United States v. Terrance Osborne , 343 F. App'x 159 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3785
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Terrance Osborne, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 28, 2009
Filed: September 3, 2009
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Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
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PER CURIAM.
Terrance Osborne1 challenges the district court’s2 judgment entered after a jury
found him guilty of conspiring to distribute and possess with intent to distribute more
than 5 kilograms of cocaine and 50 grams or more of a substance containing cocaine
base, from January 2002 through March 1, 2005, in violation of 21 U.S.C.
1
Defendant’s name is spelled “Osborn” at places in the district court record, but
the correct spelling is “Osborne,” and this court’s caption has been changed
accordingly.
2
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
§§ 841(a)(1) and 846 (Count 1); and possessing with intent to distribute
approximately 13 kilograms of cocaine on May 25, 2005, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2 (Count 10). Osborne’s counsel has moved to withdraw
and filed a brief under Anders v. California, 386 U.S. 738 (1967). Osborne has filed
a pro se brief, in which he argues that the district court erred when it (1) denied his
motion for dismissal based on a claimed violation of the Speedy Trial Act, (2) denied
his motion for judgment of acquittal, and (3) refused to conduct a hearing to determine
whether the government’s failure to request a downward departure at sentencing was
improper.
As to the Speedy Trial Act claim, this court reviews the district court’s findings
of fact for clear error and its legal conclusions de novo. See United States v. Titlbach,
339 F.3d 692, 698 (8th Cir. 2003). We find that the district court did not err in
initially setting Osborne’s trial for November 14, 2005, more than 70 days after his
June 21, 2005 arraignment: by the time Osborne was added to an indictment that
named 11 other defendants, some of those defendants had requested a continuance in
order to adequately prepare for trial, the district court had found that the ends of
justice would be served by granting the continuance, and this initial period of delay
was reasonable. See 18 U.S.C. § 3161(c) (defendant must be brought to trial within
70 days of the later of his indictment or arraignment, as extended by excludable
delays), (h)(6) (“[a] reasonable period of delay [is excludable] when the defendant is
joined for trial with a codefendant as to whom the time for trial has not run and no
motion for severance has been granted”), h(7)(A) (period of delay resulting from
continuance granted by judge is excludable if judge finds ends of justice served by
granting continuance outweigh best interest of public and defendant in speedy trial);
United States v. Cordova, 157 F.3d 587, 599 (8th Cir. 1998) (delay of 80 days beyond
70-day limit for last codefendant to make initial appearance was well within reason).
Although Osborne argues that further continuances of the trial setting violated his
rights under the Speedy Trial Act, he waived those claims by failing to move for
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dismissal on those bases below. See United States v. Hall, 181 F.3d 1057, 1061 (9th
Cir. 1999); United States v. McFarland, 116 F.3d 316, 318 (8th Cir. 1997).
As to his argument that the evidence was insufficient for his conviction, this
court reviews the evidence in the light most favorable to the jury’s verdict, accepting
all reasonable inferences that support the verdict. See United States v. Birdine, 515
F.3d 842, 844 (8th Cir. 2008). As to Count 10, we find sufficient evidence that
Osborne constructively possessed the cocaine that was hidden in a truck on May 25:
the evidence showed that Osborne owned the truck; he directed where the truck should
be driven; the driver was told that the truck contained drugs, and that he would be paid
$500 to deliver it to an unknown person in Texarkana; the unknown person turned out
to be Osborne, whose number was stored in a cell phone in the truck; and Osborne
told the driver, in coded language, that he would pay him for delivering the truck. See
United States v. Robertson, 519 F.3d 452, 455 (8th Cir. 2008) (constructive
possession is sufficient and entails knowledge of drugs, and intent and ability to
exercise control over drugs or place where they are kept); United States v. Ojeda, 23
F.3d 1473, 1476 (8th Cir. 1994) (defendant’s knowledge is generally established
through circumstantial evidence). Further, the large quantity of drugs in the truck, and
testimony from witnesses who bought drugs from Osborne, was sufficient to show his
intent to distribute. See United States v. Nolen, 536 F.3d 834, 843 (8th Cir. 2008).
We also find that the evidence amply supports Osborne’s conviction on Count
1, because witness testimony showed that he conspired to possess with intent to
distribute much more than 5 kilograms of cocaine. See United States v. Wilkinson,
124 F.3d 971, 976 (8th Cir. 1997) (“When a jury returns a guilty verdict on an
indictment charging several acts in the conjunctive, the verdict stands if the evidence
is sufficient with respect to any one of the acts charged.”). Cooperating witnesses
testified that Osborne was the source of many kilograms of cocaine that they bought,
or that they transported many kilograms of cocaine for Osborne. See United States
v. Cruz, 285 F.3d 692, 700 (8th Cir. 2002) (elements of conspiracy); United States v.
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Miller, 91 F.3d 1160, 1162 (8th Cir. 1996) (evidence of multiple sales of resale
quantities of drugs is sufficient to make submissible case of conspiracy to distribute).
To the extent Osborne is challenging the specific drug-quantity finding as to cocaine
base, we find that the district court had sufficient evidence to set Osborne’s base
offense level at 36. See U.S.S.G. § 2D1.1(c)(2); United States v. Thorpe, 447 F.3d
565, 569 (8th Cir. 2006) (judicial fact-finding based on preponderance of evidence
standard is authorized provided Guidelines are applied as advisory); United States v.
Byrne, 83 F.3d 984, 993 (8th Cir. 1996) (upholding drug-quantity calculation because
it was reasonably foreseeable that crack cocaine would be distributed by members of
conspiracy that distributed heroin and cocaine).
Finally, we reject Osborne’s argument that the district court erred in refusing
to conduct a hearing to determine whether the government’s refusal to seek a
downward departure was proper. Because Osborne did not move to compel the
government to file a departure motion or request a hearing in the district court, we
review for plain error. See United States v. Lovelace, 565 F.3d 1080, 1086-87 (8th
Cir. 2009) (failure to object at sentencing results in review for plain error that affects
substantial rights). We find no plain error, because the government denied that any
agreement existed to move for a sentence reduction, and Osborne presented no
evidence of it beyond his bald assertion. Cf. United States v. Hart, 397 F.3d 643, 646
(8th Cir. 2005) (district court can review government’s decision not to file substantial-
assistance motion only if defendant has made substantial threshold showing that
decision was based on unconstitutional motive or was not rationally related to
legitimate government purpose).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75(1988), we have found no nonfrivolous issues for appeal. Accordingly, the judgment
is affirmed. We also grant counsel’s motion to withdraw, subject to his first advising
Osborne of the procedures for filing a petition for rehearing en banc and for a writ of
certiorari.
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