy ‍‌‌​‌​​‌​‌‌‌‌‌​‌‌​​‌‌​‌‌​​‌‌‌​​‌‌‌‌​‌​‌​​​​​​​​​‌‍J. Willis, Special AUSA, Cape Girardeau, MO, for appellee.

Before LOKEN and GRUENDER, Circuit Judges, and WIMES,^* District Judge.

LOKEN, Circuit Judge.

Jeriel Brooks pleaded guilty to сonspiring to manufacture fifty grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court¹ sentenced Brooks to 60 months in prison, the mandatory minimum sentence. See § 841(b)(1)(B)(viii). Brooks appeals thе sentence, arguing the court erred in finding him ineligible for “safety-valve” relief under 18 U.S.C. § 3553(f), which permits a court to impose a sentence below the mandatory minimum. This issue turns on whether the court errеd in assessing criminal history points for two prior state convictions, a fact-intensive issue we review for clear error.

United States v. Boroughf, 649 F.3d 887, 890 (8th Cir.2011). Finding no clear error, we affirm.

I.

Brooks, then a nineteen-year-old methamphetamine addict, burglarized a Whitewater, Missouri, home in June 2010. Two months later, he broke into a nearby high school, stole $500 worth of CDs and DVDs, and started a fire. After Brooks was arrested on January 25, 2011, a warrant searсh of his home uncovered numerous objects associated with the manufacture of methamphetamine. He admitted assisting others in manufacturing methamphetamine, including purchasing psеudoephedrine, a precursor chemical, for use in the manufacturing.

State prosecutors charged Brooks, separately, with burglary of the residence and burglary and arson of the school. He pleaded guilty and was sentenced in March 2011 to concurrent sentences totaling ten years in prison, with execution suspended after he served 120 days. More than one year later, after Brooks served his state sentence, moved to North Carolina, and “turned his life around,” he and seven others were charged in federal court with conspiring to mаnufacture methamphetamine “[b]eginning at a time unknown but including on or about January 5, 2011, up to and including November 3, 2011.” It is undisputed that Brooks withdrew from the conspiracy following his arrest in late January. Hе pleaded guilty to being a minimal participant in an extensive conspiracy to manufacture more than 50 grams of methamphetamine, which subjected him to a mandatory minimum five-year sentence.

Based on the 2011 state court convictions, the Presentence Investigation ‍‌‌​‌​​‌​‌‌‌‌‌​‌‌​​‌‌​‌‌​​‌‌‌​​‌‌‌‌​‌​‌​​​​​​​​​‌‍Report recommended assessing Brooks 4 criminal history points. See U.S.S.G. § 4A1.1(b). This would deny him relief under thе statutory safety valve, because a defendant is eligible only if he “does not have more than 1 criminal history point, as determined under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1); see U.S.S.G. § 5C1.2(a)(1). Brooks objected to thоse points, arguing he should be eligible for safety valve relief because, “while the burglaries did happen before the date of the indictment, it‘s all one series of conduct [because it] all had to do with methamphetamine use and abuse.” At sentencing, the district court overruled this objection, explaining:

[U]nder the law there‘s just no way that he qualifies for the safety valve provision, because the prior offenses all took place or were completely separate offenses from the methamphetamine charge that he‘s faсed with now, and they all took place at completely different times and before actually the criminal conduct that is the subject of this particular indictment and guilty plea.

*****

[The рrior convictions were] related in the global sense [in] that . . . the motive behind . . . it all was methamphetamine addiction. . . . But under the law they‘re not related. And you don‘t point to any authority that wоuld suggest otherwise.

The district court then determined an advisory guidelines range of 70 to 87 months in prison, granting Brooks downward adjustments for acceptance of responsibility and his minimal role in the conspiracy. The court granted a downward variance urged by counsel for Brooks and the government and sentenced Brooks to the mandatory minimum of 60 months in prison. The court commented:

If I could have gotten around [the mandatory minimum sentence], I would have done that too, but there‘s no basis in the law to do that. So I‘m just left at what I consider a sentence that‘s not altоgether fair in view of the way that you‘ve turned your life around.

Brooks appeals, contending he should ‍‌‌​‌​​‌​‌‌‌‌‌​‌‌​​‌‌​‌‌​​‌‌‌​​‌‌‌‌​‌​‌​​​​​​​​​‌‍be eligible for safety valve relief.

II.

In the safety valve statute and parallel аdvisory guidelines provision, “Congress provided relief for less culpable drug offenders from its harsh mandatory minimum sentences.”

United States v. Tournier, 171 F.3d 645, 646 (8th Cir.1999). To be eligible for this statutory relief, Brooks “bore the burden at the sentеncing hearing of establishing each of the five requirements for safety valve relief by a preponderance of the evidence.”

United States v. Razo-Guerra, 534 F.3d 970, 974 (8th Cir.2008), cert. denied,

555 U.S. 1193, 129 S.Ct. 1365, 173 L.Ed.2d 624 (2009). The first requirement is that he “does not have morе than 1 criminal history point, as determined under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1). This means “more than one criminal history point as determined under § 4A 1.1.” U.S.S.G. § 5C1.2, comment. (n.1).

“When calculating criminal history points, a sentencing court is to consider ‘any sentence previously imposed . . . for conduct not part of the instant offense,’ defined as conduct other than ‘relevant conduct’ under U.S.S.G. § 1B1.3.”

United States v. Pinkin, 675 F.3d 1088, 1090 (8th Cir.2012), quoting U.S.S.G. § 4A1.2(a)(1) & comment. (n.1). Here, Brоoks‘s state burglary sentences were “previously imposed“—that is, “imposed prior to sentencing on the instant offense,” conspiracy to manufacture methamphetamine. U.S.S.G. § 4A1.2, comment. (n.1). Because the prior offenses were non-groupable burglary offenses, they are “relevant conduct” only if their underlying conduct included “acts and omissions . . . that ‍‌‌​‌​​‌​‌‌‌‌‌​‌‌​​‌‌​‌‌​​‌‌‌​​‌‌‌‌​‌​‌​​​​​​​​​‌‍occurred during thе commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1); cf.

United States v. Ewing, 632 F.3d 412, 416-17 (8th Cir. 2011), cert. denied,

567 U.S. 910, 132 S.Ct. 2698, 183 L.Ed.2d 57 (2012); see generally

United States v. Horton, 693 F.3d 463, 477-79 & n. 16 (4th Cir.2012).

Brooks failed to meet his burden of establishing at sentencing that the residential and school burglaries he committed in the summer of 2010 occurred “during the commission of [or] in preparation for” his later drug conspiracy offense. Thus, the district court did not clearly err in finding that these prior offenses were not “relevant conduct.” Rather, they were “severable and distinct” from the offense of conviction.

United States v. Ault, 598 F.3d 1039, 1041 (8th Cir.2010); see

Boroughf, 649 F.3d at 890-91;

United States v. Davidson, 195 F.3d 402, 409 (8th Cir.1999), cert. denied,

529 U.S. 1093, 120 S.Ct. 1732, 146 L.Ed.2d 651 (2000). The state offenses were property crimes committed by Brooks acting alone, and there is no evidence they furthered the goals of the drug conspiracy, involved common victims, or were relevant to proving the drug conspiracy offense.

Brooks further argues, invoking the rule of lenity, that we should grant him safety valve relief because he had no criminal history points when he committed this federal offense. However, the statute expressly and unambiguously incorporates criminal history points “as determined under the sentencing guidelines,” 18 U.S.C. § 3553(f)(1) (emphasis added), and the guidelines unambiguously provide that a “previously imposed” sentence is one “imposed prior to sentencing on the instant offense,” U.S.S.G. § 4A1.2, comment. (n.1) (emphasis added). The rule of lenity does not apply unless there is “grievous ambiguity or uncertainty in the language” of the applicable statute.

United States v. Speakman, 330 F.3d 1080, 1083 (8th Cir. 2003) (quotations omitted). The district court properly denied safety valve relief.

Finally, Brooks contends that the mandatory ‍‌‌​‌​​‌​‌‌‌‌‌​‌‌​​‌‌​‌‌​​‌‌‌​​‌‌‌‌​‌​‌​​​​​​​​​‌‍minimum sentence violated his right to due process because “it constrained the trial judge from imposing a sentence that was fair and just and sufficient but not greater than necessary.” As counsel acknowledged at oral argument, we have directly rejected this contention in prior cases. Seе

United States v. Turner, 583 F.3d 1062, 1068 (8th Cir.2009), cert. denied,

559 U.S. 1024, 130 S.Ct. 1928, 176 L.Ed.2d 396 (2010);

United States v. Prior, 107 F.3d 654, 658 (8th Cir.), cert. denied,

522 U.S. 824, 118 S.Ct. 84, 139 L.Ed.2d 41 (1997). Our panel must follow those controlling decisions, but we of course do not fault counsel for preserving the issue.

The judgment of the district court is affirmed.

JAMES B. LOKEN

CIRCUIT JUDGE

Notes

1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the Eastern District of Missouri.

*

The Honorable Brian C. Wimes, United States District Judge for the Western District of Missouri, sitting by designation.

Case Details

Case Name: United States v. Jeriel Brooks

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 18, 2013

Citation: 722 F.3d 1105

Docket Number: 12-3588

Court Abbreviation: 8th Cir.