United States v. Collins

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-51134 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

KENNETH SCOTT COLLINS, also known as Mike Kent,

Defendant - Appellant.

Appeal from the United States District Court For the Western District of Texas (W-97-CR-35-2) November 14, 2002

Before JOLLY, JONES, and PARKER*, Circuit Judges. ** PER CURIAM:

Kenneth Scott Collins appeals his convictions and resulting

sentences for conspiracy to distribute and possess with intent to

distribute more than 1,000 kilograms of marijuana and conspiracy to

* Judge Parker concurred in the above opinion before his retirement on November 1, 2002. ** Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 commit money laundering in violation of 21 U.S.C. §§ 841(a)(1),

846; and, 18 U.S.C. § 1956(h). We affirm.

I. Background.

On November 15, 2000, Appellant Collins was arrested following

a lengthy investigation into a marijuana warehousing and

transportation scheme involving the interstate transfer of large

amounts of drug-related money.

At trial in September 2001, the follow testimony was adduced.

Collins admitted to associate and driver Jim Gregory in the late

1980s that he was a marijuana smuggler. Associate Sandra Eames

testified that in the early 1990s Collins worked out of a Houston

warehouse where marijuana was stored and repackaged for a marijuana

smuggling and distribution organization known as “the Rice

organization.” Eames had seen Collins at an El Monte, California,

warehouse judging the quality of marijuana that he would take and

sell in Ohio. The marijuana would be loaded into a moving truck,

and household furniture would be put on top of the marijuana for

the cross-country drive. Andrew Cavender, one of Eames’s drivers

who transported marijuana and cash, briefly drove for Collins

because Collins’s regular driver had been killed in a motorcycle

accident. Eames testified that Collins and Cavender had one

another’s pager numbers. She also testified that there was money

from the Ohio transactions in payment for the marijuana shipment.

2 In December of 1991, Collins asked Gregory to take some money

from New York to El Paso. When Gregory agreed, Collins met Gregory

in a New York hotel room and put approximately $50,000 on Gregory’s

body to fly back with. Gregory stated that nobody ever said where

the money came from but he assumed that it was proceeds from

marijuana sales because Collins stated that it had to go back to

Glenn Rice, the head of the organization, to be forwarded to “the

Mexicans” for Christmas. Collins later had Gregory pick up

$800,000 in two suitcases near a Dallas airport and drive the money

to Rice at an El Paso motel. Each time, Gregory was paid for

having transported the money from Collins to Rice.

Cavender testified regarding the usual mode of operation on

runs he had made for Eames: someone would pick up his truck and

load it with marijuana, then redeliver it to him; Cavender would

then drive the load to its destination and currency would be loaded

into his truck for the return trip. Cavender testified that, after

having driven a few loads for Eames, he was told that “a driver for

the other part of the organization . . . had been killed in a

motorcycle wreck” and he was asked to haul a load of marijuana for

“the other guy.” When Cavender went to meet “the other guy,” he

met Collins. Cavender met with Collins and Eames at a Hilton hotel

in Ontario, California. Cavender was introduced to Collins and was

told “what the situation was and how it worked on [Collins’s] end.”

Cavender was told that “[they] would do the same thing.” It was

discussed that another person would pick up Cavender’s truck and

3 load it; Cavender would drive his truck to Ohio, park it at a

Holiday Inn where someone would again pick it up to unload it and

then return Cavender’s truck to the hotel parking lot. Collins was

present at and participated in this conversation, agreeing with

everything that was said. While Cavender was at the Ohio hotel,

Collins came to the hotel and picked up Eames and Cavender’s wife

for a shopping spree. Cavender was later told that his truck had

been unloaded and that some bags had been put inside the furniture

for him to take back to California. Cavender understood that the

bags would contain money. Cavender was paid $10,000 for returning

the money to California and $25,000 for hauling the marijuana.

Duane Boggs, a driver for the drug operation, testified to

having driven loads containing the following amounts of marijuana:

2,000 pounds, 4,000 pounds, 3,000 pounds, and 7,000 pounds. That

16,000-pound aggregate equates to 7,200 kilograms. Cavender

testified that he had driven loads containing the following amounts

of marijuana: 2,000 pounds, 2,000 pounds, 2,000 pounds, and 1,900

pounds. This 7,900-pound aggregate equates to 3,555 kilograms of

marijuana. Cavender also testified that he had driven loads which

he did not load or unload into the truck and that he thus had no

idea of the quantity contained in them. Gregory testified that he

saw the following amounts of marijuana go through the operation’s

various warehouses: 2,000 to 4,000 pounds, 1,600 to 2,000 pounds,

and 6,000 pounds. He estimated the amount of marijuana that went

through the larger of the two California warehouses at 25,000 to

4 30,000 pounds. He estimated the amount of marijuana that went

through the Dallas, Texas, warehouse at 20,000 pounds. Gregory

testified about a conservative aggregate of 52,800 pounds or 23,760

kilograms of marijuana. Finally, there was evidence that 5,000 to

6,000 pounds of marijuana were seized from a Houston warehouse in

January 1993. Another 1,400 pounds were seized from a warehouse in

April 1996. A quantity of 9,000 pounds was seized from a Dallas

warehouse in February 1997.1 This conservative aggregate of 15,400

pounds equates to 6,930 kilograms of marijuana.

Collins was convicted following a jury trial and now appeals

on these bases.

II. Analysis.

A.

Collins first argues that the district court erred in refusing

to submit his requested jury charge on a lesser-included-offense as

to drug quantity.

A “defendant may be found guilty of an offense necessarily

included in the offense charged.” FED. R. CRIM. P. 31(c); United

States v. Deisch, 20 F.3d 139, 142 (5th Cir. 1994), overruled on

other grounds by United States v. Doggett, 230 F.3d 160, 165 (5th

Cir. 2000), cert. denied, 531 U.S. 1177 (2001). A lesser included

1 The Dallas raid and other associated raids also resulted in finding ledgers recording the weights of individual packages of marijuana, bags in which to carry the packaged marijuana, large amounts of money, and weapons including, for example, an AR-15 semi-automatic rifle.

5 offense instruction is appropriate only if “(1) the elements of the

offense are a subset of the elements of the charged offense and (2)

the evidence at trial permits a jury to rationally find the

defendant guilty of the lesser offense yet acquit him of the

greater.” Deisch, 20 F.3d at 142. “A lesser-included offense

instruction is only proper where the charged greater offense

requires the jury to find a disputed factual element which is not

required for conviction of the lesser-included offense.” Sansone

v. United States, 380 U.S. 343, 349 (1965). This court applies a

“two-tiered standard of review” to the district court’s treatment

of a lesser-included-offense instruction request. United States v.

Lucien, 61 F.3d 366, 372 (5th Cir. 1995). The elements prong is

reviewed de novo; the evidentiary prong is reviewed for an abuse of

discretion. Id.

Collins does not challenge the jury’s finding of a conspiracy

to distribute marijuana. Instead, he argues only that the jury

could rationally have convicted him of conspiring to distribute less

than 1,000 kilograms of marijuana. The evidence adduced at trial

involved enormous amounts of marijuana. No rational juror could

have found that the conspiracy to distribute marijuana existed but

that it involved less than 1,000 kilograms. See Deisch, 20 F.3d at

142. Collins’s argument is unavailing.

B.

Collins next argues that there was insufficient evidence to

6 support his conviction for conspiracy to commit money laundering.

As he did not present any evidence, Collins preserved his claim for

appellate review by moving for a judgment of acquittal at the close

of the Government’s evidence. See United States v. Izydore, 167

F.3d 213, 219 (5th Cir. 1999).

This court reviews de novo a district court’s denial of a

motion for judgment of acquittal. Id. “When reviewing the

sufficiency of the evidence, this Court views all evidence, whether

circumstantial or direct, in the light most favorable to the

Government with all reasonable inferences to be made in support of

the jury’s verdict.” United States v. Moser, 123 F.3d 813, 819 (5th

Cir. 1997). The standard for reviewing a claim of insufficient

evidence is whether “a rational trier of fact could have found that

the evidence establishes the essential elements of the offense

beyond a reasonable doubt.” United States v. El-Zoubi, 993 F.2d

442, 445 (5th Cir. 1993). “The evidence need not exclude every

reasonable hypothesis of innocence or be completely inconsistent

with every conclusion except guilt, so long as a reasonable trier

of fact could find that the evidence established guilt beyond a

reasonable doubt.” Moser, 123 F.3d at 819.

There was evidence that Collins had been involved in a

marijuana-smuggling operation for many years. He had one associate

transport large amounts of money to the leader of the operation in

a clandestine manner. There was also evidence that Collins met with

7 a load driver and agreed that the driver would transport a load of

marijuana from California to Ohio and then take cash back to

California on the return trip. A rational trier of fact thus could

have found that the evidence establishes the essential elements of

the offense beyond a reasonable doubt. El-Zoubi, 993 F.2d at 445.

C.

Collins next argues that the district court improperly

sentenced him based on 60,000 pounds of marijuana. He argues that

his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000),

because the jury did not make a finding as to drug quantity.

“Other than the fact 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. Apprendi applies only to facts that increase the statutory

maximum sentence. Id.

Relying on his contention that his drug conviction is invalid

because of the district court’s refusal to give the lesser-included-

offense charge, Collins argues that the statutory maximum sentence

in his case should be based on the money-laundering offense. This

argument is unavailing because, as explained above, Collins’ drug

conviction was valid.

Collins was indicted for and convicted of conspiracy to

distribute and possess with intent to distribute 1,000 kilograms or

more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846.

8 Section 841(b)(1)(A)(vii) provides that the punishment for this

offense is a term of imprisonment between 10 years and life.

Collins’ 480-month sentence on the drug-conviction count did not

exceed the statutory maximum and is thus not violative of Apprendi.

United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert.

denied, 531 U.S. 1182 (2001).

D.

Collins finally argues that the four-level enhancement applied

by the district court for his leadership role in the offense is

unsupported by the evidence at trial or by the factual basis

contained in the pre-sentencing report (PSR). He contends that he

was merely an independent operator that used the Rice organization

only as a supply source.

The district court’s determination that the defendant was an

organizer or leader in the offense is a factual finding reviewed for

clear error. United States v. Dadi, 235 F.3d 945, 951 (5th Cir.

2000), cert. denied, 532 U.S. 1072 (2001). As long as a district

court’s finding on a sentencing issue is plausible in light of the

record read as a whole, the finding is not clearly erroneous. Id.

The PSR generally bears sufficient indicia of reliability to support

a district court’s factual findings, and the district court may

adopt facts contained in the PSR without further inquiry if the

facts have an adequate evidentiary basis and the defendant does not

present rebuttal evidence. United States v. Cabrera, 288 F.3d 163,

9 173-74 (5th Cir. 2002). The defendant bears the burden of

demonstrating that the PSR is inaccurate. United States v. Lage,

183 F.3d 374, 383 (5th Cir. 1999), cert. denied, 528 U.S. 1163

(2000).

Under U.S.S.G. § 3B1.1(a), a four-level increase to an offense

level is warranted “[i]f the defendant was an organizer or leader

of a criminal activity that involved five or more participants or

was otherwise extensive.” In determining whether a defendant was

a leader, a court should consider “the exercise of decision making

authority, the nature of participation in the commission of the

offense, the recruitment of accomplices, the claimed right to a

larger share of the fruits of the crime, the degree of participation

in planning or organizing the offense, the nature and scope of the

illegal activity, and the degree of control and authority exercised

over others.” § 3B1.1, comment (n.4).

The PSR’s description of the drug-trafficking operation states

that Collins and Eames were the two lieutenants in the operation and

that Collins handled the marijuana distribution for the Ohio area.

It also contained information that the operation was controlled by

Rice and Collins. This is supported by Cavender’s testimony that

Eames asked if he would like to drive for Collins, who was described

as “the other part of the organization.” The district court’s

finding that Cavender was a leader or organizer of the offense was

supported by the record and was not clear error.

10 III. Conclusion.

For the reasons stated herein, we AFFIRM the district court.