United States v. Rice , 77 F. App'x 692 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4673
TOMMY RICE,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 02-4751
TOMMY RICE,
Defendant-Appellee.

Appeals from the United States District Court
for the District of South Carolina, at Spartanburg.
Margaret B. Seymour, District Judge.
(CR-01-887)
Argued: September 26, 2003
Decided: October 20, 2003
Before WILKINS, Chief Judge, TRAXLER, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded with instructions by
unpublished per curiam opinion.
2 UNITED STATES v. RICE
COUNSEL
ARGUED: Rodney Wade Richey, RICHEY & RICHEY, P.A.,
Greenville, South Carolina, for Appellant. Elizabeth Jean Howard,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States Attor-
ney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Tommy Rice (Rice) of aiding and abetting the
possession with the intent to distribute and the distribution of fifty
grams or more of cocaine base (crack) in violation of 18 U.S.C. § 2and 21 U.S.C. § 841(a)(1). He was sentenced by the district court to
293 months’ imprisonment. On appeal, Rice challenges both his con-
viction and sentence. The government cross-appeals, contending that
Rice should have received a mandatory life sentence under 21 U.S.C.
§ 841(b)(1)(A). We agree with the government that Rice’s conviction
should be affirmed and that his case should be remanded with instruc-
tions to the district court to impose a sentence of life imprisonment.
I
A
This case arose from an investigation conducted by a Drug
Enforcement Administration (DEA) Mobile Enforcement Team
(MET) into the drug distribution organization of one of Rice’s code-
fendants, Tony Patterson (Patterson).1 Patterson’s organization dis-
tributed cocaine and crack in Spartanburg, South Carolina.
1
DEA Agent Mario Lijoi testified that METs assist local law enforce-
ment with investigating violent drug offenders who have been in busi-
ness for extended periods of time.
UNITED STATES v. RICE 3
In the winter of 2000, Rice began working for Patterson as a car
washer at Patterson’s business, Big Tee’s Tires and Rims (Big Tee’s).
On August 9, 2001, Rice was present at Big Tee’s when Gary Brown
(Brown) sold two ounces of crack to William Skinner (Skinner), a
DEA confidential informant. On that date, Rice rode with Brown to
pick up the crack from LeSean Scurry. When they returned, Rice
handed Patterson the two ounces of crack. Thereafter, Patterson
returned the two ounces of crack to Brown who sold the crack to
Skinner for $1700.
On August 14, 2001, Rice served as a lookout during another trans-
action involving Brown and Skinner. Skinner went to Big Tee’s with
$3,400 to purchase crack. When he arrived at Big Tee’s, Skinner was
met at the door by Rice who let Skinner inside the building and then
locked the door behind him. Skinner, Brown, and Scott Broadus
(Broadus) were all present during the transaction and testified that
Rice acted as a lookout for police during this transaction. After the
transaction, Skinner met with DEA agents and turned over the crack
that was purchased for $3,400. Ivette Vallego, a DEA forensic chem-
ist, testified that the substance seized on August 14, 2001 contained
105 grams of crack.
For his assistance to the Patterson drug distribution organization,
it does not appear that Rice received any monetary compensation.
Rather, for his assistance, Rice, who was a crack addict at the time,
was purportedly provided crack and/or allowed to fuel his addiction
by testing the crack prepared by Patterson.
B
On November 27, 2001, Rice was named in counts one and three
of a five-count superseding indictment filed in the United States Dis-
trict Court for the District of South Carolina. Count one charged Rice
with conspiracy to possess with the intent to distribute fifty grams or
more of crack and more than five kilograms of cocaine in violation
of 21 U.S.C. §§ 841(a)(1) and 846. Count three charged that, on or
about August 14, 2001, Rice possessed with the intent to distribute
and distributed fifty grams or more of crack, and did aid and abet
Brown and Broadus in the commission of the offense, in violation of
18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1).
4 UNITED STATES v. RICE
On April 3, 2002, the government filed an information pursuant to
21 U.S.C. § 851 which notified Rice that he was subject to the
enhanced penalties provided by 21 U.S.C. § 841(b)(1)(A) based on
his prior felony drug convictions. Based on these convictions, Rice,
upon conviction of either count one or three of the superseding indict-
ment, was subject to a mandatory life sentence. Id.The case proceeded to trial before the district court on April 23 and
24, 2002. The jury was unable to reach a verdict as to count one and
a mistrial was declared on that count. As to count three, by special
verdict, the jury convicted Rice of aiding and abetting the possession
with the intent to distribute and the distribution of fifty grams or more
of crack.
On July 30, 2002, after the district court concluded that the manda-
tory life sentence in this case was not disproportionate to the offense
of conviction, Rice was sentenced to life imprisonment. On July 31,
2002, the district court filed an order staying entry of judgment in
Rice’s case in order to provide him an allocution opportunity. In its
order, the district court also stated that it would hear arguments con-
cerning any effect Apprendi v. New Jersey, 530 U.S. 466 (2000),
might have on Rice’s sentencing.
At the second sentencing hearing on August 6, 2002, the district
court heard argument from the parties and Rice’s allocution and found
that a life sentence was unconstitutionally disproportionate to the
offense of conviction because Rice was not a major dealer, made no
money from his participation in Patterson’s organization, and was not
convicted on the conspiracy count, but rather was only convicted of
aiding and abetting Brown and Broadus in the commission of the
offense charged in count three. As a result, the district court ignored
the mandatory sentence of life imprisonment and sentenced Rice
based on a finding that he was accountable for 283.3 grams of crack
and five kilograms of cocaine. This finding resulted in an offense
level of thirty-four. Rice’s criminal history category was five, produc-
ing a Guideline range of 235-293 months’ imprisonment. Rice was
sentenced to 293 months’ imprisonment. Following the entry of judg-
ment, Rice filed a timely notice of appeal and the government filed
a timely notice of cross-appeal.
UNITED STATES v. RICE 5
II
Rice contends that there is insufficient evidence in the record to
support his conviction for aiding and abetting the possession with the
intent to distribute and the distribution of fifty grams or more of crack
on August 14, 2001, 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). This
contention is without merit.
When reviewing "the sufficiency of the evidence following a con-
viction, this court views the evidence and the reasonable inferences
to be drawn therefrom in the light most favorable to the Government."
United States v. Lomax, 293 F.3d 701, 705 (4th Cir.) (citation and
internal quotation marks omitted), cert. denied, 537 U.S. 1031 (2002).
We must sustain the jury’s verdict so long as there is substantial evi-
dence to support it. Glasser v. United States, 315 U.S. 60, 80 (1942).
As applied to this case, the elements of possession with intent to
distribute fifty grams or more of crack are as follows: (1) the posses-
sion of fifty grams or more of crack; (2) the knowledge of the posses-
sion; and (3) the intent to distribute the crack. United States v.
Crockett, 813 F.2d 1310, 1316 (4th Cir. 1987) (possession with intent
to distribute PCP). The elements of distribution of fifty grams or more
of crack are as follows: (1) the distribution of fifty grams or more of
crack; (2) the knowledge of the distribution; and (3) the intent to dis-
tribute the crack. United States v. Tran Trong Cuong, M.D., 18 F.3d
1132, 1137 (4th Cir. 1994) (distribution of prescription controlled
substances).
In this case, the evidence is more than sufficient to support Rice’s
conviction for aiding and abetting the possession with the intent to
distribute and the distribution of fifty grams or more of crack. On the
August 14, 2001 transaction at issue, Brown sold 105 grams of crack
to Skinner. Skinner, Brown, and Broadus were all present during the
transaction and testified that Rice acted as a lookout for police during
the transaction. Obviously, Rice’s role as a lookout aided and abetted
Brown and Broadus in the possession with the intent to distribute and
the distribution of fifty grams or more of crack. United States v.
Arrington, 719 F.2d 701, 705 (4th Cir. 1983) ("To be convicted of
aiding and abetting, participation in every stage of an illegal venture
is not required, only participation at some stage accompanied by
6 UNITED STATES v. RICE
knowledge of the result and intent to bring about that result.") (cita-
tion and internal quotation marks omitted).
The gist of Rice’s argument is that the testimony of Skinner,
Brown, and Broadus should not be credited. For example, Rice sug-
gests that Skinner’s testimony should not be credited because he was
cooperating with the government to avoid the implications of a
December 2000 traffic stop in which he was found to have possessed
two ounces of cocaine and a firearm. Rice further posits that Broadus
and Brown’s testimony should not be credited because they testified
in hopes of obtaining a reduced sentence. We must reject Rice’s
attacks on the testimony of Skinner, Brown, and Broadus because we
are not at liberty to question the jury’s assessment of witness credibil-
ity. United States v. Burgos, 94 F.3d 849, 863 (4th Cir. 1996) (en
banc) (noting that the jury weighs the credibility of the evidence and
credibility determinations are not susceptible to judicial review). In
summary, there is sufficient evidence in the record to support Rice’s
conviction for aiding and abetting the possession with the intent to
distribute and the distribution of fifty grams or more of crack.
III
We now turn to the parties’ arguments concerning the sentence
imposed in this case. The government contends that Rice should have
received the mandatory sentence of life imprisonment under 21
U.S.C. § 841(b)(1)(A). Rice contends that the district court was cor-
rect when it held that subjecting him to the mandatory sentence of life
imprisonment would result in a constitutionally disproportionate sen-
tence, but further contends that, once the district court correctly made
this ruling, its selection of a 293-month sentence violated the dictates
of Apprendi.
A
At Rice’s initial sentencing hearing on July 30, 2002, Rice moved
for a downward departure, arguing that a life sentence violated the
Eighth Amendment’s Cruel and Unusual Punishment’s Clause. The
district court rejected that argument and imposed a sentence of life
imprisonment, based on the following:
UNITED STATES v. RICE 7
Mr. Rice has made a motion that the sentence of life without
parole is disproportionate to the crime committed, and he
argues that a life sentence constitutes cruel and unusual pun-
ishment.
The Supreme Court in these circumstances requires a pro-
portionality analysis in cases involving life sentences with-
out parole. And the Supreme Court has established a series
of factors to be considered in determining whether a sen-
tence is proportional to the crime committed.
And the first inquiry is to the gravity of the offense and the
harshness of the penalty. And second, the court can look to
the punishments that have been meted out for other crimes
within the jurisdiction to determine whether the instant con-
duct is treated similarly to other crimes of similar gravity.
And finally a court may find it useful to compare the sen-
tence imposed in other jurisdictions for the same crime.
There’s no question that the gravity of Mr. Rice’s offense is
great. As the Fourth Circuit has stated in the case of United
States versus D’Anjou, drug use has become a pervasive and
destructive force in American society. As stated in Mr.
Rice’s presentence report, Mr. Rice was present when drugs
were sold. He converted powder to crack cocaine, and the
jury found him guilty of the charge of aiding and abetting
in possession with the intent to distribute fifty grams or
more of crack cocaine.
While Mr. Rice may not have been the mastermind of this
operation, he was tasked with significant responsibility.
Therefore, given the substantial quantity of drugs involved
here and Mr. Rice’s position in the drug operation and the
fact that he faces this enhanced penalty because of his exten-
sive history of felony drug offenses, the court concludes that
life without parole is not disproportionate to the crime
involved.
(J.A. 329-30). On July 31, 2002, the district court stated in an order
that it had not afforded Rice the opportunity to allocute and scheduled
a second sentencing hearing for August 6, 2002.
8 UNITED STATES v. RICE
At the August 6, 2002 sentencing hearing, Rice told the district
court that:
I never made any deals. I never received any money. I don’t
know transactions that never went as far as the law enforce-
ment that they was making deals. As a matter of fact, every
last one of them was caught making deals with drug
enforcement agents. I was never caught being filmed selling
any drugs to any drug enforcement agents. And the guys
that did make transactions ended up with little amount of no
time.
And I just wanted to say that as far as receiving any money,
I never received any large amount of money from no trans-
actions. . . . Only money that I received is from my job
washing cars. And that’s the only money I received at any
time.
And . . . my bills was behind. And . . . if I was making that
kind of money, my bills wouldn’t be behind. I was behind
on my probation fee. I was behind on my rent. I mean I
wasn’t making any money. If I be having two felonies, it
was hard for me to get a job basically, and I just had to take
whatever I could get. And he offered me a job to wash cars,
and that’s what I did.
(J.A. 340-41). After hearing from Rice, the district court concluded:
[A]fter considering the defendant’s statements with regard
to his role in this case and the facts that came out in trial
with regard to his role in this case, the fact that he — I think
it was clear from the trial that he was not a major . . . dealer.
He was not the ringleader in this case.
I think it’s clear that the defendant’s statements and state-
ments of others that have testified that he did not receive
any reward or any money personally as a result of any activ-
ity he engaged in, and the fact that the jury found that he
aided and abetted, but did not find him guilty of conspiracy
UNITED STATES v. RICE 9
charges, I find that his level of participation in this case . . .
does not rise to a level that would justify a life sentence.
(J.A. 343-44). The district court then sentenced Rice to 293 months’
imprisonment, which was within the Guideline range (as calculated
by the district court following its findings concerning the amount of
drugs attributable to Rice and Rice’s criminal history) had the manda-
tory sentence of life imprisonment not been applicable.
B
The record in this case leaves no doubt that Rice should have been
sentenced to life imprisonment. Count three of the superceding indict-
ment charged that, on or about August 14, 2001, Rice possessed with
the intent to distribute and distributed fifty grams or more of crack,
and did aid and abet Brown and Broadus in the commission of the
offense, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). On
April 3, 2002, the government filed an information pursuant to 21
U.S.C. § 851 which notified Rice that he was subject to the enhanced
penalties provided by 21 U.S.C. § 841(b)(1)(A) based on his prior fel-
ony drug convictions.2 Based on these convictions, Rice, upon con-
viction of either count one or three of the superseding indictment, was
subject to a mandatory life sentence. Id. Rice was ultimately con-
victed under count three of aiding and abetting the possession with
the intent to distribute and the distribution of fifty grams or more of
crack, 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), and this conviction
subjected him to a mandatory life sentence because, as an aider and
abettor, Rice was subject to punishment as a principal. 18 U.S.C.
§ 2(a) ("Whoever commits an offense against the United States or
aids, abets, counsels, commands, induces or procures its commission,
is punishable as a principal."). Because the statutory minimum
sentence—life—was greater than the maximum Guideline sentence—
293 months—Rice should have been sentenced to a term of life
imprisonment. United States Sentencing Commission, Guidelines
Manual (USSG) § 5G1.1(b) ("Where a statutorily required minimum
sentence is greater than the maximum of the applicable guideline
2
There appears to be no dispute that Rice has at least two prior felony
convictions as required by 21 U.S.C. § 841(b)(1)(A).
10 UNITED STATES v. RICE
range, the statutorily required minimum sentence shall be the guide-
line sentence.").
To be sure, while a district court may depart below the sentencing
range established by the Sentencing Guidelines, such a departure gen-
erally may not result in a sentence below the minimum term specified
in the offense of conviction. 18 U.S.C. § 3553(e) (limiting authority
of district court to depart below statutory minimum to cases in which
the government has moved for such a departure on the basis of sub-
stantial assistance); United States v. Patterson, 38 F.3d 139, 146 n.8
(4th Cir. 1994) (observing that "[t]he district court could have sen-
tenced below the statutory minimum only if this departure was based
on the Government’s motion for downward departure due to Defen-
dant’s substantial assistance"); cf. 18 U.S.C. § 3553(f) (safety valve
provision) (limiting applicability of statutory minimum penalties for
certain drug offenses when specified criteria are met); USSG § 5C1.2
(same). In this case, there was simply no basis for the district court
to ignore the mandatory life sentence. The government did not make
a substantial assistance motion and the safety valve provision obvi-
ously did not apply (Rice had too many criminal history points).
Finally, it should be noted that Rice’s sentence is not dispropor-
tionate in a constitutional sense. In Solem v. Helm, 463 U.S. 277(1983), the Supreme Court held that "a criminal sentence must be pro-
portionate to the crime for which the defendant has been convicted."
Id. at 290. To determine whether a sentence is proportionate to the
crime committed under Solem, we must consider: "(1) the gravity of
the offense and the harshness of the penalty, (2) the sentences
imposed on other criminals in the same jurisdiction, and (3) the sen-
tences imposed for commission of the same crime in other jurisdic-
tions." United States v. Kratsas, 45 F.3d 63, 66 (4th Cir. 1995).3
3
In Harmelin v. Michigan, 501 U.S. 957 (1991), the Supreme Court
rejected a claim that a mandatory life sentence without parole constituted
cruel and unusual punishment for a defendant convicted of possessing
more than 650 grams of cocaine. Id. at 996 (plurality opinion). As we
noted in Kratsas, the Supreme Court’s decision in Harmelin makes it
somewhat unclear as to whether Solem’s three-part proportionality test
should still be applied in noncapital cases. Kratsas, 45 F.3d at 67. None-
theless, we have continued to use the Solem factors in cases involving a
sentence of life without the possibility of parole. Id.UNITED STATES v. RICE 11
With regard to the Solem factors, aiding and abetting drug traffick-
ing is an extremely grave offense with far-reaching effects. As we
noted in United States v. D’Anjou, crack use has become a "pervasive,
destructive force in American society." 16 F.3d 604, 613 (4th Cir.
1994). Moreover, Rice’s offense was graver because he is a repeat
drug offender. Kratsas, 45 F.3d at 68. Thus, the gravity of Rice’s
offense supports a severe sentence. Applying the second prong of
Solem, it is clear that a life sentence for a drug violation by a repeat
drug offender is not disproportionate with other sentences mandated
by the Sentencing Guidelines. Cf. D’Anjou, 16 F.3d at 613 ("[A] life
sentence for a major drug violation is not disproportionate in compari-
son with other sentences under the Guidelines."). Finally, applying
the third prong of Solem, a survey of drug statutes in states within this
circuit reveals the existence of harsh sentences for drug violations of
the magnitude involved here. See, e.g., S.C. Code Ann. § 44-53-
370(e)(2)(c), (d) (twenty-five year mandatory minimum sentence for
drug offense involving 100 or more, but less than 400, grams of
cocaine); Va. Code Ann. § 18.2-248(C) (providing for sentence of up
to life imprisonment for third drug offense). Therefore, after consider-
ing the Solem factors, one must conclude that a life sentence in this
case is not constitutionally disproportionate. Cf. Lockyer v. Andrade,
123 S. Ct. 1166, 1172-75 (2003) (holding that the state court’s affir-
mance of two consecutive 25-years-to-life sentences for petty theft
was not contrary to or an unreasonable application of federal law);
Harmelin, 501 U.S. at 996 (plurality opinion) (sentence of life impris-
onment without parole for first time drug offender convicted of sim-
ple possession of 650 grams of cocaine is not constitutionally
disproportionate); Kratsas, 45 F.3d at 65 (noting that "the law is well
settled that mandatory life sentences are constitutional when applied
to prior drug felony offenders"); United States v. Hill, 30 F.3d 48, 50
(6th Cir. 1994) (holding that a mandatory life sentence without the
possibility of parole for a third-time offender who committed a
§ 841(a)(1) offense involving 177.8 grams of crack "was not so
grossly disproportionate . . . as to violate the Eighth Amendment").4
4
We note that Rice’s life sentence does not violate the dictates of
Apprendi. In Apprendi, the Supreme Court held that, other than the fact
of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be charged in the indict-
12 UNITED STATES v. RICE
IV
We understand what the district court was trying to accomplish
here. Rice was a relatively minor participant in the August 14, 2001
drug transaction and participated in this transaction not to make
money but rather only to obtain some crack to fuel his unfortunate
addiction to the drug. The district court understandably was compas-
sionate, trying to give a break to an individual whom it deemed
unworthy of a mandatory life sentence. The mandatory life sentence
in this case may well reflect some of the inequities involved in the
imposition of mandatory minimum sentences and any argument here
is with the mandatory life sentence mandated and not with the com-
passionate rationale of the district judge. Indeed, mandatory minimum
sentences are designed to ensnarl the most culpable, but all too often
they capture many who are considerably less culpable. Moreover,
mandatory minimums often do not take into account the defendant’s
role in the offense, which more accurately reflects the dangerousness
and the culpability of the defendant. However, even though we may
feel that the district court ultimately imposed a just sentence of 293
months’ imprisonment, we are not at liberty to disturb a mandatory
sentence of life imprisonment that is consistent with the Sentencing
Guidelines, the will of Congress, and the proportionality principles
laid down by the Supreme Court and this court. Consequently, we are
constrained to vacate Rice’s sentence and remand the case to the dis-
trict court with instructions to sentence Rice to a term of life impris-
onment for his conviction for aiding and abetting the possession with
ment, submitted to a jury, and proved beyond a reasonable doubt. 530
U.S. at 490. Apprendi specifically excluded enhancements which are
based on prior convictions from its holding. Id. Because the mandatory
life sentence in this case was based on Rice’s prior convictions, Apprendi
is not applicable. Id. In any event, Apprendi does not apply to facts
which increase the mandatory minimum so long as the sentence is not
extended beyond the statutory maximum. United States v. Kinter, 235
F.3d 192, 199-202 (4th Cir. 2000) (holding that Apprendi does not apply
to district court’s exercise of discretion within statutory range, as long as
sentence imposed does not exceed statutory maximum), cert. denied, 532
U.S. 937 (2001).
UNITED STATES v. RICE 13
the intent to distribute and the distribution of fifty grams or more of
crack.5
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
5
We grant the government’s unopposed motion to file a supplemental
appendix.