United States v. Carter, Reginald

449 F.3d 1287, 371 U.S. App. D.C. 269, 2006 U.S. App. LEXIS 14400, 2006 WL 1598212
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 13, 2006
Docket04-3062
StatusPublished
Cited by27 cases

This text of 449 F.3d 1287 (United States v. Carter, Reginald) 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. Carter, Reginald, 449 F.3d 1287, 371 U.S. App. D.C. 269, 2006 U.S. App. LEXIS 14400, 2006 WL 1598212 (D.C. Cir. 2006).

Opinion

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

“Operation Hole in One” was a multi-year investigation by the Federal Bureau of Investigation (“FBI”) and the D.C. Metropolitan Police Department (“MPD”) of a heroin trafficking operation in northeast Washington, D.C. Reginald C. Carter was identified as being part of the trafficking operation and he was subsequently convicted by a jury of possession with intent to distribute heroin and conspiracy to distribute and possess with intent to distribute heroin and cocaine. On appeal, Carter challenges his conviction on the ground the district court erred in denying his motion to suppress evidence obtained from the wiretapping of his cell phone because the government failed to meet its burden under the wiretapping statute to prove that the wiretaps were necessary and that it had limited the wiretapping of conversations not pertinent to the investigation. Carter contends further, for the first time on appeal, that the district court erred in instructing the jury on the scope of his conspiratorial agreement and that he was denied the effective assistance of trial counsel under the Sixth Amendment to the Constitution in moving to suppress the wiretap evidence. Carter also challenges his life sentence on both procedural and substantive grounds.

Our decisions in United States v. Sobamowo, 892 F.2d 90 (D.C.Cir.1989), and United States v. Anderson, 39 F.3d 331, 342 (D.C.Cir.1994), rev’d in part on other grounds by United States v. Anderson, 59 F.3d 1323 (D.C.Cir.1995), are dispositive of Carter’s suppression claim under the wiretapping statute. Likewise, our decision in United States v. Childress, 58 F.3d 693, 722 (D.C.Cir.1995), demonstrates the district court did not plainly err in instructing the jury on the scope-of-agreement requirement. Although Carter’s ineffective assistance of counsel claim regarding his suppression motion presents an interesting question regarding the scope of the suppression remedy for a violation of the wiretap statute, the court need not resolve this question because Carter cannot show the requisite prejudice under Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We must remand Carter’s case, however, because the district court failed to point to evidence supporting its finding that Carter was responsible for the distribution of over 30 kilograms of heroin and failed to make the required findings on Carter’s role as an “organizer or leader” of criminal aetivi *1291 ty under U.S. Sentencing Guidelines § 3B1.1(a). Childress, 58 F.3d at 722. In addition, Carter is entitled to a limited remand in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Coles, 403 F.3d 764, 769 (D.C.Cir.2005). Accordingly, we remand the case to the district court on Carter’s sentence but otherwise affirm the judgment of conviction.

I.

In December 1996, the FBI and the MPD began investigating heroin trafficking in the Langston Carver Terrace neighborhood in northeast Washington, D.C. The task force engaged in undercover drug buys, search warrants, audio and video surveillance, and, ultimately, court-authorized wiretaps. A confidential informant alerted the task force in February 1999 that Carter-was a possible supplier of heroin to a drug dealer, Ricardo Lanier. In April 2000, the district court 1 approved the wiretapping of Carter’s cell phone; the court extended the wiretap authorization on two occasions. Over a 76-day period, 964 completed calls were made to and from Carter’s cell phone. Of these calls, 600 were classified as “pertinent” to the investigation; of the-364 “non-pertinent” calls, the monitoring agents limited (i.e., minimized) their taping of 100 calls.

Evidence from the wiretaps and surveillance indicated that Lanier was receiving his supply of heroin from a larger drug trafficking organization involving numerous individuals, including Carter, Carter’s cousin Earl Gárner, Jr. (“Junior”), and Junior’s father Earl Garner, Sr. (“Senior”). In 1996 Carter and Junior had approached Senior about setting up a heroin distribution operation. The operation expanded in late 1998, and again in 1999, when Carter and Senior established a drug “lab” at an apartment in Maryland where they cut, weighed, and stored the drugs and counted the money from the drug sales. In 2000, Carter and Junior assumed a more visible role and more responsibility for the drug sales after Senior became concerned about police surveillance. By this time, Carter was distributing 14 to 500 grams of heroin weekly. To avoid detection by the police, Carter and Senior eventually moved the contents of the Maryland lab to an apartment in Washington, D.C.; Carter had the only key to the apartment.

“Operation Hole in One” ended when Carter, the Garners, and approximately 30 others were arrested on August 8, 2000. At that time 300 law enforcement officials executed 35 search warrants. Recovered was over one million dollars in cash, several kilograms of heroin, drug paraphernalia, including cutting materials, and nineteen firearms, including three from the D.C. apartment.

Carter was indicted on five counts: (1) conspiracy to distribute and possess with intent to distribute heroin and cocaine, 21 U.S.C. §§ 846 and 841(b)(l)(A)(i); (2) possession with intent to distribute 100 grams or more of heroin, 21 U.S.C. §§ 841 and 841(b)(l)(B)(i); (3) violation of the felon-in-possession statute, 18 U.S.C. § 922(g)(1); (4) participation in a continuing criminal enterprise, 21 U.S.C. § 848; and (5) the use of a firearm in relation to a drug trafficking offense, 18 U.S.C. § 924(e)(1). The district court denied his pretrial motion to suppress the wiretap evidence. A jury found him guilty on Counts (1) and (2) and also found that the quantity of heroin involved in the conspiracy count exceeded *1292 one kilogram. Applying the mandatory Sentencing Guidelines then in effect, the district court sentenced Carter to life imprisonment, assigning him a base offense level of 38 after attributing 35 kilograms of heroin to him, U.S.S.G. § 2D1.1(c)(1), and a four-level enhancement for his role as an “organizer or leader” of criminal activity, id. § 3Bl.l(a).

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Bluebook (online)
449 F.3d 1287, 371 U.S. App. D.C. 269, 2006 U.S. App. LEXIS 14400, 2006 WL 1598212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-carter-reginald-cadc-2006.