United States v. Powell ( 2001 )


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  •                          UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                              No. 00-4293
    MICHAEL GLENN POWELL,
    Defendant-Appellant.
    
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                              No. 00-4309
    JAMES LEONARDO POWELL,
    Defendant-Appellant.
    
    Appeals from the United States District Court
    for the Eastern District of North Carolina, at Wilmington.
    James C. Fox, District Judge.
    (CR-99-24)
    Submitted: December 29, 2000
    Decided: January 22, 2001
    Before NIEMEYER and MICHAEL, Circuit Judges, and
    HAMILTON, Senior Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    2                     UNITED STATES v. POWELL
    COUNSEL
    H. Gerald Beaver, Richard B. Glazier, BEAVER, HOLT, STERN-
    LICHT, BURGE, GLAZIER, CARLIN & BRITTON, P.A., Fayette-
    ville, North Carolina; James R. Van Camp, VAN CAMP, HAYES, &
    MEACHAM, P.A., Pinehurst, North Carolina, for Appellants. Janice
    McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
    United States Attorney, Christine Witcover Dean, Assistant United
    States Attorney, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Michael Powell (Mike Powell) and James Leonardo Powell (Lee
    Powell) appeal their criminal judgments after being convicted of con-
    spiracy to distribute and possess with intent to distribute cocaine and
    cocaine base, in violation of 
    21 U.S.C.A. § 846
     (West Supp. 2000)
    (Mike and Lee Powell); maintaining a place for the purpose of manu-
    facturing and distributing controlled substances, in violation of 
    21 U.S.C. § 856
     (1994) (Mike Powell); distribution of cocaine base, in
    violation of 
    21 U.S.C.A. § 841
     (West 1999) (Lee Powell); and crimi-
    nal forfeiture, in violation of 
    21 U.S.C.A. § 853
     (West 1999) (Mike
    Powell). The Powells raise several issues challenging their sentences.
    We have reviewed the record and find no error. We therefore affirm
    the judgments.
    Mike and Lee Powell first argue that their due process rights were
    violated because the indictment allegedly did not specify drug quan-
    tity, the jury was instructed as to generic drug amounts, and the sen-
    tencing court found a higher amount than the minimum specified in
    the special verdict. They further argue that if the minimum amount
    found by the jury was used to determine the offense level, their sen-
    tences would have been reduced under the Sentencing Guidelines.
    UNITED STATES v. POWELL                        3
    First, the overt acts listed in the indictment specify drug amounts
    that exceed the amounts required to sentence a defendant under 
    21 U.S.C.A. § 841
    (b)(1)(A). The jury returned special verdicts that
    exposed both Defendants to the penalties of § 841(b)(1)(A). The max-
    imum term of imprisonment under that section is life imprisonment.
    The requirement of Apprendi v. New Jersey, 
    120 S. Ct. 2348
    (2000), does not apply to judge-made determinations of amount of
    drugs for purposes of calculating the offense level and relevant con-
    duct. See 
    id.
     at 2359 n.11; United States v. Kinter, No. 99-4621 (4th
    Cir. Dec. 19, 2000), slip op. at 15. Judges are permitted to make
    determinations of the kinds and amounts of drugs involved in the
    crime when imposing sentences within the statutory range. United
    States v. Doggett, 
    230 F.3d 160
    , 166 (5th Cir. 2000) (holding that a
    judge may use the preponderance of the evidence standard when mak-
    ing determinations when imposing a sentence within the statutory
    range); United States v. Nicholson, 
    231 F.3d 445
    , 453 (8th Cir. 2000)
    (upholding life sentence where amount was charged in the indictment,
    maximum statutory sentence was life imprisonment, and sentencing
    court made drug amount findings by a preponderance of the evi-
    dence). Therefore, although the sentencing judge made drug amount
    findings, based upon the preponderance of the evidence, that
    exceeded the amount found as a minimum by a jury, the sentences
    based upon drug amounts do not violate the requirement of Apprendi.
    Next, Mike and Lee Powell contend that their enhancements for
    possession of a firearm and Mike Powell’s enhancement for his role
    in the offense should have been an element of the offense and submit-
    ted to the jury and proven beyond a reasonable doubt. The Powells’
    sentencing enhancements due to possession of a firearm and Mike
    Powell’s enhancement for his role in the offense did not increase their
    statutory maximum sentences. Accordingly, this claim must fail. Kin-
    ter, slip op. at 15 (holding that "[b]ecause Apprendi does not apply
    to a judge’s exercise of sentencing discretion within a statutory range,
    the current practice of judicial factfinding under the Guidelines is not
    subject to the Apprendi requirements-at least so long as that factfind-
    ing does not enhance a defendant’s sentence beyond the maximum
    term specified in the substantive statute.").
    Next, Mike Powell argues that it was error for the district court to
    instruct the jury that the Government need only prove the elements of
    4                      UNITED STATES v. POWELL
    forfeiture by a preponderance of the evidence. He further argues that
    the forfeiture of the Dothan Estates property was not supported by
    sufficient evidence. Powell did not object to the forfeiture on these
    grounds, therefore, the claims are subject to plain error review. Fed.
    R. Crim. P. 52(b); United States v. Olano, 
    507 U.S. 725
    , 731-32
    (1993).
    The Supreme Court has held that forfeiture is not an independent
    offense, but is only part of the sentence imposed for the underlying
    drug offense. Libretti v. United States, 
    516 U.S. 29
    , 38-39 (1995). The
    burden of proof on a forfeiture count is preponderance of the evi-
    dence. United States v. Tanner, 
    61 F.3d 231
     (4th Cir. 1995). Apprendi
    does not require the trier of fact to make factual determinations
    beyond a reasonable doubt. United States v. Corrado, 
    227 F.3d 543
    ,
    550 (6th Cir. 2000) (holding that a jury need not "pass upon the extent
    of forfeiture" and that the trier of fact may make determinations based
    upon the preponderance of the evidence). Therefore, the jury instruc-
    tions on the burden of proof were not error.
    Mike Powell argues that there is nothing in the record to support
    the jury’s finding that the Dothan Estates property was used or facili-
    tated the commission of a drug violation or that he purchased the
    property with the proceeds of criminal activity. The Government does
    not contend that the property was used to facilitate a crime. Rather,
    the Government argued to the jury and submitted to the jury on the
    special verdict form that the property was to be forfeited as proceeds
    of the crime. After reviewing the record, we find that sufficient evi-
    dence existed for the jury to find by a preponderance of the evidence
    that Mike Powell purchased the property with drug proceeds.
    Mike Powell also argues that the forfeiture of the Dothan Estates
    property operates as an unconstitutionally excessive fine. The defen-
    dant bears the burden to show that the fine is excessive. United States
    v. Ahmad, 
    213 F.3d 805
    , 815-16 (4th Cir. 2000). The Government
    sought to have the Dothan Estates property forfeited as proceeds of
    the crime. The forfeiture of proceeds relieves the defendant of his ille-
    gal gain, and therefore cannot be excessive. United States v. Wild, 
    47 F.3d 669
    , 675-76 (4th Cir. 1995). Property into which a defendant has
    invested proceeds from the crime also may be forfeited as proceeds.
    United States v. Borromeo, 
    1 F.3d 219
    , 221 (4th Cir. 1993). The for-
    UNITED STATES v. POWELL                         5
    feiture of proceeds is never "grossly disproportionate to the gravity of
    a defendant’s offense," which is the test for a violation of the Exces-
    sive Fines Clause. United States v. Bajakajian, 
    524 U.S. 321
    , 334
    (1998). Therefore, we find that the forfeiture of the Dothan Estates
    property was not an excessive fine.
    Mike Powell next argues that the sentencing court’s finding that he
    possessed firearms during the conspiracy is clearly erroneous because
    there was limited trial testimony on the issue and the court considered
    out-of-court statements of witnesses. The district court’s determina-
    tion of the specific offense characteristic of firearm possession will be
    upheld unless clearly erroneous. United States v. Harris, 
    128 F.3d 850
    , 852 (4th Cir. 1997). We find that, considering the testimony of
    John Singleton, as recollected by both counsel, and the statement by
    Stevie Taylor, it was not clear error for the district court to apply the
    enhancement.
    Finally, Lee Powell challenges the district court’s denial of his
    motion in limine seeking to exclude the evidence obtained from 1991
    and 1992 searches of his trailer residences. We review evidentiary
    rulings for an abuse of discretion. United States v. D’Anjou, 
    16 F.3d 604
    , 610 (4th Cir. 1994). We find that it was not error to admit the
    evidence. The evidence was relevant to Lee Powell’s role in the con-
    spiracy during the time frame charged in count one of the indictment.
    Further, the evidence was admissible under Fed. R. Evid. 404(b). By
    pleading not guilty, Powell denied that he was a participant in the
    drug distribution conspiracy. Thus, Powell’s involvement in drug
    transactions prior to the dates of the charged conspiracy, and the pres-
    ence of drug paraphernalia in his trailer during the time frame of the
    charged conspiracy, were facts relevant to the issues of Powell’s
    knowledge and intent, providing an indication that he was both aware
    of and participating in the conspiracy. United States v. Sanchez, 
    118 F.3d 192
    , 195-96 (4th Cir. 1997) (evidence that defendant had con-
    ducted drug deals outside the time frame charged in the conspiracy
    and that he was arrested near an automobile which contained drugs
    and in which he had just been a passenger was properly admitted
    under Rules 404(b) and 403); United States v. McMillon, 
    14 F.3d 948
    ,
    955 (4th Cir. 1994) (evidence which "explain[ed] to the jury how the
    illegal relationship between participants in the crime developed" was
    admissible under Rules 404(b) and 403) (internal quotation marks
    6                     UNITED STATES v. POWELL
    omitted). Finally, after reviewing the record, we cannot say that the
    district court abused its discretion in determining that the probative
    value of the evidence was not substantially outweighed by its prejudi-
    cial effect and thus excludable under Fed. R. Evid. 403. Thus, the dis-
    trict court did not err in admitting the evidence from the searches.
    We therefore affirm the judgments. We deny Mike Powell’s
    motion to file a pro se supplemental brief. We dispense with oral
    argument because the facts and legal contentions are adequately pre-
    sented in the materials before the court and argument would not aid
    the decisional process.
    AFFIRMED