United States v. Michael Lee Boykins ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14084 ELEVENTH CIRCUIT
JUNE 1, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00121-CR-A-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL LEE BOYKINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(June 1, 2010)
Before BLACK, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Michael Lee Boykins appeals his convictions and the resulting 97-months’
sentence for conspiracy to distribute and possess with intent to distribute a
controlled substance, in violation of 21 U.S.C. § 846, and unlawful use of a
communication facility, in violation of 21 U.S.C. § 843(b). On appeal, Boykins
raises several issues: (1) whether the government adduced sufficient evidence
supporting his convictions, (2) whether the admission of a tape recorded statement
with a confidential informant violated his right to confront the witnesses against
him secured under the Sixth Amendment, (3) whether the district court erred by
including a two-level increase in his Guidelines calculation for the possession of a
firearm by a coconspirator, and (4) whether the district court erred by denying his
request for a two-level reduction in his Guidelines calculation for a minor role.
After review, we discern no error and accordingly affirm.
I. Sufficiency of the Evidence
Boykins argues that the government did not prove that he knowingly,
willingly, and voluntarily joined the conspiracy. He claims that the evidence
showed that he was stranded at a Motel 6 without transportation where he allegedly
counted drug money and made a trip to Louisiana with anther party, Jenkins,
allegedly to deliver drug money, but that he removed himself from that situation
once he had access to his vehicle. Boykins also claims that he neither recruited the
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confidential informant to join the conspiracy over the phone nor did he sell any
cocaine telephonically.
We review the sufficiency of the evidence de novo, viewing the evidence
and all reasonable inferences and credibility choices in favor of the government
and the jury’s verdict. United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir.
2005) (per curiam). A conviction must be affirmed unless under no reasonable
construction of the evidence could the jury have found defendant guilty beyond a
reasonable doubt. Id. Credibility determinations are for the factfinder to make,
and we typically will not review such determinations. United States. v. Copeland,
20 F.3d 412, 413 (11th Cir. 1994) (per curiam).
In order to secure a conviction for conspiracy to distribute cocaine in
violation of 21 U.S.C. § 846, the government must prove beyond a reasonable
doubt that: (1) a conspiracy existed; (2) the appellant knew of the essential
objectives of the conspiracy; and (3) the appellant knowingly and voluntarily
participated in the conspiracy. United States v. Calderon, 127 F.3d 1314, 1326
(11th Cir. 1997). “Whether the [defendant] knowingly volunteered to join the
conspiracy may be proven by direct or circumstantial evidence, including
inferences from the conduct of the alleged participants or from circumstantial
evidence of a scheme.” Garcia, 405 F.3d at 1270 (internal quotation marks
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omitted). The elements of possession with intent to distribute cocaine are: (1)
knowing or intentional possession; (2) with intent to distribute or dispense; (3)
cocaine. See 21 U.S.C. § 841(a)(1). Finally, to support a conviction for unlawful
use of a communication facility under 21 U.S.C. § 843(b), the government must
prove that the defendant knowingly and intentionally used a communications
facility, such as a telephone, to facilitate the commission of a narcotics offense.
United States v. Rivera, 775 F.2d 1559, 1562 (11th Cir. 1985).
The evidence, taken in the light most favorable to the government, supports
Boykins’ convictions. The record supports the conclusion that a large conspiracy
existed and that the purpose of that conspiracy was to possess and distribute
cocaine. The record also supports the conclusion that Boykins knowingly and
voluntarily counted the proceeds from the sale of cocaine, that he knew the
proceeds were from the sale of cocaine distributed by other members of the
conspiracy, that he was present when the source of the cocaine collected some of
the proceeds, and that he knowingly and voluntarily traveled to Louisiana with
another member of the conspiracy to deliver further proceeds to the conspiracy’s
source of cocaine. Accordingly, the record contains sufficient evidence to support
his conviction for conspiracy under 21 U.S.C. § 846. The evidence also supports
the conclusion that Boykins knowingly and intentionally used a telephone to
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facilitate the distribution of cocaine. The record shows that Boykins engaged in
multiple phone calls with a confidential informant during which he discussed the
price and availability of cocaine and offered to facilitate a connection between the
confidential informant and another member of the conspiracy for access to cocaine.
Accordingly, the record contains sufficient evidence to support his conviction for
unlawful use of a communications facility in committing a felony under 21 U.S.C.
§ 843(b).
II. Confrontation Clause
Boykins argues that because the audio recordings of his alleged
conversations with the confidential informant were not authenticated at trial by the
confidential informant or any person physically present with him during the time
of the conversations, they were inadmissible testimonial hearsay. He argues
further that because the recordings were inadmissible hearsay, admission of the
recordings violated right his to confront his accuser secured to him under the Sixth
Amendment’s Confrontation Clause.
We review questions of constitutional law de novo and determinations of the
admissibility of evidence for abuse of discretion. United States v. Underwood, 446
F.3d 1340, 1345 (11th Cir. 2006). When a defendant fails to object to an alleged
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violation of the Confrontation Clause at trial, we review the alleged violation only
for plain error. United States v. Brazel, 102 F.3d 1120, 1141 (11th Cir. 1997).
Simply raising a hearsay objection at trial is insufficient to “preserve a
constitutional challenge under the Confrontation Clause for appeal.” United States
v. Arbolaez, 450 F.3d 1283, 1291 n.8 (11th Cir. 2006) (per curiam). To establish
plain error, the defendant must demonstrate that: (1) there was an error in the lower
court’s action; (2) such error was plain, clear, and obvious; and (3) the error
affected substantial rights. United States v. Foree, 43 F.3d 1572, 1578 (11th Cir.
1995). Even if these three elements are present, we will not reverse unless the
error seriously affected the fairness, integrity, or public reputation of the
proceedings. Id.Notwithstanding several exceptions and exclusions, the Federal Rules of
Evidence bar hearsay, which is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Fed. R. Evid. 801(c), 802. Statements offered against
a party which are the party’s own statements, however, are not hearsay. Fed. R.
Evid. 801(d)(2)(a). Additionally, a confidential informant’s recorded statements
offered, as in the instant case, to give context to a defendant’s statements are not
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hearsay because they are not offered for the truth of the matter asserted.1 See
United States v. Price, 792 F.2d 994, 996-97 (11th Cir. 1986).
The Sixth Amendment’s Confrontation Clause protects the accused’s right
“to be confronted with the witnesses against him.” U.S. Const. amend. VI. The
Confrontation Clause, however, does not affect the admission of all out-of-court
statements. Instead, the focus is on whether the statement is testimonial in nature.
See Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed.
2d 177 (2004). Although the Supreme Court has not precisely defined the contours
of testimonial statements, we do know that the core inquiry includes whether the
hearsay statement “[was] made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a
later trial.” Id. at 52, 124 S. Ct. at 1364 (internal quotation marks omitted). We
have previously held that where the challenged evidence was a recorded statement
between a confidential informant and a co-conspirator regarding the purchase of
cocaine, the evidence was not testimonial. Underwood, 446 F.3d at 1347.
In this case, the district court did not err in admitting the recorded
conversations because they were neither hearsay nor barred by the Confrontation
1
We note that the district court instructed the jury that the confidential informant’s
statements were not to be considered for the truth of the statements, but only to provide context
to Boykins’ statements.
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Clause. Boykins’ statements on the tape are not hearsay because they are his own
admissions. See Fed. R. Evid. 802(d)(2)(A). The confidential informant’s
statements are not hearsay because they were not offered for the truth of the matter
asserted. Even assuming arguendo that the informant’s statements were
testimonial, the Confrontation Clause does not bar the admission of those
statements because, as the Supreme Court noted in Crawford, “[t]he Clause . . .
does not bar the use of testimonial statements for purposes other than establishing
the truth of the matter asserted.” 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9.
Finally, the Confrontation Clause does not bar the admission of Boykins’
statements because they were neither hearsay nor testimonial. A party’s own out
of court admissions are not hearsay, and, as in Underwood, Boykins clearly did not
make his statements under circumstances which would lead him to believe they
would later be used at trial against him.
III. Firearm Enhancement
Boykins argues that the district court should not have enhanced his sentence
due to the presence of a firearm because he did not possess a firearm, and there was
no testimony regarding a firearm or the possession of a firearm by a co-conspirator
at his trial. Boykins points out that the only evidence of a firearm was the Drug
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Enforcement Administration agent’s testimony during sentencing regarding co-
conspirators’ proffers to the government.
“We review the district court’s findings of fact [for a firearm enhancement]
under U.S.S.G. § 2D1.1(b)(1) for clear error, and the application of the Sentencing
Guidelines to those facts de novo.” United States v. Gallo, 195 F.3d 1278, 1280
(11th Cir. 1999). A firearm enhancement may be applied to a defendant if the
government establishes by a preponderance of the evidence that “(1) the possessor
of the firearm was a co-conspirator, (2) the possession was in furtherance of the
conspiracy, (3) the defendant was a member of the conspiracy at the time of
possession, and (4) the co-conspirator possession was reasonably foreseeable by
the defendant.” United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006) (per
curiam) (internal quotation marks omitted). Additionally, “[t]he adjustment should
be applied if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense,” and “[o]nce the government shows that a
firearm was present, the evidentiary burden shifts to the defendant to show that a
connection between the firearm and the offense is clearly improbable.” Id.(internal quotation marks omitted).
In Pham, we recognized that (1) there is an “overpowering connection
between the use of firearms and narcotics traffic,” (2) “it [is] reasonably
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foreseeable that a co-conspirator would possess a firearm where the conspiracy
involved trafficking in lucrative and illegal drugs,” and (3) firearm enhancements
can be appropriate even if the defendant claims that he was unaware of the firearm.
See id. at 1246. Furthermore, we specifically noted that in that case the district
court did not err in applying the weapons enhancement where the vastness of the
conspiracy and the large amount of drugs and money made it reasonably
foreseeable to the defendant that a firearm would be possessed by a co-conspirator.
Id.Here, the district court found that various co-conspirators possessed
firearms, that they did so in furtherance of the conspiracy, that Boykins was a
member of the conspiracy at the time the co-conspirators possessed firearms, and
that possession of a firearm by a co-conspirator was reasonably foreseeable given
the type of drug conspiracy and amount of money at hand. The record supports
those conclusions. At sentencing, the DEA agent testified to proffers made by
various co-conspirators to the effect that they possessed firearms throughout and in
furtherance of the conspiracy. Given the size and scope of the conspiracy, it was
reasonable to conclude, as in Pham, that the possession of firearms by co-
conspirators was reasonably foreseeable to Boykins. Moreover, Boykins has not
proven that the connection between the firearms and cocaine conspiracy is clearly
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improbable. Accordingly, the district court did not err in applying the firearm
enhancement to Boykins’ Guidelines calculation.
IV. Minor Role
Boykins argues that he was entitled to a minor role reduction in his sentence
because (1) he never had contact with any of the cocaine in the alleged conspiracy;
(2) all he did was count money, take a trip, and speak on the phone to the
confidential informant; and (3) his actions took place during a four or five day
period.
We review a district court’s determination of whether a defendant qualifies
for a minor role adjustment under the Guidelines only for clear error. United
States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The
defendant bears the burden at all times of establishing his minor role in the offense
by a preponderance of the evidence. Id. at 939. The district court has
“considerable discretion in making this fact-intensive determination.” Id. at 946.
It is not necessary for the court to make specific findings of fact, so long as its
“decision is supported by the record and the court clearly resolves any disputed
factual issues.” Id. at 939 (emphasis omitted).
A defendant may receive an adjustment for his mitigating role in the offense
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if he “plays a part in committing the offense that makes him substantially less
culpable than the average participant.” U.S.S.G. § 3B1.2, comment. (n.3(A)). A
two-level, minor role reduction under § 3B1.2(b) applies to a defendant “who is
less culpable than most other participants, but whose role could not be described as
minimal.” U.S.S.G. § 3B1.2, comment. (n.5).
De Varon sets forth a two-part analysis of a defendant’s conduct to
determine whether the defendant warrants a minor role reduction. 175 F.3d at
940-45. First, the court “must measure the defendant’s role against the relevant
conduct for which [he] was held accountable at sentencing.” Id. at 945. “[W]here
the relevant conduct attributed to a defendant is identical to [his] actual conduct,
[he] cannot prove that [he] is entitled to a minor role adjustment simply by
pointing to some broader criminal scheme in which [he] was a minor participant
but for which [he] was not held accountable.” Id. at 941. The first prong of De
Varon is often dispositive of the issue. See id. at 945. Second, the district court
may compare “the defendant’s role against the other participants, to the extent that
they are discernable, in that relevant conduct.” Id. at 945. To apply the adjustment
under this prong, the district court must find that “the defendant was less culpable
than most other participants in [his] relevant conduct.” Id. at 944 (emphasis
omitted). Even if a defendant’s role is “less than that of other participants engaged
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in the relevant conduct,” he might not be entitled to an adjustment because, in
some cases, there are no minor or minimal participants. Id.The district court did not clearly err in determining that Boykins was not
entitled to a minor role reduction. Boykins was held responsible for a conspiracy
to distribute less than five kilograms of cocaine. Thus, the conduct he was held
accountable for was identical to his actual conduct. In relation to the second De
Varon inquiry, Boykins attempts to minimize the scope of his own actions;
however, he never suggests another participant against which to measure his
culpability in the relevant conduct. Even if Boykins had advanced an argument
along this line, we conclude that because Boykins participated in the counting and
conveyance of the substantial proceeds from the sale of the cocaine in question to
the cocaine source, the district court did not clearly err in concluding that Boykins
was a substantial participant. Accordingly, the district court did not err in denying
Boykins a two-level deduction for a minor role.
AFFIRMED.2
2
Appellant’s request for oral argument is DENIED.
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