United States v. Bradford S. Potts , 132 F. App'x 330 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 24, 2005
No. 04-12751
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-00150-CR-3-002-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRADFORD S. POTTS,
SHELTON PERDUE,
a.k.a Shelton M. Perdue,
Defendants-Appellants.
__________________________
Appeals from the United States District Court for the
Northern District of Florida
_________________________
(May 24, 2005)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Bradford S. Potts and Shelton Perdue (collectively Appellants) appeal their
convictions for conspiracy to distribute and possess with intent to distribute
cocaine powder and cocaine base (“crack cocaine”), in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A)(ii) and (iii), 846. Both appellants argue that the evidence
presented at trial did not establish beyond a reasonable doubt that they were guilty.
Furthermore, Perdue argues that the district court erred when it allowed testimony
regarding drug transactions outside the time frame of the charged conspiracy and
that the district court committed plain error under United States v. Booker, 543
U.S. ___, 125 S. Ct. 738 (2005), when it based Perdue’s sentence on a drug weight
higher than the threshold amount found by the jury. After reviewing the record,
we agree with the district court and AFFIRM.
I. BACKGROUND
Marlin Purifoy and Michael Robinson are cousins who made their living
selling cocaine in Pensacola, Florida. Purifoy testified that he was introduced to
the defendant, Perdue, in December of 2002 because he needed to buy cocaine. At
that time, Purifoy purchased two or three ounces of cocaine from Perdue, but did
not deal with Perdue on a regular basis until May of 2003.
Between May of 2003 and December 2003, Purifoy testified that he began
to regularly purchase cocaine from Perdue. During the time of the alleged
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conspiracy, Perdue lived in Copperas, Texas and would travel to Pensacola to sell
cocaine. Perdue and Purifoy arranged the transactions by cellular phone whenever
Perdue was in town. Purifoy testified that he bought cocaine from Perdue six or
seven times during this period. Each time he purchased two or three ounces of
cocaine that he would later cook into crack cocaine.
In about April of 2003, Purifoy introduced Perdue to Robinson who was
recently released from prison. Purifoy testified that Robinson knew how to cook
cocaine into crack form, and he introduced them because Perdue needed someone
to cook the cocaine. After the introduction, Robinson testified that he dealt
directly with Perdue. Robinson estimated that he met with Perdue two or three
times per month from June to December of 2003. On each occasion Robinson
would purchase1 one or two ounces of cocaine or crack cocaine. Though Perdue
regularly sold cocaine to Purifoy and Robinson, he also sold to others in the
Pensacola area, and on one occasion Purifoy testified that Perdue had between 30
and 35 ounces of cocaine in his possession when meeting with Purifoy.
Both Purifoy and Robinson testified that when Perdue traveled to Pensacola,
he always had someone else with him to help sell cocaine. Robinson testified that
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Some transactions involved Perdue giving Robinson cocaine to sell on credit. After a sale,
Robinson would repay Perdue.
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the second defendant, Potts, was present at two drug transactions between
Robinson and Perdue starting in June of 2003. The second time Robinson met
Perdue was during a cocaine transaction with Perdue on 3 December 2003, Potts
also had cocaine to sell, but Robinson did not buy from Potts.
Purifoy met Potts on 4 December 2003 at Penton’s, a car interior shop.
There, Purifoy bought crack cocaine and sport jerseys from Perdue and Potts,
respectively. Meanwhile, Purifoy testified that Robinson arrived and talked with
Perdue alone for five or six minutes. During this time, Potts mentioned to Purifoy
how cheap cocaine was in Texas and how they were profiting from buying cocaine
in Texas and selling it in Pensacola. Then, the four drove to Purifoy’s girlfriend’s
house where Purifoy hid the crack he bought from Perdue.
Later that night, the Escambia County Sheriff’s Department executed a
search warrant for Purifoy’s girlfriend’s house and seized the crack cocaine
Purifoy had hidden. Purifoy agreed to cooperate with law enforcement and
identified Perdue as the source of the crack. After failing to contact Perdue by
telephone, Purifoy then called Robinson. Robinson indicated Perdue had left
town. Purifoy then said he needed cocaine, and Robinson brought over the
cocaine he received from Perdue. The police then arrested Robinson when he
arrived who then agreed to cooperate in finding Perdue.
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That night Purifoy and Robinson searched the hotels where Perdue typically
stayed and found his car. The next day Perdue called Robinson, and Robinson
immediately notified Officer Scott Allday of the call. Allday then monitored two
calls between Robinson and Perdue in which Robinson arranged to meet Perdue.
Robinson testified that Allday wired him to record the conversation with
Perdue at the meeting and drove him to meet Perdue. Allday gave Robinson
$1,500 to purchase cocaine from Perdue. When Perdue arrived, Robinson entered
his car, gave Perdue the $1,500, and complained about the quality and weight of
the cocaine he received earlier. Perdue gave Robinson two ounces of cocaine and
said he would need to get a float scale to measure out an additional two ounces.
Robinson then exited Perdue’s car, and as Perdue drove away, he was stopped and
arrested. The $1,500 was recovered from Perdue’s car.
After his arrest, Perdue refused to give consent to the officers to search his
hotel room, so the Sheriff’s Department began the process to obtain a warrant.
They surveiled the hotel room at the Hospitality Inn rented in Potts’s name. When
Potts returned to the room, officer’s stopped him, identified themselves, and asked
for his consent to search the hotel room. After his refusal of consent, Officers
obtained a warrant and searched the hotel room where they found 1) a set of hand
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scales, 2) plastic baggies with white residue, 3) a cellular phone, 4) marijuana, and
5) multiple articles of clothing with $1800, $1500, and $480 cash in the pockets.
A DEA chemist testified at trial to the amount of cocaine and cocaine based
seized during the case. The individual amounts of crack cocaine seized weighed
31.9 grams, 4.3 grams, and 25.7 grams. The cocaine powder weighed 19.0 grams
and 52.8 grams.
Further, the government called two law enforcement officials from
Copperas Texas to testify about Potts’s drug activity in Texas. The officers
testified that they conducted a valid search of Potts’s residence in August of 2003
and found 3.45 grams of crack cocaine in his freezer.
The cellphone records of Perdue, Potts, Robinson, and Purifoy were also
analyzed during the case. They indicated that the four alleged conspirators were
communicating during the time frame in question.
At trial, Perdue objected to testimony concerning the drug transaction in
December of 2002 because it was out of the time frame charged for the conspiracy.
The trial court overruled that objection, and on 3 March 2004, the jury found both
Perdue and Potts guilty of conspiracy to distribute and possess with intent to
distribute at least 5 kilograms of cocaine powder and 50 grams of crack cocaine.
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II. DISCUSSION
Appellants argue on appeal that the evidence presented at trial did not
establish beyond a reasonable doubt that they were guilty. Furthermore, Perdue
argues that the district court erred when it allowed testimony regarding drug
transactions outside the time frame of the charged conspiracy and that the district
court committed plain error under Booker when it based Perdue’s sentence on a
drug weight higher than the threshold amount found by the jury.
A. Sufficiency of the Evidence
In regards to the sufficiency of evidence claim, Perdue and Potts specifically
assert that the government failed to demonstrate that they had arrived at a mutual
understanding with any other person to distribute cocaine and crack cocaine. The
Appellants contend that the only evidence presented by the government to
demonstrate the existence of a conspiracy was the testimony of their alleged co-
conspirators, who falsely implicated them in an effort to reduce their own
sentences.
We review the sufficiency of the evidence de novo. United States v. Gil,
204 F.3d 1347, 1349 (11th Cir. 2000) (per curiam). “When faced with a challenge
to the sufficiency of the evidence, we must examine the evidence in a light most
favorable to the jury’s verdict, draw all reasonable inferences in favor of the
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verdict, and determine whether the evidence presented was sufficient for a
reasonable jury to reach a conclusion of guilt beyond a reasonable doubt.” United
States v. Bush, 28 F.3d 1084, 1087 (11th Cir. 1994). To convict for a conspiracy
to distribute drugs, the jury must find: (1) an agreement between two or more
persons to distribute the drugs; (2) the defendant knew of this goal; and (3) the
defendant knowingly joined or participated in the venture. See United States v.
Matthews, 168 F.3d 1234, 1245 (11th Cir. 1999), as amended, 181 F.3d 1205(11th Cir. 1999). The government does not need to prove the existence of a
formal agreement, but rather may rely on circumstantial evidence to show “a
meeting of the minds to commit an unlawful act.” United States v. Toler, 144 F.3d
1423, 1426 (11th Cir. 1998) (internal quotation and citation omitted). We have
held that, unless testimony is “incredible as a matter of law,” credibility
determinations are the exclusive province of the jury. United States v. Calderon,
127 F.3d 1314, 1325 (11th Cir. 1997) (internal quotation omitted). “For testimony
of a government witness to be incredible as a matter of law, it must be
unbelievable on its face.” Id. (internal quotation omitted).
Here, the jury apparently found the co-conspirators’ testimony to be
credible, and this testimony was not “incredible as a matter of law.” Further, the
government presented evidence of cell phone conversations and drug activity in
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the hotel room where Potts and Perdue were staying, which is at least
circumstantial evidence of a conspiracy or “meeting of the minds.” This evidence
was sufficient to support the Appellants’ convictions.
Perdue next argues that the district court abused its discretion by admitting
evidence regarding drug transactions that occurred in December of 2002 and April
of 2003, which did not take place within the time-frame of the conspiracy as
alleged in the indictment. He contends that the district court wanted to have this
evidence admitted under Federal Rule of Evidence 404(b) evidence, even though
the government did not provide notice. Perdue further asserts that the government
failed to establish that these transactions were intended to be part of the
conspiracy since, at the time of these transactions (1) he lived in Pensacola,
Florida, and not Texas, which is where he lived during the time frame of the
conspiracy, and (2) no regular contact occurred between him and either Purifoy or
Robinson.
We review the district court’s ruling on the admissibility of evidence for an
abuse of discretion, United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir.
2000), and will reverse an erroneous evidentiary ruling “only if the resulting error
was not harmless,” United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999),
corrected by 194 F.3d 1186 (11th Cir. 1999). Evidence of uncharged criminal
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activities generally would be considered inadmissible extrinsic evidence under
Rule 404(b). Jiminez, 224 F.3d at 1249. Such evidence, however, is admissible as
intrinsic evidence of the charged offense if it is “(1) an uncharged offense which
arose out of the same transaction or series of transactions as the charged offense,
(2) necessary to complete the story of the crime, or (3) inextricably intertwined
with the evidence regarding the charged offense.” United States v. McLean, 138
F.3d 1398, 1403 (11th Cir. 1998) (citation omitted). “Evidence, not part of the
crime charged but pertaining to the chain of events explaining the context, motive
and set-up of the crime, is properly admitted if linked in time and circumstances
with the charged crime, or forms an integral and natural part of an account of the
crime, or is necessary to complete the story of the crime for the jury.” Id. (internal
quotations and citation omitted).
Here, the testimony was necessary to complete the story of the crime for the
jury. Specifically, the prior drug transactions established how Purifoy and
Robinson met Perdue and the motive behind the conspiracy. The district court did
not abuse its discretion by allowing the admission of this testimony that occurred
outside of the time frame of the conspiracy.
Perdue finally argues that, under Blakely v. Washington, 542 U.S. ___, 124
S. Ct. 2531 (2004), the district court plainly erred by sentencing him using a drug
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weight that was greater than the threshold amounts of 5 kilograms or more of
cocaine and 50 grams or more of crack cocaine found by the jury. He asserts that,
using 5 kilograms of cocaine and 50 grams of crack cocaine, his base offense level
should have been 32, with a resulting guideline range of 188 to 235 months of
imprisonment, but concedes that he would have been subject to a mandatory
minimum sentence of 20 years of imprisonment due to a prior felony drug
conviction. Perdue contends that, using the above calculations, he should have
been sentenced to 240 months of imprisonment.
Because Perdue did not raise a constitutional objection to the district court’s
application of the Sentencing Guidelines, we review this issue only for plain error.
See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (applying
plain error review to a Blakely claim that the appellant failed to raise in the district
court). An appellate court may not correct an error that the defendant failed to
raise in the district court unless there is “(1) error, (2) that is plain, and (3) that
affects substantial rights.” Id. (internal quotation and citation omitted). “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. (internal quotation and
citation omitted).
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In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63
(2000), the Supreme Court held that, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt.”
The Court recently revisited that rule in the context of Washington State’s
sentencing guideline scheme, clarifying that
the “statutory maximum” for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant. . . . In other words, the relevant
“statutory maximum” is not the maximum sentence a judge may impose
after finding additional facts, but the maximum he may impose without any
additional findings.
Blakely, 542 U.S. at ___, 124 S. Ct. at 2537 (emphasis in original).
While the instant case was pending on appeal, the Supreme Court issued its
decision in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 749 (2005),2
finding “no distinction of constitutional significance between the Federal
Sentencing Guidelines and the Washington procedures at issue” in Blakely.
Resolving the constitutional question left open in Blakely, the Court held that the
mandatory nature of the Sentencing Guidelines rendered them incompatible with
the Sixth Amendment’s guarantee to the right to a jury trial. Id. at ___, 125 S. Ct.
2Consolidated with United States v. Fanfan, No. 04-105 (U.S. Jan. 12, 2005).
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at 749-51. In extending its holding in Blakely to the Sentencing Guidelines, the
Court explicitly reaffirmed its rationale in Apprendi that “[a]ny fact (other than a
prior conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id.at ___, 125 S.Ct. at 756. The Court effectively rendered the Sentencing
Guidelines advisory only, explaining that district courts are not bound to apply the
Sentencing Guidelines, but “must consult those Guidelines and take them into
account when sentencing.” Id. at ___, 125 S.Ct. at 764-67.
In Rodriguez, we recently reviewed an appeal in which the appellant had
failed to preserve a Blakely/Booker objection in the district court, and the
Supreme Court decided Booker while the appellant’s sentence was pending on
direct appeal. Applying plain error review, we determined that the appellant had
satisfied the first prong of the plain error test by showing error because, under a
mandatory guideline system, the appellant’s sentence had been enhanced as a
result of judicially determined facts that went beyond the facts admitted by the
defendant or found by the jury. See Rodriguez, 398 F.3d at 1298. In addition, we
determined that the second prong of plain error had been met because, although
the Booker error was not “plain” at the time of the appellant’s sentencing hearing,
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“where the law at the time of trial was settled and clearly contrary to the law at the
time of appeal—it is enough that the error be ‘plain’ at the time of appellate
consideration.” Id. at 1299 (internal quotation and citation omitted). We,
however, ultimately concluded that no reversible plain error had occurred because,
under the third prong of plain error review, the appellant had failed to show that
the Booker error “affect[ed] substantial rights,” id. at 1299, as the record
“provide[d] no reason to believe any result [was] more likely than the other.” Id. at
1301.
Here, Perdue has failed to show that there is a reasonable probability that
the district court’s error, in light of Blakely and Booker, affected the outcome of
his sentence. We conclude that no reversible plain error occurred and affirm
Perdue’s sentence.
III. CONCLUSION
Potts and Perdue appeal their convictions for conspiracy to distribute and
possess with intent to distribute cocaine powder and crack cocaine and argue that
there was insufficient evidence to convict, that the district court erred by allowing
testimony of drug transactions before the alleged conspiracy, and that the district
court committed plain error under Blakely/Booker during sentencing. Upon
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careful review of the record on appeal, and upon consideration of the parties’
briefs, we discern no reversible error. We AFFIRM.
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