United States v. Hopeton Webber

396 F. App'x 271
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 15, 2010
Docket08-4283
StatusUnpublished
Cited by1 cases

This text of 396 F. App'x 271 (United States v. Hopeton Webber) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hopeton Webber, 396 F. App'x 271 (6th Cir. 2010).

Opinion

OPINION

HELENE N. WHITE, Circuit Judge.

After trial by jury, defendant Hopeton Webber (“Webber”) was convicted of possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), and using a telephone to commit a felony in violation of 21 U.S.C. § 843(b). Webber appealed, and this court affirmed in part, reversed in part, and remanded for resentencing. Webber now appeals from his resentencing, asserting that the district court committed error in its determination of the amount of marijuana attributable to him, in imposing an enhancement for his leadership role in the conspiracy, and in failing to adequately consider several 18 U.S.C. § 3553(a) sentencing factors. Based on our analysis of the first issue, we REVERSE and REMAND for resentenc-ing, and we therefore do not reach Web-ber’s other sentencing claims.

I.

A.

As described more fully below, Webber appeals from resentencing after this Court reversed and remanded his original sentence. The underlying facts that led to Webber’s conviction were previously described by this Court in Webber’s initial appeal:

In November 2002, the Federal Bureau of Investigation (“FBI”) began an investigation of Shelby Jones. Authorized interceptions of conversations conducted over Jones’ cellular telephone established that Jones was supplied marijuana by an individual identified to Jones as Johnny Ouch, later identified as Walter Hines. Interception of conversations with Hines’ cellular phone was later authorized.
Jones and Hines met in 1999. Hines began supplying Jones with marijuana in 2000, receiving 50 to 60 pounds on a regular basis. Jones paid Hines $1,150 to $1,250 per pound of marijuana. Jones came to learn that Hines’ marijuana supplier was an individual named “Ricky Tin” or “Family.” Although Jones never had any direct dealings with Hines’ supplier, Jones claims he was approached by Webber at a local mall. Webber asked Jones about the money owed by Jones to Hines at that time in the amount of $58,000. After this encounter with Webber, Jones’ supply from Hines was reduced. During the conspiracy period, Jones was supplied between 1,200 and 1,300 pounds of marijuana by Hines. Hines and Webber were childhood acquaintances.
Webber was born in Jamaica and immigrated to the United States in 1988. *273 He was employed as an auto mechanic, but also worked nationally as a DJ, a promoter of reggae performers. Web-ber’s real name is Kevin March, but his nickname is Ricky “or Ricky Tin.” During a traffic stop in 1989, Webber showed an officer the identification of his cousin, Hopeton Webber, and the alias became part of his record. Web-ber claims he does not go by the nickname Family.” The term, “Family,” is a generic greeting similar to “Brethren” or “Brother” used by Jamaicans when greeting each other. He is a thirty-eight-year-old father of nine children. Webber lived in Cleveland, Ohio, in his mother’s two-family home, with her, as well as his wife, his children, and one nephew. Until December 2004, Nigel Chung, Webber’s brother, lived in their mother’s home also, occupying the third floor apartment.
Chung was in the home remodeling business and became involved in distributing marijuana for extra money. Web-ber supplied Chung with marijuana in 2003 and [Chung] also assisted Webber with handling the finances, keeping records of the marijuana proceeds and amounts of money paid. Intercepted conversations confirmed that Webber directed Chung on matters relating to the collection and payment of money.
The recorded conversations were all in Jamaican patois, [footnote: “Patois- a) a dialect other than the standard or literary dialect, b) uneducated or provincial speech. [Merriam-Webster Online Dictionary].] which Webber claims is impossible for non-Jamaican speaking listeners to understand. The FBI used an agent to listen to and transcribe the conversations. The recordings were heard by the jury, and the transcripts were also admitted into evidence. Webber claims the government did not ask the court to find the agent qualified as an expert witness, but that the jury was later instructed that the agent had testified as an expert. The government alleges that intercepted conversations between Webber, Hines, and Chung relating to the distribution of marijuana were coded, requiring the expertise of a drug investigator familiar with the investigation or case to interpret the codes used by the participants.
On February 2, 2004, Special Agent Todd DeKatech of the FBI requested assistance from the Drug Enforcement Administration (“DEA”) in Tucson, Arizona, to conduct surveillance on Hines, who was traveling from Cleveland to Arizona. Deputy Sheriff Karen Couture of the Pima County Sheriffs Office, assigned to the Arizona DEA Task Force, along with other agents, conducted surveillance on Hines. Hines was followed from the airport to a residence located at 8550 South Snyder Road, Tucson, Arizona.
Deputy Sheriff Couture was assigned on April 16, 2004 to serve an arrest warrant issued by the United States District Court for the Northern District of Ohio on Webber at the Snyder Road property in Tucson. Several officers, including FBI agents, went to the property to execute the arrest warrant. The property, a five-to-seven acre compound, contained a main residence (2,500 to 3,000 square feet), a smaller residence (1,100 to 1,200 square feet), a large workshop with a carport, and a swimming pool. After they arrived on the property to execute the arrest warrant, the officers were told that Webber was inside one of the houses. The officers knocked on the door and asked Webber to come outside of the smaller residence. Webber was arrested as he came out of the smaller residence at the Snyder *274 Road property. Four other individuals were in the smaller residence. The agents went into the smaller residence to secure the property and to perform a prospective search. Deputy Sheriff Couture thereafter obtained a search warrant for all the buildings and vehicles at the Snyder Road property based on what she observed from the outside of the building and what she was told by the FBI agents after the agents performed the prospective search and exited the smaller residence.
The search of the residences and other buildings revealed that the property was being used to pack and store marijuana. A closet located in the den of the main residence contained seven boxes containing bales of marijuana, packed in boxes with styrofoam and wrapped in plastic. Four fully loaded handguns, including two semiautomatic pistols from the smaller residence, and a zip lock bag full of marijuana were seized. In the garage were numerous boxes, marijuana seeds and residue on the ground, plastic wrapping paper, spent rolls of plastic tape, a trash bag full of unopened tape and duct tape. A 2000 Mercedes-Benz with Florida license plates and a second vehicle with Ohio plates were parked in the carport.

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Bluebook (online)
396 F. App'x 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hopeton-webber-ca6-2010.