United States v. Marshall Lee Mitchell

366 F. App'x 6
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 10, 2010
Docket08-13458
StatusUnpublished
Cited by1 cases

This text of 366 F. App'x 6 (United States v. Marshall Lee Mitchell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Marshall Lee Mitchell, 366 F. App'x 6 (11th Cir. 2010).

Opinion

PER CURIAM:

Marshall Lee Mitchell appeals his convictions and sentence of 360 months of imprisonment for possession and conspiracy to possess with intent to distribute five grams or more of cocaine base. 21 U.S.C. *9 §§ 841(a)(1), 846. Mitchell challenges the denial of his motion to suppress; the sufficiency of the evidence; the denial of his pro se motions; the cumulative errors of an alleged discovery violation and improper closing arguments of the prosecutor; his classification as a career offender; and the enhancement of his sentence for possessing five grams or more of cocaine. We affirm Mitchell’s convictions, but we reverse the classification of Mitchell as a career offender based on his prior conviction for carrying a concealed firearm. We vacate Mitchell’s sentence and we remand for the district court to resentence him.

I. BACKGROUND

We divide our discussion of the background into three parts. First, we discuss the investigation that led to the charges against Mitchell and his pretrial motions. Second, we discuss Mitchell’s trial. Third, we discuss Mitchell’s posttrial motions and his sentence.

A. The Investigation and Charges Against Mitchell and His Pretrial Motions

On August 16, 2007, Detective Richard Voss of the Sheriffs Office of Okeechobee County, Florida, stopped Lance Jensen for a traffic violation. During the stop, an officer discovered on Jensen a piece of crack cocaine, and Jensen told Detectives Voss and Snyder that he had purchased the cocaine from Mitchell. Jensen gave the officers specific details about previous transactions with Mitchell: at 3:00 a.m. Jensen had purchased crack cocaine from Mitchell for $20; at 5:00 p.m. the previous day, Jensen had bought a piece of crack cocaine from Mitchell for $100; and Jensen had purchased crack cocaine from Mitchell on several other occasions. Jensen stated that the transactions occurred at an apartment that Mitchell rented from another individual, and Jensen guided Voss and Snyder to that apartment. Jensen described the interior of the apartment and he told the officers that a week earlier he had observed a plastic bag of crack cocaine on a dresser.

Detective Voss obtained a warrant to search Mitchell’s apartment. The affidavit in support of the warrant described the location of Mitchell’s apartment, its distinguishing characteristics, and the evidence sought to be seized. The affidavit recited Jensen’s statements about his transactions with Mitchell, his observations in the apartment, and Mitchell’s use of the apartment:

On August 16th, 2007, I, Detective Richard T. Voss, spoke with W/M Lance Christopher Jensen DOB: 10-10-64. Jensen agreed to provide information containing the sell and manufacture of cocaine in the Douglas Park area. Jensen stated large amounts of cocaine could be located in the above-described apartment. Jensen then escorted law enforcement to the area and pointed out the above-described apartment. Jensen stated he witnessed the cocaine inside the apartment on August 15th 2007 at approximately 1700 hours when he (Jensen) bought a $100.00 piece of crack cocaine from black male Marshall Lee Mitchell DOB: 01-14-59. Jensen also stated on this date (August 16th 2007) he purchased a $20.00 piece of crack cocaine from the same above mentioned apartment and purchased the crack cocaine from the same person, black male Marshall Lee Mitchell. Jensen stated approximately one week before today’s date of August 16th 2007, he (Jensen) was inside the apartment and saw approximately one ounce of crack cocaine inside a clear plastic baggy. This crack cocaine was located on top of a dresser inside the room. Jensen stated that *10 Marshall Lee Mitchell rents that apartment and has rented the apartment for some time. Jensen stated he has purchased crack cocaine from the above mention [sic] apartment for a while and Mitchell has sold the crack cocaine to him on those occasions.
As stated earlier, Jensen advised he purchased crack cocaine from Marshall Mitchell as early as 0300 hours on this date (8-16-07).

Voss, accompanied by Corporal Chris Hans and Detective Fred Bradley of the Sheriffs Office of Okeechobee County, and Agent Nick Kent of the Drug Enforcement Agency, executed the warrant. The officers announced their presence, but were forced to break through a reinforcement bar to enter the apartment. Once inside, the officers discovered Mitchell and Latri-sha Watkins Hunt in the bathroom, where there was water standing on the floor and cocaine lying in plain view on a counter, the floor, and a shower. Officers removed from the toilet a plastic bag of white powder, eight small plastic bags, a razor, and a glass smoking device, and officers discovered two fragments of a smoking device in the septic tank. Officers also seized from the bathroom a glass measuring cup, a plastic dish and spoons with white residue, and an open box of baking soda. The white powder substance and residue scraped from the spoons tested positive for cocaine.

In other areas of the apartment, officers discovered more drugs, other paraphernalia related to the manufacture and distribution of crack cocaine, and evidence that connected Mitchell to the apartment. Officers discovered a white substance that tested positive for the presence of cocaine on the coffee table, and they seized from different rooms a 100-gram metal weight, a day planner, a jewelry box containing plastic bags, a small knife, and a microwave and razor that had white residue. In a bedroom, officers found briefcases and pieces of mail addressed to Mitchell, a small digital scale under the bed, and clothing for men and women inside the closet. Inside a wallet, officers discovered three receipts for rent paid to Odell Bryant.

The substances and objects inside the apartment tested positive for cocaine base. Forensic testing established that four rock-like objects contained cocaine and weighed 1.6 grams, 2.4 grams, 2.5 grams and .1 gram. Both the microwave and the glass measuring cup contained cocaine residue.

Mitchell and Hunt were indicted for conspiracy to possess with intent to distribute five grams or more of cocaine base, 21 U.S.C. §§ 841(a)(1), 846, and possession with intent to distribute five grams or more of cocaine base, id. § § 841(a)(1); 18 U.S.C. § 2. The government later moved to enhance Mitchell’s sentence based on his prior convictions for the sale and possession for sale of cocaine and possession of a concealed firearm. Hunt later pleaded guilty to conspiracy to distribute five grams of more of cocaine base. 21 U.S.C. §§ 841(a)(1), 846.

The government moved to introduce evidence about Mitchell’s prior drug convictions. See Fed.R.Evid. 404(b). At a hearing, the district court said it might admit the evidence if Mitchell denied knowledge about the drugs. The court said it would rule on the motion “at the appropriate time.”

Mitchell moved to suppress the evidence seized from the apartment.

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Related

United States v. Marshall Lee Mitchell
419 F. App'x 907 (Eleventh Circuit, 2011)

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Bluebook (online)
366 F. App'x 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marshall-lee-mitchell-ca11-2010.