United States v. Hodge

192 F. App'x 178
Procedural entryThis page is a short order in United States v. Hodge. Read the opinion of the Court — 276 F. App'x 120
Court of Appeals for the Third Circuit·Decided August 21, 2006·No. 05-3443·Unpublished

Opinion

OPINION

COWEN, Circuit Judge.

Defendant Alex Hodge appeals his conviction and sentence contending that there was insufficient evidence for a jury to find that he possessed more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(A)(iii) and that the District Court erred by failing to consider his argument about the sentencing disparities between crack cocaine and powder cocaine. We will affirm.

I.

Because the parties are familiar with the facts, we only briefly recite them here. *179 On July 19, 1999, government agents were conducting surveillance on King Street and observed Hodge and a known drug dealer talking. The agents saw Hodge reach into his pants to retrieve something and believed that Hodge was about to consummate a drug transaction. When the agents approached Hodge, he ran and threw away plastic bags retrieved from the front of his pants. After the agents subdued Hodge, they found two plastic bags containing 25.8 grams of crack cocaine. The agents arrested Hodge and obtained a warrant to search his home. Agents searched Hodge’s bedroom and found 14.5 grams of crack cocaine hidden in a man’s bathrobe and 9.1 grams of marijuana in a man’s shirt pocket. In the kitchen, the agents discovered three plastic bags in a cupboard containing 391.7 grams of cocaine base and 80.1 net grams of powder cocaine. They also found an Ohause scale and a police scanner.

Hodge was indicted in the District Court of the Virgin Islands. Among other offenses, count two charged him with possession and an intent to distribute over 5 grams of a mixture or substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(B)(iii); count four charged him with possession and an intent to distribute over 50 grams of a mixture or substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1) (A) (iii); count five charged him with possession and an intent to distribute over 50 grams of a mixture substance containing cocaine base within one thousand feet of a public school in violation of 21 U.S.C. §§ 860 and 841(a)(1) and (b)(1)(A)(iii); and count six charged him with possession of marijuana in violation of 21 U.S.C. § 844(a).

After a jury trial, Hodge was found guilty of counts four, five, and six for the drugs found at his home within 1000 feet of a school. He was found not guilty of count two for the drugs seized after the King Street arrest. During the sentencing hearing, Hodge argued that the sentencing guidelines imposed disparate sentences for crack cocaine and powder cocaine. He asserted that the quantity of crack to cocaine ratio of 100:1 was unjust and that the court should adopt the sentencing commission’s proposed 10:1 ratio instead. He requested that he be sentenced to the minimum mandatory of ten years. The government argued that there were no mitigating circumstances to take the sentence outside of the 151 to 188 months guideline range. The government further noted that Hodge sometimes shared the home where the drugs were found with a preteen daughter and that the home was located catacorner to a school. The District Court decided to apply the 151 to 188 range and sentenced Hodge to 166 months because Hodge was not remorseful despite his repeated involvement with drugs.

II.

We have jurisdiction over the District Court’s order of judgment and conviction pursuant to 28 U.S.C. § 1291. We have jurisdiction to review Hodge’s sentence for unreasonableness pursuant to 18 U.S.C. § 3742(a)(1).

Hodge first contends that the government failed to prove that he possessed over 50 grams of a mixture or substance containing cocaine base to sustain his conviction under count four. “In reviewing a jury verdict for sufficiency of the evidence, we must consider the evidence in the light most favorable to the government and affirm the judgment if there is substantial evidence from which a rational trier of fact could find guilt beyond a reasonable doubt.” United States v. Haywood, 363 F.3d 200, 204 n. 3 (3d Cir.2004) (internal *180 quotations and citation omitted). “The burden on a defendant who raises a challenge to the sufficiency of the evidence is extremely high.” United States v. Lore, 430 F.3d 190, 203-04 (3d Cir.2005) (internal quotations and citation omitted).

In the present case, Hodge argues that the government improperly combined the amount of cocaine base seized after his King Street arrest with the amount of cocaine base found at his home to establish count four of the indictment. Hodge’s argument is without merit. During the trial, the government presented evidence that police searched his house and found 391.7 grams of cocaine base and 80.1 grams of powder cocaine in plastic bags located in the kitchen. The police also found 14.5 grams of crack cocaine in his bedroom. After reviewing the record, we find that a rational jury could find that Hodge possessed over 50 grams of cocaine base to sustain the conviction for count four.

Hodge next contends that the District Court erred by failing to consider his argument that the Guidelines impose an unjust disparity in sentences with crack cocaine and powder cocaine. During the sentencing hearing, Hodge urged the District Court to adopt the Sentencing Commission’s recommendation in a policy report that the 100-to-l quantity ratio between crack and powder cocaine be lowered. The District Court did not adopt the Sentencing Commission’s recommendation.

When reviewing a district court’s sentence, we must determine whether the sentence is reasonable under Booker. To be reasonable, the “[t]he record must demonstrate the trial court gave meaningful consideration to the § 3553(a) factors,” which include the range suggested by the sentencing guidelines. United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006). We then consider whether the District Court gave “meaningful consideration” to the § 3553(a) factors and to “any sentencing grounds properly raised by the parties which have recognized legal merit and factual support in the record.” Id. at 329, 332. Finally, we consider whether the District Court “reasonably applied [the § 3553(a) factors] to the circumstances of the case.” Id. at 330. The party that challenges the sentence has the burden of proving that it is unreasonable. See id. at 332.

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Related

United States v. Ira Haywood
363 F.3d 200 (Third Circuit, 2004)
United States v. Lydia Cooper
437 F.3d 324 (Third Circuit, 2006)
United States v. Lore
430 F.3d 190 (Third Circuit, 2005)