United States v. Tawanne Lucas

193 F. App'x 844
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 9, 2006
Docket05-14714, 05-14715
StatusUnpublished
Cited by1 cases

This text of 193 F. App'x 844 (United States v. Tawanne Lucas) 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. Tawanne Lucas, 193 F. App'x 844 (11th Cir. 2006).

Opinion

PER CURIAM:

Tawanne Lucas appeals his 210-month sentence for possession with intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), arguing that (1) the district court clearly erred in determining the drug quantity attributable to him, (2) the district court erred by failing to apply the beyond-a-reasonable-doubt standard of proof in resolving contested facts at sentencing, and (3) the district court clearly erred when it applied a two-level enhancement for possession of a firearm in connection with a drug offense pursuant to U.S.S.G. § 201.1(b)(1). 1

We are not persuaded by Lucas’s arguments, and we affirm the district court’s sentence.

I.

First, Lucas argues that the district court clearly erred in determining the drug quantity attributable to him by relying on the testimony of Antonio Law, who provided inconsistent testimony as to the number of times he sold cocaine to Lucas and the amount of cocaine he sold during each transaction. We review a district court’s determination of drug quantity under § 2D1.1(c) for clear error. United States v. Ryan, 289 F.3d 1339, 1347 (11th Cir.2002). “When a defendant challenges one of the factual bases of his sentence, as set forth in the PS[I], the Government has the burden of establishing the disputed fact by a preponderance of the evidence.” United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir.1995). The standards for reviewing the application of the Guidelines before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), *846 apply after Booker as well. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005). “A sentencing court under Booker still must calculate the Guidelines, and, such consideration necessarily requires the sentencing court to calculate the Guidelines sentencing range in the same manner as before Booker. ” Id. at 1178-79. We give great deference to a district court’s assessment of evidence and the credibility of witnesses. United States v. Lee, 68 F.3d 1267, 1276 (11th Cir.1995). Section 2Dl.l(c)(2) provides that a defendant who is responsible for 50 kilograms but less than 150 kilograms of powder cocaine or 500 grams but less than 1.5 kilograms of crack cocaine shall have a base offense level of 36. U.S.S.G. § 2D1.1(c)(2).

Lucas argues that Law’s testimony was not credible because Law was inconsistent in calculating how much cocaine powder he had sold to Lucas. Law first stated to a DEA agent (who also testified at the sentencing hearing) that he was involved in about 100 transactions to Lucas (1 per week over the course of 2 years), he then impliedly testified that he sold Lucas cocaine over 200 times (2 to 3 transactions per week over 2 years), then again testified during the same proceeding that he was only involved in 20 transactions. Law also provided differing accounts as to the amount of cocaine sold during each transaction; the accounts varied from one to three ounces.

Lucas argues that the district court did not calculate the cocaine quantity cautiously, as required by the law of this Circuit. See United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir.1998). However, based on Law’s testimony, the most conservative estimate would be 20 ounces (20 transactions at 1 ounce per transaction). 2 Twenty ounces (567 grams) would exceed the 500 gram threshold. We cannot conclude that the district court clearly erred in finding that at least a half kilogram was involved. Accordingly, we hold that the district court did not clearly err in finding that Lucas’s drug quantity was over 500 grams for sentencing purposes.

Alternatively, Lucas argues that the district court erred in attributing to him 500 grams of crack cocaine, when the witness Law testified that he sold Lucas powder cocaine. Law, however, testified that Lucas converted the powder cocaine into crack cocaine. Law claimed to have seen the crack cocaine on about 10 occasions. Law testified that he never saw Lucas sell powder cocaine and only knew Lucas to sell crack. Finally, Special Agent Todd Hixson testified that a quantity of powder cocaine converts approximately to the same amount of crack cocaine. Therefore, the powder cocaine from Law would convert into at least 500 grams of crack cocaine. Accordingly, we hold that the district court did not err in attributing 500 grams of crack cocaine to Lucas.

II.

Next, Lucas argues that the district court erred in resolving factual disputes at his sentencing hearing under the preponderance of the evidence standard of proof, instead of under a beyond a reasonable doubt standard of proof. The parties dispute whether Lucas properly objected to the standard of proof in the district court. We will not decide this issue be *847 cause, even if Lucas properly objected, his claim fails.

When the district court applies the guideline range in an advisory manner, nothing in Booker prohibits district courts from making, under a preponderance of the evidence standard, additional factual findings that go beyond a defendant’s admission. See United States v. Ndiaye, 434 F.3d 1270, 1300-01 (11th Cir.2006); United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir.2005); United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir.2005). As we “have explained, ‘all nine [justices] agreed that the use of extra-verdict enhancements in an advisory guidelines system is not unconstitutional.’ ” Chau, 426 F.3d at 1323 (quoting Rodriguez, 398 F.3d at 1301 (11th Cir.2005)). Further, “the district court’s factual findings for purposes of sentencing may be based on, among other things, evidence heard during trial, undisputed statements in the PSI, or evidence presented during the sentencing hearing.” United States v. Polar, 369 F.3d 1248, 1255 (11th Cir.2004).

We have continually recognized the district court’s authority to resolve factual disputes under the preponderance of the evidence standard of proof under advisory guidelines. Accordingly, Lucas’s Booker argument is without merit.

III.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Morris
784 F.3d 870 (First Circuit, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
193 F. App'x 844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tawanne-lucas-ca11-2006.