United States v. Malik Bland ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-3303
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UNITED STATES OF AMERICA
v.
MALIK BLAND, a/k/a Easy,
Malik Bland,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-07-cr-00737-006
District Judge: The Honorable Eduardo C. Robreno
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 13, 2012
Before: SMITH, and CHAGARES, Circuit Judges
ROSENTHAL, District Judge *
(Filed: September 25, 2012)
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OPINION
_____________________
*
The Honorable Lee H. Rosenthal, United States District Judge for the United States
District Court for the Southern District of Texas, sitting by designation.
1
SMITH, Circuit Judge.
A jury convicted Malik Bland of conspiring to possess with the intent to
distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). The
United States District Court for the Eastern District of Pennsylvania granted Bland
a substantial downward variance from a guideline range of 292 to 365 months by
imposing a sentence of 192 months of imprisonment. Bland appealed, challenging
his conviction and sentence. 1 Although we will affirm his conviction, we will
vacate Bland’s sentence and remand this matter to the District Court. Specifically,
we direct the District Court to conduct further proceedings as to the weight of
crack cocaine for which Bland should be held responsible for sentencing purposes.
I.
Bland sold crack cocaine in Philadelphia at the corner of 61st Street and
Glenmore Avenue. Around the same time, a group led by Kareem Smith was
distributing cocaine and crack cocaine in parts of Philadelphia, Pennsylvania, and
Cecil County, Maryland. Landrum Thompson worked for Smith, selling at the
same street corner as Bland. In October of 2003, when one of Smith’s sellers in
Maryland was arrested, Smith and Thompson approached Bland about selling for
them in Maryland. Bland “wanted to make money hustling.” In his view, “[w]hat
[he] was doing on the corner wasn’t cutting it.” Bland accepted the offer, and
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advised Smith that he “was hungry.”
Within a week of being set up in Smith’s house in Maryland, Bland sold
crack to an undercover officer. During that transaction, Bland gave the undercover
officer a piece of paper in the event the undercover officer needed to contact
Bland. The paper contained Bland’s name and cell number, as well as the names
of Smith and Thompson. Several days later, the undercover officer called Bland’s
number and asked to purchase more crack. Bland advised the undercover officer
to come to his house, stating “my man is here.” After the transaction was
completed, Bland was arrested. He was eventually convicted of violating
Maryland law and was sentenced to ten years’ imprisonment.
Bland was released from prison on January 31, 2006. At some point
thereafter, Bland returned to selling crack with Thompson at the corner of 61st and
Glenmore Avenue.2 On October 5, 2006, Bland was arrested and charged with
possession with intent to deliver a controlled substance in violation of
Pennsylvania law. He returned to jail, eventually pled guilty on January 23, 2007,
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
The transcript contains the following exchange between the prosecutor and
Thompson:
Q. When did [Bland] come and when did he stop, that is the question I’m
asking.
A. I guess he stopped October [5, 2006, when he was arrested].
Q. In about October. And how long had he been out there at that point?
A. A couple months.
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and was sentenced to six to twenty-three months of imprisonment.
Subsequently, a federal grand jury sitting in the Eastern District of
Pennsylvania returned a second superseding indictment, charging Bland and eight
others with conspiring to distribute cocaine and crack cocaine. Bland and three of
his co-defendants went to trial. A jury found each of them guilty of the conspiracy
offense. Bland moved for a judgment of acquittal, challenging the sufficiency of
the evidence.
During a hearing on the motion, Bland asserted that he was an independent
salesman and that there was no evidence to show that he was a member of the
conspiracy. In addition, he argued that he should not be held responsible for the
amount of crack sold by the conspiracy while he was incarcerated on the Maryland
offense. When the District Court asked the government what connection Bland
had to the conspiracy during his imprisonment, the AUSA replied: “None. During
the period of time when he was incarcerated, he was not involved, I agree with that
a hundred percent.” The Court inquired how Bland could be charged with being a
member from 2002 to 2007. The AUSA replied:
Because he was a member of the conspiracy in the early years, and as
soon as he got out of jail he went right back to his role that he held
before he went to jail as a seller for the same conspiracy that
overlapped his incarceration. The conspiracy didn’t die when Mr.
Bland left. He entered, and he was in and out, just like Mr. Smith was
in and out during the course of the conspiracy.
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The Court noted that Smith maintained a role while he was in prison, but that
Bland was “not one of the brains behind this scheme.” The AUSA agreed Bland
was not key to the operation and that Bland’s sporadic membership presented a
sentencing issue. The AUSA further stated: “I agree that during the period of time
he’s incarcerated, we can’t attribute anything to him.” In response to further
questioning, the AUSA stated that “[t]here’s no evidence that [Bland] had contact
with any member of the conspiracy during that period of time” he was in jail.
Several days after the hearing, the District Court denied the motion for judgment of
acquittal.
On July 16, 2010, the District Court issued a memorandum, setting forth its
findings as to each defendant’s involvement in the conspiracy and the quantity of
drugs for which each defendant would be held liable for purposes of computing
that defendant’s sentencing guideline range. Because “Bland never signified an
intent to withdraw from the conspiracy (as he rejoined the . . . conspiracy
immediately upon release from incarceration),” the Court concluded that he was
“involved for the full three years” from October 20, 2003, through October 5, 2006
(147 weeks). The Court determined that approximately 9 ounces, or 225 grams of
crack, was sold during each week of the conspiracy. “Based on [Bland’s] role as a
seller, incarceration due to his . . . activities, and the fact that drug quantities being
distributed throughout his time in the conspiracy were ‘reasonably foreseeable,’”
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the Court found that the Government “demonstrated by a preponderance of the
evidence that Defendant Bland [was] responsible for accomplice attribution of the
average weekly crack sales[,]” totaling 37.4 kilograms of crack.
This quantity of crack cocaine resulted in a base offense level of 38, which
was adjusted upwards by two levels to 40 because of a dangerous weapons
enhancement. Bland’s total offense level and his criminal history category of I
produced a guideline range of 292 to 365 months.
At sentencing, Bland again challenged the quantification of crack for which
he was responsible for sentencing purposes, emphasizing that he was involved for
one week in 2003 before his arrest and for only “several months in ’06.” The
Court rejected his argument. It explained that Bland had spent time in jail, but that
“nearly as [he] went out the door [he] rejoined the conspiracy.” Reasoning that
Bland was “kind of in inactive status” during his incarceration, the Court
concluded that he had “never left the conspiracy.” As a result, Bland’s guideline
range did not change. The Court granted a downward variance, imposing a
sentence of 192 months of imprisonment. Bland filed a timely notice of appeal.
II.
Bland contends that the District Court erred by denying his motion for a
judgment of acquittal because there was no evidence of his membership in the
conspiracy at any point from 2002 through 2007. In reviewing a district court’s
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denial of a Rule 29 motion, “we review the trial record in the light most favorable
to the prosecution to determine whether any rational trier of fact could have found
proof of guilt beyond a reasonable doubt based on the available evidence.” United
States v. Claxton, 685 F.3d 300, 305 (3d Cir. 2012) (citation, internal quotation
marks, and brackets omitted). The trial record demonstrates, and our brief factual
recitation confirms, that there is no merit to Bland’s argument. He either was
successfully recruited by Smith and Thompson or eagerly joined what he
understood to be a drug organization operating in two states.
III.
Bland asserts that, even if we conclude there was sufficient evidence to
uphold his conviction, the District Court erred in its computation of the quantity of
drugs attributable to him. “When reviewing the sentencing decisions of the district
courts, we exercise plenary review over legal questions about the meaning of the
sentencing guidelines, but apply the deferential clearly erroneous standard to
factual determinations underlying their application.” United States v. Collado, 975
F.2d 985, 990 (3d Cir. 1992) (citations, internal quotation marks, and brackets
omitted).
In Collado, we explained that “whether an individual defendant may be held
accountable for amounts of drugs involved in reasonably foreseeable transactions
conducted by co-conspirators depends upon the degree of the defendant’s
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involvement in the conspiracy.” Id. at 995. We cautioned that “it is not enough to
merely determine that the defendant’s criminal activity was substantial. Rather, a
searching and individualized inquiry into the circumstances surrounding each
defendant’s involvement in the conspiracy is critical to ensure that the defendant’s
sentence accurately reflects his or her role.” Id.
In United States v. Price, 13 F.3d 711, 732 (3d Cir. 1994), we addressed
Price’s argument that he was inappropriately credited for cocaine dispensed by the
conspiracy after he was imprisoned. We rejected “a per se rule that arrest
automatically bars attribution to a defendant of drugs distributed after that date.”
Id. Yet we agreed that “since ‘[t]he relevant conduct provision limits accomplice
attribution to conduct committed in furtherance of the activity the defendant agreed
to undertake,’ a defendant cannot be held responsible for conduct committed after
he or she could no longer assist or monitor his or her co-conspirators.” Id. (quoting
Collado, 975 F.2d at 997); see also United States v. Puig-Infante, 19 F.3d 929, 945
(5th Cir. 1994) (observing that “[b]ecause a defendant’s incarceration is not an
affirmative act on the part of a defendant, it cannot, by itself, constitute withdrawal
or abandonment” from a conspiracy, but that “incarceration may still have had
some effect on the foreseeability of the acts of his coconspirators” for sentencing
purposes).
Here, the District Court rejected Bland’s argument that he should not be held
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liable for the amount of drugs sold during his incarceration and until he rejoined
the conspiracy at some point in 2006. It reasoned that Bland had not withdrawn
from the conspiracy and that he immediately rejoined the conspiracy after his
release. Whether Bland had withdrawn from the conspiracy, however, is not
determinative of whether he should be held liable for sentencing purposes for the
amount of drugs sold by his coconspirators during his incarceration and for that
period of time following his release when he had yet to return to his role as a street
seller. Rather, that determination must be based on his involvement in the
conspiracy at the relevant period of time. Collado, 975 F.2d at 995. Although the
District Court appropriately conducted an individualized inquiry for each
defendant as Collado instructs, it did not focus on the circumstances surrounding
Bland’s involvement during either his incarceration or the eight month period
following his release. Id.
Our review fails to reveal any evidence to support the District Court’s
accomplice attribution during Bland’s incarceration. There is no evidence that
Bland was involved in the conspiracy while in prison from October of 2003 until
January 31, 2006. In fact, during the March 5, 2010 hearing, the government
acknowledged as much, stating that there was “no evidence that [Bland] had any
contact with” his coconspirators during his incarceration. In the absence of some
evidence that Bland had any involvement in the conspiracy during his
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incarceration, see Collado, 975 F.2d at 995, we conclude that the District Court
erred by attributing to Bland the amount of drugs sold by the conspiracy for each
week that he was in prison.
Furthermore, the evidence indicates that Bland was released from prison on
January 31, 2006 and then arrested on October 5, 2006. During that eight month
period, the trial record establishes that Bland was involved in the conspiracy
selling crack cocaine for only “a couple months” before his arrest. SA826. Yet the
District Court, without explanation, held Bland liable for the entire eight months of
drug activity following his release from prison.
Accordingly, although we will affirm Bland’s conviction, we will vacate his
sentence and remand this matter for further fact finding with regard to accomplice
attribution when he was incarcerated and during the eight month period following
his release from prison.
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