United States v. Andrew Jones, Also Known as Drew, United States of America v. Felton J. Sykes

145 F.3d 959

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 6, 1998
• Docket: 97-1344, 97-2235
• Status: Published

Opinions

JONES, District Judge.

Andrew Jones (“Jones”) was convicted by a jury of conspiracy to distribute and possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846, and with distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Felton Sykes (“Sykes”) was charged in the conspiracy count and entered a plea of guilty thereto. Jones -was the only one of twenty-one alleged conspirators to proceed to trial: The District Court² sentenced Jones to 360 months’ imprisonment and sentenced Sykes to 84 months’ imprisonment. Jones appeals his conviction and the sentence he received. Sykes appeals his sentence. We affirm.

I. BACKGROUND

The defendants were involved in a conspiracy to distribute heroin and cocaine in the St. Louis, Missouri area. The two ringleaders of the conspiracy were Lamond Sykes (a cousin of defendant Sykes) and Eluterio Reyes (“Reyes”). Lamond Sykes led the conspiracy in its distribution of drugs in St. Louis. Reyes, of Phoenix, Arizona, was the main supplier of drugs to the conspiracy. Various members of the conspiracy transported drugs and money between Phoenix, Arizona and St. Louis, Missouri. Other members prepared the heroin for retail salé and distributed the heroin to primary distributors and ultimate consumers. All twenty-one members of the conspiracy, except Jones, plead guilty and were sentenced to various terms of imprisonment ranging from months to 276 months. The ringleaders, Lamond Sykes and Reyes, were each sentenced to 276 months’ imprisonment.

A. Felton Sykes

Sykes was charged with participating in the conspiracy from September of 1991 to June of 1994. Sykes was held responsible for distributing approximately 28 kilograms of heroin and 595.35 grams of cocaine. Sykes assisted in the preparation of heroin for retail sale, stored heroin, packaging materials, and money from the sale of heroin at his residence, and met with Lamond Sykes, one of the ringleaders of the conspiracy, to obtain heroin and make payment for heroin previously supplied to Sykes. Sykes was ranked sixth to eighth in culpability amongst the twenty-one defendants charged in the conspiracy. Sykes claims his involvement in the conspiracy ended when he was incarcerated on state drug convictions from October of 1992 to February of 1993. However, a federal search warrant executed in June of 1994 at Sykes’ business and residence resulted in the seizure of over 300 grams of heroin. Sykes does not attempt to explain the existence of this heroin, which was seized over a year after Sykes asserts he ceased participation in the conspiracy.

The guideline range for Sykes was 135 to 168 months’ imprisonment. The District Court granted the government’s motion for a downward departure, under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), based on Sykes’ substantial assistance in the investigation and prosecution of other persons who were involved in the conspiracy. Sykes was sentenced to a term of imprisonment of 84 months, a term of supervised release of 3 years, and was ordered to pay a special assessment of $50.

Sykes claims the District Court erred in denying him a minor participant reduction under U.S.S.G. § 3B1.2(b) and the District Court erred in failing to depart sufficiently to cure the disparity in sentences received by Sykes and other, more culpable, codefend-ants. The government argues that Sykes did not preserve for review the issue of the minor participant reduction and that the disparity in sentences argument has no merit.

B. Andrew Jones

Jones was charged with participating in the conspiracy from the winter of 1986 to December 22, 1994. Jones was held responsible for distributing approximately 71.5 kilograms of heroin and approximately 595.35 grams of cocaine. The District Court imposed a sentence of 360 months’ imprisonment on the conspiracy count and 240 months’ imprisonment on the distribution count, to be served concurrently; 5 years of supervised release on the conspiracy count and 3 years of supervised release on the distribution count, to run concurrently; and a special assessment of $100.

Jones was a street level seller, selling “buttons” of heroin to addicts in the St. Louis area. Terry Martin testified at Jones’ trial that he and Jones, among others, began selling buttons from houses and then sold from vehicles when law enforcement started busting houses where drugs were being sold. Jones was also present on occasions when heroin was being prepared and packaged for retail sale.

Jones sought a downward departure on the basis of reduced mental capacity. During the sentencing hearing, Jones called Dr. Daniel J. Cuneo, a clinical psychologist, to establish that Jones was entitled to such a departure. Dr. Cuneo opined that Jones suffered schizo-effective disorder, depressed type, and that he was mildly mentally retarded. He opined that Jones functioned at the level of an eight- or nine-year-old person. Dr. Cuneo determined that Jones had an IQ of 53.

The government called Dr. John Rabun, a forensic psychiatrist, to dispute Jones’ claim that he suffered from reduced mental capacity which would entitle him to a downward departure. Dr. Rabun testified that Jones’ alleged conduct of engaging in business activities, including setting up drug buys at specific locations, answering hundreds of pages on his beeper per day and handling large sums of money, are inconsistent with mental retardation. Dr. Rabun also stated that Jones’ conduct in conforming to the conditions of his release on bond and his knowledge of such conditions are inconsistent with mental retardation. Dr. Rabun testified that although Jones has a mental condition, that mental condition did not cause or contribute to his criminal activity.

The District Court denied Jones’ motion for downward departure based on reduced mental capacity. After considering the evidence presented by Dr. Cuneo and Dr. Ra-bun and the arguments of counsel, the District Court did not find that Jones’ mental capacity was significantly reduced or that it contributed to the commission of the offense.

Jones raises four issues in this appeal: (1) the District Court erred in admitting guilty pleas of non-testifying codefendants; (2) the District Court abused its discretion in admitting evidence regarding Jones’ uncharged, subsequent drug transactions; (3) the District Court’s finding that Jones did not have reduced mental capacity led it to mistakenly believe it did not have authority to depart for Jones’ mental illness and retardation, therefore, the District Court erred when it refused to depart; and (4) the District Court erred in holding that it could not depart on the basis of the disparate sentences received by others more culpable than Jones.

II. DECISION

Where a defendant fails to object to the presentence report, we review for “ ‘plain error resulting in a miscarriage of justice.’ ” United States v. Flores, 959 F.2d 83, 88 (8th Cir.) (citation omitted), cert. denied, 506 U.S. 976, 113 S.Ct. 469, 121 L.Ed.2d 376 (1992). Sykes asserts that although his attorney failed to raise an objection to the presentence report prior to his first sentencing hearing, Sykes personally raised the issue of his limited participation in a resentencing hearing. We disagree. In his statement to the District Court during the resentencing hearing, Sykes stated that he should not be held responsible for the full amount of the heroin distributed during the conspiracy because he was not involved for the entire time the conspiracy was active. Neither Sykes nor his attorney requested a reduction under U.S.S.G. § 3B1.2(b) for being a minor participant. Therefore, we review for plain error resulting in a miscarriage of justice. Flores, 959 F.2d at 88.

Sykes carries the burden of proving he is eligible for a decrease in the base offense level on the minor nature of his participation in the offense of conviction. United States v. Wilson, 102 F.3d 968, 973 (8th Cir.1996). We have explained that “[a] defendant who is coneededly less culpable than his codefendants is not entitled to the minor participant reduction if that defendant was ‘deeply involved’ in the criminal acts.” United States v. Thompson, 60 F.3d 514, 518 (8th Cir.1995) (quoting United States v. West, 942 F.2d 528, 531 (8th Cir.1991)). Sykes did not object to the conclusion in the presentence report that he was ranked sixth to eighth in culpability amongst the twenty-one codefend-ants. He did not dispute that he helped prepare heroin for retail sale, that he stored heroin, packaging materials and money at his residence, or that he met with his cousin, Lamond Sykes, for the purpose of obtaining heroin and making payment for heroin previously supplied to Sykes. The District Court found that Sykes’ involvement in the conspiracy was “substantial.” It is clear from the record in this case that Sykes was “deeply involved” in the criminal acts of the drug conspiracy. We do not find plain error resulting in a miscarriage of justice in failing to grant Sykes a reduction in the base offense level for being a minor participant in the drug conspiracy.

Sykes’ second argument in this appeal is that the District Court erred in failing to depart sufficiently to cure the disparity in sentences received by Sykes and other more culpable codefendants. Sykes’ disparity in sentences argument is foreclosed by this Court’s holding that “[djisparity between sentences imposed on codefendants is not a proper basis for departure.” United States v. Polanco, 53 F.3d 893, 897 (8th Cir.1995), cert. denied, 518 U.S. 1021, 116 S.Ct. 2555, 135 L.Ed.2d 1073 (1996); and United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997). “A defendant cannot rely upon his co-defendant’s sentence as a yardstick for his own; a sentence is not disproportionate just because it exceeds a co-defendant’s sentence.” United States v. Granados, 962 F.2d 767, 774 (8th Cir.1992). Although Congress enacted the Sentencing Guidelines to promote proportional and uniform sentences for the same criminal activity, “some disparity will inevitably exist because of the unique facts of each individual defendant’s case.” Wong, 127 F.3d at 728.

Jones’ first claim is that the District Court erred in admitting guilty pleas of non-testifying codefendants. During cross-examination by Jones’ counsel regarding transcripts of taped conversations, the government’s case agent stated, “... the rest of the defendants having plead guilty, we did not use [a summary book of transcripts].”

The trial court has broad discretion to admit evidence and we will reverse only if the trial court abused its discretion. United States v. Rogers, 939 F.2d 591, 594 (8th Cir.), cert. denied, 502 U.S. 991, 112 S.Ct. 609, 116 L.Ed.2d 632 (1991). If a guilty plea of a codefendant is brought into a trial, either directly or indirectly, “trial courts must ensure it is not being offered as substantive proof of the defendant’s guilt.” Id. The defendant’s right to a fair trial may be seriously prejudiced if such pleas are mentioned at trial. Id. The facts and circumstances of how a plea was used at trial must be carefully scrutinized by the appellate court. Id. “It is essential to consider such factors as whether the court gave the jury a limiting instruction, ‘whether there was a proper purpose in introducing the fact of the guilty plea, whether the plea was improperly emphasized or used as substantive evidence of guilt, and whether the introduction of the plea was invited by the defense counsel.’” Id.

The testimony Jones complains of was not elicited by the government and the government did not improperly emphasize it or use it as substantive evidence of Jones’ guilt. It appears that this testimony was volunteered by the ease agent. Defense counsel did not necessarily invite the case agent’s reference to the guilty pleas, but the reference was made while defense counsel was cross-examining the case agent. Jones did not request, and the District Court did not give, a limiting instruction regarding the case agent’s testimony. Given the limited reference to the guilty pleas, and the government’s choice not to emphasize the guilty pleas to the jury, we find that Jones’ counsel made a tactical decision not to request a limiting instruction. Under the circumstances presented by this case, we do not find plain error in the District Court’s failure to give a cautionary instruction. Id.

The second argument advanced by Jones is that the District Court abused its discretion in admitting evidence of Jones’ uncharged, subsequent drug transactions. The evidence which Jones objects to is the testimony of the government’s case agent. When defense counsel asked if Lamond Sykes was still supplying Jones with drugs after May of 1994, the case agent responded, “Not necessarily, no. I’m saying that [Jones] was still selling drugs.” The case agent made additional statements that Jones was selling drugs between May of 1994 and December of 1994.

Fed.R.Evid. 404(b) is a rule of inclusion: “we will overturn the admission of Rule 404(b) evidence only if ‘the appellant can show that the evidence in question clearly had no bearing upon any of the issues involved.’ ” United States v. Baker, 82 F.3d 273, 276 (8th Cir.), cert. denied, - U.S. -, 117 S.Ct. 538, 136 L.Ed.2d 423 (1996). Jones has failed to make such a showing in this ease. We have held that “[e]vidence of similar drug activity is admissible in a drug prosecution case because ‘a defendant’s complicity in other similar transactions serves to establish intent or motive to commit the crime charged.’ ” United States v. Johnson, 934 F.2d 936, 940 (8th Cir.1991) (citation omitted). Although the evidence at issue in this case relates to Jones’ drug selling activities after he left the conspiracy charged in the indictment, the mere subsequency of such acts do not, solely on those grounds, make the evidence incompetent to establish intent or motive. Id. The evidence at issue here indicates that Jones continued to sell drugs after he left the conspiracy led by Lamond Sykes. This evidence is similar in kind and close in time to the drug activity Jones engaged in while a member of the conspiracy charged in the indictment.

The Rule 404(b) evidence Jones objects to was elicited by Jones’ attorney during cross-examination of the government’s case agent. Testimony elicited by defense counsel on cross-examination regarding Rule 404(b) evidence is admissible. United States v. Kragness, 830 F.2d 842, 866, n. 23 (8th Cir.1987). The District Court did not abuse its discretion in admitting the evidence of Jones’ uncharged, subsequent drug activities.

Jones’ third argument is that the District Court erred in refusing to downwardly depart because the court’s finding that Jones did not have reduced mental capacity led it to mistakenly believe it did not have authority to depart for Jones’ mental illness and retardation. The government asserts that although the District Court did not decide to depart based on reduced mental capacity, the District Court did recognize its authority to depart downward for diminished capacity. We agree with the government. The District Court clearly stated during the sentencing hearing that although it had the ability under the guidelines to depart where a defendant’s significantly reduced mental capacity contributed to the commission of the offense, the court refused to so depart in this case. This refusal to depart was based on the District Court’s finding that Jones’s mental capacity was not significantly reduced, or even if it was lower than normal, it did not contribute to the commission of the offense in this case.

We lack authority to review a sentencing court’s exercise of its discretion to refrain from departing either upward or downward from the range established by the applicable Sentencing Guideline. United States v. Evidente, 894 F.2d 1000, 1004-05 (8th Cir.) cert. denied, 495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990); and United States v. Follett, 905 F.2d 195, 197 (8th Cir.1990) (holding that the district court’s refusal to depart downward on the' basis of the defendant’s psychological problems and diminished capacity was not reviewable on appeal), cert. denied, 501 U.S. 1204, 111 S.Ct. 2796, 115 L.Ed.2d 970 (1991). “Failure to depart downward is reviewable only if the district court did not realize that it had the discretion to consider a downward departure.” United States v. Knight, 58 F.3d 393, 398 (8th Cir.1995) (citation omitted), cert. denied, 516 U.S. 1099, 116 S.Ct. 827, 133 L.Ed.2d 770 (1996). The District Court clearly recognized its authority to depart in this case, and, therefore, the court’s decision refusing Jones’ request for a downward departure based on diminished mental capacity is unreviewable on this appeal.

Jones’ final argument is that the District Court erred in holding that it could not depart on the basis of the disparate sentences received by others more culpable than Jones. Jones’ sentence guideline computation was based on an offense level of 40 and a criminal history category of III, resulting in a sentence range of 360 months to life.

If Jones had pled guilty and received a 3-level reduction for acceptance of responsibility under Section 3El.l(a)(b)(l)(2), his sentence range would have been 262 months to 327 months. By going to trial, Jones raised his minimum sentence under the guidelines by 98 months. The two ringleaders of this conspiracy, who pled guilty but did not otherwise provide any assistance to the government, each received sentences of 276 months, probably as a result of a 3-level reduction for acceptance of responsibility.

Jones joined the conspiracy near its beginning, and there was evidence that Lamond Sykes had stated that Jones was his most loyal and steady worker. The presentence reports attributed the same drug amounts to Lamond Sykes and Jones on the conspiracy charges.

As stated above in connection with Sykes’ disparate sentences argument, Jones’ argument is precluded by our prior holding that disparity in sentences among codefendants is not a proper basis for a departure. See Wong, 127 F.3d at 728; and United States v. Reeves, 83 F.3d 203, 207 (8th Cir.1996) (holding a defendant’s argument that his sentence is disproportionate to his codefendants, considering his comparably minor role in the offense, was precluded by prior Eighth Circuit decisions).

Although Jones’ sentence is significantly heavier than other more culpable members of the drug conspiracy, this Court’s review of Jones’ sentence imposed under the Sentencing Guidelines is limited to determining whether it “was imposed as a result of an incorrect application of the sentencing guidelines.” 18 U.S.C. § 3742(a)(2); see also, Granados, 962 F.2d at 774. We find that the District Court correctly applied the Sentencing Guidelines in Jones’ case.

III. CONCLUSION

The judgment of the District Court in both cases is affirmed.

2 . The Honorable Catherine Perry, United States District Judge, • United States District Court for the Eastern District of Missouri.