UNITED STATES of America, Plaintiff-Appellee, v. Johnny Lee HANSLEY, a/k/a Johnnie Lee Hansley, Glenn Hansley, Ray Bennett, Bobby Riley, Earl Jackson, Defendants-Appellants.
No. 91-4169.
United States Court of Appeals, Eleventh Circuit
June 14, 1995
Rehearing Denied July 27, 1995.
54 F.3d 709
Before HATCHETT, Circuit Judge, CLARK, Senior Circuit Judge, and YOUNG, Senior District Judge.
Section 1082, however, addresses both of the concerns enumerated by Justice Scalia in his dissent in American National Red Cross. Section 1082(a)(2) allows the Secretary to “sue and be sued ... in any district court of the United States.” (emphasis supplied). Congress therefore has clearly indicated the particular federal court it sought to confer jurisdiction upon. See American National Red Cross, 505 U.S. at —, 112 S.Ct. at 2477 (Scalia, J., dissenting). Additionally, section 1082(a)(2) allows the Secretary to “sue and be sued in any court of record of a state having general jurisdiction....” (emphasis supplied). Congress, therefore, has acknowledged that the Secretary may not file a state court action without establishing “the independent basis of jurisdiction appropriate under state law.” See American National Red Cross, 505 U.S. at —, 112 S.Ct. at 2477 (Scalia, J., dissenting). Moreover, we believe the arguments in support of federal court jurisdiction in this case are more compelling than in American National Red Cross. This case involves a federal agency‘s oversight and application of a federal statutory and regulatory scheme. We believe Congress‘s reasons for ensuring federal court jurisdiction in this instance would have been greater than for a federally chartered corporation.
CONCLUSION
Accordingly, we hold that the “sue and be sued” clause of section 1082(a)(2) confers federal subject matter jurisdiction through its specific reference to the federal district courts. The district court‘s order dismissing the appellants’ complaint with prejudice is vacated and the case is remanded to the district court.
VACATED and REMANDED.
Neal Betancourt, Jacksonville, FL, for G. Hansley.
James H. Burke, Asst. Federal Public Defender, Jacksonville, FL, for R. Bennett.
Garrett Barket, Jacksonville, FL, for B. Riley.
Robert H. Trachman, Fort Lauderdale, FL, for E. Jackson.
James Klindt, Asst. U.S. Atty., Jacksonville, FL, for the U.S.
HATCHETT, Circuit Judge:
In this appeal, we affirm the convictions and sentences of all appellants, except Earl Jackson. As to Jackson, we affirm his conviction, but remand to the district court for resentencing.
A jury convicted the appellants, Johnny Lee Hansley, Glenn Hansley, Bobby Riley, Ray Bennett, and Earl Jackson for their involvement in a conspiracy to distribute crack cocaine.1 Hansley, Glenn Hansley, and Riley appeal their convictions. Because all of their arguments are meritless, we affirm their convictions without discussion.2 Hansley, Riley, Bennett, and Jackson appeal their sentences. We affirm the sentences of Hansley, Riley, and Bennett; we, however, vacate Jackson‘s sentence and remand for further proceedings.
FACTS
Hansley led a conspiracy that imported crack cocaine from south Florida and distributed it in Hazelhurst, Georgia. Riley and Jackson were the conspiracy‘s sources for the crack cocaine in south Florida. Hansley usually sent a courier to obtain the drugs.
Ellis Sellers, one of Hansley‘s couriers, made approximately fifteen trips to south Florida to purchase cocaine. Hansley usually gave Sellers about $9000 to make the purchase, and Sellers usually returned with approximately the same amount of cocaine. On one trip, however, Hansley gave Sellers approximately $24,000; on this occasion, Sellers returned with a larger quantity of drugs. On June 2, 1990, when Florida law enforcement authorities arrested Sellers while he was returning from one of his routine trips, the officers found him to be in possession of approximately 272 grams of crack cocaine.
Bennett and Glenn Hansley were also couriers. On one trip, authorities pulled their car over and found them to be in possession of $15,000. Authorities also pulled Bennett over on two other trips. On one trip they found $9,718; on the other, they found $7,800.
On September 29, 1990, when Hansley attempted to travel to south Florida, law enforcement authorities stopped him at the Jacksonville International Airport as he was attempting to catch a flight to Miami. The authorities found Hansley in possession of $13,000.
Law enforcement authorities then began to infiltrate the conspiracy. In October 1990, an undercover agent repeatedly met with Hansley at his residence to discuss the possibility of bringing drugs from south Florida to
The conspiracy finally came to an end in March 1991, when law enforcement officers executed a search warrant at Hansley‘s residence. The officers found, among other things, large sums of cash, various incriminating documents, and a Rossi .38 caliber revolver.
PROCEDURAL HISTORY
On March 28, 1991, a grand jury returned a three-count indictment against the appellants. Count I charged all of the appellants with conspiring to distribute crack cocaine from 1985 to 1991, in violation of
On September 6, 1991, the government filed an information, pursuant to
Trial commenced on September 9, 1991. One week later, the jury convicted the appellants on all three counts. The United States Probation Office then prepared a presentence report (PSR) for each appellant. The PSRs stated that the appellants “had reasonably foreseeable knowledge [that] at least 5 kilograms of cocaine base” were involved in the conspiracy. As a result, the PSRs set the appellants’ base offense levels at forty, pursuant to
Hansley and Jackson filed objections to their base offense levels, arguing that the five-kilogram total was incorrect. Hansley also objected to the two-level increase and to the three additional criminal history points attributed to him. The government filed a response to their objections.
The district court held a sentencing hearing on November 22, 1991. At the hearing, Hansley and Jackson articulated their objections to the five-kilogram calculation. In response, the district court held:
[H]aving presided over the trial of this matter, having considered the arguments of counsel, the objections raised to the presentence investigation report, and the Government‘s sentencing memorandum, the Court finds that it is reasonably foreseeable that each of the conspirators in this conspiracy knew that there was at least a minimum of 5 kilograms, certainly between 5 and 15, and in all probability exceeding 15 kilograms of crack that were distributed or transported from Miami to Hazelhurst, Georgia and thereby distributed in Hazelhurst, Georgia. The Court therefore finds that there was ample justification for the probation officer‘s calculation of the 5 to 15 kilograms.
The district court then sentenced Jackson to 400 months imprisonment based on a total offense level of forty-two and a criminal history category of III. After rejecting Hansley‘s other objections, the district court sentenced him to life imprisonment based on a total offense level of forty-three and a criminal history category of III.
Also at the hearing, Riley, who had not filed any substantive challenges to his PSR, failed to make any objections when given the opportunity. Accordingly, the district court
Finally, at the hearing, Bennett argued that his three prior felony drug convictions were not sufficient to sustain a mandatory minimum term of life imprisonment under
CONTENTIONS
Hansley, Jackson, and Riley contend that, when calculating their base offense levels, the district court clearly erred in finding that the conspiracy involved more than five kilograms of crack cocaine. Jackson and Riley further contend that even if the conspiracy involved more than five kilograms of crack cocaine, they are only personally responsible for a lesser quantity.
The government responds that the evidence at trial supported the district court‘s finding that more than five kilograms of crack cocaine were involved in the conspiracy. The government also argues that Hansley, who was the leader of the conspiracy, is responsible for this entire quantity, and that Jackson, who was a primary source of the drugs, was personally involved in over five kilograms. Moreover, Jackson and Riley should have reasonably foreseen that over five kilograms were involved. The government also asserts that Riley waived this contention because he did not object at the time of sentencing.
Hansley also challenges his sentence on two other grounds. First, he claims that the district court incorrectly applied a two-level increase for possessing a firearm, arguing that he did not possess the firearm during the commission of the conspiracy. The government contends that the firearm was found in his residence, which was a center of drug activity. Second, Hansley argues that he did not commit the instant offenses while on probation, nor did he commit them within two years of being released from custody; therefore, the district court erred in assessing him three additional criminal history points. The government responds that the record clearly shows otherwise.
Finally, Bennett contends that a mandatory minimum term of life imprisonment pursuant to
ISSUES
We discuss the following issues: (1) whether, in determining their base offense levels, the district court clearly erred in attributing at least five kilograms of crack cocaine to Hansley, Jackson, and Riley; (2) whether the district court properly assessed a two-level increase and three additional criminal history points to Hansley; and (3) whether Bennett‘s prior convictions support his mandatory term of life imprisonment.
DISCUSSION
A. The Five-Kilogram Claims
“Calculating the base offense level for drug distribution requires a determination of the quantity of illegal drugs properly attributable to a defendant.... [T]he Guidelines require a district court to attribute to a defendant all drugs foreseeably distributed pursuant to a common scheme of which that defendant‘s offense of conviction was a part.” United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir.1995); United States v. Butler, 41 F.3d 1435, 1442-43 (11th Cir.1995); see also
1. Hansley
The district court did not make individualized findings as to Hansley; it simply stated that all of the conspirators could have reasonably foreseen that at least five kilograms of crack cocaine were involved. Nevertheless, we may uphold Hansley‘s sentence “if the record supports the amount of drugs attributed to” him. Ismond, 993 F.2d at 1499.
The record clearly demonstrates that Hansley was the leader of this conspiracy, and that all of the crack cocaine involved should be attributed to him. Indeed, Hansley does not dispute his leadership role, and appears to concede that he should be held accountable for all of the crack cocaine. He, however, maintains that the district court clearly erred in determining that the quantity of drugs involved in the conspiracy totaled more than five kilograms.
The record shows, at the very least, twenty attempted trips from Hazelhurst to south Florida for the purpose of purchasing drugs: fifteen for Sellers; one for Bennett and Glenn Hansley; three more for Bennett; and one for Hansley. Also, “the record reveal[s] sufficient circumstantial [and] direct evidence” to show that each of these trips was an attempt to purchase approximately 272 grams of crack cocaine. Butler, 41 F.3d at 1447.4 Thus, based on these figures, the conspiracy involved an attempt to distribute over five kilograms of cocaine base.5 Because this entire quantity is attributable to Hansley, the district court did not clearly err in setting his base offense level at forty.
2. Jackson
Unlike Hansley, Jackson was not the leader of this conspiracy. As a result, he argues that he is not responsible for all of the crack cocaine. Furthermore, Jackson asserts that he was only personally involved in a small quantity, and he could not have reasonably foreseen that more than five kilograms were involved. At the sentencing hearing, the district court did not make any individualized findings concerning the scope of Jackson‘s criminal activity in the conspiracy.
“We have reviewed the record and conclude that, without individualized findings, the conspiracy‘s entire output cannot be attributed to [Jackson].” Ismond, 993 F.2d at 1499. While the record reveals that Jackson was one of Hansley‘s sources in south Florida, and that he provided couriers with crack cocaine on several occasions, it does not reveal on how many occasions he did so, and whether he could have reasonably foreseen the conspiracy‘s entire output. “[W]ithout
Thus, we remand to the district court for further factual findings. We do not suggest that Jackson could not have reasonably foreseen that more than five kilograms of crack cocaine were involved, or that he himself was involved in less than five kilograms. Rather, we simply find that we are unable to make these determinations without individualized findings.
3. Riley
Like Jackson, Riley was not a leader of this conspiracy. Thus, Riley makes the same arguments as Jackson: he could not have foreseen the conspiracy‘s output, and he was only personally involved in a minimal amount of crack cocaine. Unfortunately, Riley has waived this argument.
Unlike Hansley and Jackson, Riley did not file an objection to the PSR‘s calculation of his base offense level. Then, at the sentencing hearing, the district court offered Riley multiple chances to articulate this objection. He did not do so. Nonetheless, Riley now argues that he has preserved this claim, pointing to the following comment which his counsel made at the sentencing hearing: “Your Honor, I‘d like to make a brief statement on behalf of my client.... [A]ny sentence given Bobby Riley should be based solely on any involvement of which he was involved and convicted and not based on the far-reaching and very detrimental negative effects of any drug trafficking conspiracy.”
We do not find that the above comment preserved this issue for appeal. “Where the district court has offered the opportunity to object and a party is silent or fails to state the grounds for objection, objections to the sentence will be waived for purposes of appeal.” United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990), overruled on other grounds, United States v. Morrill, 984 F.2d 1136 (11th Cir.1993) (en banc). When the district court asked for objections, Riley failed to present any. The above comment, which counsel made in the middle of a general statement on Riley‘s behalf, does not constitute an objection. Thus, Riley waived this contention.
This court, however, will “consider sentence objections raised for the first time on appeal under the plain error doctrine to avoid ‘manifest injustice.‘” United States v. Newsome, 998 F.2d 1571, 1579 (11th Cir.1993) (quoting United States v. Neely, 979 F.2d 1522, 1523 (11th Cir.1992)), cert. denied, U.S. -, 114 S.Ct. 734, 126 L.Ed.2d 698 (1994). The district court erred when it failed to make individualized findings as to Riley‘s involvement in the conspiracy. The issue, however, is whether this mistake constitutes plain error. Plain error exists where the mistake is “so obvious that the failure to notice it would seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Newsome, 998 F.2d at 1581 (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir. Unit B 1981)). We cannot say that the district court‘s failure to make individualized findings reaches this high standard of egregious error. Thus, we refuse to entertain Riley‘s contention.
B. Hansley‘s Other Claims
Hansley challenges his sentence on two other grounds. In considering Hansley‘s claims, we will review the district court‘s application of the Sentencing Guidelines de novo, and its findings of fact for clear error. See United States v. Hall, 46 F.3d 62, 63 (11th Cir.1995).
1. Increase for Possessing a Firearm
Hansley argues that the district court erred in applying
In Hall, this court explained that a
Likewise, in this case, the government showed that the agents found a firearm and other drug-related items in Hansley‘s residence, where he engaged in conspiratorial conversations. Furthermore, Hansley presented no evidence to suggest that a connection between the firearm and his drug conspiracy was clearly improbable. Thus, we find that the two-level increase, pursuant to
2. Criminal History Points
In placing Hansley in a criminal history category of III, the district court accepted the calculations in the PSR, which assessed him a total of six criminal history points. Specifically, the PSR assessed Hansley one point for a 1990 conviction for possession of marijuana, pursuant to
Hansley argues that the assessment of these last three points was erroneous because he only began participating in this conspiracy in 1989; therefore, he was no longer serving probation, and he had been out of custody for over two years. Upon reviewing the record, however, we find that the district court did not clearly err in finding that Hansley‘s conspiracy “started, at the very latest, the early part of 1986.” As a result, the district court properly assessed the three additional points because Hansley committed the instant offense while serving probation and within two years of his imprisonment.
C. Bennett‘s Claim
Bennett received a mandatory minimum term of life imprisonment because he committed the instant violations after having received “two or more prior convictions for a felony drug offense.”
1. Relatedness of 1989 Conviction to Instant Offense
Bennett first argues that the district court should not have used the 1989 conviction to enhance his sentence because that conviction was related to an overt act of the
In Rice, the defendant argued that his multiple prior convictions should be considered a single prior conviction for purposes of
We recognize that Rice is slightly distinguishable from the facts of this case, for we must determine whether a previous conviction is sufficiently related to the instant conspiracy so as not to be counted as a prior offense for the purposes of
Bennett‘s Georgia conviction became final on March 20, 1989. He, however, continued to engage in the Hansley conspiracy until his arrest on November 9, 1990. Ironically, like the defendant in Garcia, Bennett continued to engage in drug-related, conspiratorial activity for over eighteen months. Although Bennett‘s 1989 conviction may have resulted from criminal conduct taken in furtherance of the Hansley conspiracy, he continued to engage in the conspiracy for a significant period of time. Thus, the district court did not clearly err in enhancing Bennett‘s sentence based on his 1989 conviction.
2. Prior Convictions for Simple Possession
Bennett also argues that his two prior convictions were mere possession offenses, and that Congress did not intend for such simple violations to stand as a predicate for a mandatory term of life imprisonment under
In 1991, when the district court sentenced Bennett, the definition of a prior “felony drug offense” appeared in
the term “felony drug offense” means an offense that is a felony under any provision of this subchapter or any other Federal law that prohibits or restricts conduct relating to narcotic drugs, marihuana, or depressant or stimulant substances or a felony under any law of a State or a foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, or depressant or stimulant substances.
Furthermore, in a different recidivist provision, Congress has used the language “serious drug offense” as opposed to “felony drug offense.” See
CONCLUSION
In sum, we affirm the convictions of Hansley, Glenn Hansley, and Riley. We also affirm the sentences of Hansley, Riley, and Bennett. We, however, vacate Jackson‘s sentence, and remand for further proceedings.
AFFIRMED in part, REVERSED in part and REMANDED.
GEORGE C. YOUNG, Senior District Judge, concurring in part, and dissenting in part:
I concur with all of Judge Hatchett‘s well-reasoned opinion except that I would vacate the sentence of Bobby Riley and remand for the district court to make individual findings as to the quantity of crack cocaine for which Bobby Riley is accountable.
Timothy L. UPSHAW, Petitioner-Appellant, v. Harry K. SINGLETARY; Robert Butterworth, Respondents-Appellees.
No. 93-3154.
United States Court of Appeals, Eleventh Circuit.
June 14, 1995.