United States v. Cherry ( 2002 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
________________________________
No. 00-30900
________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
THOMAS ANTHONY DEVILLE,
Defendant-Appellant.
________________________________
No. 00-30968
________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
THOMAS ANTHONY DEVILLE,
Defendant-Appellee.
________________________________
No. 00-31124
________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LANIER CHERRY,
Defendant-Appellant.
________________________________________________
Appeals from the United States District Court
for the Western District of Louisiana
________________________________________________
January 7, 2002
Before JONES and DeMOSS, Circuit Judges, and FELDMAN, District
Judge.*
FELDMAN, District Judge:
This appeal, which presents several issues, arises out of a
federal and state investigation into a Louisiana-based marijuana
distribution organization led by appellant, Lanier Cherry. The
marijuana distribution ring was controlled from Cherry’s home in
Duson, Louisiana. Appellant, Thomas Anthony Deville, a friend of
Cherry’s, who was also involved in the drug ring, served as the
Chief of Police in Duson, Louisiana from 1995 to 1999. In 1998,
after losing his bid for re-election as police chief, Deville
agreed to become involved with Cherry to make some extra money.
On November 16, 1998, while the lame duck chief of police,
Deville went to Texas and picked up a load of marijuana from
Cherry’s supplier in Houston, Avel Garcia.
The details of Deville’s trip to Houston were given to the
Texas Department of Public Safety by an informant who had been
present when Deville delivered the marijuana to Cherry. Agents
from the Department of Public Safety alerted the Louisiana State
Police narcotics investigators, who were already investigating
*
District Judge for the Eastern District of Louisiana,
sitting by designation.
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Cherry’s activities.
On November 21, 1998, undercover narcotics agents conducted
a controlled sale of 200 pounds of marijuana to Cherry. During
the sale, they engaged in extensive conversation with Cherry
regarding marijuana trafficking. Cherry commented that he was
concerned about state and federal law enforcement, but he was not
worried about the local Duson police. He told the undercover
agents that Deville was transporting marijuana for him to pay off
his debts. He also told them that Deville had recently delivered
a load of marijuana for him from Texas. Shortly after the
undercover agents left Cherry’s house, federal and state agents
executed a search warrant on the house. The search turned up
telephone numbers of various co-conspirators, including Deville’s
home number and his room and telephone number at the Super 8
Motel in Houston(where he stayed when he picked up the marijuana
from Garcia for Cherry).
Armed with this information, FBI special agent Stephen
Richardson and Louisiana State Trooper Dirk Bergeron decided to
conduct a non-custodial interview of Deville. On March 9, 1999
they went to Deville’s house and he voluntarily answered their
questions and was specific about his trip to Houston. Agent
Richardson prepared a document recounting Deville’s statements
and Deville reviewed and signed it. Two days later the agents
returned to Deville’s house to show him additional photo line-ups
they had received from Texas authorities. The events that
occurred at this second encounter animate some of our inquiry.
3
The agents testified at trial that Deville told them that he had
his gun with him for protection when he went to Houston for the
drugs. However, the agents did not have Deville sign another
statement. Instead, they prepared a FD-302 memorandum
memorializing the conversation as they remembered it had
occurred.
Cherry and Deville were later indicted with thirteen other
defendants on fifty-counts of conspiracy to distribute marijuana
and other drug related violations. On October 13, 1999 Cherry
pleaded guilty to Count 1 of the Superceding Indictment which
charged him with conspiracy to distribute and possession with the
intent to distribute more than 1,000 kilograms of marijuana. On
August 16, 2000, after a hearing to address Cherry’s objections
to the Pre-Sentence Report, the district judge sentenced Cherry
to 293 months imprisonment and five years supervised release.
Cherry now appeals the district court’s sentence. He raises
three issues: 1) the district court erred in ruling that his
prior convictions were not related offenses for purposes of
sentencing; 2) he was denied equal protection under the law
because he did not receive a similar criminal history calculation
as his wife, Tina Cherry; and 3) the district court erred in
imposing a sentence that exceeded the statutory maximum.
On December 14, 1999 Deville was named as the only
defendant in a Second Superceding Indictment charging him in four
counts. Count I charged him with conspiracy to distribute and
posses with the intent to distribute marijuana in violation of 21
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U.S.C. § 846. Count II charged him with possession with the
intent to distribute marijuana in violation of 21 U.S.C. §
841(a)(1) and 841(b)(1)(D). In Count III, he was charged with
interstate travel in aid of illegal activity in violation of 18
U.S.C. §1952(a)(3) and in Count IV he was charged with carrying
and possessing a firearm during, in relation to, and in
furtherance of a drug trafficking crime in violation of 18 U.S.C.
§924(c)(1)(A)(i). After a seven day trial, the jury returned
guilty verdicts against Deville on all four counts. Deville then
moved for judgment of acquittal as to the firearm count, which
was granted by the district court. Deville was sentenced to
thirty-three months imprisonment and three years supervised
release, on counts I, II and III, all to run concurrently. In
calculating Deville’s criminal history, the district court added
a two point enhancement under Section 3B1.3 of the Sentencing
Guidelines because it found that Deville had used his position as
police chief in furtherance of the drug conspiracy. The
government appeals the district court’s grant of Deville’s motion
for judgment of acquittal on the gun count, and Deville appeals
the court’s two point sentencing enhancement.
We reverse in part and affirm in part.
I. Deville’s Motion for Judgment of Acquittal
A.
The government asserts that the district court erred in
granting this motion because Deville confessed to agents to
carrying a gun and the confession was properly and adequately
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corroborated at trial. The government complains that the district
court applied the wrong standard when it stated that the jury
verdict was against the weight of the evidence in ruling on the
motion for acquittal. We agree and reverse the district court on
this issue.
We review the district court’s grant of a judgment of
acquittal de novo, applying the same standard as applicable to the
district court. United States v. Sanchez, 961 F.2d 1169, 1179 (5th
Cir. 1992). The guiding standard on a motion for judgment of
acquittal is “whether viewing the evidence most favorably to the
Government, a reasonable-minded jury could find the admissible
evidence sufficient to support the jury’s verdict of guilty.” U.S.
v. Maner, 611 F.2d 107, 108 (5th Cir. 1980)(citing Glasser v. United
States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United
States v. Brown, 587 F.2d 187, 190 (5th Cir. 1979); United States
v. Kohlmann, 491 F.2d 1250, 1253 (5th Cir. 1974)). We stress that
“all reasonable inferences and credibility choices must be made in
favor of the jury verdict.” Id. at 109.
Count VI of the Second Superceding Indictment charged Deville
with knowingly possessing and carrying a firearm during and in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). To establish a violation of 18 U.S.C. §
924(c)(1)(A)(i), the government must prove beyond a reasonable
doubt that: 1) the accused used or carried a firearm, and 2) the
use or carrying was during and in relation to a crime of violence
or drug trafficking crime. Smith v. United States, 508 U.S. 223,
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228, 113 S.Ct. 2050, 2053, 124 L.Ed.2d 13 (1993). To establish
that Deville carried a firearm, the government need not show that
he physically carried it on his person. United States v.
Muscarello, 524 U.S. 125, 138-39, 118 S.Ct. 1911, 1919-20, 141
L.Ed.2d 111, 6 (1998). For example, one is considered to have
carried a firearm if he knowingly possessed and conveyed a firearm
in a vehicle he was driving. Id. Furthermore, the firearm need
not be immediately accessible in order to satisfy the “carried”
requirement of § 924(c)(1). United States v. Pineda-Ortuno, 952
F.2d 98, 104 (5th Cir. 1992). Deville was charged with possessing
a firearm during and in relation to a drug offense; the government
focused its proof on the drug crime, which anchored the gun count.
The jury believed the government’s witnesses and said Deville was
guilty.
Nevertheless, in granting the acquittal, the district court
said that “the jury verdict was against the weight of the evidence
and that the record does not contain sufficient proof to support a
finding of guilty as to [the firearm count].” The trial court’s
judgment of acquittal does not contain any other reasoning and it
does not address specific details of the evidence, but our review
of the transcript of the hearing on the motion for judgment of
acquittal tells us that the trial judge was anxious about the
reliability of the memory of the law enforcement agents who
testified as to Deville’s gun confession.1 The trial court’s
1
In referring to the content of the 302 memorandum, the trial court stated:
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credibility choice is the error. Whether or not the court accepted
the trial testimony, we hold that such choices are for the jury,
not the judge. “It is not for the court,” we have held, “upon
motion for judgment of acquittal, to weigh evidence or assess the
credibility of witnesses.” United States v. Rasco, 123 F.3d 222,
228 (5th Cir. 1997). That is exactly what happened here. Although
there was no evidence that anyone actually saw Deville carrying a
gun, the testimony of the agents as to Deville’s confession is
evidence which on this record could be weighed only by the jury,
not by the trial judge. It was error to do so.
B.
Deville maintains that because his statement to the agents
that he was carrying a gun was not corroborated by other
independent evidence, he cannot be convicted on the gun count
solely by the testimony of the agents. He correctly observes that
one cannot be convicted on the basis of an uncorroborated
It bothered me, too, that there was no tape recording of any
of these statements. That bothered me. And it still bothers
me because, although I think Agent Richardson and
whomever else was with Agent Richardson heard what they
heard, sometimes what people hear and what the other person
says can be different. In the first instance, we have him
writing what he said right down in front of Mr. Deville. In
the second instance we didn’t have that. But that gives me
some pause when we don’t have a tape recording of what
was said. If we had one, there would be no question about
what was said and what was not said. So that gives me some
pause.
Hearing on Deville’s Motion for Judgment of Acquittal at 5-6, United States v. Deville , No. 98-
60049 (W.D. La. March 16, 2000).
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confession. The government counters that plenty of extrinsic
evidence corroborates the drug trafficking offense, and, therefore,
Deville’s statement to the agents that he carried a gun during the
drug trafficking offense is supported and confirmed by the drug
crime evidence. We agree.
The Supreme Court ruled years ago that "an accused may not be
convicted on his own uncorroborated confession." Smith v. United
States, 348 U.S. 147, 152, 75 S.Ct. 194, 197, 99 L.Ed. 192(1954). That has been immutable doctrine ever since. The
government must introduce independent evidence which would tend to
establish the trustworthiness of the confession. Id., at 156.
But the doctrine is not as unyielding as it seems. "The
corroborative evidence alone need not prove the defendant's guilt
beyond a reasonable doubt, nor even by a preponderance, as long as
there is substantial independent evidence that the offense has been
committed, and the evidence as a whole proves beyond a reasonable
doubt that the defendant is guilty.... [E]xtrinsic proof [is]
sufficient which merely fortifies the truth of the confession,
without independently establishing the crime charged." United
States v. Garth, 773 F.2d 1469, 1479 (5th Cir.1985), cert. denied,
476 U.S. 1140, 106 S.Ct. 2246, 90 L.Ed.2d 693(1986)(internal
quotations omitted). The corroborating independent facts need only
support the "essential facts admitted sufficiently to justify a
jury inference of their truth." Opper v. United States, 348 U.S.
84, 93, 75 S.Ct. 158, 164 (1954). See also United States v.
Frazier, 434 F.2d 994, 995 (5th Cir. 1970). “The evidence
9
corroborating a confession must tend to connect the accused with
the crime. Corroboration is satisfied if the accused by his
confession demonstrates knowledge of the time, place or method of
the offense.” United States v. Abigando, 439 F.2d 827,832 (5th Cir.
1971). “If there is extrinsic evidence tending to corroborate the
confession, the confession as a whole is admissible; and some
elements of the offense may be proven entirely on the basis of a
corroborated confession.” United States v. Gravitt, 484 F.2d 375,
381 (5th Cir. 1973). We need not look very far for fortification
and corroboration in this record.
Here, the underlying drug conviction corroborates Deville’s
statements during the March 11, 1999 interview. On March 11, 1999
the agents returned to Deville’s house to show him some photo line-
ups they forgot to bring when they first interviewed him two days
earlier. At trial, Sergeant Bergeron testified that during the
March 11, 1999 interview Deville identified a picture of Avel
Garcia’s brother, whom he met when he went to Houston for Cherry.
On the “Remarks” section of the identification form, Deville wrote,
“Look like fatboy brother in Texas. Help load the box and red
duffle bag while in Houston, Texas. He laughed at my D.A.R.E.
shirt.” Bergeron also testified that during the interview, Deville
told them that he carried a gun for personal protection when he
went to Houston to pick up the load of marijuana for Cherry. FBI
agent Stephen Richardson, who authored the 302 memorandum, also
testified that Deville said that he carried his gun with him for
protection when he went to Houston to pick up marijuana for Lanier
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Cherry. The 302 memorandum states:
While employed as chief of police in Duson,
Louisiana, Deville’s duty weapon was a Biretta
.9 millimeter semi-automatic handgun. Deville
still owns the Biretta .9 millimeter, and
utilizes it for personal use. Deville carried
the Biretta .9 millimeter with him when he
made a trip to Houston, Texas for Lanier
Cherry. Deville was not concerned with his
safety because he carried a Biretta .9
millimeter in his overnight bag and kept it
with him at all times. Deville carried the
Biretta .9 millimeter with him as a means of
personal protection. While Deville and Fat
Boy were in the vehicle en route to Fat Boy’s
house, Deville had the Biretta .9 millimeter
beside him at all times. Deville normally
carries the Biretta .9 millimeter under the
driver’s seat of his pickup truck.
The details of the drug trafficking crime in the 302 memorandum and
the March 11, 1999 interview, most of which were independently
corroborated with extrinsic evidence at trial, corroborate the
firearm offense. See Gravitt, 484 F.2d 375 (5th Cir.
1973)(interstate transportation element of firearms charge could be
proven by confession alone since most other aspects of confession
were independently corroborated). The evidence for the drug
conviction is intertwined with the events that encompass the gun
charge. We reverse the district court’s grant of Deville’s motion
for judgment of acquittal.
II. The Increase in Deville’s Sentencing Guidelines Score
Next, Deville appeals the district court’s two level increase
of his sentencing guidelines score based on a finding that he
abused a position of public trust in the commission of a drug
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trafficking offense. Deville claims that the government presented
no reliable evidence to show that he used his position as Chief of
Police for the Town of Duson to facilitate the commission or
concealment of drug related activity. He maintains that the
government did not present any evidence to show that he knew that
Lanier Cherry was involved in drug distribution until after he left
office in 1998 or that he used his position as police chief to
facilitate or conceal his November 17, 1998 trip to Houston. We
affirm the district court.
Section 3B1.3 of the United States Sentencing Guidelines
provides for a two-level increase in the offense level "[i]f the
defendant abused a position of public or private trust, or used a
special skill, in a manner that significantly facilitated the
commission or concealment of the offense." While a trial court's
application of the Sentencing Guidelines is reviewed de novo, its
factual findings are reviewed only for clear error. United States
v. Dixon, 132 F.3d 192 (5th Cir.1997). Because “the application of
§ 3B1.3 is a sophisticated factual determination,” we review a §
3B1.3 sentencing enhancement under a clearly erroneous standard.
United States v. Fisher, 7 F.3d 69, 70 (5th Cir. 1993); United
States v. Iloani, 143 F.3d 921, 922 (5th Cir. 1998).
The district court found that Deville should get the two point
enhancement because he participated in transporting marijuana for
Cherry while he was acting as Police Chief of Duson and because he
was aware of Cherry’s illegal drug trafficking and failed to take
action against Cherry.
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The district court’s findings are not clearly erroneous. The
evidence in this case adequately supports the court’s findings that
Deville abused a position of public trust. Defeated but not out of
office, Deville knew about Cherry’s drug trafficking activities and
failed to take any action. He was present at Cherry’s house on
several occasions when people, including Cherry, had been smoking
marijuana. He was present when Cherry was packing bundles of
marijuana for distribution. Deville never made any effort to seize
the marijuana or arrest anyone involved in the illegal activities.
Deville transported marijuana for Cherry while he was still acting
Police Chief and he believed that his badge would enable him to
transport the drugs without any problems from other law enforcement
officials. The overwhelming evidence supports the conclusion that,
although a lame duck, Deville used his position as police chief to
significantly facilitate the commission or concealment of a crime.
We turn now to the issues Cherry raises.
III. Cherry’s Classification as a Career Offender
On April 29, 1981 Lanier Cherry was convicted in the Western
District of Louisiana for two counts of distribution of Dilaudid.
On December 23, 1981, Cherry was also convicted in the Eastern
District of Louisiana of conspiracy to distribute Dilaudid and
distribution of Dilaudid. When calculating Cherry’s criminal
history score for the purpose of sentencing in this case, the
district court found that Cherry’s two prior convictions were not
related. (If they were deemed related, Cherry would avoid the career
13
offender taint).
Cherry assets that under United States v. Robinson, 187 F.3d
516, 520 (5th Cir. 1999), his prior convictions should be considered
related because the distribution conviction in the Western District
of Louisiana involved the conspiracy to distribute Dilaudid that
Cherry was convicted on in the Eastern District of Louisiana. The
government responds that the district court was correct in not
treating Cherry’s prior convictions as related because they involved
separate drug distributions on different dates involving different
cooperating individuals.
Application of the Sentencing Guidelines is a question of law
subject to de novo review. United States v. Otero, 868 F.2d 1412,
1414 (5th Cir.1989).
U.S.S.G § 4B1.1 provides enhanced punishment for any “career
offender,” which includes criminals with at least two prior felony
convictions for either a crime of violence or a controlled substance
offense. Under U.S.S.G § 4A1.2(a)(2), prior sentences imposed in
“related cases” are to be considered as one sentence when
calculating a defendant’s criminal history score. The Commentary
to this section instructs that a sentencing court should consider
previous cases to be related if they occurred on a single occasion,
were part of a single scheme, or "were consolidated for trial or
sentencing." U.S.S.G. § 4A1.2, application note 3. The Commentary
adds that “[p]rior sentences are not considered related if they were
for offenses that were separated by an intervening arrest (i.e., the
defendant is arrested for the first offense prior to committing the
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second offense).”
Here, Cherry pleaded guilty to the conspiracy charges in the
Eastern District of Louisiana after he was convicted on the
distribution charges in the Western District of Louisiana. He was
arrested for distribution of Dilaudid in the Western District of
Louisiana on December 3, 1980 and on December 22, 1981, over a year
later, he was arrested for conspiracy to distribute Dilaudid and
distribution of Dilaudid from February 1977 until May 1981 in the
Eastern District of Louisiana. Thus, under the guidelines, the
December 3, 1980 arrest would be intervening, because it was before
the commission of the second offense, and, therefore, the
convictions would not be deemed related. Furthermore, Cherry’s two
prior convictions occurred in different districts and involved
separate drug distributions on different days involving different
cooperating individuals.
Cherry’s reliance on United States v. Robinson, 187 F.3d
516(5th Cir. 1999) is misplaced. In Robinson, we held that the
prior convictions were related because during the commission of the
first offense the defendant arranged the crack distribution that
eventually resulted in his second offense. That fact setting is not
present here. Thus, we affirm the district court’s finding that
Cherry’s prior convictions were not related.
IV. Denial of Equal Protection
Cherry next asserts that failure to consider the convictions
as being related amounts to an unconstitutional denial of equal
15
protection. Lanier Cherry’s ex-wife, Tina Cherry, was also
convicted on the same Dilaudid charges as Cherry. When they were
sentenced in those cases, they both received identical sentences.
Tina Cherry was later convicted on marijuana distribution charges
unrelated to Cherry’s. When she was sentenced, the court apparently
considered the two prior Dilaudid convictions to be related.
Because Cherry’s two prior Diluadid convictions were not considered
to be related, Cherry argues that he was denied equal protection
under the law. Cherry raises this issue for the first time on
appeal and brings to our attention no helpful precedent.
“This Court will not address an issue raised for the first time
on appeal unless it is a purely legal issue and the refusal to
consider it would result in a miscarriage of justice.” Aguirre v.
Armstrong World Indus., Inc., 901 F.2d 1256, 1258 (5th Cir.1990).
An equal protection claim raised for the first time on appeal and
which does not equate with plain error, will not be considered.
United States v. O’Banion, 943 F.2d 1422, 1432(5th Cir. 1991).
Because we find that Cherry’s sentence was correctly calculated
under the guidelines, our refusal to hear his equal protection claim
based on the calculation of his sentence would not result in a
miscarriage of justice.
We also note that “[a] defendant cannot rely upon the sentences
which other defendants receive as any yard stick for his sentence.”
United States v. Atkins, 618 F.2d 366, 373-74(5th Cir.
1980)(citations omitted); United States v. Garcia, 693 F.2d 412 (5th
Cir. 1982)(no denial of equal protection when defendant received
16
harsher sentence that his co-defendant).
V. Cherry’s Apprendi Issue
Finally, Cherry raises Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and insists that decision
invalidates his sentence because the government abandoned its
allegations as to drug quantity in the pleadings. We do not agree.
In Apprendi, the Supreme Court held that "[o]ther 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." Apprendi, 120 S.Ct. at
2362-63.
Cherry pleaded guilty to Count I of the indictment charging him
with conspiracy to distribute and possess with the intent to
distribute more than 1,000 kilograms of marijuana. During the plea
colloquy, Cherry’s counsel acknowledged that he was pleading guilty
to the conspiracy charge, but contested the 1,000 kilogram quantity
alleged in the indictment. However, Cherry entered a written
factual stipulation in which he agreed that he conspired to
distribute and possess with the intent to distribute “at least 100
kilograms or more” or marijuana. The truth or accuracy of this
stipulation has not been and cannot be challenged. Because Cherry
was sentenced within the permissible guidelines for distribution of
at least 100 kilograms of marijuana, as Cherry admits, Apprendi
simply does not apply. United States v. Fort, 248 F.3d 475, 483
(5th Cir.), cert denied, 2001 WL 1045506 (Oct 15, 2001)(when
17
defendant stipulated to the amount of drugs at the time of his plea
and the sentence was enhanced within the statutory range based on
stipulation, Apprendi does not apply).
Accordingly, the district court's grant of the motion for
judgment of acquittal is REVERSED. On all other issues the district
court is AFFIRMED. This case is Reversed in part and Affirmed in
part and Remanded for further proceedings consistent with this
opinion.
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