United States v. Anthony Hutchinson , 406 F. App'x 960 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0043n.06
No. 08-6243
FILED
UNITED STATES COURT OF APPEALS Jan 18, 2011
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
ANTHONY LAMONT HUTCHINSON, )
)
Defendant-Appellant. )
)
BEFORE: SILER, GILMAN, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Anthony Hutchinson pleaded guilty to knowingly and intentionally possessing
with the intent to distribute 1.67 grams of cocaine base (crack cocaine), in violation of 21 U.S.C. §
841(a)(1). He was then sentenced by the district court to serve sixty months in prison. Hutchinson
now appeals, arguing that the district court erred in determining his sentence by improperly
considering conduct for which he was not indicted. We disagree and affirm.
I.
On October 18, 2007, officers from the Lexington Police Department performed a traffic stop
on a vehicle driven by Arry McDaniel Sharp, Jr. Hutchinson was a passenger in the vehicle. As
officers approached the vehicle, they observed Sharp making strange movements, such as raising
himself out of his seat. The officers subsequently discovered that Sharp was sitting on a large
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amount of currency. As a result, Sharp and Hutchinson were removed from the vehicle, and a K-9
unit was requested to conduct a search of the car.1
The drug dog alerted on the driver’s side door. When officers searched the door, they found
a plastic bag containing seven rocks of crack cocaine, weighing approximately twenty grams. Sharp
and Hutchinson were both placed under arrest.
During a search of Hutchinson incident to arrest, the officers discovered 1.67 grams of crack
cocaine in his front pants pocket. Hutchinson admitted that he possessed the crack cocaine found
on his person and intended to distribute it. However, Hutchinson denied any knowledge of the
cocaine that officers found in the vehicle.
On October 7, 2008, the district court held a hearing as to Hutchinson at which it heard
testimony from witnesses, listened to arguments from both parties, and pronounced Hutchinson’s
sentence. At that hearing, Sharp testified that he did not know about the crack cocaine that the
officers found in the vehicle until the traffic stop was underway. According to Sharp, when the
officers stopped him, he looked in the cup holder in the center console of the vehicle for his driver’s
license but did not see anything in it except for some loose change. However, after Sharp located
and showed his driver’s license to an officer, he noticed that the cup holder had been closed and that
he “could see a baggy sticking out of it.” Sharp explained that “the baggy was sticking out because
I knew the baggy was not sitting in there when . . . the officer was just at the car.”
1
Prior to the search, Sharp and Hutchinson informed the officers that a firearm was located
in the vehicle’s glove box.
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Sharp testified that he then opened the cup holder and saw “drugs in the bag.” He “didn’t
know if it was cocaine or crack . . . but [he] just knew it was drugs.” Sharp questioned Hutchinson
regarding the contents of the bag. According to Sharp, Hutchinson responded: “Hold on,
everything’s all right. . . . Just chill, [the officer] is coming right back.” As the officer was returning
to the vehicle, Sharp took the bag of drugs and placed it “in one of the compartments on the side of
the door of the car[.]”
Based on Sharp’s testimony, and other evidence in the record, the district court found that
the twenty grams of crack cocaine that the officers discovered in the vehicle involved “jointly
undertaken activity.” Accordingly, for sentencing purposes, the district court held Hutchinson
responsible for both the 1.67 grams of crack cocaine found in his pants pocket and the 20 grams of
cocaine base located in the driver’s side door pursuant to the relevant-conduct provisions of U.S.S.G.
§ 1B1.3. The Guidelines offense level, taking into account the relevant conduct, was 23, which
combined with a criminal history category VI to produce a Guidelines range of 92-115 months’
imprisonment. The district court sentenced Hutchinson to sixty months’ imprisonment.
Hutchinson timely appealed.
II.
Hutchinson argues that, in calculating his offense level, the district court improperly ascribed
to him the twenty grams of crack cocaine found in the vehicle.2 He claims that the district court
2
Hutchinson argues that the district court’s attribution of the twenty grams of crack cocaine
to him as relevant conduct constitutes an upward departure. In so doing, Hutchinson ignores that
“[t]he guidelines are clear that conduct other than that for which the defendant has been convicted
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should have considered only the 1.67 grams of crack cocaine found in his pocket to which he pled
guilty.
We review the district court’s interpretation of the Sentencing Guidelines de novo, while
findings of fact made during sentencing are reviewed for clear error. United States v. Canestraro,
282 F.3d 427, 431 (6th Cir. 2002). Thus, we review a district court’s “finding that the criminal acts
of others in a jointly undertaken criminal activity are reasonably foreseeable and in furtherance of
the jointly undertaken criminal activity” for clear error. United States v. Tocco, 306 F.3d 279, 284
(6th Cir. 2002). “A finding is clearly erroneous when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.” Id. (citation and internal quotation marks omitted).
The United States Sentencing Guidelines provide that relevant conduct, which is used to
determine the applicable Guidelines range, includes
in the case of a jointly undertaken criminal activity (a criminal plan, scheme,
endeavor, or enterprise undertaken by the defendant in concert with others, whether
or not charged as a conspiracy), all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity, that occurred during
the commission of the offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that offense[.]
may be considered by the court in determining the appropriate sentencing range.” United States v.
McDowell, 902 F.2d 451, 453 (6th Cir. 1990) (citing U.S.S.G. § 1B1.3). Indeed, in McDowell, we
determined that the district court erred when it considered, as grounds for an upward departure, “the
fact that the defendant operated a crack house within 1,000 feet of two schools[.]” Id. at 452. We
held that “this fact . . . should have been taken into consideration as ‘relevant conduct’ in the
calculation of the base offense level rather than in making an upward departure.” Id. As in
McDowell, the present case does not involve an upward departure. In fact, contrary to Hutchinson’s
assertions, the district court imposed a sentence below the advisory Guidelines range.
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U.S.S.G. § 1B1.3(a)(1)(B). For a defendant to be held accountable for the conduct of others through
jointly undertaken criminal activity, “(1) the conduct must be in furtherance of the jointly undertaken
criminal activity; and (2) the conduct must be reasonably foreseeable in connection with that
criminal activity.” United States v. Campbell, 279 F.3d 392, 399 (6th Cir. 2002) (citing U.S.S.G.
§ 1B1.3, cmt. n.2). Application Note 2 of U.S.S.G. § 1B1.3, which provides this test, also states
that:
In order to determine the defendant’s accountability for the conduct of others under
[U.S.S.G. § 1B1.3(a)(1)(B)], the court must first determine the scope of the criminal
activity the particular defendant agreed to jointly undertake (i.e., the scope of the
specific conduct and objectives embraced by the defendant’s agreement).
U.S.S.G. § 1B1.3, cmt. n.2.
In Campbell, this court, following the Second Circuit’s interpretation of § 1B1.3(a)(1)(B) in
United States v. Studley, 47 F.3d 569 (2d Cir. 1995), held that § 1B1.3(a)(1)(B) “requires that the
district court make particularized findings with respect to both the scope of the defendant’s
agreement and the foreseeability of his co-conspirators’ conduct before holding the defendant
accountable for the scope of the entire conspiracy.” 279 F.3d at 400. The Campbell court noted that
the first prong of the Studley test
serves to differentiate between co-conspirators’ varying degrees of culpability. In
order to determine the scope of the defendant’s agreement, the district court may
consider any explicit agreement or implicit agreement fairly inferred from the
conduct of the defendant and others.
Id. (citations and internal quotation marks omitted).
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At Hutchinson’s sentencing hearing, the district court provided the following explanation for
holding Hutchinson accountable for jointly undertaken criminal activity:
We have two gentlemen who one has – clearly has crack cocaine on his possession
and admittedly was possessing this crack cocaine found in his pocket, no doubt found
in his pocket.
The other one says, “I handled that crack cocaine, but I didn’t know it was in the car
until I saw it sitting in this console glove container or drink container and console,
cup holder type of deal after I had looked in there and not seen it.”
That presupposes that while he was looking for his license, if I follow what he is
saying, is that, “Hutchinson must have taken that and put it in there because I didn’t
put it in there. I didn’t see it when it was there before.”
The only person that could have done that is Hutchinson, which is I think basically
the thought process.
Well, if you look at the little bags, whether they are – the rocks are exactly the same
is one thing, but the packaging is similar.
And I have an alternative theory, is that these – these other bags belong – were in Mr.
Hutchinson’s pocket when he put the ones in the container – console, he forgot one
and left it in his pocket.
I mean, it just got left behind, they are small, they are not [sic] hard to see.
Now, it doesn’t really make much difference because I think both of the gentlemen
were involved in the distribution of crack cocaine.
The guideline, as the probation officer points out in the addendum, one point –
1(b)(1).3 – 1(b)(1).3 says that they were in the same kind of conduct, they were doing
this.
I don’t think it needs to be – it needs to be shown that they were acting in concert or
in a conspiracy, nor does it have to be charged that they were operating a conspiracy.
Yeah, it was 1(b)(1).3(A)(1)(b), and I think this was a jointly undertaken activity.
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So whether it was Hutchinson’s crack or whether it was Sharp’s crack, but they were
all going to be dealing in crack.
And when they saw the police, it was pretty much a mutual thing.
You didn’t hear Hutchinson say, “Well, I don’t want to go there, I want to go this
way.”
So I think the idea that Hutchinson should be charged with this is correct, and that’s
what I’ll do.
Here, consistent with the requirements set forth in Campbell, the district court made
particularized findings with respect to both the scope of Hutchinson’s agreement and the
foreseeability of the twenty grams of crack to Hutchinson. After hearing Sharp’s testimony, viewing
the crack cocaine, and the bags that contained the drugs, the district court opined that “these other
bags . . . were in Mr. Hutchinson’s pocket when he put the ones in the container – console, he forgot
one and left it in his pocket.” The district court noted that the packaging of the bags of crack
contained in the larger bag, which was recovered by the police from the driver’s side door, was
“similar” to the bag of crack found on Hutchinson. Thus, the district court concluded: “I think both
of the gentlemen were involved in the distribution of crack cocaine. . . . So whether it was
Hutchinson’s crack or whether it was Sharp’s crack . . . they were all going to be dealing in crack.”
See Campbell, 279 F.3d at 399 (“In order to determine the scope of the defendant’s agreement, the
district court may consider any explicit agreement or implicit agreement fairly inferred from the
conduct of the defendant and others.” (citation and internal quotation marks omitted)). Based on the
facts and evidence in the record, the district court’s finding as to Hutchinson’s participation in jointly
undertaken activity was not clearly erroneous.
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III.
For these reasons, we affirm the judgment of the district court.
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