United States v. Malcolm Redmon ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3844
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Malcolm Desean Redmon, also known as Malcolm Deshawn Redmon, also known
as Malcolm Redmond, also known as Harp
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: April 7, 2017
Filed: July 5, 2017
[Unpublished]
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Before WOLLMAN and LOKEN, Circuit Judges, and NELSON, District Judge.1
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PER CURIAM.
1
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota, sitting by designation.
Malcolm Desean Redmon pleaded guilty to one count of conspiracy to
distribute and possess with intent to distribute 28 grams or more of cocaine base and
an unspecified quantity of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B),
846, and 851. The district court2 sentenced him to 292 months’ imprisonment.
Redmon appeals, challenging the district court’s drug-quantity calculation, its
application of obstruction-of-justice and aggravating-role sentencing adjustments, and
its alleged failure to take into account the crack/powder cocaine sentencing disparity
in its consideration of the 18 U.S.C. § 3553(a) factors. We affirm.
Redmon and twenty-six coconspirators were charged in a superseding
indictment with numerous offenses related to a drug-trafficking conspiracy that
operated in and around Columbia, Missouri, from approximately November 2011
until November 2014. In his plea agreement, Redmon admitted to the conspiracy
charge, but disputed the additional crack and powder cocaine quantities set forth in
the agreement. The parties agreed that the district court would determine the ultimate
drug quantity and type at sentencing.
Redmon’s presentence report (PSR) concluded that he was responsible for 3
kilograms of powder cocaine and 1 kilogram of crack cocaine or 4,171 kilograms of
marijuana equivalent, resulting in a base offense level of 32 under § 2D1.1(c)(4) of
the U.S. Sentencing Guidelines Manual (U.S.S.G. or Guidelines). The PSR’s total
drug amount was determined based on admissions and proffer statements of
coconspirators; intercepted phone calls and text messages; and surveillance,
controlled buys, and a seizure of powder and crack cocaine by law-enforcement
officers. The PSR’s drug-type determination was estimated based on the ratio of
crack and powder cocaine that was seized by law-enforcement officers, purchased in
controlled buys, and admitted by coconspirators and confidential informants. The
2
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.
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PSR recommended a 4-level adjustment under § 3B1.1(a) of the Guidelines based on
Redmon’s position as an organizer or leader of the conspiracy and a 2-level
adjustment under § 3C1.1 for obstruction of justice. After a 2-level reduction for
acceptance of responsibility, Redmon’s total offense level was 35, which, coupled
with a category VI criminal history, resulted in a Guidelines sentencing range of 292
to 365 months’ imprisonment. Redmon objected to the PSR’s calculation of drug
quantity and type, as well as its recommended application of the aggravating-role and
obstruction-of-justice adjustments.
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Special Agent
Charles Tomlin and Task Force Officer Jonathan Logan testified in support of the
PSR’s recommendations at the sentencing hearing. They provided summaries of
coconspirator admissions and proffers, surveillance records, intercepted calls and
texts, and controlled drug buys consistent with the description of the offense conduct
set forth in the PSR. They also testified regarding the conduct upon which the
aggravating-role and obstruction adjustments were based. After hearing extensive
argument, the district court overruled Redmon’s objections to the PSR, concluding
that the government had demonstrated with reasonable certainty facts sufficient to
support the recommendations set forth therein. The court then considered the
18 U.S.C. § 3553(a) sentencing factors, noting in particular Redmon’s substantial
criminal history and the need to protect the public from further criminal activity by
Redmon. The court then imposed a sentence of 292 months’ imprisonment.
“We review the district court’s application of the Guidelines to the facts de
novo; its factual findings for clear error; and the ultimate sentence for
reasonableness.” United States v. Mannings, 850 F.3d 404, 408 (8th Cir. 2017) (per
curiam) (citation omitted).
Redmon first argues that the district court erred in finding that he was
responsible for 3 kilograms of powder cocaine and 1 kilogram of crack cocaine, as
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set forth in the PSR. “[W]here there is no drug seizure or the amount seized does not
reflect the scale of the offense, the court shall approximate the quantity of the
controlled substance.” United States v. Yellow Horse, 774 F.3d 493, 496 (8th Cir.
2014) (citation omitted). Although the government bears the burden of establishing
quantity by a preponderance, it is not required to present “evidence of specific drug
quantities” because “‘[t]he court may make a specific numeric determination of
quantity based on imprecise evidence so long as the record reflects a basis for the
court’s decision.’” Id. at 497 (citation omitted). The government also bears the
burden of establishing drug type by a preponderance, a burden that can be satisfied
by circumstantial evidence. See United States v. Whitehead, 487 F.3d 1068, 1071-72
(8th Cir. 2007). In determining drug quantity in the context of a drug-trafficking
conspiracy, the district court “may consider all transactions known or reasonably
foreseeable to the defendant that were made in furtherance of the conspiracy.”
Yellow Horse, 774 F.3d at 496 (citation omitted); see also United States v. Lawrence,
854 F.3d 462, 467 (8th Cir. 2017) (noting that the district court may consider amounts
from coconspirators’ drug transactions in which the defendant was not directly
involved, provided that the other transactions “are part of the same course of conduct
or scheme” (citation omitted)). The court may rely on hearsay evidence, as long as
that evidence has “sufficient indicia of reliability to support its probable accuracy.”
U.S.S.G. § 6A1.3(a); see United States v. Moralez, 808 F.3d 362, 368 (8th Cir. 2015)
(citation omitted).
We review for clear error the district court’s determination of drug quantity and
type, “applying the preponderance-of-the-evidence standard.” Yellow Horse, 774
F.3d at 496 (citation omitted) (quantity); Whitehead, 487 F.3d at 1071 (type). Thus,
defendants challenging the district court’s determination of drug quantity or type
“face an uphill battle on appeal because we will reverse . . . only if the entire record
definitely and firmly convinces us that a mistake has been made.” United States v.
Allen, 440 F.3d 449, 452 (8th Cir. 2006) (citation omitted).
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The district court heard testimony from ATF investigators that coconspirator
Kenneth Scott, Sr., admitted that he had supplied Redmon with 3 to 4 ounces of
cocaine per week over a 33-week period, for a total of 2.7 kilograms of cocaine. In
a later proffer statement, Scott, Sr., estimated that he had supplied Redmon with
approximately 2 kilograms of cocaine over a 2-year period. Coconspirator Guillermo
Ortiz-Perez admitted in a proffer statement that he had sold 2 kilograms of cocaine
to Redmon and Ronald Brown for $66,000. Intercepted calls and text messages by
Redmon and multiple coconspirators, as well as surveillance and controlled drug
purchases, generally corroborated these drug quantities. Although Redmon
challenges the veracity of these admissions and proffer statements by coconspirators
who were allegedly motivated to lie about Redmon’s participation, they were largely
corroborated by the investigative evidence. “We afford district courts wide latitude
in choosing what information to consider in determining drug quantity, and ‘the
sentencing court’s assessment of the credibility of witnesses is nearly unreviewable.’”
Mannings, 850 F.3d at 409 (citation omitted). We conclude that the challenged
statements possessed “sufficient indicia of reliability to support [their] probable
accuracy” and provided an adequate basis for the district court’s 4-kilogram drug-
quantity finding. See Moralez, 808 F.3d at 368 (citation omitted).
As for the district court’s drug-type determination, the PSR noted that officers
executing a search warrant at the residence of coconspirator Teka Hayes seized a total
of 149.13 grams of cocaine, 93.63 grams of which was powder cocaine and 55.5
grams of which was crack cocaine. Scott, Sr.’s proffer statement reported that he had
observed Redmon convert powder into crack cocaine at Hayes’s residence, and
officers conducting surveillance observed Redmon and Scott at Hayes’s residence.
Officers purchased a total of 36.98 grams of cocaine from Redmon in controlled buys,
30.56 grams of which was powder cocaine and 6.42 grams of which was crack
cocaine. Thus, considering the 186.11 grams of cocaine recovered by officers over
the course of the conspiracy investigation, 124.19 grams, or 67%, was powder
cocaine, and 61.92 grams, or 33%, was crack cocaine. Putting aside the quantities of
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powder and crack cocaine purchased by others, the district court did not clearly err
in finding that of the powder and crack cocaine actually recovered during the
conspiracy investigation, 1 kilogram, or 25%, of the 4 kilograms of cocaine
attributable to Redmon should reasonably be considered crack cocaine. The proffer
statements summarized at sentencing, corroborated as they were by intercepted
communications, surveillance, and controlled buys, established a reliable and credible
basis upon which the district court could base its finding of drug quantity and type.
Accordingly, the district court did not clearly err in finding that Redmon was
responsible for 3 kilograms of powder cocaine and 1 kilogram of crack cocaine.
Redmon argues that the district court erred in finding that he was an organizer
or leader of the conspiracy and in imposing a 4-level aggravating-role adjustment
under § 3B1.1(a) of the Guidelines. He contends that he did not direct the actions of
any other individual, that he merely “worked with” others to buy and sell cocaine, and
that the evidence supporting the adjustment consisted solely of self-serving
statements of cooperating coconspirators. We interpret the terms “organizer” and
“leader” broadly for purposes of § 3B1.1. See United States v. Molina-Perez, 595
F.3d 854, 862 (8th Cir. 2010). The government need not show that a defendant was
the only leader of a conspiracy or that he led all the other participants. See id.
Factors to consider in determining whether a defendant was an organizer or leader
include:
[T]he 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.
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U.S.S.G. § 3B1.1, cmt. n.4. The district court’s determination of a defendant’s role
in the offense is a factual finding that we review for clear error. See Moralez, 808
F.3d at 367.
The government presented extensive evidence that Redmon directed the
activities of multiple coconspirators and other individuals in furtherance of an
extensive criminal conspiracy. While incarcerated in Boone County Jail, Redmon
successfully directed Marlon Jordan to instruct Courtney Thornton to testify falsely
before a federal grand jury regarding her knowledge of the conspiracy. Redmon also
told Jordan how to divide a sum of cash, which Thornton was holding for Redmon.
Redmon spoke with Thornton following her appearance before the grand jury and
demanded details about her testimony, including the names of individuals about
whom she was asked. In an intercepted call, Redmon recruited Ryan Wright to
distribute cocaine and pressured Wright to “reinvest” his portion of the drug proceeds
in the purchase of additional cocaine for distribution. Redmon directed the activities
of Vershawn Edwards and Michael Hunt in controlled buys arranged by law-
enforcement officers, and he similarly directed the distribution of drugs by Carl
Simon. A cooperating source revealed details about Redmon’s drug-trafficking
activity, noting specifically that although Redmon and Marlon Jordan worked
together, Redmon was in charge. The source also identified Ronald Brown and
Devon Hopkins as individuals working for Redmon. A confidential informant
contacted Redmon to purchase crack cocaine, but Redmon directed Rodney Arnold
to complete the transaction. Confidential informants reported that Redmon had
fronted 4.5 ounces of cocaine to Corey Coates and that Redmon later pistol-whipped
Coates in a public park.
While “[m]erely distributing or selling drugs is not sufficient for the”
aggravating-role adjustment, the evidence was sufficient to prove by a preponderance
that Redmon’s conduct went beyond mere buying and selling. See United States v.
Irlmeier, 750 F.3d 759, 763 (8th Cir. 2014) (citation omitted). The government’s
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evidence displayed “sufficient indicia of reliability to support its probable accuracy.”
See Moralez, 808 F.3d at 368 (citation omitted). Accordingly, the district court did
not clearly err in finding that Redmon played a leadership role in the conspiracy and
did not err in determining that Redmon qualified for the § 3B1.1(a) aggravating-role
adjustment.
Redmon next challenges the district court’s application of the 2-level
obstruction-of-justice adjustment set forth in § 3C1.1 of the Guidelines. We review
for clear error the district court’s factual findings underlying the adjustment, and we
review de novo the court’s construction and application of the Guidelines. See
United States v. Mohamed, 757 F.3d 757, 761 (8th Cir. 2014). For the obstruction
adjustment to apply, the government must prove by a preponderance “(1) [that] the
defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing
of the . . . offense of conviction, and (2) [that] the obstructive conduct related to (A)
the defendant’s offense of conviction and any related conduct; or (B) a closely related
offense.” U.S.S.G. § 3C1.1. “Threatening, intimidating, or otherwise unlawfully
influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to
do so,” constitutes obstruction. Id. § 3C1.1 cmt. n.4(A).
As recounted above, the government presented evidence of a monitored phone
call Redmon placed to Jordan and Thornton, in which he directed Thornton to testify
falsely before the federal grand jury regarding her knowledge of the conspiracy.
Redmon spoke with Thornton again after her testimony, demanding details about the
questions she was asked and the responses she gave. This conduct establishes that
Redmon “willfully obstructed or impeded” the investigation and prosecution of the
drug-trafficking conspiracy. Id. § 3C1.1; see also United States v. McMannus, 496
F.3d 846, 850 (8th Cir. 2007) (concluding that obstruction adjustment applied when
a defendant gave instructions to a coconspirator to conceal her involvement in the
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conspiracy), abrogated on other grounds by Pepper v. United States, 562 U.S. 476,
491 (2011).
The government presented additional evidence of Redmon’s obstructive
conduct. While Redmon was incarcerated for the instant offense, officers received
information that comments had been posted on a social networking site by an account
holder named “Fatz Mizzou” that attempted to identify witnesses in the conspiracy
investigation. Concerned for the safety of potential witnesses, officers reviewed
recordings of the telephone calls Redmon had made from the Cole County jail and
learned that he had spoken with his mother the prior day. In that call, Redmon
identified several individuals that he believed to be witnesses in the case and
indicated that he would be mailing his mother some paperwork. In another recorded
call, Redmon spoke with an individual officers believed to be “Fatz Mizzou” and
again identified the individuals that he believed to be witnesses in the case. After the
names were posted on Fatz Mizzou’s social networking account, various individuals
posted comments, which included suggestions that the alleged witnesses should suffer
violence. A search of Redmon’s jail cell revealed a typewritten summary of
information provided by confidential informants, on which were handwritten the
names that later appeared on that social networking account. Officers subsequently
offered to relocate the identified individuals for their protection. Redmon’s conduct
clearly constituted an attempt to obstruct justice. See United States v. Vaca, 289 F.3d
1046, 1049 (8th Cir. 2002) (noting that “[a]n attempt to intimidate or threaten a
witness, even if unsuccessful, is sufficient to sustain” an adjustment for obstruction
of justice (citation omitted)); United States v. Smith, 665 F.3d 951, 955 (8th Cir.
2011) (noting that an attempt requires intent to engage in criminal conduct and a
substantial step toward commission of the criminal conduct sufficient to “strongly
corroborate[]” criminal intent); see also United States v. Brisbin, 659 F. App’x 903,
906-07 (8th Cir. 2016) (per curiam) (affirming district court’s finding that defendant’s
recorded telephone conversation with his mother about posting his PSR on a social
networking site constituted a substantial step toward intimidating government
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witnesses and thus attempting to obstruct justice). The district court thus did not
clearly err in finding a factual basis for the § 3C1.1 obstruction-of-justice adjustment
and in applying that adjustment.3
Finally, we conclude without further elaboration that the record belies
Redmon’s last-ditch contention that the district court failed to recognize its discretion
to vary downward from the Guidelines range based on the disparity between crack
and powder cocaine sentences.
The judgment is affirmed.
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3
Because this evidence was sufficient to support the district court’s application
of the aggravating-role adjustment, we need not address Redmon’s arguments
regarding his rap lyrics and video.
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