United States v. Branham

515 F.3d 1268, 380 U.S. App. D.C. 45, 2008 U.S. App. LEXIS 3218, 2008 WL 398458
CourtCourt of Appeals for the D.C. Circuit
DecidedFebruary 15, 2008
Docket04-3086
StatusPublished
Cited by36 cases

This text of 515 F.3d 1268 (United States v. Branham) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. 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. Branham, 515 F.3d 1268, 380 U.S. App. D.C. 45, 2008 U.S. App. LEXIS 3218, 2008 WL 398458 (D.C. Cir. 2008).

Opinion

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

A jury found Deljuan Branham guilty of possession with intent to distribute 100 grams or more of a mixture or substance containing phencyclidine (PCP), in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(B)(iv). Branham contends that his conviction should be reversed because the government’s evidence was insufficient to support it and because the district court improperly admitted expert testimony against him. For the reasons set forth below, we reject those arguments and affirm the conviction.

Branham further contends that, if we do not reverse his conviction, we should remand for resentencing in light of the changes to Guidelines sentencing wrought by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The government agrees that a remand is required but suggests that we order only a limited remand, pursuant to United States v. Coles, 403 F.3d 764 (D.C.Cir.2005), to determine whether the district court “would have imposed a different sentence materially more favorable to the defendant had it been fully aware of the post-Booker sentencing regime.” Id. at 770. Although we ordinarily would order a Coles remand, in this case the district judge who sentenced Branham has retired and hence is no longer available to answer the Coles question. A remand for resentencing in light of Booker is therefore the appropriate disposition.

I

The evidence that the government presented at trial was as follows. United *1271 States Postal Inspector Joseph Okronley testified that, on June 5, 2003, he examined a suspicious express mail package at the Baltimore-Washington International Airport mail facility. He regarded the package as suspicious because the handwritten label stated that the sender was a “Jhon-son” who lived on “West Jhonson Street” in Compton, California. Okronley brought the package to the attention of Inspector Sherwin Green, who contacted the Compton post office and discovered that the address did not exist. Green then contacted the letter carrier for the addressee — a “Babbra Rice” at Apartment 52, 2325 15th Street, N.W., Washington, D.C. The carrier advised Green that the building at that address had three-rather than two-digit apartment numbers, that he did not recognize the addressee’s name, and that “there was drug distribution going on” in apartment 301 of the building. Trial Tr. 66-67, 129 (Mar. 10, 2004).

Inspector Okronley arranged to have a drug dog sniff the package, and the dog alerted. After obtaining a search warrant, the inspectors opened the package and found a can containing 32 ounces of liquid PCP sealed inside a vacuum-wrapped plastic bag. A drug expert testified that the wholesale price of a 32-ounce bottle on the West Coast was $7,000 to $8,000, and that the street value of that amount of PCP was roughly $38,000. A DEA chemist determined that one ounce of the liquid in the bottle contained 26.6 grams of PCP.

Green testified that, on June 6, 2003, he and officers of the Metropolitan Police Department (MPD) set up a controlled delivery of the package. Wearing a mail carrier’s uniform and driving a mail truck, Green parked in front of the building on 15th Street and pretended to be busy with work inside the truck. A few minutes later, defendant Deljuan Branham called to Green from the doorway of the building and asked if he was coming inside. Green approached and responded that he had a package for apartment 52, but that there was no such apartment in the building. Branham then asked if the package was for Barbara Wrice. Branham said that Wrice was his aunt, that she lived in apartment 512, and that she had “been calling the post office all day trying to get this package.” Trial Tr. 86 (Mar. 10, 2004). Green testified that he knew Wrice had not been calling the post office because he had asked the post office to contact him on his cell phone if anyone inquired about the package, and there had been no call.

Green further testified that Branham appeared “anxious to get the package.” Id. at 87. He repeatedly asked Green if he could take the package and told Green that Wrice had sent him down to the lobby to get it for her. Green told Branham that he had to deliver the package to apartment 512 and that he would need to see Bran-ham’s identification. Branham told Green that he had a key to the apartment and suggested that they go upstairs together; Green agreed and went to the truck to get the package. While Green was gone, Sergeant Darrell Johnson of the MPD, dressed in plain clothes, approached the building. He pretended that he was there to visit a female resident, and Branham let him into the lobby.

When Green returned from the truck with the package, he changed the plan and asked Branham to bring his identification and the apartment key down to the lobby instead. Branham agreed, and a few minutes later came back to the lobby and showed Green the key and his ID. Green handed him a postal delivery form to fill out. According to Green, Branham appeared nervous as he filled out the form. He wrote down an incorrect street address and signed a name — “Wessaria Bran-ham” — that did not match his identifica *1272 tion, although Wrice later testified that she called him “Wes.”

After Branham completed the paperwork, Green handed him the package and gave Sergeant Johnson a signal to take Branham into custody. Johnson then approached, identified himself as a police officer, and told Branham that he was under arrest. Branham resisted, but he was ultimately restrained and apprehended.

After the arrest, other MPD officers conducted a search of Wrice’s apartment with her consent. MPD Detective James Zerega testified that Wrice was in the bedroom and appeared to be bedridden. Two men were also in the apartment. One came out of the bathroom as the police entered; the other was in the living room. One of the men had $2,386 in cash on him. The officers found two vials of PCP in the freezer, two ziploc bags of marijuana on the grass beneath the open bathroom window, and a supply of empty ziploc bags on the kitchen table matching those containing the marijuana. Zerega testified that marijuana and PCP were often used “in tandem,” Trial Tr. 126 (Mar. 12, 2004), although the government’s drug expert testified that he had not seen “a whole lot of PCP on marijuana” in recent years, Trial Tr. 113 (Mar. 11, 2004(PM)).

At trial, Wrice testified that she suffered from numerous disabling afflictions. She said that the PCP in the freezer was not hers, that she had never ordered PCP, and that she did not know it was in the apartment. She said that she had known Bran-ham for about ten years, that she thought he lived in apartment 301 of her building, that he was like a friend or nephew to her, that he often came over to keep her company or help with errands, that he picked up her mail for her on occasion, and that he and the other two men were friends who would sit in her front room and talk for hours.

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Cite This Page — Counsel Stack

Bluebook (online)
515 F.3d 1268, 380 U.S. App. D.C. 45, 2008 U.S. App. LEXIS 3218, 2008 WL 398458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-branham-cadc-2008.