United States v. Angelo Roncelli Hackman , 284 F. App'x 743 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 07, 2008
No. 07-15879 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00017-CR-IPJ-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELO RONCELLI HACKMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 7, 2008)
Before TJOFLAT, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Angelo Hackman appeals his 235-month sentence for possession of cocaine
base (“crack”) with intent to distribute. The district court did not clearly err by
finding the two charges Hackman pled guilty to in 1999 were two prior drug
felonies under 21 U.S.C. § 841(b)(1)(A). The district court did not plainly err by
finding the sentencing disparity between cocaine and crack is constitutional.
Accordingly, we AFFIRM.
I. BACKGROUND
Angelo Hackman was indicted on one count of possession of more than 50
grams of crack with intent to distribute. The government filed an information of
prior felony drug convictions, noting two Alabama convictions to which Hackman
pled guilty in 1999. Hackman pled guilty to the single count of the indictment
without a plea agreement.
Hackman was arrested in possession of 447.21 grams of crack after
attempting to elude police. The probation officer determined a base offense level
of 34 for the drug conviction. The offense level was increased two levels for
obstruction of justice under U.S.S.G. § 3C1.2. The probation officer determined
Hackman qualified for a three-level reduction for acceptance of responsibility
under U.S.S.G. § 3E1.1. With a total offense level of 33 and a criminal history
category of VI, the probation officer determined the guideline range was 235-293
2
months. Based on the determination that Hackman had two or more prior drug
felony convictions and therefore qualified for a statutory minimum penalty, the
probation officer adjusted the sentencing range to life under U.S.S.G. § 5G1.1(b).
The statutory maximum is life. Hackman objected to the determination that he had
two prior drug felony convictions because the state district attorney could have
chosen to present the two charges in a single indictment. The probation officer
responded that Hackman’s convictions were distinct because his first conviction
was based on distributing cocaine on 6 January 1998 and his second conviction
was based on distributing cocaine on 8 January 1998.
At the sentencing hearing, Hackman explained that the two charges were
indicted separately, but the district attorney had moved to consolidate the charges
for trial and sentencing. R4 at 3-4. The district court overruled the objection and
determined that the convictions could not be counted as a single prior conviction.
Id. at 6. Next, the district court adjusted the base offense level down two levels
based on the new guidelines for crack sentencing. Id. at 6-8. The government
made a motion under U.S.S.G. § 5K1.1 and recommended a sentence of 35 years.
Id. at 8-9. The district court stated:
The Court finds that the appropriate guideline level for consideration
should be 31, which when combined with a criminal history category
of VI creates an advisory guideline range of 188 months to 235
months . . . .
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Id. at 13. The district court sentenced Hackman to 235 months.1 Id. The district
court explained:
And this sentence is in accordance with the guidelines if he had not
had – if [the prior convictions] had been calculated as one as opposed
to two convictions. . . . I think this is the lowest I could possibly
sentence you to with the sentence being deemed reasonable and not an
abuse of discretion.
Id. at 14, 16.
II. DISCUSSION
On appeal, Hackman argues that the district court clearly erred by finding he
had two prior felony drug convictions. Hackman contends that the facts
underlying the convictions show that they occurred two days apart, were the result
of a single investigation, and could have been included on a single indictment.
Further, Hackman indicates that the motion by the state district attorney to
consolidate the separate indictments shows that the two convictions should be
considered as a single prior offense. Hackman argues that the statutory minimum
sentence should be interpreted in light of the guidelines computation of criminal
history, U.S.S.G. § 4A1.2, which does treat the two convictions as related.
Hackman concludes that the error is not harmless because the district court would
1
Pursuant to a § 5K1.1 motion, the district court sentenced Hackman below the statutory
minimum.
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likely have sentenced him to less time if it had concluded that Hackman had only
one prior felony drug conviction.
The interpretation of 21 U.S.C. § 841(b)(1)(A) is reviewed de novo. United
States v. Williams, 469 F.3d 963, 965 (11th Cir. 2006) (per curiam). Whether
specific previous convictions are related is reviewed for clear error. United States
v. Rice, 43 F.3d 601, 606 (1995). If a defendant has two or more prior felony drug
convictions, the statutory minimum for a drug conviction is life.
21 U.S.C. § 841(b)(1)(A). “[I]f the prior convictions resulted from acts forming a
single criminal episode, then they should be treated as a single conviction for
sentence enhancement under section 841(b)(1)(A).” Rice, 43 F.3d at 605. Drug
transactions that take place six days apart may give rise to distinct convictions
under 21 U.S.C. § 841(b)(1)(A). United States v. Griffin, 109 F.3d 706, 708 (11th
Cir. 1997) (per curiam); See United States v. Barr, 130 F.3d 711, 712 (5th Cir.
1997) (holding that drug sales on consecutive days to the same buyer may be
treated as distinct convictions).2
The fact that prior convictions could have been consolidated for trial does
not create a presumption that the convictions must be considered related. Rice, 43
2
In an unpublished opinion, we held that convictions for sales to the same buyer
approximately 90 minutes apart were distinct. United States v. Richardson, No. 07-10621, slip op.
at 9 (11th Cir. April 9, 2008).
5
F.3d at 607. In interpreting 18 U.S.C. § 924(c), the Supreme Court has held that
prior convictions should be measured by the individual convictions, not the single
judgment of guilt on all the charges. Deal v. United States, 508 U.S. 129, 132, 113
S. Ct. 1993, 1996 (1993). Guideline provisions do not control the prior judicial
interpretation of statutes. Neal v. United States, 516 U.S. 284, 295, 116 S. Ct. 763,
768-69 (1996). When a district court clearly indicates that it would impose the
same sentence even if a particular ruling was erroneous, we need not remand for a
new sentencing hearing. United States v. Keene, 470 F.3d 1347, 1348-49 (11th
Cir. 2006).
Hackman’s claim that the district court clearly erred in determining that the
two prior felony drug convictions were unrelated is without merit. The criminal
acts were committed on two different days, with no evidence that they were
connected. The record before the district court supports a finding that the two
convictions were unrelated. See Griffin, 109 F.3d at 708 (finding convictions six
days apart may be treated as distinct convictions for sentencing under § 841); see
also Barr, 130 F.3d at 712 (the 5th Circuit found drug sales on consecutive days to
the same buyer may be treated as distinct convictions).
The possibility that the two charges could have been brought in the same
charging document does not decide whether the convictions were related. Rice, 43
6
F.3d at 607; Deal, 508 U.S. at 132, 113 S. Ct. at 1996. Hackman’s argument that
the statutory provision should be interpreted in light of the guideline calculation of
criminal history is foreclosed by Supreme Court precedent. Neal, 516 U.S. at 295,
116 S. Ct. at 768-69; See Rice, 43 F.3d at 608 (noting that relatedness of prior
felonies under the statute is a distinct issue from the calculation of criminal
history). Hackman presents no other legal authority on this issue, and therefore
presents no legal ground to suggest any different result.
Moreover, the district court indicated that the guideline range Hackman
would have received without the statutory minimum was appropriate on the facts
of this case and that the sentence imposed took Hackman’s request to have the two
convictions treated as related into account. R4 at 13-14. Further, the district court
determined that it had exhausted its discretion, implicitly communicating an
unwillingness to impose a lower sentence. Id. at 16. Based on these statements by
the district court, any error in the district court’s rulings need not lead to reversal.
Keene, 470 F.3d at 1349. The district court did not clearly err in holding the two
prior drug felonies were unrelated because the two underlying criminal acts
occurred on separate days and no evidence indicates that they were otherwise
related. Therefore, the district court did not clearly err.
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Hackman also argues that Kimbrough v. United States, 552 U.S. ___, 128 S.
Ct 558 (2007), held that the justifications for sentencing disparity between cocaine
and crack were not supported by fact or reason. Hackman contends that the
disparity is unconstitutional, unjust, and not rationally based in law or fact.
When, as in this case, an issue is not raised before the district court, we
review for plain error. United States v. Heath, 419 F.3d 1312, 1314 (11th Cir.
2005) (per curiam). Plain error exists if there was “(1) error, (2) that is plain, and
(3) affects substantial rights. If all three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1314 (quotations and citation omitted).
Here, there is no plain error because there is no error. The sentencing
disparity between cocaine and crack does not violate equal protection. United
States v. King, 972 F.2d 1259, 1260 (11th Cir. 1992) (per curiam). Hackman’s
reliance on Kimbrough is misplaced because its holding, that district courts are
permitted to disagree with the policies underlying the guidelines, is unrelated to the
constitutionality of the sentencing disparity. 552 U.S. at ___, 128 S. Ct. at 575.
The district court did not plainly err. We reject Hackman’s challenge to his
sentence on this basis.
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III. CONCLUSION
Hackman challenges his sentence on two grounds: (1) the district court erred
by treating two prior felony convictions as distinct under 21 U.S.C. § 841(b)(1)(A);
and, (2) the sentencing disparity in the guidelines between crack and powder
cocaine is unconstitutional. After careful review of the record and briefs in this
case we conclude that the district court did not plainly err in its sentence of
Hackman.
AFFIRMED.
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