UNITED STATES OF AMERICA, Plаintiff-Appellee, v. CHRIS ROBINSON, Defendant-Appellant.
No. 07-5474
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: November 24, 2008
Before: GUY, BATCHELDER, and McKEAGUE, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206; File Name: 08a0418p.06; Appeal from the United States District Court for the Eastern District of Tennessee at Winchester. No. 06-00004—Curtis L. Collier, Chief District Judge. Argued: September 17, 2008
COUNSEL
OPINION
ALICE M. BATCHELDER, Circuit Judge. Defendant-Appellant Chris Robinson appeals his conviction and sentence for conspiracy to distribute five kilograms or more of cocaine, in violation of
I. BACKGROUND
A grand jury indicted Robinson for his role in a conspiracy to distribute five or more kilograms of cocaine in the Eastern District of Tennessee from December 2003
Valentin testified that beginning in December 2003, he developed “a business relationship” with Robinson in which the two of them worked together to sell cocaine. According to Valentin, he sold cocaine to Robinson “once or twice a week” in various quantities, sometimes on credit. The quantity he most frequently sold to Robinson was four-and-a-half ounces, which Valentin described as a “regular,” and the largest single quantity exchanged between them was half a kilogram. Besides purchasing and distributing cocaine, Robinson helped the conspiracy in other ways, Valentin explained. Robinson introduced Valentin to Troy Allison, who became one of Valentin‘s “good customer[s]” of cocaine.1 Valentin testified thаt Robinson once accompanied him to Memphis, Tennessee, to pick up “a couple kilos” of cocaine.
Most of the recorded telephone conversations consist of Robinson‘s ordering various quantities of cocaine.2 But the calls reveal other aspects of Robinson‘s involvement with the business: Robinson twice warns Valentin about police investigation into Valentin‘s activities; Valentin several times asks Robinson to help сollect money from individuals whom Valentin had given cocaine on credit; and Valentin on one occasion discusses with Robinson how to retrieve a safe full of cash from a car impounded by the police.
After the presentation of all evidence, the district court charged the jury, in part:
If you determine defendant is guilty of the offense charged in Count 1, you must then determine whether that offense involved the particular quantity of drugs charged in the indictment. In Cоunt 1 defendant is charged with conspiring to distribute 5 kilograms or more of a mixture and substance containing a detectable amount of cocaine hydrochloride. On the verdict form I have asked you to answer some questions about the amount of the mixture and substance containing a detectable amount of cocaine hydrochloride in this offense. In determining the amount of controlled substance involved in each of these crimes, you should considеr all of my previous instructions regarding the consideration of evidence. You should only answer yes to one of these questions on the verdict form if you determine, first, that defendant is guilty beyond a reasonable doubt of the particular offense charged in the indictment, and, second, that the government has proven beyond a reasonable doubt that the offense involved the specified quantity of a mixture and substance containing a detectable amount of cocaine hydrochloride listed in the question.
Question 1(A) of the verdict form directed the jury to complete the following sentence: “We, the jury, unanimously find that the defendant, ___ (IS NOT/IS) guilty of the offense charged in Count 1 of
With respect to the conspiracy, the instructions indicate that the government must prove that two or more persons conspired or agreed to commit the crime of distributing cocaine hydrochloride, the defendant knowingly joined the conspiracy, and the defendant voluntarily and intentionally participated in the conspiracy. Again, the essence of the conspiracy is the agreement, not the accomplishment of the act.
Concerning the drug quantities, you are merely to determine what quantity was involved in the conspiracy the defendant participated in, in the event you find he participated in a conspiracy.
The jury returned a verdict of guilty and found that the quantity of cocaine involved in the conspiracy was five kilograms or more. The district court imposed a sentence of life imprisonment, and Robinson timely appealed his conviction to this Court.
II. ANALYSIS
A. Drug Quantity Instruction
“This court reviews a district court‘s ‘actions in responding to questions from the jury’ for abuse of discretion.” United States v. Davis, 490 F.3d 541, 548 (6th Cir. 2007) (quoting United States v. August, 984 F.2d 705, 712 (6th Cir. 1992)). “This circuit has set a high standard for reversal of a conviction on the grounds of improper instructions.” United States v. Khalil, 279 F.3d 358, 367 (6th Cir. 2002) (quoting United States v. Sheffey, 57 F.3d 1419, 1429 (6th Cir. 1995)). “A reviewing court may reverse a judgment only if the instructions, viewed as a whole, were confusing, misleading and prejudicial.” Id. (quoting United States v. Clark, 988 F.2d 1459, 1468 (6th Cir. 1993)).
In its initial instructions, and again in response to the jury‘s question, the district court directed the jury to determine the quantity of cocaine “involved in the conspiracy.” These instructions tracked the language of
In the case of a violation of [
21 U.S.C. § 841(a) ] involving . . . 5 kilograms or more of a mixture or substance containing a detectable amount of . . . cocaine . . . such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life . . . If any person commits a violation of this subparagraph . . . after two or more prior convictions fоr a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release.
(Emphasis added).3
determination is of the quantity involved in the violation of
Citing our decision in United States v. Pruitt, 156 F.3d 638 (6th Cir. 1998), Robinson argues that a drug conspirator is culpable only for quantities personally attributable to him. The issue in Pruitt, however, was “whether a conspiracy involving multiple overt acts is nonetheless ‘a violation’ of [
Robinson nonetheless contends that other language from that opinion supports his positiоn. He points, for example, to our observation in Pruitt that “[w]hile a person who participates in a drug conspiracy does not necessarily agree to a specific amount in advance, no defendant may be held responsible for acts beyond the scope of his or her participation in the conspiracy.” Id. at 644-45 (citing United States v. Myers, 102 F.3d 227, 237 (6th Cir. 1996) (citing in turn Pinkerton v. United States, 328 U.S. 640, 646-47 (1946))). “[T]his rule,” we explained, “provides adequate protection against the possibility that a less culpable, ‘small-time’ sеller of drugs will be caught up in the sweep of
These statements do not help Robinson as much as he would like. Again, the issue in Pruitt was whether a conspiracy comprising multiple transactions was a single violation of
Our holding in Pruitt affirms this understanding of drug conspiracies. We distinguished culрability for the conspiracy itself from culpability for the substantive offenses of co-conspirators. Although a “small-time” drug seller may not be responsible for all the transactions or actions of his associates, he is responsible for the conspiracy in which he participated. While we observed that the district court included only amounts for which it found the appellant directly responsible, we noted this fact only inasmuch as it demonstrated that he wаs not improperly held culpable for the substantive offenses of his co-defendants. Pruitt, 156 F.3d at 645. And we recognized that
Similarly unavailing is Robinson‘s suggestion that the quantity instructions violated the rule articulated by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). Under Apprendi, “[o]ther than the faсt of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Here, the “fact” that increases the default penalty for a conspiracy to distribute drugs is the quantity of drugs involved in the conspiracy.
The First Circuit has noted that Apprendi did not overrule the Supreme Court‘s earlier decision that
as long as (1) the jury finds beyond a reasonable doubt that a defendant participated in a conspiracy, and (2) the Court sentences him within the statutory maximum applicable to that conspiracy, the court may “determine both the amount and the kind of ‘controlled substances’ for which [the] defendant should be held accountable — and then . . . impose a sentence that varies depending upon amount and kind.”
Derman v. United States, 298 F.3d 34, 42 (1st Cir. 2002) (quoting Edwards v. United States, 523 U.S. 511, 513-14 (1998)) (emphasis in original). The jury need only determine that the defendant participated in a conspiracy involving “a type and quantity of drugs sufficient to justify a sentence above the default statutory maximum.” Id. at 43. Most other circuits have agreed that Apprendi is satisfied where the jury finds, beyond a reasonable doubt, the quantity of drugs involved in the conspiracy as a whole under
Here, the district court had no occasion to determine the amount or kind of drugs for which Robinson was personally responsible because there was no range within which the court had discretion to choose a sentence; the quantity of cocaine involved in the conspiracy and Robinson‘s prior felony drug convictions triggered a mandatory life sentence. Therefore, because the jury found beyond a reasonable doubt that Robinson had participated in a conspiracy that involved five or more kilograms of cocaine, there can be no Apprendi error. See Derman, 298 F.3d at 42-43.
Viewed under the abuse-of-discretion standard, the district court‘s response to the jury‘s question was not “confusing, misleading and prejudicial.” Khalil, 279 F.3d at 367. Given that the court‘s instruction was faithful to the language of
B. Lesser-Included-Offense Instruction
Robinson argues that the district court should have charged a violation of
Robinson concedes that he did not request such а charge and that review on this issue is for plain error. See United States v. Jones, 403 F.3d 817, 821 (6th Cir. 2005) (“[W]here a ‘defendant neither requested nor submitted a lesser-included-offense instruction, and did not object to the instructions given by the trial judge, the jury instructions are reviewable only for plain error.‘“) (quoting United States v. Donathan, 65 F.3d 537, 540 (6th Cir. 1995)). “Under the plain error standard, we may reverse if (1) there was error that (2) was plain, (3) affected a substantial right, and (4) ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.‘” United States v. Martin, 520 F.3d 656, 658 (6th Cir. 2008) (quoting United States v. Oliver, 397 F.3d 369, 378 (6th Cir. 2005) (citing United States v. Olano, 507 U.S. 725, 732 (1993))).
A criminal defendant is entitled to an instruction on a lesser-included-offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) the evidence would support a conviction on the lesser offense; and (4) the proof on the element or elements differentiating the two crimes is sufficiently disputed so that a jury could consistently acquit on the greater offense аnd convict on the lesser.
United States v. Colon, 268 F.3d 367, 373 (6th Cir. 2001) (quoting United States v. Monger, 185 F.3d 574, 576 (6th Cir. 1999)).
Because Robinson never requested a lesser-included-offense instruction, he did not satisfy the first prong of Colon and cannot prove any error, much less plain error. Moreover, Robinson‘s rights were not prejudiced; the verdict form required the jury to determine beyond a reasonable doubt whether the threshold amounts of five kilograms or 500 grams were involved
C. Sufficiency of the Evidence
Robinson argues that the evidence was insufficient to prove the existence of a conspiracy.5 “In determining the sufficiency of the evidence to support a guilty verdict ‘the relevant question is whether, after viewing the evidencе in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‘” Martin, 520 F.3d at 660 (quoting United States v. Pearce, 912 F.2d 159, 161 (6th Cir. 1990) (quoting in turn Jackson v. Virginia, 443 U.S. 307, 319 (1979))).
To establish a violation of
The evidence was sufficient to show that Robinson conspired with Juan Valentin and others to distribute cocaine. Valentin testified that he and Robinson shared a “business relationship” and that they worked together to sell cocaine. Robinson purchased drugs from Valentin once or twice a week, sometimes on credit, over a period of several years. On at least one occasion, Robinson accompanied Valentin to a source city to pick up “a couple kilos” of cocaine. Robinson helped collect money other buyers owed Valentin. He warned Valentin about police activity. He conferred with Valentin about how to recover drug proceeds from an impounded car. Robinson introduced Troy Allison to Valentin, and Allison became one of Valentin‘s “good customer[s].” From this evidence a rational trier of fact could find that there was an agreement to violate drug laws, that Robinson knowingly and intentionally joined the conspiracy, and that Robinson participated in the conspiracy.
D. Variance
Robinson argues thаt there was a prejudicial variance between the indictment
1. Existence of a Single Conspiracy
“To prove a single conspiracy, the government need only show that each alleged conspirator had knowledge of аnd agreed to participate in what he knew to be a collective venture directed toward a common goal.” United States v. Smith, 320 F.3d 647, 653 (6th Cir. 2002), vacated and remanded on other grounds, 510 U.S. 1180 (2005). “[A] single conspiracy does not become multiple conspiracies simply because each member of the conspiracy did not know every other member, or because each member did not know of or become involved in all of the activities in furtherance of the conspiracy.” Warner, 690 F.2d at 549. Drug conspiracies “are often ‘chain’ conspiracies” which “normally involve numerous sales and resales of drugs until they reach the ultimate consumers.” Id. “Because the success of participants on each level of distribution is dependent upon the existence of other levels of distribution, each member of the conspiracy must realize that he is participating in a joint enterprise, even if he does not know the identities of many of the participants.” Id.
Herе, the government proved that Robinson knew about and agreed to participate in a collective venture to sell cocaine in eastern Tennessee. The same evidence supporting a finding of Robinson‘s participation in the conspiracy supports a finding that there was a single conspiracy. Robinson cooperated with both Valentin and “downstream” sellers to maintain a profitable enterprise. Robinson helped Valentin acquire drugs, develop new customers, avoid police detection, and collect money. These actions support the inference that Robinson wanted to protect Valentin‘s interests, at least so he could maintain him as a source. Also, Robinson made sure that he had enough cocaine to supply the dealers who were buying from him. The evidence points to a conclusion that there was an “interdependence of the enterprise,” Caver, 470 F.3d at 233, and we cannot say that the evidence “can reasonably be construed only as supporting a finding of multiple conspiracies.” Id. at 236 (quoting Warner, 690 F.2d at 548) (emphasis in original).
2. Prejudice
“[E]ven if a variance exists, it does not constitute reversible error ‘unless it prejudices [the defendant‘s] substantial rights.‘” United States v. Lee, 991 F.2d 343, 349 (6th Cir. 1993) (quoting United States v. Guerra-Marez, 928 F.2d 665, 671 (5th Cir. 1991)). “Moreover, ‘if the government proves multiple conspiracies and a
Even assuming a variance, Robinson has failed to demonstrate how he has been prejudiced. This is not a case where there could be a danger of “transferred guilt” from evidence of multiple conspiracies in which Robinson was not involved. In any event, even if the evidence proved only multiple conspiracies, the government has proved Robinson‘s involvement in at least one of them.
CONCLUSION
For the foregoing reasons, we AFFIRM Robinson‘s conviction and sentence.