United States v. Lem HughesUnited States v. Lem Hughes
Defendant Lem Hughes, Jr. (“Hughes”) appeals from the June 30, 1989, judgment of conviction and sentence entered pursuant to his guilty plea to conspiring to possess with intent to distribute and to distribute five kilograms of cocaine, in violation of
I.
A.
On March 4, 1988, Saginaw police officers executed a search warrant at Hughes’ 2207 Whittier Street residence. During the search, the police discovered a weighing scale, a heat sealer, razor blades and cocaine residue. Hughes was arrested and charged with possession with intent to deliver cocaine, a felony violation of
On December 2, 1988, the Drug Enforcement Administration (“DEA”) office in Saginaw, Michigan, received a telephone call from an employee of a local United Parcel Service (“UPS”) office. The UPS employee indicated that a “next day air” package had been received for delivery in the Saginaw locale, but the address on the package was incorrect, thereby hindering delivery. In accordance with company policy, the package had been opened to see if a complete address could be found inside. When the package was opened, the UPS employee observed its contents — approximately three pounds of off-white powder and a bar of soap. In response to the UPS employee’s call, Agent Dennis Steger went to the UPS office. A field test of the powder was positive for cocaine. Agent Steger took the package and its contents to the DEA office in Saginaw.
On December 5, 1988, the UPS office received a telephone call from a woman who complained that a package she shipped “next day air” from California to Saginaw had not been timely delivered. The caller’s description of the package was consistent with the UPS package in DEA custody. The caller left her name and telephone number with the UPS employee who prom
The utilities for the residence located at 2004 Limerick Street, Apartment 8, were registered to Lem Hughes. A preliminary investigation revealed that Hughes had been arrested in 1988 by the Saginaw Police Department and subsequently pled guilty to possession of cocaine.
The DEA agents reconstructed the package, having replaced most of the cocaine with flour. The interior of the box was dusted with a powder which can be detected only under black light.
On December 6, 1988, an undercover DEA agent, dressed as a UPS employee, delivered the reconstructed package to a person who answered the door at 2004 Limerick Street, Apartment 8. Shortly thereafter, three men exited the apartment with the package in a white plastic bag. The three men walked up the street and then returned to the parking lot of the apartment building. During the course of the walk, the men passed the plastic bag back and forth among themselves.
A 1988 Cadillac met the three men upon their return to the parking lot. A check of the license plate number indicated that the car was registered to Lem Hughes, Jr. of 2207 Whittier Street, Saginaw, Michigan. The car was driven from the parking lot to the Whittier Street residence. After the car arrived at the residence, the three men from the Limerick Street apartment departed on foot from the Whittier Street residence.
DEA agents arrested William Harris (“Harris”) and Kirk Gilyard (“Gilyard”) a short distance away from the Whittier Street residence. The third person evaded arrest. DEA agents then returned to the Whittier Street residence, knocked, announced themselves and sought entry. They could hear people hurrying and water running from within. When the occupants failed to answer the door, the agents executed a forced entry into the Whittier Street residence. The DEA agents arrested Hughes, Ezeal Myles (“Myles”) and Daniel Davis (“Davis”) inside the Whittier Street residence.
A security sweep of the premises revealed the opened UPS package, scales and a double sink clogged with white powder on one side and with two plastic bags containing white powder residue on the other side. The powder which the DEA agents had placed in the reconstructed package was detected on Hughes, Davis and Myles.
B.
On January 5, 1989, a federal grand jury returned a three count indictment. Count 1 charged Hughes, Davis, Myles, Harris and Gilyard with conspiracy to possess with intent to distribute and to distribute five kilograms or more of a substance containing cocaine, in violation of
On March 16, 1989, Hughes pled guilty to Count 1 pursuant to a Rule 11 plea agreement.
See
The record, however, reflects Hughes’ acknowledgement of his understanding that the
THE COURT: The Government has agreed if you plead guilty and cooperate —I’m assuming for the purposes now that you will — that they would move that your sentence would be reduced ... to somewhere between 144 — between 12 years and 15 years.
RESPONDENT [hereinafter HUGHES]: Yes, sir.
THE COURT: And 12 years is 144 months. So by pleading guilty and cooperating with the Government, you have a hope that your sentence will not be longer than 144 months. You have an expectation it would not be longer than 180 months.
If you didn’t plead guilty, there is [a] risk that [the sentence] would be substantially higher than that, either under the guidelines or under the minimum sentence, do you understand that? [HUGHES]: Yes, I do.
THE COURT: The Government would be committed to make this move for this reduction if you cooperate, do you understand that?
[HUGHES]: Yes.
THE COURT: If you cooperated and they didn’t move to do it or if the Court would deny the motion, then you would have the right to withdraw your plea, do you understand?
[HUGHES]: Yes.
Joint Appendix at 89-90.
Since Hughes committed the offense after November 1, 1987, the United States Sentencing Guidelines were employed to calculate his sentence. The district court’s guideline calculation designated Hughes’ offense level as 33 and his criminal history category as I, requiring a sentence ranging from 135 to 168 months, i.e., eleven years and three months to fourteen years. The
On June 16, 1989, Hughes filed a Motion for Compliance with
On June 29, 1989, the district court determined that Hughes’ earlier state felony drug conviction constituted a “prior conviction” under
After the district court determined that the mandatory minimum sentence for Hughes was twenty years, Hughes withdrew his motion to set aside his guilty plea and proceeded with sentencing. See Joint Appendix at 138 (Sentencing Hearing June 29, 1989). Upon the government’s motion, the district court departed below the twenty-year mandatory minimum 3 and sentenced Hughes to a prison term of twelve years, a supervisory release term of ten years and a $50 special assessment.
On July 10, 1989, Hughes filed a timely notice of appeal.
II.
Title
Any person who attempts or conspires to commit any offense defined in this sub-chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
Since Hughes pled guilty to conspiracy to possess with intent to distribute and to distribute five kilograms of a substance containing cocaine, the district court applied
If any person [conspires to possess with intent to distribute and to distribute 5 kilograms or more of a substance containing cocaine] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment....
Hughes argues that his prior state felony drug conviction was for possession of cocaine in connection with the conspiracy to which he pled guilty in the instant case, therefore, the state felony drug conviction does not provide an adequate predicate offense for the enhancement of his sentence. Hughes assigns error to the district court's application of the twenty-year mandatory minimum enhancement provision to his sentence. Accordingly, Hughes contends that the ten-year mandatory minimum sentence applies to him on the facts of this case.
Several circuits have interpreted the final conviction language of
Hughes’ prior conviction was undoubtedly final because the time for seeking appellate review of the state conviction had passed when he committed the offense in the instant case.
See Morales,
Hughes concedes that his position is not directly supported by any case law. He relies upon a strained reading of
United States v. Nichols,
Since there is only one conspiracy at issue in the instant case, only the first issue raised in Nichols is directly relevant to our analysis. The Fifth Circuit held that the conspiracy convictions did not bar trial of the charges on the substantive violations. Id. at 768, 772. The Nichols court also held that since there existed only one unlawful agreement to commit multiple violations of the drug control law, the prior convictions for conspiracy to import cocaine and conspiracy to possess with intent to distribute cocaine barred a second prosecution on the charge of conspiracy to possess with intent to distribute and to distribute cocaine. Id. at 772.
The
Nichols
court reasoned that the double jeopardy bar provides three types of protection: (1) protection against a second
We now turn to the Fourth Circuit’s analysis in
United States v. Blackwood,
Blackwood’s criminal record indicated two prior convictions, but such convictions “arose out of a single criminal episode.”
Blackwood,
In analyzing the consolidation issue, the North Carolina Court of Appeals characterized the two charges as “stem[ming] from defendant’s possession with intent to sell marijuana within a limited geographical area and period of time.”
Id.
(citing
State v. Blackwood,
The
Blackwood
court rejected the government’s argument that the plain meaning of
The
Blackwood
court relied on
United States v. Petty,
We agree with the
Blackwood
court’s analysis and its finding that through the structure of
We conclude that the district court properly determined that the twenty-year mandatory minimum applied to Hughes because, at the time of his offense, Hughes had a prior felony drug conviction which arose from a separate criminal episode, an offense that was distinct in time. An episode is an incident that is part of a series, but forms a separate unit within the whole. Although related to the entire course of events, an episode is a punctuated occurrence with a limited duration. The criminal events that constitute the bases for Hughes’ conviction for possession of cocaine and his subsequent conviction for conspiracy do not represent a single criminal episode. Such events occurred at distinct times spanning a nine-month period. The initial drug raid, which precipitated the state conviction, occurred on March 4,1988. The drug raid which gave rise to Hughes’ conspiracy conviction occurred on December 6, 1988. The conspiracy, alleged to
Our finding that the state felony conviction is a proper predicate for sentencing enhancement within the meaning of
III.
We find that the state felony drug conviction arose out of a separate criminal episode from the conviction in the instant case and that the state felony drug conviction was final at the time of his offense. We, therefore, hold that the twenty-year mandatory minimum applied to Hughes’ sentence. Accordingly, we AFFIRM the conviction and sentence entered by the Honorable James P. Churchill, United States District Judge for the Eastern District of Michigan.
Notes
. Harris was deleted from the superseding indictment as a result of plea negotiations and his cooperation with the investigation of this case.
. In order to ascertain the applicable mandatory minimum sentence, the district court was required to determine whether Hughes' prior state felony drug conviction would be considered in formulating the sentence. In the change of plea hearing, the district court stated the following:
I want to say right now as far as you pleading guilty is concerned, I’m going to assume and advise you that there is a minimum sentence of 10 years, and the Government has an argu-merit that [it] could be 20, but I do not know it would be 20. They have to advise you of the minimum, and I’m telling you there is at least a minimum of 10 and an argument that [it] is 20, do you understand?
Joint Appendix at 75 (Change of Plea Hearing, Mar. 16, 1989). Hughes responded that he understood that there would be a mandatory minimum of at least 10 years with the possibility of 20 years. Id.
. The downward departure was pursuant to
. A person who violates
.
See United States v. Petty,