United States v. Lancaster ( 2012 )


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  •                                                                   FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS         Tenth Circuit
    TENTH CIRCUIT                          September 19, 2012
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,                                No. 11-6097
    (D.C. No. 5:10-CR-00072-D-1)
    v.                                                          (W.D. Okla.)
    REGINALD A. LANCASTER,
    Defendant - Appellant.
    ORDER AND JUDGMENT*
    Before LUCERO, EBEL, and MATHESON, Circuit Judges.
    In this direct criminal appeal, Defendant-Appellant Reginald Lancaster challenges
    his four drug-trafficking convictions and the sentence imposed for those convictions.
    Having jurisdiction under 
    18 U.S.C. § 3742
     and 
    28 U.S.C. § 1291
    , we affirm.
    I. BACKGROUND
    Viewed in the light most favorable to the United States, see United States v. Diaz,
    
    679 F.3d 1183
    , 1187 (10th Cir. 2012), the evidence presented at trial established the
    following: Over the course of one year, police found Lancaster in possession of illegal
    * This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
    persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    drugs on three occasions. First, on August 15, 2008, officers conducting a traffic stop
    found Lancaster with 4.5 grams of cocaine base (“crack”). Second, on November 3,
    2008, Lancaster, loitering near a vacant house, had twenty-eight grams (one ounce) of
    marijuana, $237 in small bills and two cell phones. And third, on July 17, 2009, after a
    police officer saw what appeared to be a hand-to-hand drug transaction between
    Lancaster and another person, officers found Lancaster with 77.22 grams of marijuana
    which he admitted he intended to distribute.
    In addition to finding Lancaster in possession of drugs on these three occasions,
    police, acting pursuant to an authorized wiretap of drug dealer Gregory Boone, recorded
    a July 3, 2009, call between Boone and Lancaster. During that call, Lancaster attempted
    to buy marijuana from Boone.
    Based on these incidents, as well as additional information Boone provided against
    Lancaster, the United States indicted Lancaster on eleven drug-trafficking charges
    involving crack and marijuana. A jury convicted him of four of those charges:
    1) possessing, with the intent to distribute, five grams or more of crack on August 15,
    2008 (Count 1); 2) possessing marijuana, with the intent to distribute, on November 3,
    2008 (Count 3); 3) using a telephone, on July 3, 2009, to attempt to buy marijuana (Count
    10); and 4) possessing marijuana, with the intent to distribute, on July 17, 2009 (Count
    11). The district court sentenced Lancaster to 151 months in prison on Count 1, and sixty
    months in prison on each of Counts 3, 10, and 11, all to run concurrently. On appeal,
    Lancaster challenges all four convictions and his sentence.
    2
    II. LANCASTER’S CONVICTIONS
    A. There was sufficient evidence to support Lancaster’s conviction on Count 1
    Lancaster first argues that there was insufficient evidence to convict him on
    Count 1. We review this argument de novo. See Diaz, 
    679 F.3d at 1187
    .
    Count 1 charged Lancaster with possessing with the intent to distribute “5 grams
    or more of a mixture or substance containing a detectable amount of cocaine base
    (crack)” on August 15, 2008. (R. v. 1 at 13.) The jury convicted Lancaster of this
    charge, and specifically found that the offense involved “5 grams or more” of crack. (Id.
    at 117.) On appeal, Lancaster argues that 1) the evidence at trial established that he
    possessed only 4.5 grams of crack on that day; and 2) because the amount of crack
    charged in the indictment was an element of the offense which the United States failed to
    prove, the district court should have granted him a judgment of acquittal on Count 1.
    We assume, without deciding, that there was insufficient evidence to support the
    jury’s finding that Lancaster possessed five grams of crack on August 15.1 Nonetheless,
    because we conclude the amount of drugs charged in the indictment was not an essential
    element of the offense charged in Count 1, we affirm Lancaster’s conviction on that
    count.
    1
    The evidence at trial established that, when Lancaster ran from police, he threw away a
    bag containing 4.21 grams of crack. And at the county jail, after his apprehension and
    arrest, Lancaster had an additional .29 grams of crack in his pockets, for a total of 4.5
    grams of crack. Because we assume here that Lancaster possessed only these 4.5 grams
    of crack on August 15, 2008, we need not address the Government’s argument that there
    was other evidence presented at trial from which a jury could have inferred that Lancaster
    possessed at least another .5 grams of crack earlier that same day.
    3
    Count 1 charged Lancaster with possessing crack with the intent to distribute it, in
    violation of 
    21 U.S.C. § 841
    (a)(1). Section 841(a)(1) provides, in pertinent part, that “it
    shall be unlawful for any person knowingly or intentionally . . . to . . . possess with the
    intent to . . . distribute . . . a controlled substance.” The jury convicted Lancaster of that
    offense, finding as an initial matter that the offense involved at least a measurable amount
    of crack. There was sufficient evidence to support that conviction involving at least a
    measurable amount of crack, and Lancaster does not argue to the contrary.
    Lancaster’s conviction for possessing crack with the intent to distribute was
    subject to a three-tiered statutory sentencing scheme. See 
    21 U.S.C. §841
    (b). At the time
    Lancaster committed this offense, that sentencing scheme provided the following
    maximum penalties for a § 841(a) crack offense: an offense involving an indeterminate
    amount of crack was punishable by not more than twenty years in prison, id.
    § 841(b)(1)(C) (2009); an offense involving five grams or more of crack was punishable
    by not more than forty years in prison, see id. § 841(b)(1)(B)(iii) (2009); and an offense
    involving fifty grams or more of crack was punishable by up to life in prison, see id.
    § 841(b)(1)(A)(iii) (2009).2
    2
    After Lancaster’s offense, Congress, through the Fair Sentencing Act, revised 
    21 U.S.C. § 841
    (b)(1)(A)(iii) and (B)(iii), effective August 3, 2010, to provide for a sentence of
    between five and forty years in prison for an offense involving twenty-eight or more
    grams of crack, and a sentence of between ten years to life in prison for an offense
    involving 280 grams of crack. See Dorsey v. United States, 
    132 S. Ct. 2321
    , 2329
    (2012). Those revisions apply retroactively to someone in Lancaster’s position, who
    committed his offense before August 3, 2010, but was sentenced after that date. See 
    id. at 2326
     (addressing mandatory minimum sentences provided in § 841(b)(1)(A) and (B)).
    4
    “Drug quantity is an essential element [of a § 841(a) offense] only if the quantity
    triggers a sentence beyond the maximum allowed for the violation of the base § 841(a)(1)
    offense” involving only an indeterminate drug quantity under § 841(b)(1)(C). United
    States v. Caldwell, 
    589 F.3d 1323
    , 1333 (10th Cir. 2009) (emphasis added). “The
    corollary of this statement is that the quantity of drugs involved in a violation of § 841 is
    not an essential element of the offense if the district court imposes a sentence that does
    not exceed the maximum set forth in § 841(b)(1)(C), which does not require any
    minimum quantity as a predicate for sentencing.” United States v. Walters, 163 F. App’x
    674, 680 (10th Cir. 2006) (unpublished).
    Here, because the district court imposed a 151-month sentence, which fell within
    the twenty-year statutory maximum sentence available for a base § 841(a) offense
    involving an indeterminate amount of crack, drug quantity was not an essential element
    of Lancaster’s offense. Therefore, the Government’s failure to prove drug quantity to the
    jury beyond a reasonable doubt is of no moment in this case. See United States v.
    Wilson, 
    244 F.3d 1208
    , 1214-16 (10th Cir. 2001); see also United States v. Jordan, 428
    F. App’x 812, 817 (10th Cir. 2011) (unpublished) (upholding 210-month sentence where
    indictment charged offense under § 841(a)(1) and (b)(1)(A) involving five or more
    kilograms of a mixture containing cocaine, but the defendant, in his plea agreement,
    Those revisions, however, do not affect our discussion here because, assuming the
    Government failed to prove that Lancaster’s § 841(a) offense involved five grams or
    more of crack, he would not have been subject to an enhanced sentence under
    § 841(b)(1)(A) or (B), either before or after the Fair Sentencing Act’s enactment.
    5
    admitted to conduct involving only 3.5 to five kilograms of cocaine, where the sentence
    imposed did not exceed the maximum twenty-year sentence available under
    § 841(b)(1)(C) for an offense involving an indeterminate amount of cocaine).
    Further, the jury’s finding that Lancaster was guilty, under Count 1, of possessing
    a measurable amount of crack on August 15, 2008, with the intent to distribute it was not
    affected by the Government charging Lancaster in the indictment with a § 841(a) offense
    involving five grams or more of crack, and the jury finding (we are assuming improperly)
    that Lancaster’s offense involved five grams or more of crack. See Caldwell, 
    589 F.3d at 1333
    . The trial court instructed the jurors, without objection, that to convict Lancaster on
    Count 1, they had first to determine whether Lancaster possessed a measurable amount of
    crack on August 15, 2008, with the intent to distribute it. Only after convicting Lancaster
    of that offense did the jury then decide whether or not the offense involved five grams or
    more of crack.
    We, therefore, uphold Lancaster’s conviction on Count 1.
    B. Lancaster waived his challenge to the search underlying Count 11
    Lancaster next challenges his conviction on Count 11, which charged him with
    possessing 77.22 grams of marijuana on July 17, 2009. Lancaster contends that, because
    he never consented to the pat-down search that resulted in police finding the marijuana,
    that search was unconstitutional and the trial court should have suppressed the marijuana.
    Lancaster, however, never moved prior to trial to suppress this evidence, even
    though Fed. R. Crim. P. 12(b)(3)(C) requires a defendant to make a motion to suppress
    6
    evidence before trial. Failure to do so waives the issue, barring review. See Rule 12(e);
    United States v. Burke, 
    633 F.3d 984
    , 987-89 (10th Cir.), cert. denied, 
    131 S. Ct. 2130
    (2011).
    Lancaster acknowledged that his attorney did not challenge the constitutionality of
    this search before trial, but he asserts that defense counsel objected to the search during
    trial, which still preserved the issue for appellate review. Lancaster’s attorney, however,
    never specifically objected to the constitutionality of this search at trial, either.
    Even if counsel had specifically objected to the validity of the search during trial,
    however, that would still be insufficient to preserve this issue for appellate review. See
    Burke, 
    633 F.3d at
    988 & n.1 (rejecting prior Tenth Circuit cases permitting judicial
    review when a defendant failed to challenge a search prior to trial).
    Rule 12(e) does provides that, “[f]or good cause, the court may grant relief from
    the waiver,” but that is only “a single narrow exception to the waiver rule,” Burke, 
    633 F.3d at 988
     (internal quotation marks omitted). When, as here, a defendant raises a
    suppression issue for the first time on appeal, he can attempt to satisfy Rule 12(e) by
    showing “good cause” why he could not have raised the matter before the district court.
    See Burke, 
    633 F.3d at 988
    . But Lancaster never attempts to make such a showing,
    asserting instead that “[t]he reason why no motion to suppress was filed is unknown. It
    could have been that discovery materials had not described the situation adequately, or it
    could have been that Appellant’s trial counsel negligently failed to file an appropriate
    pleading.” (Aplt. Reply Br. at 19.) Lancaster has, therefore, waived his challenge to the
    7
    constitutionality of the pat-down search occurring on July 17, 2009. See Burke, 
    633 F.3d at 988
    .
    C. The district court did not err in admitting evidence referring to gangs and
    Lancaster’s gang membership
    Next, Lancaster asserts that all four of his convictions should be reversed because
    the district court erred in permitting the prosecution to elicit testimony referring to
    Lancaster’s gang membership. Lancaster contends the probative value of this gang
    evidence was outweighed by its unfair prejudice to him. See Fed. R. Evid. 403. But we
    conclude the trial court did not abuse its discretion in its treatment of this evidence. See
    United States v. Ford, 
    613 F.3d 1263
    , 1267 (10th Cir. 2010) (reviewing evidentiary ruling
    for an abuse of discretion).
    There were three categories of gang-related evidence presented at trial. First, two
    Government witnesses, police Sergeant Brian Cook and convicted drug dealer Gregory
    Boone, testified that Lancaster belonged to a gang. The trial court originally permitted
    this testimony under Fed. R. Evid. 404(b), based upon the Government’s assertion that
    this evidence was relevant to Lancaster’s identity, motive, intent, lack of mistake or
    accident, plan, and preparation. At the conclusion of the Government’s case, however,
    the district court sua sponte ruled that the United States had failed to show that this
    testimony that Lancaster was in a gang was relevant for these Rule 404(b) purposes. The
    district court, therefore, instructed jurors to disregard Cook’s and Boone’s testimony that
    Lancaster was in a gang. We presume that jurors followed the court’s instructions. See
    8
    United States v. Chavez, 
    481 F.3d 1274
    , 1278 (10th Cir. 2007).
    The second category of evidence that Lancaster was in a gang was his own
    testimony. The trial court, over Lancaster’s objection, permitted the Government, on
    cross-examination, to ask him about his offer to cooperate with police in exchange for
    lenient treatment. During that cross-examination, Lancaster denied that he was a Pitts
    Park Hoover Crip and stated that, in offering to cooperate with authorities, Lancaster told
    police that he did not want to provide any information about his friend, meaning Gregory
    Boone, but that he would “help” officers “with anything else.” (R. v. 4 trial tr. at 430-
    31.) The district court permitted this cross-examination after ruling the defense had
    opened the door to it by eliciting Lancaster’s direct testimony about his willingness to
    cooperate with police. At the conclusion of Lancaster’s testimony, the court, at defense
    counsel’s request, gave the jury a limiting instruction.3 And the court included a similar
    3
    The court instructed jurors as follows:
    Members of the jury, you’ve heard some references in testimony
    regarding Mr. Lancaster’s purported gang affiliation or knowledge of other
    purported gang members and their activities. You may consider that
    evidence only as it bears upon the – Mr. Lancaster’s credibility as a
    witness. And you may also consider it as it bears on Mr. Lancaster’s intent
    and knowledge in connection with the charged offenses. You may not
    consider that evidence for any other purpose than those.
    The fact that the – that Mr. Lancaster may have had knowledge of
    other gang members or may have had some purported gang affiliation does
    not necessarily mean that he has committed any of the offenses charged in
    this case.
    9
    limiting instruction in the final instructions given jurors before their deliberations.
    The third category of gang-related evidence admitted at trial included the
    following: Three Oklahoma City police officers testified that at the time they encountered
    Lancaster, they were working as part of an anti-gang project funded by a federal grant. A
    fourth officer testified that he had attended several gang investigators’ conferences. Still
    another officer testified that there was a lot of gang and drug activity in the area where he
    encountered Lancaster. The FBI case agent also testified that he worked with “gang
    enforcement units.” (Id. at 105-06, 126-27.)
    We conclude the district court did not abuse its discretion in its treatment of this
    evidence, considered separately or cumulatively. Even if the district court erred in its
    treatment of some of this evidence, which we conclude it did not, any error would have
    been harmless. See Caldwell, 
    589 F.3d at 1334
    . The evidence of Lancaster’s guilt on
    each of the four charges on which the jury convicted him was overwhelming. Further,
    we could not conclude that the gang-related evidence improperly swayed the jury to
    convict Lancaster in light of the fact that the jury acquitted him of seven of the eleven
    charged offenses. Cf. Bailey v. United States, 
    410 F.2d 1209
    , 1212, 1215 (10th Cir.
    1969) (noting jury’s decision to acquit two of five defendants showed jury remained
    impartial).
    This instruction does not alter the instruction I gave you yesterday
    when I struck portions of the testimony of Sergeant Cook or Mr. Boone.
    (R. v. 4 trial tr. at 443.)
    10
    III. LANCASTER’S SENTENCE
    Lastly, Lancaster challenges his 151-month sentence, arguing the district court
    clearly erred in finding that he was responsible for distributing nine ounces (252 grams)
    of crack. The district court then used that drug quantity to calculate Lancaster’s advisory
    sentencing guidelines range.4
    For sentencing purposes, the Government must prove drug quantity by a
    preponderance of the evidence. United States v. Foy, 
    641 F.3d 455
    , 468 (10th Cir.), cert.
    denied, 
    132 S. Ct. 467
     (2011). We review a sentencing court’s factual findings regarding
    drug quantities for clear error; we will reverse “only if the district court’s finding was
    without factual support in the record or we are left with the definite and firm conviction
    that a mistake has been made.” 
    Id.
    Where, as here, at least for the most part, “the actual drugs underlying a drug
    quantity determination are not seized, the trial court may rely upon an estimate to
    establish the defendant’s guideline offense level so long as the information relied upon
    has some basis of support in the facts of the particular case and bears sufficient indicia of
    reliability.” 
    Id.
     (internal quotation marks omitted). “‘When choosing between a number
    of plausible estimates of drug quantity, none of which is more likely than not the correct
    quantity, a court must err on the side of caution.’” United States v. Higgins, 
    282 F.3d 4
    Although Lancaster’s relevant conduct, for sentencing purpose, also involved
    marijuana, the parties agree that the amount of marijuana with which Lancaster was
    involved had a negligible impact on his sentence, and it is the amount of crack for which
    he is responsible that drove the determination of his offense level and the resulting
    advisory guideline range.
    11
    1261, 1280 (10th Cir. 2002) (quoting United States v. Richards, 
    27 F.3d 465
    , 469 (10th
    Cir. 1994)).
    In this case, the presentence report determined that, for sentencing purposes,
    Lancaster was responsible for distributing 61.75 ounces of crack. This was based on a
    statement Lancaster made to police in July 2009 indicating that he bought at least a half
    ounce of crack every other day from June 2008 through July 2009. That amount, 61.75
    ounces of crack, resulted in an offense level of 34, which produced an advisory guideline
    range of 188 to 235 months. Lancaster objected to this amount, and at sentencing, the
    district court found, instead, that it was “very probable” that Lancaster was responsible
    for distributing “somewhere between” nine and 61.75 ounces of crack. (R. v.4
    sentencing tr. at 142-43). “[E]rring on the side of caution,” however, the sentencing court
    ultimately found Lancaster responsible for nine ounces of crack. (Id. at 143-44.) That
    finding reduced Lancaster’s offense level to 30, and his advisory guideline range to 121
    to 151 months in prison. The district court then imposed a sentence at the top of that
    range, 151 months, for Count 1, and sixty months each for Counts 3, 10 and 11, all to run
    concurrently.
    The Government presented sufficient evidence to support the trial court’s finding,
    by a preponderance, that Lancaster’s relevant conduct involved nine ounces of crack. In
    particular, Gregory Boone testified at trial that he sold Lancaster a total of “at least” 4.5
    to nine ounces of crack. (Id. at 173.)
    Lancaster argues that the district court should not have relied on Boone’s
    12
    testimony because the jury clearly found his testimony to be incredible, in light of the fact
    that the jury acquitted Lancaster on the seven counts that were based solely on Boone’s
    uncorroborated testimony. But the sentencing court is not bound by the jury’s implicit
    credibility determinations. See United States v. Rhynes, 
    196 F.3d 207
    , 240 (4th Cir.
    1999), opinion vacated in part on other grounds, 
    218 F.3d 310
     (4th Cir. 2000). And the
    district court here expressly noted at sentencing that it did not “necessarily share th[e]
    [jury’s] apparent credibility determination” regarding Boone’s trial testimony. (R. v.4
    sentencing tr. at 142.)
    In any event, there was additional evidence that corroborated Boone’s testimony
    and that suggests that the trial court’s finding that Lancaster was responsible for nine
    ounces of crack was a conservative estimate. Boone further testified at trial that he
    believed that Lancaster had other, better crack suppliers, and that Lancaster would buy
    crack from Boone only when Lancaster was having trouble getting it from his other
    suppliers. And two Oklahoma City police officers testified that Lancaster himself told
    them that he bought drugs from several suppliers other than Boone. Moreover, according
    to these officers, Lancaster admitted to buying a half to a full ounce every other day for
    approximately one year. And at sentencing, Sylvia Moore, who had been detained in the
    same facility with Lancaster after his arrest, testified that Lancaster had a half ounce of
    crack with him in the facility, which he told Moore he was still selling to his customers.
    This evidence prompted the district court to note that it was “very probable” that
    Lancaster was responsible for distributing “somewhere between” nine and 61.75 ounces
    13
    of crack. (Id. at 142-43). Thus the district court, in finding that Lancaster was
    responsible for nine ounces of crack, properly erred on the side of caution.
    On appeal, Lancaster asserts numerous reasons why the sentencing court should
    not have believed either Boone’s trial testimony or his own. But we will defer to the
    district court’s credibility determinations. See United States v. Keeling, 
    235 F.3d 533
    ,
    535 (10th Cir. 2000). We, therefore, conclude the district court’s factual finding that, for
    sentencing purposes, Lancaster was responsible for distributing nine ounces of crack, was
    not clearly erroneous and, thus, uphold Lancaster’s 151-month sentence.5
    III. CONCLUSION
    For the foregoing reasons, we AFFIRM Lancaster’s four convictions and his 151-
    month sentence.
    ENTERED FOR THE COURT
    David M. Ebel
    Circuit Judge
    5
    In sentencing Lancaster, the district court deemed him subject to a mandatory minimum
    five-year sentence under 
    21 U.S.C. § 841
    (b)(1)(B), based on the jury’s finding that Count
    1 involved five grams or more of crack. But we have assumed, for purposes of this
    appeal, that the Government failed to prove that Count 1 involved that much crack.
    Further, the Supreme Court has held that the Fair Sentencing Act of 2010 applies
    retroactively to defendants like Lancaster. See Dorsey, 
    132 S. Ct. at 2326
    . That Act
    requires proof that the § 841(a) offense involved, not five, but twenty-eight grams or
    more of crack. See id. at 2329. For both of those reasons, then, Lancaster should not
    have been subjected to a mandatory minimum five-year sentence. Nonetheless, any error
    the sentencing court made in deeming a five-year mandatory minimum sentence to apply
    to Lancaster did not affect his sentence, because the district court imposed a 151-month
    sentence after correctly applying the sentencing guidelines.
    14