United States v. Dell Hester A/K/A Jerry Smith

917 F.2d 1083, 1990 U.S. App. LEXIS 18858, 1990 WL 161443

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 26, 1990
• Docket: 89-2471
• Status: Published

Opinions

FAGG, Circuit Judge.

Dell Hester appeals his convictions for possession with intent to distribute cocaine and conspiracy to distribute cocaine. See 21 U.S.C. §§ 841(a)(1), 846 (1988). Hester also appeals his guidelines sentences. We affirm.

Government agents arrested Hester and his companion Sheila Hill when a pat down search of Hill revealed á package of cocaine taped securely to her body. Hill testified at trial that Hester was present when a coconspirator taped the cocaine to her, Hester was instructed by the coconspirator to deliver the cocaine personally to a buyer in St. Louis, and Hester accompanied Hill from Los Angeles to St. Louis as her bodyguard.

Hester argues there was insufficient evidence to convict him of the charged offenses. He also argues the district court committed error in denying his bill of particulars. These arguments are without merit.

We must view the evidence in the light most favorable to the government, and having done so, we reject Hester’s argument that the government failed to prove his constructive possession of cocaine. Hill’s testimony establishes that, although she had physical possession, Hester was in control of the cocaine. United States v. Holm, 836 F.2d 1119, 1123 (8th Cir.1988). Her testimony is also sufficient to prove Hester contributed to the conspiracy through his participation in the distribution scheme. United States v. Drews, 877 F.2d 10, 13 (8th Cir.1989). Because a bill of particulars is not a proper tool for discovery, we cannot say the district court abused its discretion in denying Hester’s discovery-oriented bill of particulars. United States v. Hill, 589 F.2d 1344, 1352 (8th Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979).

Hester also asserts he was sentenced improperly as a career offender because one of the convictions the district court relied on is a misdemeanor. See U.S. S.G. § 4B1.1 (Jan.1988). Hester’s argument misses the mark. Hester received a sentence of forty-five days in the county jail for selling a counterfeit controlled substance under Cal. Health & Safety Code § 11355 (West Supp.1980). Although California classifies this conviction as a misdemeanor, see Cal. Penal Code § 17(b)(1) (West Supp.1980); People v. Holt, 37 Cal.3d 436, 208 Cal.Rptr. 547, 555 n. 7, 690 P.2d 1207, 1215 n. 7 (1984), Hester’s offense is considered a felony for purposes of section 4B1.1.

The commentary to section 4B1.1 defines a felony conviction as an offense “punishable by ... imprisonment for a term exceeding one year, regardless of whether [the] offense is specifically designated as a felony and regardless of the actual sentence imposed.” U.S.S.G. § 4B1.1 application note 1 (incorporating U.S.S.G. § 4B1.2 application note 3). Under section 11355, Hester could have been confined in the “state prison for a term of 16 months, or 2 or 3 years.” People v. Jackson, 196 Cal. App.3d 380, 242 Cal.Rptr. 1, 2 n. 2 (1987) (citing Cal.Penal Code § 18 (West Supp. 1980)). Because the potential punishment for Hester’s offense exceeds one year, his California conviction must be treated as a felony for federal sentencing purposes under section 4B1.1. United States v. Thomas, 894 F.2d 996, 997 (8th Cir.) (per curiam), cert. denied, — U.S. -, 110 S.Ct. 1935, 109 L.Ed.2d 298 (1990); United States v. Whyte, 892 F.2d 1170, 1172-73 (3d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1793, 108 L.Ed.2d 794 (1990). Hester’s other assertions about his guidelines sentences are without merit.

We thus affirm Hester’s convictions and sentences.