United States v. Andrew Alexander

710 F. App'x 105
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 27, 2017
Docket16-4371
StatusUnpublished

This text of 710 F. App'x 105 (United States v. Andrew Alexander) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Andrew Alexander, 710 F. App'x 105 (3d Cir. 2017).

Opinion

OPINION *

SMITH, Chief Judge.

On December 14, 2016, defendant Andrew Alexander was sentenced to 144 months’ imprisonment after a jury found Alexander guilty of conspiracy to distribute heroin but not guilty of conspiracy to distribute cocaine or crack cocaine. At sentencing, the District Court used a drug-weight calculation that included cocaine and crack cocaine. Alexander challenges his sentence, arguing that the District Court should not have considered acquitted conduct. But as Alexander concedes, it is well established that a district court may consider acquitted conduct at sentencing if the court finds by a preponderance of the evidence that the conduct occurred. We will therefore affirm.

I

On March 13, 2013, law enforcement officers executed a search warrant at the residence of Veronica Rivera. On the first floor, police found a bag of cocaine, a scale, drug packaging materials, baking soda, 86 bags of heroin packaged for distribution, and a bag of raw heroin. In the second-floor bedroom, police found Rivera. Also in the bedroom, police discovered 35 grams of crack cocaine and a bag of cocaine hydrochloride. In a bathroom on the second floor, police found 898 bags of heroin and a pair of pants belonging to Alexander containing handwritten notes and $2,893 in cash. On the third floor, officers observed Alexander and codefendant Andrew Gonzalez breathing heavily as if they had been running. As Alexander told police, after waiving his Miranda rights, he was in the second-floor bedroom and then ran up to the third floor when police executed the warrant.

Alexander was indicted on two counts. Count One was conspiracy to distribute a controlled substance. Count Two was possession with intent to distribute a controlled substance.

At trial, law enforcement officers testified to the above, and an expert testified that the handwritten notes were consistent with a drug trafficking ledger. Gonzalez and Rivera cooperated with the Government in exchange for favorable plea arrangements. Gonzalez testified that Alexander provided the heroin for packaging. Rivera testified that she would drive Alexander to buy drugs, including heroin, marijuana, and cocaine. She further testified that, the day before the raid, she helped Alexander obtain the heroin and cocaine discovered in the house. According to Rivera, when police executed the warrant, Alexander ran to the bathroom with a bag of drugs, flushed it, and then ran upstairs.

The jury found Alexander guilty on Count One. Per a special interrogatory, the jury found Alexander guilty only as to the heroin discovered in the house, not as to the cocaine or crack cocaine. The jury found Alexander not guilty on Count Two.

The Presentence Investigation Report (“PSR”) advised that Alexander was a career offender under § 4B1.1 of the United States Sentencing Guidelines. The PSR also advised that Alexander was responsible for all of the controlled substances recovered during the raid.

The District Court found by a preponderance of the evidence that cocaine and crack cocaine discovered in the house were attributable to Alexander. [App. 10a] With that drug-weight determination, Alexander’s base offense level would be 24 under the Guidelines. According to Alexander, the base offense level counting only the heroin should have been 12. But in either case, the District Court concluded that Alexander is “[t]echnically ... a career offender,” App. 455, elevating the offense level to 32. See U.S.S.G. § 4Bl.l(b), In criminal history category VI, that would result in a Guidelines range of 210 to 240 months’ imprisonment. The District Court varied its sentence below that level, explaining:

[Cjompared to other people who are in that career offender category, I can’t see that his offense or his likelihood of recidivism or his background are comparable. So I think a sentence in excess of that which he would have received had he not received the .,. career offender bump from 24 to 32 offense level, somewhere in between those two ranges would be appropriate. and just under all of the circumstances.

App. 455. The District Court sentenced Alexander to 144 months in prison — 66 months below the lower end of the Guidelines range. [App 456]

II

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to'28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

The District Court’s calculation of drug quantity for sentencing is a factual finding that we review for clear error. United States v. Sau Hung Yeung, 241 F.3d 321, 322 (3d Cir. 2001) (citation omitted). We review the reasonableness of a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “[W]e must ‘give due deference to the district court’s determination that the § 3553(a) factors, on a whole,’ justify the sentence.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586).

III

The District Court sentenced Alexander to a period of incarceration more than five years shorter than the Guidelines range, notwithstanding the Judge’s finding that Alexander was responsible for the cocaine and crack cocaine, not just the heroin. The District Court was entitled to make that finding under the law, and the finding did not result in a substantively unreasonable sentence. .We will therefore affirm.

It is well established that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” United States v. Ciavarella, 716 F.3d 705, 735-36 (3d Cir. 2013) (quoting United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997)). That is because “the jury cannot be said to have ‘necessarily rejected’ any facts when it returns a general verdict of not guilty.” Watts, 519 U.S. at 155, 117 S.Ct. 633 (quoting United States v. Brady, 928 F.2d 844, 851 (9th Cir. 1991)); see 18 U.S.C. § 3661.

Alexander acknowledges that the District Court is entitled to consider acquitted conduct under “current case law,” and that “there is a dearth of authority” to the contrary. Appellant Br. 12. He nonetheless asks us to depart from that rule.

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Related

United States v. Watts
519 U.S. 148 (Supreme Court, 1997)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Leon Brady
928 F.2d 844 (Ninth Circuit, 1991)
United States v. Sau Hung Yeung A/K/A Fuk Chao Hung
241 F.3d 321 (Third Circuit, 2001)
United States v. Mark Ciavarella, Jr.
716 F.3d 705 (Third Circuit, 2013)
United States v. Tomko
562 F.3d 558 (Third Circuit, 2009)

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710 F. App'x 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-andrew-alexander-ca3-2017.