United States v. Clement McDowell , 348 F. App'x 455 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10645 ELEVENTH CIRCUIT
OCTOBER 5, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00065-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLEMENT MCDOWELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 5, 2009)
Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Clement McDowell appeals his conviction and 96-month sentence for drug
trafficking, in violation of 21 U.S.C. § 841(a)(1). No reversible error has been
shown; we affirm.
McDowell argues that insufficient evidence existed to convict him. Where,
as here, a defendant fails to move for a judgment of acquittal at the close of all the
evidence, “we will reverse his conviction[] only to prevent a manifest miscarriage
of justice.” United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006).
“This standard requires a finding that the evidence on a key element of the offense
is so tenuous that a conviction would be shocking.” Id. (quotation omitted). To
support a conviction for possession with intent to distribute under section
841(a)(1), the government had to establish (1) knowledge of possession; (2)
possession of a controlled substance; and (3) intent to distribute. United States v.
Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008).
Here, testimony -- which was corroborated by a recorded conversation and
video surveillance -- showed that (1) a confidential informant (CI) called
McDowell about purchasing $500 worth of crack cocaine; (2) McDowell met the
CI at the CI’s residence (which was being surveilled by a police officer) with a
2
cooler; (3) McDowell allowed the CI to look through the cooler, which had drugs
in it; (4) the CI gave McDowell money with one hand and received two plastic
baggies in the other; and (5) after the transaction, the CI gave the police officer
surveilling the transaction the crack cocaine he had just purchased. This evidence
plainly was sufficient for a jury to find McDowell guilty of drug trafficking; and
we conclude that his conviction was not a manifest miscarriage of justice.
None of McDowell’s appellate arguments negate that the evidence
sufficiently showed that he sold drugs to the CI. His arguments focus on other
possible constructions of the evidence and the credibility of the CI. But the
evidence need not exclude every reasonable hypothesis of innocence, and jurors
are free to choose among reasonable constructions of the evidence. United States
v. Mattos, 74 F.3d 1197, 1199-1200 (11th Cir. 1996). And all inferences and
credibility determinations must be resolved in favor of the jury’s verdict. United
States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998).
We now address McDowell’s challenges to his sentence. He argues that his
sentence -- which was 39 months below the low end of the applicable guidelines
range -- is unreasonable because of several alleged guideline calculation errors.
When reviewing a sentence, we must, in pertinent part, ensure that no procedural
error occurred, such as the district court improperly calculating the guidelines,
3
basing a sentence on clearly erroneous facts, failing to consider the 18 U.S.C.
§ 3553(a) factors, or failing to explain a variation from the guidelines. United
States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). We review “the district
court’s application of the sentencing guidelines de novo and its finding of fact for
clear error.” United States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005).
McDowell argues that his base offense level should have been based on a
lower drug quantity. He contends that only the purity of the crack cocaine from the
transaction with the CI -- not its entire weight -- should be attributed to him and
that the district court should not have included the additional crack cocaine
“cookie” observed by the CI in McDowell’s cooler because his possession of it
was not proved beyond a reasonable doubt.
The district court committed no clear error in concluding that McDowell was
responsible for at least 35 grams of crack cocaine.1 Contrary to McDowell’s
argument that only the pure weight of the cocaine should be considered, the
guidelines provide that “the weight of a controlled substance . . . refers to the entire
weight of any mixture or substance containing a detectable amount of the
controlled substance.” U.S.S.G. § 2D1.1 n.A. And the government was not
1
This amount came from the transaction with the CI, the additional crack cocaine cookie
observed by the CI, and 21 grams of crack cocaine from a dismissed count. McDowell does not
challenge the crack cocaine from the dismissed count.
4
required to prove McDowell’s possession of the additional crack cocaine cookie
beyond a reasonable doubt. See United States v. Rodriguez, 398 F.3d 1291, 1296
(11th Cir. 2005) (when a defendant objects to a fact determination, such as drug
quantity, “the government bears the burden establishing the disputed fact by a
preponderance of the evidence”).
And we conclude that the CI’s approximation of the weight of the additional
cookie was sufficiently accurate. See United States v. Zapata, 139 F.3d 1355, 1359
(11th Cir. 1998) (sentencing cannot be based on calculations of drug quantities that
are merely speculative). The CI -- who previously had been convicted of selling
cocaine -- testified that the cookie weighed approximately 14 grams. McDowell
also testified that there were a couple of bags of crack cocaine at the scene of the
transaction. And the district court determined that the cookie had to weigh only
4.7 grams to reach the 35-gram cutoff for sentencing purposes. See U.S.S.G. §
2D1.1(c)(6).
McDowell argues that he should not have been given an obstruction of
justice enhancement based on perjured testimony at trial because he did not
willfully provide untruthful information; instead, he submits, his testimony was the
product of confusion and faulty memory. We disagree. Obstruction of justice
occurs -- and a two-level enhancement applies -- when, among other things, a
5
defendant provides “materially false information to a judge.” U.S.S.G. § 3C1.1,
comment. (n.4(f)). Material evidence is “evidence, fact, statement, or information
that, if believed, would tend to influence or affect the issue under determination.”
U.S.S.G. § 3C1.1, comment. (n.6).
At trial, McDowell testified that he went to the CI’s house with an empty
cooler to purchase drugs for his own personal use. This testimony was belied by
the video of the transaction and the testimony of police officers and the CI; and the
testimony was material on the issue of whether McDowell trafficked in drugs.
Nothing evidences that McDowell’s testimony was based on confusion, mistake, or
faulty memory; and we see no clear error in the district court’s application of the
obstruction of justice enhancment.2
McDowell challenges the district court’s refusal to grant him a downward
departure based on diminished capacity, U.S.S.G. § 5K2.13. But the district court
did not believe that it lacked authority to grant McDowell a downward departure
on this basis, and we cannot review the district court’s refusal to grant the
departure. See United States v. Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003) (a
2
We reject McDowell’s argument -- raised for the first time on appeal -- that he was
entitled to an acceptance of responsibility reduction. See U.S.S.G. § 3E1.1, comment. (n.4)
(conduct that results in an obstruction of justice enhancement “ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct”). And McDowell did not
admit to his conduct: instead, he proceeded to trial where he testified that he did not sell crack
cocaine to the CI.
6
district court’s refusal to grant a downward departure is unreviewable on appeal
unless the district court believed erroneously that it lacked the authority to grant a
downward departure).3
The district court committed no error in its guidelines’ calculations.
AFFIRMED.
3
The district court noted that it had considered McDowell’s documented history of
mental and emotional problems along with other sentencing factors in section 3553(a) in
sentencing McDowell below the guidelines range.
7