United States v. Pena (Sims, Muhammad & Sadio)

520 F. App'x 31
CourtCourt of Appeals for the Second Circuit
DecidedApril 10, 2013
Docket12-206-cr(L), 12-208-cr(con), 12-259-cr(con)
StatusUnpublished
Cited by2 cases

This text of 520 F. App'x 31 (United States v. Pena (Sims, Muhammad & Sadio)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Pena (Sims, Muhammad & Sadio), 520 F. App'x 31 (2d Cir. 2013).

Opinion

*34 Defendants-Appellants Kevin Sims, Lut Muhammad, and Okeiba Sadio appeal from their judgments of conviction entered on January 11, 2012. Sims, Muhammad, and Sadio were indicted on December 2, 2009 on various narcotics charges related to a cocaine base — or “crack” cocaine — conspiracy led by twin Bronx residents William and Wilson Pena. Sims pleaded guilty to one count of conspiracy to possess with intent to distribute, and to distribute, 5 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and the District Court imposed a sentence principally of 120 months’ imprisonment and five years of supervised release. Muhammad pleaded guilty to eleven counts, including conspiracy to possess with intent to distribute, and to distribute, 50 grams or more of cocaine base. He was convicted of violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 851 and sentenced to concurrent terms of 240 months’ imprisonment, followed by eight years of supervised release. After trial, a jury convicted Sadio of two counts: conspiracy to possess with intent to distribute, and to distribute, 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846, and possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The District Court sentenced Sadio to concurrent terms of 240 months’ imprisonment, followed by eight years of supervised release. We assume the parties’ familiarity with the facts and record of the prior proceedings, to which we refer only as necessary to explain our decision to affirm.

1. Kevin Sims

Sims purchased crack cocaine from other members of the conspiracy, including Muhammad and co-defendant Emmanuel Tyson, and sold some of it to support his drug addiction. Sims appeals his sentence on two grounds. First, he argues that the District Court erroneously attributed more than 112 grams of crack cocaine to him. Second, Sims argues that the District Court unreasonably failed to consider his mental illness and drug dependency as mitigating factors. We address each argument in turn.

a. Drug Quantity

“A Sentencing Guidelines calculation must begin with an identification of the defendant’s relevant conduct, which in the case of a drug ... offense includes the quantity of drugs controlled by the defendant. ...” United States v. Jones, 531 F.3d 163, 174-75 (2d Cir.2008). “The quantity of drugs attributable to a defendant is a question of fact,” which we review for clear error. Id. at 175-76. Where drugs were not seized from the defendant, “the court shall approximate the quantity of the controlled substance,” U.S.S.G. § 2D1.1 app. n. 5, based on a preponderance of the evidence, id. at § 6A1.3. “To sustain quantity-based enhancements for relevant conduct, the court must base its findings on ‘specific evidence’ ” —which can be circumstantial — such as “drug records, admissions or live testimony.” United States v. Archer, 671 F.3d 149, 162 (2d Cir.2011).

The District Court held an evidentiary hearing to determine the quantity of cocaine base attributable to Sims. At that hearing, Emmanuel Tyson testified that he sold one to two grams of crack cocaine to Sims two to three times per week, from July 2009 to November 2009. The District Court found Tyson credible and, based on that range of quantities and frequencies, calculated that in a 20-week period, Tyson sold Sims 75 to 80 grams of crack cocaine. Wiretap evidence revealed that between September 24, 2009, and November 3, 2009, Sims purchased crack cocaine from Lut Muhammad two or three times a week *35 in quantities ranging from two to five grams. The District Court reasoned that Sims purchased an estimated 70 to 74 grams of cocaine base from Muhammad. The court then estimated that Sims bought a total of 145 to 154 grams of crack cocaine from Tyson and Muhammad. As an offender responsible for between 112 and 196 grams of cocaine base, Sims’s base offense level was 28, yielding a Guidelines range of 120 to 150 months’ imprisonment. See U.S.S.G. § 2Dl.l(c)(6).

Sims asserts that the District Court erred by relying on Tyson’s testimony at the hearing, as Tyson previously stated that Sims purchased drugs from him only eight or nine times, and his statements at the hearing with regard to the number of sales were somewhat contradictory. Sims also argues that the District Court should have discounted Tyson’s testimony because Tyson was a drug abuser with an extensive criminal record. “[Cjredibility determinations are the province of the trial judges, and should not be overruled on appeal unless clearly erroneous.” United States v. Yousef, 827 F.3d 56, 124 (2d Cir.2003) (quotation marks omitted). At the hearing, Tyson clarified that when he previously stated that he sold crack to Sims eight or nine times, he may have believed the question referred to a single month. Tyson otherwise consistently stated that he dealt with Sims approximately two or three times per week. It was within the court’s province to determine that Tyson’s estimate of the number of sales per week more accurately represented the number of times Tyson sold narcotics to Sims. Our own review of the transcript of Tyson’s testimony supports the District Court’s conclusion that Tyson was a witness who “knew his business well and was able to explain how it operated clearly.” Accordingly, we reject Sims’s argument that the District Court erred by crediting and relying on Tyson’s testimony to determine the quantity of cocaine base attributable to Sims.

Similarly we reject Sims’s argument that the District Court’s estimate of drug quantity was not reliable and conservative, as it should have accounted for the possibility that Tyson sold to Sims only eight or nine times. “[Gjiven the wide latitude of the district court to make credibility determinations, the court is not restricted to accepting the low end of a quantity range estimated by a witness.” United States v. Blount, 291 F.3d 201, 215 (2d Cir.2002) (citation omitted). With that principle in mind, we conclude that the District Court was free to credit only Tyson’s testimony at the hearing that he sold to Sims two to three times a week.

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Cite This Page — Counsel Stack

Bluebook (online)
520 F. App'x 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pena-sims-muhammad-sadio-ca2-2013.