United States v. Collins ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51134
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
KENNETH SCOTT COLLINS, also known as Mike Kent,
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Texas
(W-97-CR-35-2)
November 14, 2002
Before JOLLY, JONES, and PARKER*, Circuit Judges.
**
PER CURIAM:
Kenneth Scott Collins appeals his convictions and resulting
sentences for conspiracy to distribute and possess with intent to
distribute more than 1,000 kilograms of marijuana and conspiracy to
*
Judge Parker concurred in the above opinion before his
retirement on November 1, 2002.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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commit money laundering in violation of 21 U.S.C. §§ 841(a)(1),
846; and, 18 U.S.C. § 1956(h). We affirm.
I. Background.
On November 15, 2000, Appellant Collins was arrested following
a lengthy investigation into a marijuana warehousing and
transportation scheme involving the interstate transfer of large
amounts of drug-related money.
At trial in September 2001, the follow testimony was adduced.
Collins admitted to associate and driver Jim Gregory in the late
1980s that he was a marijuana smuggler. Associate Sandra Eames
testified that in the early 1990s Collins worked out of a Houston
warehouse where marijuana was stored and repackaged for a marijuana
smuggling and distribution organization known as “the Rice
organization.” Eames had seen Collins at an El Monte, California,
warehouse judging the quality of marijuana that he would take and
sell in Ohio. The marijuana would be loaded into a moving truck,
and household furniture would be put on top of the marijuana for
the cross-country drive. Andrew Cavender, one of Eames’s drivers
who transported marijuana and cash, briefly drove for Collins
because Collins’s regular driver had been killed in a motorcycle
accident. Eames testified that Collins and Cavender had one
another’s pager numbers. She also testified that there was money
from the Ohio transactions in payment for the marijuana shipment.
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In December of 1991, Collins asked Gregory to take some money
from New York to El Paso. When Gregory agreed, Collins met Gregory
in a New York hotel room and put approximately $50,000 on Gregory’s
body to fly back with. Gregory stated that nobody ever said where
the money came from but he assumed that it was proceeds from
marijuana sales because Collins stated that it had to go back to
Glenn Rice, the head of the organization, to be forwarded to “the
Mexicans” for Christmas. Collins later had Gregory pick up
$800,000 in two suitcases near a Dallas airport and drive the money
to Rice at an El Paso motel. Each time, Gregory was paid for
having transported the money from Collins to Rice.
Cavender testified regarding the usual mode of operation on
runs he had made for Eames: someone would pick up his truck and
load it with marijuana, then redeliver it to him; Cavender would
then drive the load to its destination and currency would be loaded
into his truck for the return trip. Cavender testified that, after
having driven a few loads for Eames, he was told that “a driver for
the other part of the organization . . . had been killed in a
motorcycle wreck” and he was asked to haul a load of marijuana for
“the other guy.” When Cavender went to meet “the other guy,” he
met Collins. Cavender met with Collins and Eames at a Hilton hotel
in Ontario, California. Cavender was introduced to Collins and was
told “what the situation was and how it worked on [Collins’s] end.”
Cavender was told that “[they] would do the same thing.” It was
discussed that another person would pick up Cavender’s truck and
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load it; Cavender would drive his truck to Ohio, park it at a
Holiday Inn where someone would again pick it up to unload it and
then return Cavender’s truck to the hotel parking lot. Collins was
present at and participated in this conversation, agreeing with
everything that was said. While Cavender was at the Ohio hotel,
Collins came to the hotel and picked up Eames and Cavender’s wife
for a shopping spree. Cavender was later told that his truck had
been unloaded and that some bags had been put inside the furniture
for him to take back to California. Cavender understood that the
bags would contain money. Cavender was paid $10,000 for returning
the money to California and $25,000 for hauling the marijuana.
Duane Boggs, a driver for the drug operation, testified to
having driven loads containing the following amounts of marijuana:
2,000 pounds, 4,000 pounds, 3,000 pounds, and 7,000 pounds. That
16,000-pound aggregate equates to 7,200 kilograms. Cavender
testified that he had driven loads containing the following amounts
of marijuana: 2,000 pounds, 2,000 pounds, 2,000 pounds, and 1,900
pounds. This 7,900-pound aggregate equates to 3,555 kilograms of
marijuana. Cavender also testified that he had driven loads which
he did not load or unload into the truck and that he thus had no
idea of the quantity contained in them. Gregory testified that he
saw the following amounts of marijuana go through the operation’s
various warehouses: 2,000 to 4,000 pounds, 1,600 to 2,000 pounds,
and 6,000 pounds. He estimated the amount of marijuana that went
through the larger of the two California warehouses at 25,000 to
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30,000 pounds. He estimated the amount of marijuana that went
through the Dallas, Texas, warehouse at 20,000 pounds. Gregory
testified about a conservative aggregate of 52,800 pounds or 23,760
kilograms of marijuana. Finally, there was evidence that 5,000 to
6,000 pounds of marijuana were seized from a Houston warehouse in
January 1993. Another 1,400 pounds were seized from a warehouse in
April 1996. A quantity of 9,000 pounds was seized from a Dallas
warehouse in February 1997.1 This conservative aggregate of 15,400
pounds equates to 6,930 kilograms of marijuana.
Collins was convicted following a jury trial and now appeals
on these bases.
II. Analysis.
A.
Collins first argues that the district court erred in refusing
to submit his requested jury charge on a lesser-included-offense as
to drug quantity.
A “defendant may be found guilty of an offense necessarily
included in the offense charged.” FED. R. CRIM. P. 31(c); United
States v. Deisch, 20 F.3d 139, 142 (5th Cir. 1994), overruled on
other grounds by United States v. Doggett, 230 F.3d 160, 165 (5th
Cir. 2000), cert. denied, 531 U.S. 1177 (2001). A lesser included
1
The Dallas raid and other associated raids also resulted in
finding ledgers recording the weights of individual packages of
marijuana, bags in which to carry the packaged marijuana, large
amounts of money, and weapons including, for example, an AR-15
semi-automatic rifle.
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offense instruction is appropriate only if “(1) the elements of the
offense are a subset of the elements of the charged offense and (2)
the evidence at trial permits a jury to rationally find the
defendant guilty of the lesser offense yet acquit him of the
greater.” Deisch, 20 F.3d at 142. “A lesser-included offense
instruction is only proper where the charged greater offense
requires the jury to find a disputed factual element which is not
required for conviction of the lesser-included offense.” Sansone
v. United States, 380 U.S. 343, 349 (1965). This court applies a
“two-tiered standard of review” to the district court’s treatment
of a lesser-included-offense instruction request. United States v.
Lucien, 61 F.3d 366, 372 (5th Cir. 1995). The elements prong is
reviewed de novo; the evidentiary prong is reviewed for an abuse of
discretion. Id.Collins does not challenge the jury’s finding of a conspiracy
to distribute marijuana. Instead, he argues only that the jury
could rationally have convicted him of conspiring to distribute less
than 1,000 kilograms of marijuana. The evidence adduced at trial
involved enormous amounts of marijuana. No rational juror could
have found that the conspiracy to distribute marijuana existed but
that it involved less than 1,000 kilograms. See Deisch, 20 F.3d at
142. Collins’s argument is unavailing.
B.
Collins next argues that there was insufficient evidence to
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support his conviction for conspiracy to commit money laundering.
As he did not present any evidence, Collins preserved his claim for
appellate review by moving for a judgment of acquittal at the close
of the Government’s evidence. See United States v. Izydore, 167
F.3d 213, 219 (5th Cir. 1999).
This court reviews de novo a district court’s denial of a
motion for judgment of acquittal. Id. “When reviewing the
sufficiency of the evidence, this Court views all evidence, whether
circumstantial or direct, in the light most favorable to the
Government with all reasonable inferences to be made in support of
the jury’s verdict.” United States v. Moser, 123 F.3d 813, 819 (5th
Cir. 1997). The standard for reviewing a claim of insufficient
evidence is whether “a rational trier of fact could have found that
the evidence establishes the essential elements of the offense
beyond a reasonable doubt.” United States v. El-Zoubi, 993 F.2d
442, 445 (5th Cir. 1993). “The evidence need not exclude every
reasonable hypothesis of innocence or be completely inconsistent
with every conclusion except guilt, so long as a reasonable trier
of fact could find that the evidence established guilt beyond a
reasonable doubt.” Moser, 123 F.3d at 819.
There was evidence that Collins had been involved in a
marijuana-smuggling operation for many years. He had one associate
transport large amounts of money to the leader of the operation in
a clandestine manner. There was also evidence that Collins met with
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a load driver and agreed that the driver would transport a load of
marijuana from California to Ohio and then take cash back to
California on the return trip. A rational trier of fact thus could
have found that the evidence establishes the essential elements of
the offense beyond a reasonable doubt. El-Zoubi, 993 F.2d at 445.
C.
Collins next argues that the district court improperly
sentenced him based on 60,000 pounds of marijuana. He argues that
his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000),
because the jury did not make a finding as to drug quantity.
“Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” Id.
at 490. Apprendi applies only to facts that increase the statutory
maximum sentence. Id.Relying on his contention that his drug conviction is invalid
because of the district court’s refusal to give the lesser-included-
offense charge, Collins argues that the statutory maximum sentence
in his case should be based on the money-laundering offense. This
argument is unavailing because, as explained above, Collins’ drug
conviction was valid.
Collins was indicted for and convicted of conspiracy to
distribute and possess with intent to distribute 1,000 kilograms or
more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846.
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Section 841(b)(1)(A)(vii) provides that the punishment for this
offense is a term of imprisonment between 10 years and life.
Collins’ 480-month sentence on the drug-conviction count did not
exceed the statutory maximum and is thus not violative of Apprendi.
United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert.
denied, 531 U.S. 1182 (2001).
D.
Collins finally argues that the four-level enhancement applied
by the district court for his leadership role in the offense is
unsupported by the evidence at trial or by the factual basis
contained in the pre-sentencing report (PSR). He contends that he
was merely an independent operator that used the Rice organization
only as a supply source.
The district court’s determination that the defendant was an
organizer or leader in the offense is a factual finding reviewed for
clear error. United States v. Dadi, 235 F.3d 945, 951 (5th Cir.
2000), cert. denied, 532 U.S. 1072 (2001). As long as a district
court’s finding on a sentencing issue is plausible in light of the
record read as a whole, the finding is not clearly erroneous. Id.The PSR generally bears sufficient indicia of reliability to support
a district court’s factual findings, and the district court may
adopt facts contained in the PSR without further inquiry if the
facts have an adequate evidentiary basis and the defendant does not
present rebuttal evidence. United States v. Cabrera, 288 F.3d 163,
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173-74 (5th Cir. 2002). The defendant bears the burden of
demonstrating that the PSR is inaccurate. United States v. Lage,
183 F.3d 374, 383 (5th Cir. 1999), cert. denied, 528 U.S. 1163(2000).
Under U.S.S.G. § 3B1.1(a), a four-level increase to an offense
level is warranted “[i]f the defendant was an organizer or leader
of a criminal activity that involved five or more participants or
was otherwise extensive.” In determining whether a defendant was
a leader, a court should consider “the exercise of decision making
authority, the nature of participation in the commission of the
offense, the recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of participation
in planning or organizing the offense, the nature and scope of the
illegal activity, and the degree of control and authority exercised
over others.” § 3B1.1, comment (n.4).
The PSR’s description of the drug-trafficking operation states
that Collins and Eames were the two lieutenants in the operation and
that Collins handled the marijuana distribution for the Ohio area.
It also contained information that the operation was controlled by
Rice and Collins. This is supported by Cavender’s testimony that
Eames asked if he would like to drive for Collins, who was described
as “the other part of the organization.” The district court’s
finding that Cavender was a leader or organizer of the offense was
supported by the record and was not clear error.
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III. Conclusion.
For the reasons stated herein, we AFFIRM the district court.
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