United States v. Stallings

194 F. App'x 827
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 7, 2006
DocketNos. 03-11905, 03-12620, 04-10882
StatusPublished
Cited by1 cases

This text of 194 F. App'x 827 (United States v. Stallings) 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. Stallings, 194 F. App'x 827 (11th Cir. 2006).

Opinion

PER CURIAM:

This appeal stems from a complicated criminal drug conspiracy centered in Atlanta, Georgia. In January 2002, a grand jury returned an indictment charging more than twenty defendants in a conspiracy involving cocaine hydrochloride and heroin. Six defendants are before us on appeal. These six defendants initially entered pleas of not guilty; one later changed his plea. The district court sentenced all the defendants to varying prison sentences, which they timely appealed. We consider defendant Walter Dean Johnson’s argument that the district court erred in enhancing his sentence for possession of a firearm under U.S.S.G. § 2Dl.l(b)(l) in a separate published opinion. United States v. Stallings et al., 463 F.3d 1218 (11th Cir.2006).

Neyaunteu Stallings appeals his 240-month sentence imposed following a jury verdict finding him guilty of conspiracy to possess with intent to distribute at least 5 kilograms of cocaine in violation of 21 U.S.C. §§ 841 (b)(1)(A)(ii) and 846 (Count 1) and distribution of cocaine hydrochloride (Count 12). Milton Lucas appeals his 235-month sentence imposed following a jury verdict finding him guilty of conspiracy to possess with intent to distribute at least 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(l)(A)(ii) (Count 1). Richard Allen Hepburn appeals his 120-month sentence imposed following (1) his conviction by a jury of conspiracy to possess with intent to distribute at least 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(l)(A)(ii) and 846 (Count 1); and (2) his plea of guilty to conspiracy to possess with intent to distribute at least 100 grams of heroin, in violation of 21 U.S.C. §§ 841(b)(1)(B)(ii) and 846, and distribution of at least 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(i) (Counts 16 and 17). Johnson appeals his 168-month sentence imposed following his conviction by a jury of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) [831]*831(Count 1). Eusebio Phelps appeals his 70-month sentence imposed following his plea of guilty to two counts of distribution of cocaine, both in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts 9 and 11). Alex Session appeals his 324-month sentence imposed following a jury verdict finding him guilty of conspiracy to possess with intent to distribute at least 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii) and 846 (Count 1).

Stallings, Lucas and Session argue that the evidence produced at trial was insufficient to support convictions for the single conspiracy charged in the indictment. Johnson, Lucas and Session argue that the evidence produced at trial was insufficient to support their convictions. Lucas argues that the district court erred (1) in determining the amount of drugs for sentencing purposes attributable to him, and (2) in sentencing him under the federal sentencing guidelines in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by basing his sentence upon a drug amount that was not determined by a jury or admitted by him. Hepburn argues that the district court erred in sentencing him because he was not afforded an opportunity to be interviewed by the government prior to sentencing in an attempt to meet the criteria of U.S.S.G. § 5C1.2 (“safety valve”). Johnson argues that the district court clearly erred in enhancing his sentence for obstruction of justice under U.S.S.G. § 3C1.1, and for possession of a weapon under U.S.S.G. § 2Dl.l(b)(l) (we consider the latter argument in a separate, published opinion). Phelps argues that the district court plainly erred in sentencing him under the federal sentencing guidelines in light of Booker, 543 U.S. at 244, 125 S.Ct. 738 based upon distribution of 5 to 15 kilograms of cocaine and that the district court’s contradictory information regarding his potential period of supervised release constitutes a breach of his plea agreement. Session argues that the district court plainly erred in sentencing him under the federal sentencing guidelines in light of Booker, 543 U.S. at 244, 125 S.Ct. 738 by basing his sentence upon a drug amount that was not determined by a jury or admitted by him, by enhancing his sentence under U.S.S.G. § 2Dl.l(b)(l), for possession of a firearm and by increasing his sentence under U.S.S.G. § 3C1.1, for obstruction of justice. Session also argues that the district court clearly erred by denying his request for a minor role reduction under U.S.S.G. § 3B1.2.

I. FATAL VARIANCE

The first issue we consider is whether the evidence that the government introduced at trial was sufficient to support convictions for the single conspiracy charged in the indictment. Stallings, Lucas and Session argue that their convictions must be overturned because the evidence proved multiple, unrelated conspiracies to distribute narcotics rather than one single conspiracy. The evidence, they argue, constitutes a fatal variance from the indictment, which must therefore invalidate their convictions.

Claims of a fatal variance are treated as attacks on the sufficiency of the evidence. E.g., United States v. Plotke, 725 F.2d 1303, 1308 (11th Cir.1984). In reviewing this issue, this Court views the evidence in the light most favorable to the government and considers whether a reasonable jury could have determined beyond a reasonable doubt that a single conspiracy existed. United States v. Calderon, 127 F.3d 1314, 1327 (11th Cir.1997). To determine whether a jury could have found that a single conspiracy existed, we review (1) whether a common goal existed; (2) the nature of the underlying scheme; and (3) [832]*832whether the participants in the alleged multiple schemes overlapped. Id.

Although this conspiracy is complicated, it is plain that the parties shared at least one common goal sufficient to satisfy the first factor of the single-conspiracy test: the distribution of cocaine in northwest Atlanta. Id.; United States v. Adams, 1 F.3d 1566, 1583-84 (11th Cir. 1993) (holding that the “common goal” inquiry was satisfied by the common crime of importing marijuana); United States v. Jones, 913 F.2d 1552, 1560-61 (11th Cir. 1990) (holding that the “common goal” inquiry was satisfied by the common crime of importing cocaine); United States v. Khoury, 901 F.2d 948, 956-57 (11th Cir. 1990) (holding that the “common goal” inquiry was satisfied by the common crime of importing methaqualone).

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194 F. App'x 827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stallings-ca11-2006.