United States v. Wilkins , 252 F. App'x 20 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0747n.06
Filed: October 19, 2007
Case Nos. 05-5240, 05-5712, 05-5629, 05-6569, 05-5785, 05-5628
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
KIVETTE SMITH, NICHOLAS CLAY, ) DISTRICT OF TENNESSEE
GARLAND S. SLADE, MARQUIS )
TOWNSEND, CLAYTON WILKINS, and )
LEKO JONES, )
)
Defendants-Appellants. )
)
_______________________________________
BEFORE: BOGGS, Chief Judge, BATCHELDER, and GRIFFIN, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Defendants Kivette Smith, Nicholas Clay,
Garland Slade, Marquis Townsend, Clayton Wilkins, and Leko Jones appeal their convictions and
sentences arising from their participation in a drug conspiracy. Each of these defendants was
charged in a 37-count federal indictment with conspiring to distribute and possess with intent to
distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846,
from February 2001 to on or about September 23, 2003. Additionally, the indictment charged
Wilkins with four substantive drug offenses; Jones with seven substantive drug offenses; Clay with
four substantive drug offenses; and Slade with two substantive drug offenses.
Prior to trial, Smith and Townsend pled guilty to Count One pursuant to a plea agreement.
Clay, Slade, Wilkins, and Jones, however, proceeded to trial. The jury convicted all four on the
conspiracy count, and convicted Wilkins on all four substantive drug charges, Jones on six of his
seven substantive drug charges, Clay on three of his four substantive drug charges, and Slade on one
of his two substantive drug charges. Following sentencing, all six defendants timely appealed
various aspects of their convictions and sentences. For the following reasons, we AFFIRM the
defendants’ convictions and sentences.
I. ANALYSIS
A. Convictions
1. Sufficiency of the evidence on the conspiracy charge
Wilkins and Jones challenge the sufficiency of the evidence supporting their convictions on
Count One, the drug conspiracy charge. We review a challenge to the sufficiency of the evidence
to determine “‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond any reasonable
doubt.’” United States v. Hill, 142 F.3d 305, 311 (6th Cir. 1998) (quoting Jackson v. Virginia, 443
U.S. 307, 318-19 (1979) (emphasis in original)).
In order to establish a conspiracy under 21 U.S.C. § 846, “the government must prove,
beyond a reasonable doubt, ‘(1) an agreement to violate drug laws, (2) knowledge and intent to join
the conspiracy, and (3) participation in the conspiracy.’” United States v. Gibbs, 182 F.3d 408, 420
(6th Cir. 1999) (citation omitted). The government presented numerous witnesses whose testimony
established that Wilkins and Jones worked together and with others to bring crack cocaine into
Johnson City, Tennessee, break it up for resale, and sell it on the street. After reviewing the record,
we conclude that it contains ample evidence to permit a rational juror to find beyond a reasonable
doubt that the government established a conspiracy to distribute or possess with intent to distribute
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50 grams or more of crack cocaine.
Moreover, neither Jones nor Wilkins argues that the testimony, if believed, was insufficient
to support his conspiracy conviction; rather, both defendants focus on the witnesses’ credibility,
asserting that the government’s evidence rested almost exclusively on the testimony of paid
confidential informants and cooperating co-defendants, who testified for the government in hopes
of receiving a reduced sentence — or “lies generated by liars who were bent on saving themselves.”
“[Jones’s and Wilkins’s] argument here is merely a challenge to [the witnesses’] credibility,
packaged as an insufficiency of the evidence claim,” United States v. Talley, 164 F.3d 989, 996 (6th
Cir. 1999), and “attacks on witness credibility are simple challenges to the quality of the
government’s evidence and not the sufficiency of the evidence.” United States v. Paige, 470 F.3d
603, 608 (6th Cir. 2006) (emphasis added) (internal punctuation and citation omitted). These
challenges are meritless.
2. Clay’s Motion to Sever
Prior to and during trial, Clay moved to sever his trial from that of his co-defendants, arguing
that he would be prejudiced by the government’s evidence concerning the large quantity of crack
cocaine involved in the conspiracy. The court denied his motions. Clay then moved for a mistrial
on the grounds that the evidence presented at trial indicated multiple conspiracies, not the single
conspiracy charged in Count One, and the evidence relating to the large quantity of crack involved
unfairly prejudiced Clay. The court denied the motion. Clay renewed his motion for a mistrial
without success.1
1
On appeal, Clay provides neither legal argument nor support for his claim that the district court abused its
discretion when it denied the motion for a mistrial, saying only that by granting the motion, the district court could
have corrected its error in denying the motions to sever. Issues raised in a perfunctory manner are deemed waived.
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We review for abuse of discretion the district court’s denial of Clay’s motions to sever.
United States v. Dye, 508 F.2d 1226, 1236 (6th Cir. 1974). An indictment “may charge 2 or more
defendants if they are alleged to have participated in the same act or transaction, or in the same series
of acts or transactions, constituting an offense or offenses.” FED . R. CRIM . P. 8(b). We have
recognized that, generally, in conspiracy cases, “persons jointly indicted should be tried together and
that this is particularly true where the offenses charged may be established against all of the
defendants by the same evidence and which result from the same series of acts.” Dye, 508 F.2d at
1236. But the court may sever a defendant’s trial if the joinder of defendants appears to prejudice
that defendant. FED . R. CRIM . P. 14(a).
Clay argues that because the indictment charged him with four substantive drug offenses
relating to actual distribution during the period September 25, 2002, through October 29, 2002, of
amounts totaling less than 3.1 grams, he was unfairly prejudiced with regard to the conspiracy count
by the government’s introduction of the large quantity of crack distributed by all of the parties as part
of the overall conspiracy lasting from February 2001 to September 2003. We have found, however,
that “a defendant is not entitled to severance simply because the evidence against a co-defendant is
far more damaging than the evidence against him.” United States v. Beverly, 369 F.3d 516, 534 (6th
Cir. 2004) (internal punctuation and citation omitted). “Moreover, a defendant does not have a right
to a separate trial, merely because his likelihood of acquittal would be greater if severance were
See United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996). In any event, the district court did not abuse its
discretion in denying Clay’s motion for a mistrial. “[A] single conspiracy does not become multiple conspiracies
simply because each member of the conspiracy did not know every other member, or because each member did not
know of or become involved in all of the activities in furtherance of the conspiracy.” United States v. Warner, 690
F.2d 545, 549 (6th Cir. 1982). Moreover, “the agreement may continue for a long period of time and may include
the performance of many transactions” and “[n]ew parties may join the agreement . . . while others may terminate
their relationship.” Id. at n.7 (citation omitted). The evidence here supported a single conspiracy.
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granted.” Id. Instead, Clay “must show compelling, specific, and actual prejudice” from the district
court’s refusal to sever, United States v. Saadey, 393 F.3d 669, 678 (6th Cir. 2005), and must
demonstrate that the jury cannot separate and treat distinctively the evidence relevant to each
particular defendant, see United States v. Moore, 917 F.2d 215, 220 (6th Cir. 1990).
Clay has not shown he was actually prejudiced or that the jury was unable to review the
evidence concerning Clay, individually, within the context of the conspiracy charging 50 grams or
more of crack cocaine. In fact, the jury acquitted Clay of one of his four substantive drug charges.
The district court did not abuse its discretion in denying the motion to sever.
3. Pre-trial discovery order
Slade argues that the government violated a pre-trial discovery order when it failed to turn
over to him government agents’ rough notes of statements made by Slade’s co-defendants. Slade
points to the “Motion for Modification of Discovery Order to More Fully Conform with Current
Requirements of Rule 16” filed by his co-defendant Clay in which Slade was permitted to join, and
in which Clay sought to compel the government to supply agents’ “rough notes” as a part of the
disclosures required under Rule 16(a)(1)(B)(ii) of the Federal Rules of Criminal Procedure. The
magistrate judge denied Clay’s motion. Clay appealed this denial to the district court which granted
his appeal and ordered the government to “produce any agent’s rough notes of any defendant’s
statement.” (Emphasis added.)
Slade argues that the district court’s order means that the government should have turned
over to him not only notes relating to his own statements but also any rough notes relating to
statements made by his co-defendants. He contends that the rough notes relating to his co-
defendants may contain exculpatory information material to his guilt or innocence, i.e., that he was
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not involved in the conspiracy and/or that he was at most an occasional buyer. And Slade contends
that he did not receive any rough notes at all from the government.
Rule 16(a)(1)(B)(ii) directs the government, upon Slade’s request, “to disclose to the
defendant, and make available for inspection, copying, or photographing, all of the following: . . .
(ii) the portion of any written record containing the substance of any relevant oral statement made
before or after arrest if the defendant made the statement in response to interrogation by a person the
defendant knew was a government agent.” (Emphasis added). The government argues that Rule
16(a)(1)(B)(ii) applies only to Slade’s own statements and does not entitle Slade to the statements
of his co-defendants, the language of the district court’s order notwithstanding.
We agree with the government. Moreover, we consider the context in which the district court
granted this order. The magistrate judge had already granted Slade’s request to join in Clay’s
motion, and the court simply — albeit somewhat inartfully — granted Clay’s motion on behalf of
“any defendant.” In short, we do not read the district court’s order as requiring that the government
provide to any defendant the rough notes of statements of any other defendant.
4. Slade’s pro se arguments
Slade raises a number of arguments in his pro se brief that he did not present to the district
court: (1) the indictment was duplicitous as to Count One; (2) the district court’s failure to provide
buyer-seller and multiple conspiracy jury instructions; and (3) the indictment was defective as to
Count One because it did not indicate the identity of every alleged co-conspirator. We review these
claims for plain error, and after carefully reviewing Slade’s arguments and the relevant case law, we
find none. Count One of the indictment was not duplicitous; the evidence did not support the jury
instructions requested by Slade; and the indictment was not defective as Slade claims.
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Slade also claims that his trial counsel was ineffective in several respects. We decline to
address this claim at this time. See United States v. Sullivan, 431 F.3d 976, 986 (6th Cir. 2005)
(“The usual rule is that a defendant may not raise claims for ineffective assistance of counsel on
direct appeal.”). Having preserved this claim, Slade may pursue it in a post-conviction proceeding
under 28 U.S.C. § 2255.
B. Sentencing
At sentencing, the district court must impose “a sentence sufficient, but not greater than
necessary, to comply with the purposes” of 18 U.S.C. § 3553(a)(2), see United States v. Foreman,
436 F.3d 638, 644 n.1 (6th Cir. 2006) (quoting 18 U.S.C. § 3553(a)), and, on appeal, we review the
district court’s sentence for reasonableness. Rita v. United States, 127 S. Ct. 2456, 2459 (2007);
Booker v. United States, 543 U.S. 220, 261 (2005). We afford a presumption of reasonableness to
a properly calculated within-Guidelines sentence. See United States v. Williams, 436 F.3d 706, 708
(6th Cir. 2006); see also Rita, 127 S. Ct. at 2462 (holding that “a court of appeals may apply a
presumption of reasonableness to a district court sentence that reflects a proper application of the
Sentencing Guidelines”).
“A sentence may be procedurally unreasonable if ‘the district judge fails to “consider” the
applicable Guidelines range or neglects to “consider” the other factors listed in 18 U.S.C. § 3553(a),
and instead simply selects what the judge deems an appropriate sentence without such required
consideration.’” United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006) (quoting United
States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)). While we have consistently required district
courts to consider § 3553(a)’s factors, procedural reasonableness “does not require a rote listing,”
United States v. Collington, 461 F.3d 805, 809 (6th Cir. 2006), or a “‘ritual incantation’ of the
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factors,” Williams, 436 F.3d at 709 (quoting United States v. Johnson, 403 F.3d 813, 816 (6th Cir.
2005)), so long as the court provides “sufficient evidence in the record to affirmatively demonstrate
[its] consideration of [the factors].” United States v. Davis, 458 F.3d 505, 510 (6th Cir. 2006)
(citation and internal punctuation omitted). That is, “[t]he sentencing judge should set forth enough
to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” Rita, 127 S. Ct. at 2468.
“‘[E]ven if a sentence is calculated properly, i.e., the Guidelines were properly applied and
the district court clearly considered the § 3553(a) factors and explained its reasoning, a sentence can
yet be unreasonable.’” United States v. Husein, 478 F.3d 318, 332 (6th Cir. 2007) (quoting United
States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006)). A sentence may be “substantively unreasonable
where the district court ‘select[s] the sentence arbitrarily, bas[es] the sentence on impermissible
factors, fail[s] to consider pertinent § 3553(a) factors, or giv[es] an unreasonable amount of weight
to any pertinent factor.’” Ferguson, 456 F.3d at 664 (quoting Webb, 403 F.3d at 385).
We begin with two preliminary observations. First, because none of the defendants objected
to any perceived procedural inadequacy at sentencing, even though the district court provided the
opportunity for each of them to raise such an objection, we review for plain error any challenge these
defendants make to the procedural reasonableness of their sentences. United States v. Bailey, 488
F.3d 363, 367 (6th Cir. 2007) (“[W]hen the district court asks at sentencing whether there are any
objections to the sentence and the appellant raises none, we review the [procedural reasonableness
of the] sentence only for plain error.”). And second, the sentence of each of these defendants falls
within the advisory Guidelines range; therefore, so long as the district court properly calculated the
respective Guidelines range, we afford a rebuttable presumption of reasonableness to the sentences
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imposed.
1. Smith
a. Plea agreement
Smith argues that the government breached his plea agreement by failing to advise the district
court of Smith’s cooperation with the government. Paragraph eight of the plea agreement provides
that “[a]t the time of sentencing, the United States will bring to the court’s attention the nature,
extent, and value of the defendant’s cooperation.” Because Smith failed to object at sentencing when
the government did not offer any statement as to his cooperation, he forfeited “his right to appeal any
breach of the plea agreement, and a plain error analysis thus guides this Court’s review.” United
States v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002). We find no such error.
The sentencing memorandum Smith filed in the district court does not describe his
cooperation with the government, but notes only that “the extent and nature of the cooperation will
be made known to the Court in its consideration of any Motion for Downward Departure filed by
the government.” The government’s sentencing memorandum does not mention any cooperation
by Smith or suggest that his sentence should be reduced because of his cooperation. And Smith does
not suggest on appeal that he in fact did cooperate with the government. He claims only that the
government’s failure expressly to address the issue at sentencing is a breach of the plea agreement.
Smith’s plea agreement contains no express agreement on the part of the government to make
any recommendation as to Smith’s sentence or to move for a downward departure. Rather, the
agreement obligated the government to advise the court of any cooperation by Smith, and provided
that the government, in its sole discretion, would determine whether to move for a downward
departure on the basis of any substantial assistance Smith might provide to the government. Because
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Smith points to no cooperation, we cannot find that the government had anything to bring to the
court’s attention at sentencing. We therefore find that Smith has demonstrated no breach of the plea
agreement and no plain error.
b. Smith’s sentence
The district court sentenced Smith to 262 months’ imprisonment, a sentence within the
Guidelines. Smith argues that the district court erred by treating the Guidelines as mandatory and
failing to consider relevant § 3553(a) factors.
Smith’s claim that the district court treated the Guidelines as mandatory is patently wrong,
as the record clearly reflects that the district court was aware of the advisory nature of the Guidelines.
And while the district court did not expressly examine all of the § 3553 factors or explicitly discuss
each of them with respect to Smith, we do not require such a mechanical exercise. See Collington,
461 F.3d at 809. The court sentenced Smith to the lowest sentence within the Guidelines range, and
noted that the Guidelines range was driven in large part by Smith’s status as a career offender. Here,
the “[c]ircumstances . . . make clear that the judge rest[ed] his decision upon the Commission’s own
reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other
congressional mandates) in the typical case, and that the judge . . . found that the case before him
[wa]s typical.” Rita, 127 S. Ct. at 2468. Smith’s claim that his sentence is procedurally
unreasonable is meritless.
2. Townsend
The district court sentenced Townsend to 188 months’ imprisonment, a sentence within the
Guidelines. Townsend argues that the sentence is procedurally unreasonable because the court gave
too much weight to the Guidelines range, erred in its consideration of Townsend’s criminal history,
10
and failed to consider mitigating factors. He argues that his sentence is substantively unreasonable
because it is too long (1) in light of the mitigating factors he presented at sentencing and (2) in
comparison to Clay’s sentence.
Here, the court considered the Guidelines2, Townsend’s nature and characteristics, and his
cooperation with the government. The “[c]ircumstances . . . make clear that the judge rest[ed] his
decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence
(in terms of § 3553(a) and other congressional mandates) in the typical case, and that the judge . . .
found that the case before him [wa]s typical.” Rita, 127 S. Ct. at 2458. Here, the court provided
sufficient evidence in the record to demonstrate affirmatively its consideration of the § 3553(a)
factors and did not “simply select” what it viewed as “an appropriate sentence.” Ferguson, 456 F.3d
at 664.
With respect to the mitigating factors Townsend raised, the court adequately addressed the
factors and explained why those factors did not dictate a downward departure from the Guidelines.
See Rita, 127 S. Ct. at 2468 (“Where the defendant . . . presents nonfrivolous reasons for imposing
2
At each defendant’s sentencing hearing, the district court made some reference to the “substantial weight”
or “significant weight” it accorded the advisory Guidelines range, noting that the United States Sentencing
Commission had taken into account all or most of the factors set forth in Section 3553(a) in arriving at the guideline
recommendation. The defendants argue that the district court’s view of the Guidelines “re-institute[s] mandatory
adherence to the Guidelines.” The Supreme Court, however, has now made it clear that a district court may accord
substantial weight to the Guidelines in determining a sentence:
it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of
sentences that might achieve § 3553(a)’s objectives. An individual judge who imposes a sentence
within the range recommended by the Guidelines thus makes a decision that is fully consistent with
the Commission’s judgment in general.
Rita, 127 S. Ct. at 2464-65. The Supreme Court, therefore, has recognized that the district court and Sentencing
Commission are working toward the same objective: applying § 3553 factors to arrive at a sentence sufficient, but
not greater than necessary, to comply with the purposes of 18 U.S.C. § 3553(a)(2). “[W ]hen the judge’s
discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine
run of cases, it is probable that the sentence is reasonable.” Id. at 2465.
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a different sentence, however, the judge will normally go further and explain why he has rejected
those arguments.”). Moreover, “[t]he record makes clear that the sentencing judge listened to each
argument. . . . [and] considered the supporting evidence . . . . The judge then simply found
[Townsend’s] circumstances insufficient to warrant a sentence lower than the Guidelines range.”
Id. at 2469.
On appeal, Townsend argues that because, like Clay, he presented evidence of a family
history of abuse and argued disparity between powder cocaine and crack cocaine, his sentence should
be more like Clay’s. This claim is meritless. First, the district court properly did not address the
issue of the sentencing disparity between powder cocaine and crack cocaine. Congress has
determined that the differences between powder cocaine and crack cocaine mandate different
sentences, see 21 U.S.C. § 841(b), and as we recently stated in United States v. Funk, 477 F.3d 421
(6th Cir. 2007), a sentencing court may not reject Congress’s policy decisions. 477 F.3d at 430 (“[A]
district court making sentencing determinations may not implicitly reject Congress’s policy decision
to prescribe harsher penalties for career offenders by ignoring or outright rejecting a defendant’s
status as a career criminal offender.”).
Second, Townsend’s argument that his sentence is unreasonable because, like Clay,
Townsend also had a difficult childhood but, unlike Clay, Townsend has a bipolar disorder, is also
baseless. The very essence of sentencing is rendering a punishment sufficient, but not greater than
necessary for this particular individual with respect to his particular offenses. Although Clay’s
sentence is not before us, it is clear from the record that Clay’s circumstances are different from
Townsend’s circumstances. For example, the district court found that Clay withdrew from the
conspiracy and led a productive life for one year prior to his arrest in this case. There is no evidence
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in the record that Townsend raised a similar argument before the district court, nor, on appeal, has
he even suggested that he withdrew from the conspiracy. In short, the district court’s decision to
sentence Townsend to 188 months as opposed to Clay’s 156 months does not render Townsend’s
sentence unreasonable.
3. Wilkins
The district court sentenced Wilkins to 188 months’ imprisonment, a sentence within the
Guidelines. Wilkins argues that his Guidelines range should have been based upon the quantity of
crack cocaine reflected in the jury’s verdict, rather than the drug quantity calculated in the
presentence investigation report (“PSR”). The jury convicted him of conspiracy to distribute 50
grams or more of crack cocaine; the base offense level for 50 grams but not more than 150 grams
is 32. The probation officer, however, calculated his sentence based upon 255 grams of crack
cocaine, resulting in an offense level of 34. Wilkins objected to the PSR’s drug quantity calculation.
The court sentenced him to 188 months, the lowest sentence in the Guidelines range based upon 255
grams, and the highest in the Guidelines range based upon 150 grams of crack cocaine.
Wilkins argues that the district court calculated his Guidelines range on the basis of facts
other than those which he specifically admitted or the jury found, thus violating Booker. “Because
the guidelines are now advisory and not mandatory, a District Court may rely on extra-verdict facts
or on those other than which the defendant has specifically admitted when it calculates his sentence.”
United States v. Cook, 453 F.3d 775, 777 (6th Cir. 2006). “Moreover, Apprendi [v. New Jersey, 530
U.S. 466 (2000)] is not triggered so long as the judicial findings of fact do not result in the defendant
receiving a sentence that exceeds the statutory maximum.” United States v. Flores, 477 F.3d 431,
438 (6th Cir. 2007). This claim is meritless.
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Wilkins also argues that his sentence was procedurally and substantively unreasonable
because the trial court failed to consider adequately the § 3553(a) factors in rendering his sentence
and gave too much weight to the Guidelines. The record, however, reflects that the court in fact
considered both the advisory Guidelines and the § 3553(a) factors. The “sentencing judge . . . set
forth enough to satisfy [us] that he . . . considered the parties’ arguments and ha[d] a reasoned basis
for exercising his own legal decisionmaking authority.” Rita, 127 S. Ct. at 2468. Moreover, the
court considered factors weighing in Wilkins’s favor, but “simply found these circumstances
insufficient to warrant a sentence lower than the Guidelines range.” Id. at 2469. Wilkins has shown
no error with regard to the procedural reasonableness of his sentence, let alone plain error. Finally,
the district court did not base the sentence on impermissible factors or give unreasonable weight to
any pertinent factor, Ferguson, 456 F.3d at 664, and Wilkins’s claim that the sentence is
substantively unreasonable is meritless.
4. Jones
Jones first argues that the district court erred in its calculation of the advisory Guidelines
range because it assessed Jones four points for two of Jones’s juvenile convictions. Because Jones
did not object to this calculation in the PSR or at sentencing, we review it for plain error. United
States v. Dossie, 188 F. App’x 339, 346 (6th Cir. 2006).
Section 4A1.2(d)(2)(A) of the 2003 Guidelines provides that the defendant receives two (2)
points “for each . . . juvenile sentence to confinement of at least sixty days if the defendant was
released from such confinement within five years of his commencement of the instant offense.” The
district court adopted the PSR which awarded (1) two points for Jones’s June 30, 1995, conviction
for having a weapon on campus or other educational property and (2) two points for Jones’s August
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11, 1995, conviction for assault with a deadly weapon. On October 27, 1995, when the juvenile
court sentenced Jones for these two offenses, the court committed him to North Carolina’s Division
of Youth Services for a period not to extend beyond his 18th birthday. He was released from this
confinement on January 1, 1998.
Juvenile commitments are properly determined to be “confinement” for purposes of
4A1.2(d)(2)(A)). See, e.g., United States v. Maurice Williams, 176 F.3d 301, 312 (6th Cir. 1999).
Jones offers no factual or legal basis for his contention that these convictions should not have been
counted in his criminal history. Indeed, Jones provides no argument whatsoever with regard to this
claim, but merely raises the issue in the heading of a section of his brief and then recites the facts of
his juvenile convictions.3 Issues raised in a perfunctory manner are deemed waived. See United
States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996).
Jones further complains — but favors us with neither law nor argument in support — that
his sentence is unreasonable because it is not less than the applicable advisory Guidelines range and
the “sentence does not fit the crime.” The district court sentenced Jones to 327 months’
imprisonment, a sentence within the Guidelines. The record reflects that the court considered the
advisory Guidelines and addressed extensively the § 3553(a) factors. The court imposed a sentence
at the high end of the Guidelines range because of Jones’s lengthy criminal history and the court’s
belief that Jones was not amenable to rehabilitation and the public needed to be protected from him.
The record demonstrates that the court addressed Jones’s mitigating factors and explained why it
3
At best, Jones may be arguing that because he was released from confinement on January 1, 1998, and the
grand jury indicted him on September 23, 2003 — more than five years after his release from confinement — the
juvenile convictions should not be counted. This contention would be clearly incorrect. Under Section
4A1.2(d)(2)(A), the five-year period runs from the date of release to the date of the commencement of the “instant
offense.” The instant offense here included seven substantive drug charges, four of which fell within the five-year
period.
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rejected them in calculating the sentence, and that the court did not arbitrarily select the sentence,
give undue weight to pertinent factors, or base the sentence on impermissible factors. See Ferguson,
456 F.3d at 664. This sentence is neither procedurally nor substantively unreasonable.
5. Slade
The district court sentenced Slade to a mandatory term of life imprisonment. Slade first
argues that the district court erred by finding that his 1997 North Carolina felony conviction for
possession of cocaine qualified as a “felony drug offense” within 21 U.S.C. § 841(b)(1)(A) and 21
U.S.C. § 802(44). Section 841(b)(1)(A) provides that a defendant who violates § 841 “after two or
more prior convictions for a felony drug offense have become final, . . . shall be sentenced to a
mandatory term of life imprisonment without release.” 21 U.S.C. § 841(b)(1)(A). Section 802(44)
defines a “felony drug offense” as “an offense that is punishable by imprisonment for more than one
year under any law of . . . a State . . . that prohibits or restricts conduct relating to narcotic drugs
. . . .” 21 U.S.C. § 802(44) (emphasis supplied).
Slade argues on appeal that the maximum sentence he could have received for his 1997 North
Carolina conviction, a Class I felony, was 12 months, and he argues persuasively that, because the
conviction could qualify as a felony drug offense only with a finding of aggravated factors — which
are not in the record — the conviction was erroneously utilized by the district court as a predicate
for the life sentence. But Slade waived this argument before the district court, explicitly conceding
that the 1997 conviction was a predicate conviction for purposes of enhancing his sentence under
21 U.S.C. §§ 841(b)(1)(A), 802(44). As the Supreme Court noted in United States v. Olano, 507
U.S. 725 (1993), “[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known
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right.’” 507 U.S. at 733 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
In his sentencing memorandum, Slade’s counsel stated
Counsel believed that an argument could be made on good faith that Mr. Slade’s
1997 conviction for possession of cocaine was, in fact, a misdemeanor rather than a
felony. However, after researching North Carolina law, it was discovered that the
cases that Mr. Slade would have relied upon were overturned by the North Carolina
Supreme Court on June 25, 2004. State v. Jones, 358 N.C. 473 (June 25, 2004)
(holding that possession of cocaine is a felony under N.C.G.S. § 90-95(d)(2) for the
purposes of establishing that the defendant is a habitual offender in sentencing for
subsequent convictions).
Moreover, at Slade’s April 14, 2005, sentencing hearing, the district court said, “I quite frankly
looked for a way to avoid imposition of a mandatory life sentence here, but I can’t find it.” Slade’s
counsel responded:
I know you did, your Honor. I actually was looking at that this morning. I know you
tried. This is my second mandatory life I received in a year in this court, and I was
very — we worked tirelessly to try and figure out a way to get one of the North
Carolina convictions overturned. There was an issue initially. . . . Your Honor,
there’s nothing else I can say. Obviously, I think Congress has made a mistake by
putting a life sentence on these types of crimes. All we have is two felony drug
convictions and a conviction before this court. . . . In this case, he’s receiving a much
more serious sentence today, your Honor; but under the statute there’s just nothing
I can do.
We conclude that Slade did not merely forfeit this challenge to the Guidelines calculation and
the resulting life sentence, he waived his right to contest the district court’s disposition of this matter.
We therefore cannot consider it. See United States v. Obi, 193 F. App’x 453, 455 (6th Cir. 2006)
(“When a party intentionally relinquishes or abandons a known right in the district court, the claim
is waived and cannot be asserted on appeal.” (citing Olano, 507 U.S. at 733)).
Slade next argues that the mandatory life sentence imposed by the district court is cruel and
unusual punishment and violates the Eighth Amendment. Because Slade did not raise his Eighth
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Amendment claim before the district court, we review it for plain error. United States v.
Murillo-Monzon, No. 06-1776, 2007 U.S. App. LEXIS 17778, at *6 (6th Cir. July 18, 2007) (“Where
the defendant fails to raise his or her constitutional challenges in the district court, however, we will
grant relief only if the defendant demonstrates plain error.”).
In United States v. Hill, 30 F.3d 48 (6th Cir. 1994), we held that co-defendant Hickey’s
mandatory minimum sentence imposed pursuant to 21 U.S.C. § 841(b)(1)(A) did not violate the
Eighth Amendment. There, the defendant had two prior felony drug convictions and, most recently,
had been convicted of his third involving 177.8 grams of cocaine base. 30 F.3d at 50. We noted that
this circuit applies the “narrow proportionality principle” to Eighth Amendment challenges — that
is, the “Eighth Amendment only prohibit[s] ‘extreme sentences that are “grossly disproportionate”
to the crime.’” Id. (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,
concurring); see also Getsy v. Mitchell, 495 F.3d 295, 305 (6th Cir. 2007) (en banc) (“Eighth
Amendment proportionality, as defined by the Supreme Court, refers ‘to an abstract evaluation of
the appropriateness of a sentence for a particular crime.’”) (quoting Pulley v. Harris, 465 U.S. 37,
42-43 (1984)). We concluded that under the facts of the case, the sentence was not “grossly
disproportionate” to the crime, and therefore constitutional. Hill, 30 F.3d at 51.
Slade’s argument that his sentence is grossly disproportionate to the crime is principally
premised on the claim — which, as we have already held, Slade waived — that his North Carolina
conviction was improperly considered by the district court in sentencing him to life in prison.
Moreover, Slade’s third felony drug conviction, i.e., the instant offense, involved a greater quantity
of cocaine than did the Hill defendant’s third conviction. As in Hill, we conclude that Slade’s
sentence does not violate the Eighth Amendment. See United States v. Flowal, 163 F.3d 956, 963
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(6th Cir. 1998) (“[T]his Court is bound by the precedent set forth in United States v. Hill, 30 F.3d
48, 50-51 (6th Cir. 1994) . . . . [which] held . . . that a mandatory term of life imprisonment without
release upon a third felony drug conviction did not violate the Eighth Amendment’s protection
against cruel and unusual punishment.”).
Finally, in his pro se brief, Slade appears to argue that Shepard v. United States, 544 U.S. 13
(2005), requires that a jury determine the facts of his prior felony drug offenses, or that Slade admit
those facts, before the district court can use those prior convictions to enhance his sentence.
Because Slade did not raise this argument in the district court, we review for plain error, and we find
none. Apprendi v. New Jersey, 530 U.S. 466 (2000), specifically permits the sentencing court to rely
on the fact of a prior conviction to “increase[ ] the penalty for a crime beyond the prescribed
statutory maximum.” 530 U.S. at 490. Shepard does not alter Apprendi, and Slade’s argument is
baseless.
II. CONCLUSION
Accordingly, for the foregoing reasons, we AFFIRM the convictions and sentences of each
of the defendants.
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