United States v. Crute , 238 F. App'x 903 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-6-2007
USA v. Crute
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2776
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2776
UNITED STATES OF AMERICA
v.
GEORGE WASHINGTON CRUTE,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D. C. No. 05-cr-00100-1)
District Judge: Hon. Thomas M. Hardiman
Submitted under Third Circuit LAR 34.1(a)
on May 18, 2007
Before: FISHER and ROTH, Circuit Judges
RAMBO*, District Judge
(Opinion filed September 6, 2007)
*Judge Sylvia H. Rambo, United States District Judge for the Middle District of
Pennsylvania, sitting by designation.
OPINION
ROTH, Circuit Judge:
A jury found George Washington Crute III guilty of two counts of possession
with the intent to distribute more than five grams of crack cocaine. The District Court
sentenced Crute to ten years on both counts to be served concurrently and imposed a fine of
$2,600. Crute appealed his conviction and sentence, arguing that (1) inadmissible evidence
was admitted at trial; (2) the jury, rather than the District Court should have determined
whether he had a prior felony conviction for sentencing purposes;1 and (3) the imposition of
the $2,600 fine required notice, was improper given Crute’s inability to pay, and required
further consideration of statutory factors. Finding no error, we will affirm.
I. BACKGROUND
This case centers around three controlled purchases of crack cocaine by a confidential
informant. The informant, Lonnie Williford, had been arrested on April 23, 2004, for the
sale of crack cocaine and agreed to cooperate with the police as a confidential informant.
Williford shared with authorities information about Crute, a “friend of a friend,” and
ultimately agreed to make three controlled buys from Crute. All three buys were made under
the supervision of Captain McClure of the narcotics unit of the Beaver County District
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Crute acknowledges that he appealed this issue only to preserve his claim should the
Supreme Court overrule Almendarez-Torres v. United States, 523 U.S. 224 (1998), which
presently controls.
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Attorney’s Office and Pennsylvania State Trooper Michael C. Warfield.
Crute was indicted on April 12, 2005 for possession with intent to distribute less than
five grams of crack cocaine on August 4, 2004 (Count 1), 21 U.S.C. § 841(a)(1), (b)(1)(C),
possession with intent to distribute more than five grams of crack cocaine on August 7, 2004
(Count 2), 21 U.S.C. § 841(a)(1), (b)(1)(B), and possession with intent to distribute more
than five grams of crack cocaine on February 10, 2005 (Count 3), 21 U.S.C. § 841(a)(1),
(b)(1)(B). The jury returned a mixed verdict, acquitting Crute on Count 1 but convicting him
on Counts 2 and 3.
At sentencing, the District Court took into account Crute’s prior felony conviction in
calculating the range of penalties suggested by the Sentencing Guidelines and his statutory
mandatory minimum penalty. The Sentencing Guideline recommended range was seventy
to eighty-seven months, while the statutory mandatory minimum was ten years. The District
Court imposed a sentence of ten years of imprisonment.
The Sentencing Guidelines also suggested a fine of $12,500 to $4,000,000. The
District Court imposed a fine of $2,600, the amount of cash that Crute had on his person at
the time of his remand to custody, stating that the Guideline range was too high and that the
$2,600 fine was just and appropriate.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291.
II. DISCUSSION
At trial, the vehicle registration records of the three cars owned by Crute that were
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observed over the course of the investigation were admitted into the record pursuant to the
hearsay exception for government records. Crute contends that this was error, arguing that
the records do not qualify for the exception and that the documents admitted at trial were not
authenticated.
To the extent that our review implicates the District Court’s interpretation of the
Federal Rules of Evidence, our review is plenary. United States v. Mornan, 413 F.3d 372,
377 (3d Cir. 2005). Where the District Court’s ruling was based on a permissible
interpretation of a rule, we review for abuse of discretion. Id. We review the District Court’s
ruling as to proper authentication for abuse of discretion. United States v. McGlory, 968 F.2d
309, 328 (3d Cir. 1992).
Federal Rule of Evidence 803(8) provides in relevant part that “records, reports,
statements, or data compilations, in any form, of public offices or agencies, setting forth (A)
the activities of the office or agency” are not excluded by the hearsay rule unless “the sources
of information or other circumstances indicate lack of trustworthiness.” Registration of
automobiles is clearly a routine, non-adversarial activity of the Pennsylvania Bureau of
Motor Vehicles. Accordingly, vehicle registration records are admissible under Rule 803(8).
Federal Rule of Evidence 901 states that “[t]he requirement of authentication or
identification is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” Evidence may be properly authenticated if a witness
with knowledge testifies that the document is what it claims to be. United States v. Goldin,
311 F.3d 191, 197 (3d Cir. 2002). The vehicle registration records were authenticated at trial
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by a witness with knowledge–the investigating officer who originally retrieved them from
PennDot.
We conclude that the admission of the vehicle registration records was proper, and
there was no error committed by the District Court.
As for the imposition of a $2,600 fine Crute argues that the fine should be overturned
because (1) the District Court erred by failing to provide notice of the imposition of a fine
outside of the guidelines range, (2) the District Court erred by imposing a fine despite the
statement in the presentence report that Crute would be unable to pay a fine within the
guideline range, and (3) the District Court erred by failing to explicitly consider the statute
regarding the imposition of fines. Crute’s first two arguments were not raised at trial and so
are reviewed only for plain error. United States v. Gordon, 290 F.3d 539, 542-43 (3d Cir.
2002). Crute’s third argument was preserved, and our review of the sufficiency of the
District Court’s findings is plenary. United States v. Demes, 941 F.2d 220, 223-24 (3d Cir.
1991).
In view of the fact that the amount of the fine, $2,600, was a small fraction of the
$12,500 to $4 million Sentencing Guideline range, we find no clear error in the failure to
give notice of an intent to depart – even had notice of a departure below the Guideline
amount been necessary – which we doubt.
As for the decision to impose a fine, section 5E1.2(a) of the Sentencing Guidelines
provides that “[t]he court shall impose a fine in all cases, except where the defendant
establishes that he is unable to pay and is not likely to become able to pay any fine.”
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U.S.S.G. § 5E1.2(a). When a defendant did not at sentencing raise the issue of his or her
inability to pay, a sentencing court's decision to impose a fine is reviewed for plain error.
United States v. Torres, 209 F.3d 308, 313 (3d Cir. 2000).
Crute claims that because the presentence report stated that Crute “does not appear
[to have] the ability to pay a fine within the advisory guideline range,” it was plain error for
the District Court to impose a fine. However, as the presentence report did state, Crute had
$2,600 in cash in his possession when taken into custody. It is not plain error for the District
Court to find that a defendant with $2,600 in cash has the ability to pay a $2,600 fine.
Moreover, the District Court created a record sufficient for meaningful appellate
review. By adopting the conclusions of the presentence report and basing the fine imposed
on the amount of cash that Crute had in his possession, the District Court implicitly
considered Crute’s ability to pay. Such consideration, alongside a record sufficiently well
developed to allow for meaningful appellate review, satisfies the requirements of 18 U.S.C.
§ 3572.
III. CONCLUSION
For the foregoing reasons, the District Court’s judgment will be affirmed.
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