United States v. Donald Womack, Sr.

• Court: Court of Appeals for the Third Circuit
• Decided: September 22, 2022
• Docket: 19-1900
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-1900 _____________

UNITED STATES OF AMERICA

v.

DONALD WOMACK, SR., a/k/a ROCK, Appellant _______________

On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. No. 2-14-cr-00496-002) District Judge: Honorable Gerald A. McHugh _______________

Submitted Under Third Circuit L.A.R. 34.1(a) September 6, 2022

Before: JORDAN, HARDIMAN, and MATEY, Circuit Judges

(Filed: September 22, 2022) _______________

OPINION _______________

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge.

Donald Womack, Sr., challenges his conviction for conspiracy, and, with respect

to his sentencing, also challenges the attribution of eighteen kilograms of cocaine to him

for his part in that conspiracy. Because his arguments lack merit, we will affirm.

I. BACKGROUND

In January 2014, federal authorities in the midst of a narcotics investigation in

Chester, Pennsylvania uncovered what the District Court described as “a conspiracy to

import several kilograms of cocaine from Mexico[.]” (App. at 11.) The plot came to

their attention when they intercepted a text message that Womack sent to his cousin Paris

Church on January 27.1 That text message included a phone number for a person named

Daniel who Womack believed was a cocaine supplier in Mexico, and it instructed Church

to “[l]et [Daniel] know you’re my cousin[.]” (App. at 332.)

Church made multiple attempts to get in touch with Daniel that day. His first few

efforts involved some miscues: for example, the number Womack gave him was missing

a digit. Womack checked in with Church multiple times throughout the day to see if

Church had gotten through to Daniel and to remind Church to “tell him you [sic] my

1 Federal agents had been authorized to wiretap Church’s phones in December 2013, after he had been identified as part of a separate, larger investigation. That wiretap enabled federal agents to intercept both calls and text messages to and from Church’s phones, capturing data about the intercepted communications, including dates, times, phone numbers, and audio in the case of calls. The District Court limited the government’s ability to introduce evidence of the larger investigation at the trial in this case, and we do not address it here. Womack’s appeal of his conviction resulting from that investigation is separately pending before us in appeal No. 16-1682.

2 cousin.” (App. at 347.) Womack also told Church that Womack expected the cocaine

deal with Daniel to be in “joints,” which an agent with the Drug Enforcement

Administration testified was a slang term for kilograms. (App. at 348.) Because Church

had not yet made contact, Womack and his associate Nathaniel Coles separately reached

out to Daniel, with each of them successfully getting in touch with him.

Church finally received a call from Daniel that evening. They discussed a plan for

Daniel to get a shipment of cocaine across the border into the United States, where his

courier would pass it off to Church in Houston. Daniel promised to have his courier

deliver eighteen to twenty “pieces” (App. at 384) – another slang term for kilograms,

according to the testifying DEA agent – and said he would follow up once he finalized

the plans for his courier to get to Houston.

Minutes later, Womack called Church, who told him that “it’s the real deal,” that

when Daniel “hit[s] me” – i.e., calls me back – “I’m gone,” and things were “about to be

popping[.]” (App. at 389-90.) Womack responded, “Say no more. I’m going to talk to

you tomorrow.” (App. at 390.) Church, along with his associate Michael Pinkney, then

began to make arrangements to transport the cocaine from Houston to the Philadelphia

and City of Chester area, where Church, Womack, Pinkney, and Coles were all based.

Daniel called Church two days later, and Daniel told him that the courier could be

in Houston the following evening. But, said Daniel, Church first had to wire $300 to the

courier via Western Union for expenses. Minutes later, Church and Womack had two

calls in quick succession about the propriety of Daniel’s request for $300. Womack

expressed skepticism about paying the money but ultimately agreed with Church that

3 they were willing to run the risk that the deal was fraudulent. Church spoke to Daniel

again later that day and completed the wire transfer.

Daniel then called Church two days later, saying that the courier was almost ready

to depart and promising to call again once the car had crossed the border. After that,

however, none of the conspirators heard from Daniel again. Church, Womack, and Coles

made multiple unsuccessful attempts to contact him over the next several days, and they

realized that he had taken the money without carrying out his part of the deal.

Pinkney, Church, Womack, and Coles were charged on September 17, 2014, in a

single-count indictment for conspiring to possess with intent to distribute at least five

kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. The

government relied on the conversations federal authorities had intercepted, as well as

testimony from Pinkney, who struck a plea deal. All three remaining defendants were

eventually convicted of conspiracy, and the District Court denied Womack’s and Cole’s

mid-trial and post-trial motions for judgments of acquittal.

In calculating Womack’s sentencing range, the District Court found, over

Womack’s objection, that Womack’s base offense level included 18 kilograms of

cocaine, given his role in the conspiracy. It sentenced him to 216 months’

imprisonment.2 Womack timely appealed.

2 The District Court consolidated Womack’s sentencing for the conviction that is the subject of this appeal with his conviction before us in appeal No. 16-1682, which presents discrete issues and does not involve a challenge to his base offense level. See supra note 1.

4 II. DISCUSSION3

Womack argues that, because of his limited role in the conspiracy, there was

insufficient evidence to support his conviction. For similar reasons, he also says the

District Court erred in attributing eighteen kilograms of cocaine to him at sentencing.

The evidence showed, however, that his role in the cocaine conspiracy was not as limited

as he claims.

A. There is Sufficient Evidence to Sustain Womack’s Conviction

Womack first argues that he, at most, introduced Church and Daniel to each other,

and so there was insufficient evidence to prove that he was part of a conspiracy to

distribute cocaine. We review the sufficiency of the evidence underlying a conviction to

see if, “after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in

original). Our review is “highly deferential,” and we take care “not to usurp the role of

the jury by weighing credibility and assigning weight to the evidence, or by substituting

[our] judgment for that of the jury.” United States v. Caraballo-Rodriguez, 726 F.3d 418,

430 (3d Cir. 2013) (en banc) (alteration in original). Where the record may support

“multiple possibilities,” we draw all rational inferences in the prosecution’s favor. Id. at

430-32.

3 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

5 To prove that Womack was a member of a drug-trafficking conspiracy in violation

of 21 U.S.C. § 846, the government needed to establish “(1) a shared unity of purpose

between the alleged conspirators, (2) an intent to achieve a common goal, and (3) an

agreement to work together toward that goal.” United States v. Bailey, 840 F.3d 99, 108

(3d Cir. 2016). That last element – the requirement of an agreement – is “the essence of

the [conspiracy] offense.” United States v. Tyson, 653 F.3d 192, 206 (3d Cir. 2011)

(alteration in original). Because conspirators “rarely leave evidence of an explicit

understanding or common goal[,]” circumstantial evidence can suffice to establish the

existence of a conspiratorial agreement. Id. at 208. Even so, merely introducing a buyer

to a seller does not, without more, give rise to an agreement. United States v. Pressler,

256 F.3d 144, 153-54 (3d Cir. 2001).

Here, there is ample evidence from which a rational trier of fact could find that

Womack did not merely introduce Church to Daniel, but rather agreed with Church and

others to work toward obtaining large quantities of cocaine from Mexico in order to

distribute it. Rather than stopping at sharing Daniel’s number with Church, Womack

persisted in working to put Church in touch with Daniel and told Church to make Daniel

aware of Womack’s and Church’s familial relationship. Indeed, when Church could not

get through to Daniel, Womack personally reached out to Daniel. Moreover, Church

spoke with Womack minutes after arranging the deal with Daniel for eighteen to twenty

kilograms of cocaine. Although Womack responded by telling him to “[s]ay no more”

because Womack would talk to him the next day (App. at 390), a reasonable juror could

infer that Womack wanted to hear the details of Church’s call with Daniel in person

6 because he was being cautious for fear of surveillance. And, finally, Womack and

Church spoke twice about Daniel’s demand for pre-payment of $300, with Womack

ultimately agreeing with Church that it was worth it to send the money. All that evidence

was sufficient to allow a rational jury to infer not only that Womack was being kept

abreast of developments with the deal but also that he had himself agreed to help obtain

the cocaine from Daniel and was actively working to make the deal happen.

Womack argues that he was “never privy” to Church’s conversations with Daniel

about the details of the transaction. (Opening Br. at 22.) But “common sense suggests,

and experience confirms, that illegal agreements are rarely, if ever, … verbalized with the

precision that is characteristic of a written contract.” Tyson, 653 F.3d at 208. The fact

that Womack was “very careful” and used “guarded and coded language” and “cryptic”

references would not have prevented a rational jury from inferring, based on the totality

of the evidence, that Womack had agreed to participate in the conspiracy. United States

v. McGlory, 968 F.2d 309, 322-23, 325-26 (3d Cir. 1992).

B. The District Court Did Not Err in Attributing 18 Kilograms to Womack for Purposes of Sentencing

Womack next argues that, even if he is considered to be a conspirator, his role in

the conspiracy was limited and the District Court erred in attributing to him eighteen

kilograms of cocaine – the minimum amount Church and Daniel discussed. “We review

for clear error the District Court’s findings of fact regarding the relevant quantities of

drugs attributable to the defendant.” United States v. Perez, 280 F.3d 318, 352 (3d Cir.

2002). There is no clear error here.

7 In determining the drugs attributable to a defendant at sentencing, a court may

consider “all acts and omissions committed, aided, abetted, counseled, commanded,

induced, procured, or willfully caused by the defendant[.]” U.S.S.G. § 1B1.3(a)(1)(A).

For conspiracies, a court may also look to “all acts and omissions of others” within the

scope of the joint undertaking, in furtherance of the crime, and which are reasonably

foreseeable. Id. § 1B1.3(a)(1)(B). In doing so, the court may not base its calculations on

“mere speculation[.]” United States v. Collado, 975 F.2d 985, 998 (3d Cir. 1992).

“While some degree of estimation must be permitted, the district court must satisfy itself

that the evidentiary basis for its estimate has sufficient indicia of reliability.” United

States v. Douglas, 885 F.3d 145, 150-51 (3d Cir. 2018) (internal citation and quotation

marks omitted). Courts may estimate drug quantity using a variety of evidentiary

sources, including intercepted telephone conversations, Collado, 975 F.2d at 999, and the

testimony of co-defendants. United States v. Gibbs, 190 F.3d 188, 203-04 (3d Cir. 1999).

Womack’s primary claim of error – that he simply introduced Church to Daniel

and then, effectively, washed his hands of the affair and so is not responsible for their

dealings – repeats the same points made in his sufficiency-of-the evidence argument, as

he admits. (Opening Br. at 28 (directing us to his “extensive[]” discussion on

sufficiency).) As addressed above, however, that theory mischaracterizes the extent of

the evidence of Womack’s involvement in the scheme.

Moreover, contrary to Womack’s assertion, the District Court conducted the

necessary “searching and individualized inquiry into the circumstances surrounding [his]

involvement in the conspiracy[.]” Collado, 975 F.2d at 995. Such an inquiry requires

8 that the court, before relying on a disputed point at sentencing, resolve the dispute after

hearing the parties’ positions and considering appropriate evidence. United States v.

Metro, 882 F.3d 431, 442 (3d Cir. 2018); United States v. Kluger, 722 F.3d 549, 563 (3d

Cir. 2013).

The District Court ably met that standard here, after evaluating the record and the

parties’ arguments. It relied in significant part on Church’s discussion with Daniel about

acquiring eighteen to twenty kilograms of cocaine and Womack’s subsequent promise to

talk to Church the next day, as well as testimony from Pinkney that the deal would be at

least ten to twenty kilograms. (App. at 925-26.) The Court considered Womack’s efforts

to recharacterize the record but ultimately found “that there was a persistent effort to

develop that connection [with Daniel] … and that the intent was to bring in substantial

quantities in a range of 18 to 20 kilograms, if not more.” (App. at 925-26.) Womack

does not identify any clear errors of fact in that analysis. The sentencing challenge he

brings here therefore fails.

III. CONCLUSION

For the foregoing reasons, we will affirm.