United States v. Martin

24 F. App'x 504
Court of Appeals for the Sixth Circuit·Decided December 18, 2001·No. Nos. 99-2173, 00-1066·Published·Cited by 1 cases

Opinion

COLLIER, District Judge.

On May 27, 1998, Defendant-Appellant Larry Martin was indicted by a grand jury sitting in the Eastern District of Michigan [507]*507for possession with intent to distribute marijuana, maintaining a continuing criminal enterprise, and laundering money. In January 1999 the case proceeded to trial in front of a jury with Judge Gerald Rosen presiding. The jury convicted Martin on all counts, and he was sentenced by the district court to a 293-month term of imprisonment. He appeals his conviction and sentence to this Court.

On June 16, 1998, Appellant-Defendant Clifford Price was indicted for conspiracy to distribute marijuana for his role in Martin’s drug operation. Price pleaded guilty to the charge and was sentenced on October 4,1999. At the sentencing hearing the district court applied a sentence enhancement for obstruction of justice for statements made by Price at his suppression hearing. Price now appeals the application of the enhancement.

For the reasons set forth below, we AFFIRM Martin’s conviction and sentence and Price’s sentence.

I. BACKGROUND

Larry Martin and co-conspirator, Kwesi Karamoko, operated a large marijuana growing and distribution organization in the Detroit metropolitan area over a 12-year period. Karamoko would purchase real estate to be used for the growing, storing, and distribution of the marijuana. Martin headed the manufacturing and distribution of the marijuana. To facilitate the enterprise Martin and Karamoko formed the Sankofa Corporation which they then used to launder money and purchase and lease real estate for the purposes of their criminal enterprise.

On May 24, 1995, as part of the government’s investigation of the criminal enterprise, police officers followed Martin to one of the buildings used in the marijuana operation. They saw him enter with empty hands and leave with a large trash bag. The officers had seen Martin do this on several occasions and decided this time to follow him. While pursuing Martin on the expressway, the officers saw Martin weaving between lanes. They also saw him lighting what they thought was a marijuana cigarette. The officers pulled Martin over and arrested him. They found several pounds of marijuana in the car and based on this evidence obtained search warrants for other buildings that were part of the criminal enterprise.

In executing a warrant for one of the buildings involved in the operation, police officers encountered Clifford Price. Price acted as a caretaker for the multilevel apartment building. The building had been converted into a massive indoor marijuana growing site. Price lived in one of the apartments and was responsible for maintaining the elaborate lighting and watering system necessary for the marijuana growing operation. When the police conducted the search, they found schematic drawings of the electric system in Price’s apartment. Price was arrested at the time of the search.

Price moved to have inculpatory statements he made at the time of his arrest suppressed. He claimed he did not receive warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), until he reached the police station. Two police officers and Price testified at the suppression hearing. The officers testified that while executing the search warrant, Price stated he was a master electrician and he had wired the apartment building for the “marijuana factory.” Both officers testified Price was advised of his Miranda rights immediately after he was arrested. Price testified after the officers and denied he had been advised of his Miranda rights until he had been transported to the station. He also [508]*508denied telling the officers he was a master electrician or that he had been involved in wiring for the marijuana growing operation.

The district court denied Price’s motion to suppress because it did not find Price’s statements credible. Particularly he found Price’s testimony less than credible concerning his role in the wiring of the building. At the sentencing hearing, the district court relied on Price’s testimony at the suppression hearing that contradicted the statements of the arresting officers in deciding to give Price a two point enhancement for obstruction of justice.

II. DISCUSSION

A. Martin’s Appeal

1. Apprendi Error

In his first argument on appeal, Martin contends his conviction must be vacated in light of Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because the Government did not include drug amounts in Martin’s indictment and the jury made no findings on the issue of drug quantity. Martin, however, did not object to the faulty jury instruction and so we review for plain error only. In order to establish plain error a defendant must establish (1) an error, (2) that is plain, and (3) that affects substantial rights. United States v. Page, 232 F.3d 536, 543 (6th Cir.2000), cert. denied, — U.S. —, 121 S.Ct. 1389, 149 L.Ed.2d 312 (2001).

The Government concedes the first two elements of the plain error standard are met in light of Apprendi. It contends, however, the third element is not met because Martin’s total sentence would be the same as the district court originally imposed, regardless of the error.

The district court sentenced Martin to a 293-month term of imprisonment for his drug conviction. The length of the sentence was determined by the drug quantity ascribed by the district court to Martin under a preponderance of the evidence standard. Martin was also sentenced to several concurrent 240-month terms of imprisonment for his money laundering counts. See 18 U.S.C. § 1956. Under United States Sentencing Guidelines, Guidelines Manual, § 5G1.2(d) (Nov. 1998), a district court is required to impose consecutive sentences to the extent necessary to achieve the total punishment. United States Sentencing Guidelines, Guidelines Manual, § 5G1.2(d) (Nov. 1998). As we recently explained in an unpublished decision “ ‘total punishment’ [is] the maximum sentence under the guidelines for the quantity of drugs determined by the judge by a preponderance of the evidence.” United States v. Alcorn, No. 99-6565, 2001 WL 1132681, at *3 (6th Cir. Sept. 4, 2001). Thus, a defendant’s sentences would be consecutive up to the maximum sentence under the guidelines for the quantity of drugs ascribed to the defendant.

In this case the district court had the authority under the Sentencing Guidelines to sentence Martin consecutively up to the upper limit of the drug amount guideline range. Absent the error, Martin’s sentences would have been the same as that which was imposed. Accordingly, a remand is not required Page, 232 F.3d at 545.

2. Lack of Probable Cause or Reasonable Suspicion

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United States v. Martin, 24 F. App'x 504 (6th Cir. 2001).

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