United States v. Anthony Birdine ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1375
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Anthony Birdine, *
*
Appellant *
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Submitted: December 11, 2007
Filed: February 8, 2008
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Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
Anthony Birdine was convicted by a jury of one count of conspiracy to possess
with intent to distribute at least 50 grams of a mixture of substance containing a
detectable amount of cocaine base (“crack cocaine”), two counts of distribution of
crack cocaine, and one count of possession with intent to distribute crack cocaine.
The district court1 imposed a sentence of life imprisonment on count I, and 360
months’ imprisonment on each of counts II, III, and IV, to run concurrently. Birdine
appeals, arguing that the evidence was insufficient to support his convictions and that
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
the district court erred by finding that he had two prior felony drug convictions and
that he used a minor to commit his offense. We affirm.
I. Sufficiency of the Evidence
Birdine argues that because the government’s witnesses were unreliable, the
evidence presented at trial was insufficient to support his convictions and the district
court therefore erred by not granting his motion for judgment of acquittal. We
disagree.
We review de novo the sufficiency of the evidence, viewing the evidence in the
light most favorable to the jury verdict and giving the verdict the benefit of all
reasonable inferences. United States v. Reddest, No. 06-4034, 2008 WL 183350 at
*2 (8th Cir. Jan. 23, 2008) (noting that there is “no meaningful distinction between the
de novo standard used to review the sufficiency of the evidence . . . and the de novo
standard used to review the district court’s ruling on a defendant’s motion for
judgment of acquittal”). We reverse only if no reasonable jury could have found the
defendant guilty beyond a reasonable doubt. United States v. Johnson, 450 F.3d 366,
372 (8th Cir. 2006).
Birdine argues that the testimony presented at trial was unreliable because the
government’s cooperating witnesses were felons who had significant personal
incentives to cooperate with the government. Because we cannot second-guess the
credibility determinations made by the jury, United States v. Lopez, 443 F.3d 1026,
1031 (8th Cir. 2006) (en banc), and because the testimony, if believed, along with the
physical evidence presented by the government, establishes Birdine’s guilt beyond a
reasonable doubt, we conclude that there was sufficient evidence to support Birdine’s
convictions.
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II. Sentence Enhancement for Prior Convictions
Birdine challenges the enhancement of his sentence for having two prior felony
drug convictions. He argues that the government did not prove beyond a reasonable
doubt that the identity of the person who was sentenced in this case was the same as
the person who was convicted in this case and who had two prior drug offenses.
A defendant who is convicted of conspiracy to possess with intent to distribute
50 grams or more of crack cocaine and who has two or more prior felony drug
convictions is subject to a mandatory sentence of life imprisonment. 21 U.S.C. §§
841(b)(1)(A) and 851. District courts are empowered to make factual findings
regarding a defendant’s prior conviction. United States v. Sanchez-Garcia, 461 F.3d
939, 947 (8th Cir. 2006). We review such a finding for clear error. Id. We review
de novo the district court’s use of prior convictions to enhance a sentence. United
States v. Stallings, 301 F.3d 919, 920 (8th Cir. 2002).
At Birdine’s sentencing hearing, the government offered expert testimony and
four exhibits to prove up Birdine’s two prior felony drug convictions. A fingerprint
examiner testified that the fingerprints of the individual convicted of the two prior
drug felonies matched the fingerprints of Birdine from his arrest in March 2006 for
the criminal activity that led to his current convictions. The government’s proof also
included authenticated copies of the court files for the prior convictions and an
authenticated fingerprint card.
Birdine does not assert that the fingerprints that were compared by the expert
witness were invalid or inaccurate. Rather, his argument rests on the fact that his
fingerprints were not taken prior to sentencing, and therefore, the government did not
confirm that the Birdine who was convicted of a drug felony in 1994 and 2001, and
who was convicted by a jury on four counts in 2006, was the same Birdine who was
sitting in the courtroom awaiting sentencing for the 2006 convictions. Birdine does
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not actually assert that he is not the same individual who stood trial in 2006, and he
declined the government’s attempt to fingerprint him before the sentencing hearing.
Accordingly, we conclude that Birdine has not raised a reasonable doubt as to whether
he is the same Birdine that was convicted in 2006 and who has two prior felony drug
convictions. Thus, the district court did not err in finding that Birdine was subject to
a sentence enhancement.
III. Sentence Enhancement for Use of a Minor
Birdine next argues that the district court erred in applying a two-level
enhancement for use of a minor to commit his offense.
A defendant is subject to a two-level enhancement in his offense level if the
defendant “used or attempted to use a person less than eighteen years of age to commit
the offense or assist in avoiding detection of, or apprehension for, the offense.”
United States Sentencing Guidelines (U.S.S.G.) § 3B1.4. The phrase “used or
attempted to use” includes “directing, commanding, encouraging, intimidating,
counseling, training, procuring, recruiting, or soliciting.” U.S.S.G. § 3B1.4 cmt. n.1.
We review de novo the district court’s application of the sentencing guidelines, and
we review its factual findings, such as whether the defendant used a minor to commit
the offense, for clear error. United States v. Mentzos, 462 F.3d 830, 840 (8th Cir.
2006).
Birdine argues that he did not “use” a minor, because the minor who was
involved in his offense was the drug supplier and the leader or supervisor of the
criminal activity. The government presented sufficient testimony, however, to support
the district court’s finding that Birdine used a minor. Victor Henderson testified that
he began selling crack cocaine with Birdine when Henderson was approximately
thirteen years old. Henderson described Birdine as his mentor and indicated that he
learned the “game” of crack cocaine trafficking from Birdine. The government also
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presented testimony from other individuals who corroborated the fact that Birdine
used Henderson in his drug trafficking activities. Although Henderson testified that,
after several years of selling relatively small amounts of drugs, he “graduated” into
supplying drugs to individuals who would then sell smaller amounts, there is
sufficient evidence that Birdine directed, commanded, encouraged, intimidated,
counseled, trained, procured, recruited or solicited Henderson to commit the offense
during Henderson’s minority. Thus, the district court did not clearly err by finding
the evidence sufficient to enhance Birdine’s sentence.
The judgment is affirmed.
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