United States v. Henley

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 5, 2004
• Docket: 02-6011
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Henley No. 02-6011 ELECTRONIC CITATION: 2004 FED App. 0070P (6th Cir.) File Name: 04a0070p.06 ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee. ON BRIEF: Martin J. Levitt, LEVITT & LEVITT, Chattanooga, Tennessee, for Appellant. UNITED STATES COURT OF APPEALS Perry H. Piper, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________

UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 02-6011 BOYCE F. MARTIN, JR., Circuit Judge. A jury convicted v. - David E. Henley, Jr. of several offenses related to the > distribution of methamphetamine, for which the district court , imposed a sentence of life imprisonment. Here, Henley has DAVID E. HENLEY, JR., - Defendant-Appellant. - a number of challenges to his trial and sentence, yet little support for his conclusions. Thus, we affirm. N Appeal from the United States District Court I. BACKGROUND for the Eastern District of Tennessee at Chattanooga. No. 01-00148—R. Allan Edgar, Chief District Judge. At the time of his August 28, 2001, indictment on methamphetamine related charges, Henley was twenty-four Argued: December 2, 2003 years old and had no prior criminal record. While several of his co-conspirators – most notably Sophan Luy and Bryan Decided and Filed: March 5, 2004 Sanders – pleaded guilty, Henley exercised his Sixth Amendment right to a jury trial. At Henley’s trial, Luy and Before: MARTIN and MOORE, Circuit Judges; Sanders testified against him in hopes of receiving a reduction McKEAGUE, District Judge.* in their respective sentences – which they did ultimately receive. At the conclusion of the trial, the jury convicted _________________ Henley of possession with the intent to distribute in excess of fifty grams of methamphetamine in violation of 21 U.S.C. COUNSEL §§ 841(a)(1) and 841(b)(1)(B), conspiracy to distribute in excess of five hundred grams of methamphetamine in ARGUED: Martin J. Levitt, LEVITT & LEVITT, violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and using a Chattanooga, Tennessee, for Appellant. Perry H. Piper, “communication facility” to facilitate his drug offenses in violation of 21 U.S.C. § 843(b). Among the issues at sentencing was the quantity of * The Ho norable D avid W . McKeague, United States District Judge methamphetamine involved in the conspiracy. Under the for the Western District of Michigan, sitting by designation.

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2001 United States Sentencing Guidelines, which govern this months,2 respectively. United States v. Luy, Case No. 1:00- case, a base offense level of thirty-six applies where the CR-46, Order Amending Judgment (E.D. Tenn.); United quantity of methamphetamine attributable to the defendant is States v. Sanders, Case No. 1:01-CR-98, Order Amending between five and fifteen kilograms. U.S.S.G. § 2D1.1(c)(2). Judgment (E.D. Tenn.). The presentence report attributed 14.989 kilograms of methamphetamine to Henley. The district court declined to In this timely appeal, Henley challenges his conviction and adopt this amount and instead undertook an independent sentence on several grounds. We address each of his examination of the record. Based solely upon the trial arguments in turn. testimony of Sophan Luy, the district court found Henley responsible for at least five kilograms of methamphetamine. II. ANALYSIS Therefore, despite the considerable difference between the drug quantity estimated in the presentence report and the A. Sufficiency of Evidence Establishing Henley’s quantity found by the district court, under section 2D1.1(c)(2) Participation in a Conspiracy of the Sentencing Guidelines the district court had no choice but to apply the same base offense level – thirty-six – as Henley’s primary argument is that the evidence adduced at provided in the presentence report. his trial was insufficient to establish the existence of a conspiracy to distribute methamphetamine and, even if a The district court also assessed several sentencing conspiracy existed, the evidence was insufficient to prove that enhancements: a two-point enhancement pursuant to section he was a participant therein. Unfortunately for Henley, our 2D1.1(b)(1) for possession of a firearm; a three-point review of the jury’s finding that he participated in a enhancement pursuant to section 3B1.1 for Henley’s conspiracy to distribute methamphetamine is strictly limited. supervisory role in the conspiracy; and a two-point We review a challenge to the sufficiency of the evidence “by enhancement pursuant to section 3C1.1 for obstruction of justice. These sentencing enhancements brought Henley’s total offense level to forty-three, which carries a mandatory life sentence. pursuant to Federal Rule of Criminal Procedure 35 (b), which the district court granted, there by red ucing his sentence to 87 months. United States v. Luy, Case No. 1:00-CR -46, Order Amend ing Judgment (E.D. Tenn.). In a striking illustration of the disparity in sentences imposed upon similarly situated defendants depending upon 2 Sanders pleaded guilty to one count of conspiracy to distribute in whether they exercise their Sixth Amendment right to a jury excess of fifty grams of methamphetamine, in violation of 21 U.S.C. trial or waive that right in favor of a plea bargain, Luy and §§ 846 and 8 41(b)(1 )(B), as well as possession of a firearm in furtherance Sanders received prison sentences of 87 months1 and 93 of a drug trafficking crime, in violation of 18 U.S.C. § 92 4(c)(1)(A)(I). United States v. San ders, Case No. 1:01-CR-98-02, Judgment (E.D. Tenn.). As part of the plea agreement, the remaining count in the 1 indictment was dismissed . Id. Sanders was originally sentenced to 101 Luy plead ed guilty to one count of conspiracy to distribute months of imprisonment – 41 months on the first count and 60 months on methamphetamine, in violation of 21 U.S.C. § 8 46. United States v. Luy, the second, to be served consecutively. As in Luy’s case, however, the Case No. 1:00-CR-46-1, Judgment (E.D. Tenn.). As part of the plea United States subsequently filed a motion for a reduction in Sanders’s agree ment, six other co unts in the indictment were dism issed. Id. Luy sentence pursuant to Rule 35(b), which the district court granted, thereby was originally sentenced to 136 months of imprisonment, but the United reducing his sentence to 93 m onths. United States v. Sa nders, Case No. States subsequently filed a motion for a reduction in Luy’s sentence 1:01 -CR-98, O rder Amending Jud gment (E.D . Tenn.). No. 02-6011 United States v. Henley 5 6 United States v. Henley No. 02-6011

considering the evidence in the light most favorable to the Contrary to Henley’s assertion, the evidence adduced at his prosecution to determine whether a rational trier of fact could trial, construed in the light most favorable to the United have found that the essential elements of the crime were States, is sufficient to establish that a conspiracy to distribute proven beyond a reasonable doubt.” United States v. methamphetamine existed. Henley, Sanders, Luy and an Spearman, 186 F.3d 743, 745 (6th Cir. 1999). “A defendant individual named “Scott” from Atlanta apparently formed the making such a challenge bears a very heavy burden. core of the conspiracy. According to the testimony elicited at Circumstantial evidence alone is sufficient to sustain a trial, Scott provided methamphetamine to Luy, who in turn conviction and such evidence need not remove every sold it to Henley, who then sold it to Sanders, who sold it to reasonable hypothesis except that of guilt. Furthermore, it is others. In short, the evidence shows that Henley and one or well-settled that uncorroborated testimony of an accomplice more co-conspirators had an “understanding” to employ this may support a conviction in federal court.” Id. “scheme” to accomplish the “object” of selling methamphetamine. Gibbs, 182 F.3d at 420. To prove a conspiracy, the following elements must be established: Once a conspiracy has been shown, only “slight” evidence is needed to connect a defendant to a conspiracy. Gibbs, 182 (1) An object to be accomplished. (2) A plan or scheme F.3d at 422. Henley argues that the evidence presented at his embodying means to accomplish that object. (3) An trial is insufficient to connect him to the conspiracy because, agreement or understanding between two or more of the at most, it proves only that he sold methamphetamine to defendants whereby they become definitely committed to Sanders. While Henley is correct that a “buyer-seller cooperate for the accomplishment of the object by the relationship” is not enough to make someone a participant in means embodied in the agreement, or by any effectual a drug conspiracy, “further evidence indicating knowledge of means. and participation in the conspiracy can be enough to link the defendant to the conspiracy.” Gibbs, 182 F.3d at 421. We United States v. Gibbs, 182 F.3d 408, 420 (6th Cir. 1999) have recognized that the “trust” involved in “fronting” drugs (quoting United States v. Bostic, 480 F.2d 965, 968 (6th Cir. under a delayed payment or credit arrangement “suggests 1973)) (internal quotation marks omitted). Proof of a formal more than a buyer-seller arrangement between the parties.” agreement is not required to establish a conspiracy; “a tacit or United States v. Humphrey, 287 F.3d 422, 435 (6th Cir. material understanding among the parties” is sufficient. 2002), overruled on other grounds, United States v. United States v. Pearce, 912 F.2d 159, 161 (6th Cir. 1990). Leachman, 309 F.3d 377 (6th Cir. 2002). In this case, “Drug distribution conspiracies are often ‘chain’ conspiracies Sanders testified that Henley “fronted” methamphetamine to such that agreement can be inferred from the interdependence him, and Luy testified that on numerous occasions he of the enterprise. One can assume that participants understand provided Henley with large quantities of methamphetamine. that they are participating in a joint enterprise because success Viewing this – and other – evidence in the light most is dependent on the success of those from whom they buy and favorable to the United States, as we must, Spearman, 186 to whom they sell.” Spearman, 186 F.3d at 746 (citing F.3d at 745, we conclude that sufficient evidence supported United States v. Bourjaily, 781 F.2d 539, 546 (6th Cir. the jury’s determination that Henley participated in a 1986)). conspiracy to distribute methamphetamine. No. 02-6011 United States v. Henley 7 8 United States v. Henley No. 02-6011

Because Sanders and Luy received downward departures as Ward, 68 F.3d 146, 149 (6th Cir. 1995); see also United a result of their cooperation with the United States, Henley States v. Owusu, 199 F.3d 329, 338 (6th Cir. 2000). challenges the credibility of their testimony. It is not the province of this Court, however, to weigh the credibility of A court may hold a defendant responsible for an amount witnesses – particularly in the context of determining whether of drugs only if the court finds that it is more likely than sufficient evidence supports a conviction. United States v. not that the defendant actually was responsible for at Hilliard, 11 F.3d 618, 620 (6th Cir. 1993) (“In addressing least that amount. An approximation by a court is not sufficiency of the evidence questions, this Court has long clearly erroneous if it is supported by competent recognized that we do not weigh the evidence, consider the evidence in the record. In other words, the court finding credibility of witnesses or substitute our judgment for that of must have some minimum indicium of reliability beyond the jury.”) (citing United States v. Evans, 883 F.2d 496, 501 mere allegation. (6th Cir. 1989)); United States v. King, 272 F.3d 366, 370 (6th Cir. 2001) (rejecting defendant’s challenge to the Ward, 68 F.3d at 149 (citations and internal quotation marks credibility of his co-conspirators, who had benefitted from omitted). We must uphold the district court’s determination cooperation agreements with the United States, as “challenges in this regard if it is consistent with the factual record, even if to the quality of the government’s evidence and not the we would have reached a different conclusion under de novo sufficiency of the evidence”); see also Spearman, 186 F.3d at review. United States v. Darwich, 337 F.3d 645, 663 (6th 745 (explaining that an accomplice’s uncorroborated Cir. 2003) (citing Anderson v. City of Bessemer, 470 U.S. testimony may support a conviction). 564, 573 (1985) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be We certainly recognize that the prospect of a reduced clearly erroneous.”)). sentence could have provided a powerful incentive for Henley’s co-conspirators to testify against him. Whether that In determining whether a district court’s calculation of drug incentive affected the credibility of their testimony, however, quantity is clearly erroneous, a key issue is the extent to is for the jury to decide. The jury in this case was aware that which the court identified the evidence on which it relied in Sanders and Luy had reason to believe that they could benefit making that calculation. Compare, e.g., United States v. from a reduction in their sentences as a result of their Baro, 15 F.3d 563, 569 (6th Cir. 1994) (vacating defendants’ testimony against Henley. We simply cannot second-guess sentences because the district court attributed an extra the jury’s determinations with regard to whether and to what kilogram of cocaine without making any factual findings), extent that motive may have affected those witnesses’ United States v. Medina, 992 F.2d 573 (6th Cir. 1993) credibility. (vacating sentences because the district court imputed knowledge of the whole extent of the conspiracy to the B. Quantity of Methamphetamine Attributable to Henley defendants without making a finding that it was reasonable to do so), and United States v. Walton, 908 F.2d 1289, 1302-03 Henley also challenges the district court’s determination of (6th Cir. 1990) (vacating sentences because the district court the quantity of methamphetamine for which he was extrapolated rate of cocaine dealing without identifying responsible. The district court’s drug quantity determination competent circumstantial evidence to support the “must stand unless it is clearly erroneous.” United States v. extrapolation), with Ward, 68 F.3d at 150 (upholding sentence where the district court “clearly spelled out the reasons for his No. 02-6011 United States v. Henley 9 10 United States v. Henley No. 02-6011

conclusion that Ward was responsible for over 3,000 Henley challenges the district court’s reliance upon Luy’s kilograms of marijuana” and did not speculate as to the testimony. Henley emphasizes that Luy received a reduction quantity), and United States v. West, 948 F.2d 1042 (6th Cir. in his sentence as a result of his cooperation with the United 1991) (upholding sentence where the district court’s drug States and contends that Luy was merely approximating the quantity determination was based upon testimony that the quantity of drugs that he provided to Henley. 5 We find these defendant had been involved in many transactions, each arguments to be unavailing. Testimonial evidence from a co- involving over four kilograms of cocaine). conspirator may be sufficient to determine the amount of drugs for which a defendant should be held accountable, even Based upon our careful review of the record, we conclude where the co-conspirator has reason to believe that he may that the evidence supports the district court’s calculation of receive a reduced sentence as a result of his or her testimony. the quantity of methamphetamine attributable to Henley and United States v. Hernandez, 227 F.3d 686, 697-98 (6th Cir. that the court properly identified the particular evidence on 2000); Darwich, 337 F.3d at 664. Moreover, drug quantity which it relied in making that calculation. During the may be determined by way of estimates or approximations if sentencing hearing, the district court referenced the testimony exact amounts are uncertain. Hernandez, 227 F.3d at 698-99 of various witnesses, but – in order to avoid “double (upholding a district court’s determination that 1,400 pounds counting” – relied exclusively upon Luy’s testimony in of marijuana were involved in the conspiracy based upon making its quantity determination.3 Luy testified that over testimony that “an accomplice made 7 trips to Saginaw, the course of eight to ten months, he traveled to Atlanta once Michigan from the Rio Grande Valley and delivered 200 a month and on each trip purchased four pounds of pounds on each trip”). methamphetamine, keeping two pounds for himself and giving two pounds to Henley. Occasionally, Luy would make The district court’s determination that Henley was two trips per month instead of one, in which case he would responsible for five kilograms or more of methamphetamine purchase two pounds of methamphetamine on each trip, was properly supported by Luy’s testimony and was not keeping one pound for himself and giving one pound to clearly erroneous. Henley. The district court concluded that Henley could be held liable for over five kilograms of methamphetamine4 C. Sentencing Enhancement Under Section 3B1.1 based upon Luy’s testimony alone. The district judge explicitly considered Luy’s credibility and concluded: “I do Henley also challenges the district court’s imposition of a have confidence in what Luy said” because his testimony was three-level enhancement pursuant to section 3B1.1 of the consistent with the testimony of other witnesses.

5 Henley also points out that Luy’s trial testimony differs in certain 3 respe cts from his story as recounted in the presentence report. The Henley argues that he lac ked notice of the U nited S tates’ intent to presentence repo rt provides that Luy traveled to Atlanta once a month for rely upon Luy’s testimony to establish the drug amo unts. That notice was approximately one year (rather than the 8 to 10 months he testified to at provided, however, in a June 1 4, 2002 , letter from the United S tates to trial) and picked up at least one pound of methamphetamine for Henley Henley’s counsel. on each trip. This scenario would make H enley responsible for twelve 4 pounds of methamp hetamine, or approximately 5.4 kilograms. Under Two pounds of methamphetamine per mo nth over the course of 8 either version of events, then, Henley would still be responsible for over mon ths equals sixteen pounds o r app roxim ately 7.3 kilograms. five kilograms of methamphetamine. No. 02-6011 United States v. Henley 11 12 United States v. Henley No. 02-6011

Sentencing Guidelines for his supervisory role in the authority, the nature of participation in the commission of the conspiracy. The proper standard of review to employ in offense, the recruitment of accomplices, the claimed right to evaluating the district court’s imposition of this enhancement a larger share of the fruits of the crime, the degree of is subject to some debate. Prior to the Supreme Court’s participation in planning or organizing the offense, the nature decision in Buford v. United States, 532 U.S. 59 (2001), “it and scope of the illegal activity, and the degree of control and was clear that we reviewed a district court’s factual findings authority exercised over others.” U.S.S.G. § 3B1.1, for clear error and legal conclusions de novo.” United States comment. (n.4). The key issue is not direct control or v. Solorio, 337 F.3d 580, 600 (6th Cir. 2003). In Buford, ultimate decision-making authority, but rather the defendant’s however, the Supreme Court held that the district court’s “relative responsibility.” United States v. Gaitan-Acevedo, application of section 4B1.2 should be reviewed deferentially 148 F.3d 577, 595-96 (6th Cir. 1998). rather than de novo, “in light of the fact-bound nature of the legal decision.” 532 U.S. at 66. We reserve judgment as to The district court found that the evidence established that whether the district court’s application of section 3B1.1 to the five or more participants were involved in the criminal facts of this case should be reviewed deferentially or de novo, activity – Henley, Sanders, Luy, “Scott” from Atlanta, Chad because we would affirm using either standard of review. Brown, Candiac Stanfield, Robert Walker and Christy Croy – and that Henley “was at the center of the conspiracy.” The Under section 3B1.1, a defendant’s base offense level court also found that: should be increased as follows: [Henley] got this methamphetamine and he did control (a) If the defendant was an organizer or leader of a the distribution of it of what he got here locally. As has criminal activity that involved five or more been pointed out in the presentence report and in the participants or was otherwise extensive, increase by evidence at trial, and here by Mr. Piper, he did employ 4 levels. people, others, perhaps, at least as many as four other persons to help him collect drug debts, enforcers, if you (b) If the defendant was a manager or supervisor (but will. That includes Walker and Sanders, and the two not an organizer or leader) and the criminal activity people at the Logan’s Roadhouse. And he did recruit involved five or more participants or was otherwise those people to do this. And this was an extensive extensive, increase by 3 levels. conspiracy that involved a large amount of drugs. And he controlled the flow of those drugs to a large amount of U.S.S.G. § 3B1.1(a), (b). people. In order to apply a three-level enhancement under section Sentencing Tr. JA 330. 3B1.1(b), there need only be evidence to support a finding that the defendant was a manager or supervisor of at least one In light of this evidence, the court concluded that Henley other participant in the criminal activity, and that the criminal was “certainly” a “manager or supervisor” because he “did activity involved five or more participants or was otherwise manage the distribution of the drugs” and “he managed other extensive. United States v. Caseslorente, 220 F.3d 727 (6th people.” Sentencing Tr. JA 331. As a result, the district court Cir. 2000). The Sentencing Guidelines direct the court to found that Henley should receive a three-level enhancement consider factors such as “the exercise of decision-making No. 02-6011 United States v. Henley 13 14 United States v. Henley No. 02-6011

pursuant to section 3B1.1(b), but it declined to impose the rights is harmless error and must be disregarded. FED . R. four-level enhancement urged by the United States. CRIM . P. 52(a). Henley asserts that there is no evidence to support the The telephone conversation between Henley and Sanders district court’s conclusion that he employed enforcers to was tape recorded by equipment at the Hamilton County Jail, intimidate or assault other individuals. We disagree. Sanders where Sanders had been incarcerated. During the testified that Henley and Robert Walker assaulted Chad conversation, Henley told Sanders that “them fed pens are Brown because of a drug debt. Sanders also testified that he cush, man,” apparently implying that the federal penitentiary had assisted Henley in assaulting an individual named Brett is not a difficult place to serve prison time. Henley and Oakey over a drug debt. Additionally, there was testimony Sanders also discussed drugs, money, informants, the charges that Henley was assisted by two other men when he assaulted that Sanders was facing and other assorted topics. Henley Michael Williams in the restroom of Logan’s Roadhouse. objected to the admission of this tape recording, arguing that That evidence is sufficient to support the district court’s his comments implied that he had previously been convicted conclusion that Henley was a “manager or supervisor” under of a crime for which he served time in federal prison. He also section 3B1.1(b). argued that the tape recording was irrelevant. The district court admitted this tape recording over Henley’s objection. Henley also argues that several of the individuals identified by the court – particularly Stanfield and Croy – were not We find that the tape recording was relevant because it “participants” within the meaning of section 3B1.1, but rather tended to establish the relationship that he had with Sanders, were merely drug customers. A “participant” is defined as “a his co-conspirator. Moreover, contrary to Henley’s assertion, person who is criminally responsible for the commission of we do not believe that his comments imply that he had the offense, but need not have been convicted.” U.S.S.G. previously served time in federal prison. Therefore, the § 3B1.1, comment. (n.1). Even excluding Stanfield and Croy, admission of the tape recording did not violate the Federal however, we find that the evidence adduced at trial supports Rules of Evidence and was not an abuse of discretion. the district court’s determination that five or more individuals were criminally responsible for the offense. Henley also challenges the district court’s admission of testimony given by two witnesses: Dorothy Turner, the D. Evidentiary Rulings mother of Sanders’s girlfriend, and Randy Hood, Sanders’s neighbor. Turner testified that one night at her home, she Finally, Henley challenges the district court’s admission of observed Chad Brown’s head bleeding. Hood testified that in a tape recorded telephone conversation that he had with June 2001, he observed a truck that turned out to belong to Sanders, as well as the testimony of two witnesses. Henley Henley at Sanders’s home approximately three or four times. claims that the district court’s admission of this evidence was Hood further testified that on one occasion he observed a an abuse of discretion and violated Federal Rules of Evidence person, whom he could not identify, leave Sanders’s home, 401, 403 and 404. The propriety of the district court’s remove a pistol from the back of his pants and get into this admission of evidence is reviewed for abuse of discretion. truck. United States v. Middleton, 246 F.3d 825, 835 (6th Cir. 2001). An abuse of discretion that does not affect substantial Because Henley did not object at trial to the admissibility of either witness’s testimony, we must review the district No. 02-6011 United States v. Henley 15

court’s admission of this testimony for plain error. See FED . R. CRIM . P. 51; United States v. Samour, 9 F.3d 531, 537 (6th Cir. 1993), rev’d on other grounds, United States v. Reed, 77 F.3d 139 (6th Cir. 1996). Under the plain error doctrine, this Court considers (1) whether there was an error; (2) whether the error was “plain” – i.e., clear or obvious; and (3) whether the error affected substantial rights. United States v. Segines, 17 F.3d 847, 851-52 (6th Cir. 1994). Even if all three factors exist, the Court must then “decide whether the plain error affecting substantial rights seriously affected the fairness, integrity or public reputation of judicial proceedings.” Id. at 852 (citing United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993)). The district court committed no error in admitting this testimony. Turner’s testimony was relevant because it tended to corroborate Sanders’s testimony that Henley and another individual, Robert Walker, assaulted Chad Brown at Turner’s home. Hood’s testimony was relevant because it tended to establish a relationship between Sanders and Henley and it corroborated Sanders’s testimony that Henley visited his home. Moreover, we find neither witness’s testimony to be violative of Rule 403 or Rule 404. III. CONCLUSION For the foregoing reasons, the district court’s judgment is AFFIRMED.