United States v. Benjamin Earl Walton ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 26, 2005
No. 04-14977
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-00036-CR-WS-M
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN EARL WALTON,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Alabama
_________________________
(May 26, 2005)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Appellant pled guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1) (Count One); possession with intent to distribute cocaine
base (“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1) (Count Two); and
possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. §
924(c)(1) (Count Three). The district court sentenced him to concurrent prison
terms of 108 months on Counts One and Two, and to a consecutive prison term of
60 months on Count Three. He now appeals his Count Two sentence on the
grounds that the district court (1) clearly erred in determining, based on his written
confession that he sold 2 ounces of crack cocaine, that he was responsible for 56.7
grams of the drug, and (2) violated his Sixth Amendment rights by relying on facts
not admitted by him to enhance his sentence, in violation of United States v.
Booker, 543 U.S. __, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005). We consider these
grounds in turn.
I.
Appellant says that the court erred in finding that he possessed 50 grams of
crack cocaine because “in a questionable state of sobriety,” he told law
enforcement officers that he had a one half ounce of the drug in his hotel room,
which was an overstatement of the amount. Because this statement was an
exaggeration, his statements to the officers that he had previously dealt two
ounces of crack was also an exaggeration.
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Under the Sentencing Guidelines, a defendant who is responsible for at least
50 grams, but not more than 150 grams of crack cocaine receives a base offense
level of 32. U.S.S.G. § 2D1.1(c)(4). The Guidelines further provide a
Measurement Conversion Table to facilitate conversions to drug equivalences,
wherein it states that one ounce equals 28.35 grams. U.S.S.G. § 2D1.1, comment.
(n.10).
The district court found at a suppression hearing that appellant’s written
statement that he had sold two ounces of crack was not involuntary because he
was not so intoxicated that he was unable to freely and voluntarily give it.
Appellant does not challenge this finding. The question thus becomes whether the
court clearly erred in determining that the two ounces appellant admitted that he
had sold should have converted to grams at a conversation rate of one ounce
equaling approximately 28 grams. Although he contends that because he
overestimated the amount of crack that the officers found in his motel room in
executing a search warrant, he also overestimated the two ounces that he had
previously sold, he admitted in earlier pleadings that a “street ounce” could total
28 grams. Thus, his own admission demonstrates that it was possible that each
ounce he sold could have totaled 28 grams.
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Moreover, because the two ounces that he admitted selling could not have
been recovered for law enforcement officers to properly weigh, and he never
presented any evidence as to the actual weight of the two ounces, other than his
admission that he sold two ounces, the court could only rely on his admission that
he sold two ounces. Because he did not provide evidence of an exact and reliable
calculation rate for a “street ounce,” but instead only stated that it could vary from
15 to 28 ounces, the court did not clearly err in relying on the Measurement
Conversion Table in the Guidelines to determine the proper weight of the crack
cocaine, in grams, for which he was responsible. Under the Guidelines, one ounce
equals 28.35 grams; thus, the two ounces appellant sold equaled 56.7 grams, well
over the 50 grams needed for a base offense level of 32. See U.S.S.G.
§ 2D1.1(c)(4), and comment. (n.10). In sum, the court did not clearly err in
determining, based on appellant’s admission, that appellant was responsible for
two ounces of crack cocaine, which totaled 56.7 grams.
II.
Appellant contends that the court erred under Booker because he did not
admit in his plea agreement or during the plea colloquy the facts to support the
U.S.S.G. § 2D1.1 drug quantity attributed to him at sentencing. We are not
persuaded. After he was arrested, appellant admitted that he had sold two ounces
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of crack, which, as noted above, exceeded the 50 grams needed to establish his
base offense level at 32. This statement was not only read into the record during
his suppression hearing by Mike Palmer, a detective with the Selma Police
Department, but appellant himself entered this written statement into evidence
during the suppression hearing. Because he admitted that he had sold over 50
grams of crack, the court did not rely on a fact not admitted by the defendant to
enhance his sentence. In short, no Booker error occurred.
In his reply brief (but not in his initial brief), appellant asserted that the
court erred in sentencing him under a mandatory guidelines system. We do not
consider the issue. See United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir.
1999) (issues raised for the first time in a reply brief are waived).
AFFIRMED.
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