United States v. Mark Albritton

75 F.3d 709, 316 U.S. App. D.C. 127, 1996 U.S. App. LEXIS 2561, 1996 WL 69835

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 20, 1996
• Docket: 94-3173
• Status: Published

Opinions

Opinion for the court filed PER CURIAM.

Concurring opinion filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge ROGERS.

PER CURIAM:

The jury convicted Mark Albritton of possessing with intent to distribute over fifty grams of cocaine base (crack) and a smaller amount of marijuana. The district court sentenced him to 121 months in prison. On appeal, Albritton primarily complains about the length of his sentence. He argues that the district court did not understand that he qualified for a reduced sentence based on his minimal role in the intended drug distribution. We affirm his convictions.

I. Facts

A little after 1:00 a.m. on April 23, 1993 a Greyhound bus traveling from Newark, New Jersey to Richmond, Virginia made a brief stop in Washington, D.C. Six District of Columbia police officers, members of a drug interdiction task force, boarded the bus. Detective Lawrence Coates questioned Mark Albritton, a passenger. According to Coates, while he questioned Albritton, Albritton repeatedly touched a black tote bag that was on the adjacent seat. Coates also testified that Albritton gave him permission to search the tote bag. The search revealed that the bag contained 325 grams of crack as well as some clothes and compact discs. After the police arrested Albritton, they found in his jacket pocket another 125 grams of crack and a small amount of marijuana.

Albritton was charged with possessing more than fifty grams of crack base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(A)(iii) and possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He was held without bond from April 23, 1993 until his trial on September 7-9, 1994. At trial, his wife testified that the tote bag was not his. Through his counsel, he conceded that-he possessed the drugs found in his jacket but claimed that they were for personal use.' On September 9, 1994 the jury convicted Albritton on both counts. On December 1, 1994 the district court sentenced him to 121 months’ imprisonment and five years of supervised release on the crack count and a concurrent sentence of six months’ imprisonment and two years of supervised release on the marijuana count.

II. Discussion

The appeal raises two issues: first, whether Albritton’s attendance at trial in prison clothes rendered his trial unconstitutional; and second, whether the district court erred in not granting a downward sentencing departure in his sentence based on his minor role in the intended drug distribution. We disagree with the appellant on the first issue and conclude that he waived the second issue.

A Prison Clothes

Albritton argues that his attendance at trial in a blue prison jump suit violated the United States Constitution, relying on several decisions which indicate that a defendant’s fourteenth amendment due process right may be violated when he appears at trial in prison clothes. Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126 (1976) (“[D]efendant’s clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented.”); United States v. Carter, 522 F.2d 666, 677 (D.C.Cir.1975) (“[W]e condemn the practice of producing prisoners in court who are dressed in clothes typical of jails or penal institutions.”). The cases establish that due process is met so long as the government does not compel a defendant to wear prison clothes at trial. Estelle, 425 U.S. at 507, 96 S.Ct. at 1694 (“[T]he particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire.”); Carter, 522 F.2d at 677 (“compelling a defendant”) (emphasis removed).

Albritton, however, was not compelled to wear prison clothes at his trial. The record suggests that he would have been permitted to wear any clothes that were supplied to him. See Appellant’s App. (App.) 136. His wife brought him slacks and two sweaters but, according to the deputy U.S. Marshal guarding him, the slacks were too small and he did not even try on the sweaters. Nothing in the record suggests that he asked for another set of clothes. Moreover, Albritton did not object to wearing prison clothes at trial. See Estelle, 425 U.S. at 512-13, 96 S.Ct. at 1697 (“[FJailure to make an objection to the court as to being tried in such [prison] clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.”). We conclude that Albritton was not compelled to wear prison clothes and therefore affirm his convictions.

B. Section SK2.0 Departure

On appeal, Albritton argues that section 5K2.0 of the United States Sentencing Guidelines (guidelines) should have been used below to shorten his time in prison. Section 5K2.0 applies to the “atypical case, one in which a particular guideline linguistically applies but where conduct significantly differs from the norm.” USSG, Ch. 1 Pt. A, 4(b). Section 5K2.0 in pertinent part grants the district court discretion to depart downward from an applicable guideline sentencing range if mitigating circumstances affecting the sentence were not “adequately taken into consideration by the Sentencing Commission in formulating the guidelines.”¹

According to Albritton, the district court erroneously concluded that it lacked authority to grant him a section 5K2.0 downward departure. Albritton, however, never asked the district court for a section 5K2.0 departure. Instead he requested but did not receive a four-point downward adjustment in his base offense level under section 3B1.2 to reflect his “minimal” role in the offense. By failing to request at sentencing a downward departure under section 5K2.0, he has waived the issue on appeal.

Albritton insists that he requested a section 5K2.0 downward departure. As evidence, he points out that his trial counsel requested a “departure,” a term used only in Chapter 5 of the guidelines.² A review of the transcript of the sentencing proceeding, however, convinces us that Albritton’s lawyer was relying not on a Chapter 5 departure but instead on a Chapter 3 adjustment. He stated: “I think that within the scheme of things his role in the offense was a minimal role and that your honor should consider giving him a four-point level reduction under 3B1.2.” App. at 149 (emphasis added). His specific citation to section 3B1.2, his request for a four-point reduction and Ms use of the word “minimal” manifest that he misspoke in Ms one-word invocation of Chapter 5 terminology.³ Section 5K2.0 includes no specific point reduction nor the word “minimal.” Moreover, Albritton did not refer the district court to section 5K2.0.

The defendant and the government agree that we review Albritton’s tardy departure request for “plain error” oMy. Plain errors are those that obviously and fundamentally violate a defendant’s rights. United States v. Dawson, 990 F.2d 1314, 1316 (D.C.Cir. 1993). As Albritton’s trial counsel recognized, section 3B1.2 plainly addresses whether the defendant’s relative culpability warrants a different sentence. Assuming, without deciding, that we conduct plain error review in these circumstances, the district court’s failure to grant sua sponte a section 5K2.0 departure in this case was not plain error, if error at all, because the gMdelines, in section 3B1.2, account for Ms role in the drug distribution.

For the foregoing reasons, Albritton’s convictions are affirmed.

So ordered.

1 . § 5K2.0 Grounds for Departure (Policy Statement) Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.”

2 . Albritton's trial counsel stated: "[I] ask that your honor consider [the facts of this case] in order to downward depart." App. at 149.

3 . Although Albritton does not quarrel with the district court’s failure to give him a section 3B1.2 adjustment, he nevertheless relies on our decision in United States v. Caballero, 936 F.2d 1292 (D.C.Cir.1991), cert. denied, 502 U.S. 1061, 112 S.Ct. 943, 117 L.Ed.2d 113 (1992), to argue that section 3B1.2 does not supply the only route under the guidelines to a reduced sentence based on his minimal participation in the criminal conduct. But Caballero does not address whether section 3B1.2 constitutes the sole guideline provision by which a sentencing court can consider a defendant’s role in the offense. See Watson, 57 F.3d at 1096 (rejecting section 5K2.0 request because section 5K1.1 manifests adequate consideration of mitigating circumstance). Of course, an evaluation of role in the offense trader section 3B1.2 requires another “role" to which to compare the defendant’s. See USSG § 3B1.2, comment n. 1 (mitigating role adjustment “applies to a defendant who play a minimal role in concerted activity. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group.") (emphasis added). This point illustrates a second reason that Caballero does not aid Albritton. There, as the record makes clear, the defendant did not act alone. Caballero was arrested on a Greyhound bus when it arrived in the District of Columbia from New York. At the time of Caballero's arrest, the police also arrested a second passenger who, like Caballero, was carrying crack inside a Cheese Nips box. Supplemental Appendix at 2, Caballero (Nos. 90-3129, 90-3156). In Caballero, we concluded that the defendant could qualify for a section 3B1.2 adjustment so long as the evidence established that the "relevant conduct" involved more than one participant and that the defendant’s culpability was relatively minor. Caballero, 936 F.2d at 1299. Here, Albritton simply asserted that others were on the bus with him. App. at 149 ("He told the authorities in this case that the people that he was transporting the drugs for were there too.”). The district court declined to credit his unsupported claim, concluding that it did not “know anything about anybody else who was involved in this particular situation.” App. at 153.