United States v. Bennie Patterson ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 00-3968 EMCG
_____________
United States of America *
*
Plaintiff/Appellee, *
*
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
*
Bennie Patterson, *
*
Defendant/Appellant. *
*
*
____________
Submitted: May 18, 2001
Filed: August 3, 2001
____________
Before WOLLMAN, Chief Judge, BEAM, Circuit Judge, and BARNES,1 District
Judge.
____________
1
The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas, sitting by designation.
BARNES, District Judge.
Appellant, Bennie Patterson, appeals the district court’s2 sentence following a
jury trial wherein he was found guilty of three counts of distribution of cocaine base,
commonly know as crack. Patterson also appeals the district court’s denial of his
motion to dismiss on the basis that the government’s "weed and seed" program violated
established principles of equal protection. We affirm.
I.
In November of 1998, the Federal Bureau of Investigation in cooperation with
the Poplar Bluff, Missouri Police Department targeted suspected drug dealers in a local
"weed and seed" area. During the course of this operation, Bennie Patterson was
arrested in June of 2000 and charged with three counts of selling cocaine base.
Patterson moved to suppress the indictment by a pre-trial motion which the district
court denied, and the case proceeded to jury trial.
During jury selection, the government exercised a peremptory strike to excuse
an African-American woman. Patterson challenged the strike claiming it was motivated
by the juror’s race in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The district
court denied the challenge and found that while Patterson had made a prima facie
showing of discrimination, the government presented a facially valid reason for striking
her from the panel. Following a three day trial, the jury found Patterson guilty on all
three counts.3 The court later sentenced Patterson to a total of 245 months on each of
2
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
3
The jury delivered a guilty verdict on three counts of distribution of five
grams or more of cocaine base in violation of 21 U.S.C. §841(a)(1) and 21 U.S.C.
-2-
Counts I, II, and III, to run concurrently, followed by an aggregate term of five years
supervised release on each count to run concurrently.
II.
Patterson raises the following three issues on appeal: (1) the government’s
"weed and seed" program which resulted in his arrest and prosecution violated his right
to equal protection; (2) the district court erred in denying his Batson challenge of the
government’s peremptory strike of the African-American juror; and (3) the district
court erred in its application of the sentencing guidelines. We review the district
court’s rulings for clear error. United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996).
Patterson initially claimed in a pre-trial motion to dismiss the indictment that he
was selectively prosecuted in violation of the Equal Protection Clause because he was
an African-American targeted by the government through a local "weed and seed"
program. In order to prevail, Patterson must present clear evidence that the government
has violated the Equal Protection Clause. United States v. Armstrong, 517 U.S. 456,
465 (1996). Patterson must show that enforcement of the law had a discriminatory
effect and was motivated by a discriminatory purpose. Id.; see also Wayte v. United
States, 470 U.S. 598, 608 (1985). In essence it must be shown the law was not
enforced when similarly situated individuals of a different race violated the law.
Patterson must also demonstrate that the government’s decision to enforce the law was
at least partially based on race. United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996).
Patterson failed to present any evidence that race played any part in the government’s
operation.
Patterson also appeals the district court’s denial of his Batson challenge to the
government’s peremptory strike of an African-American woman. Under Batson, the
§841(b)(1)(B).
-3-
government is prohibited from exercising a peremptory strike to remove a juror based
on his or her race. Batson v. Kentucky, 476 U.S. 79 (1986). Once the opponent of a
peremptory challenge has made out a prima facie case of racial discrimination, the
burden of production shifts to the striking party who must then produce a race-neutral
reason for the strike. Purkett v. Elem, 514 U.S. 765, 767 (1995); citing Hernandez v.
New York, 500 U.S. 352, 358-359 (1991)(plurality opinion). If such a reason is
produced, the court must then decide whether the opponent has proved purposeful
racial discrimination. Ids. During voir dire, the juror, Ms Rivers, acknowledged that
she knew Patterson as well as people who associated with him. She also admitted she
knew several potential witnesses in Patterson’s trial. Furthermore she told prosecutors
that Patterson’s residence was located in the same area as her church. The district
court agreed with the government that Ms. Rivers’ knowledge of the defendant and
others constituted a facially valid reason for striking her from the panel. We agree.
Patterson also asserts that the district court erred in assessing his base offense
level at 38 for sentencing. He also claims the court miscalculated the drug quantity and
as a result his sentence was excessive. In making a sentencing determination, the court
may consider drug quantities that were a part of the same course of conduct or part of
a common scheme or plan as those serving as the basis for conviction. U.S. Sentencing
Guidelines Manual §1B1.3; see also United States v. Berry, 212 F.3d 391, 393 (8th Cir.
2000). In determining drug quantity, the court may consider not only the drugs for
which Patterson was convicted, but also drug transactions before the offense which were
part of a regular scheme or pattern of drug traffic in which he was involved. In addition
to having the benefit of a three day trial during which it heard evidence; the district court
held an extensive and lengthy sentencing hearing on November 27, 2000. Patterson was
found guilty of three counts of selling crack cocaine which totaled 26.06 grams. There
was abundant testimony at trial from individuals who had either participated in drug
sales with Patterson or had purchased from him. FBI Special Agent Larry Bruns
testified that Patterson admitted to receiving one kilogram of crack cocaine during 1999.
United States v. Peck, 161 F.3d 1171, 1174 (8th Cir.) (Reliable admissions support
-4-
enhancements under the guidelines.)
The amounts given in testimony coupled with those for which he was convicted
are more than the 1.5 kilograms necessary to support a base offense level of 38.
Furthermore, the district court noted in ruling on Patterson’s objections to the pre-
sentence report:
No. 7. Defendant objects to paragraph No. 9 because it is not true. There
is no foundation supporting the identity of any alleged drugs and Mr.
Patterson did not--is not accountable for 3, 098.06 grams of crack cocaine
and 126 grams of powder cocaine.
There is strong evidentiary support that in fact Mr. Patterson is
responsible for substantially more than that amount, but certainly that
amount, and as to paragraph No. 7 the objection is overruled.
Sentencing Transcript at pg. 216. We find that the district court did not err in its finding
of a base offense level of 38.
Finally, we conclude that the district court did not err in its application of the
guidelines nor was the sentence imposed on Mr. Patterson excessive. He rehashes the
argument that his sentence of 245 months was excessive and violates his rights under
the Equal Protection Clause of the Constitution because under the guidelines, penalties
for distributing crack cocaine are more severe than the penalties for its distribution in
powder form. This argument has been addressed frequently in past cases and found to
be without merit. United States v. Davis, 154 F.3d 772, 788 (8th Cir. 1998); United
States v. Clary, 34 F.3d 709, 712 (8th Cir. 1994); see also United States v. Lattimore,
974 F.2d 971 (8th Cir. 1992).
III.
For the foregoing reasons we affirm the judgment of the district court.
-5-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-6-