United States v. Solomon Coffey , 395 F.3d 856 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2176
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United States of America, *
*
Appellee, *
*
Solomon L. Coffey, also known as *
Solomon Murray, also known as Box, *
*
Appellant. *
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Appeals From the United States
No. 04-2247 District Court for the
___________ District of Nebraska.
United States of America, *
*
Appellee, *
*
Solomon L. Coffey, also known as *
Levell Coffey, also known as Levell *
Murray, *
*
Appellant. *
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Submitted: November 16, 2004
Filed: January 21, 2005
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Before WOLLMAN, HEANEY, and FAGG, Circuit Judges.
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HEANEY, Circuit Judge.
Following a jury trial, Solomon L. Coffey was found guilty of conspiracy to
distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1) and 846. The district court1 sentenced him to 324 months in
prison. On appeal, he argues that the evidence was insufficient to support his
conviction, and that he was sentenced in violation of the Constitution. We affirm his
conviction, but remand for resentencing.2
BACKGROUND
We recount the evidence in the light most favorable to the jury verdict. United
States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003). According to the testimony
of several witnesses, Coffey bought and sold large quantities of crack cocaine in 2000
and 2001 throughout the Omaha, Nebraska area. Kevin Jones testified that he was
indicted for conspiracy to distribute crack, and entered into a plea agreement, which
required him to debrief fully and cooperate with law enforcement. Jones told the jury
that he began buying crack from Coffey in 2000, and that he would purchase crack
every few days from Coffey. Jones paid Coffey between $650 and $700 an ounce; he
started out purchasing one and one-half or two ounces at a time, but soon increased
his volume. Jones recounted making several purchases of six ounces of crack, and
recalled twice buying nine ounces at a time. Jones himself was a dealer with
1
The Honorable Laurie Smith Camp, United States District Court for the
District of Nebraska.
2
Coffey also appeals the district court’s revocation of his supervised release on
his 1995 federal conviction for possession with intent to distribute cocaine base. The
court found that Coffey had violated his supervised release by committing the instant
offense. Coffey argues that the court erred in so doing, because the evidence was
insufficient to sustain this conviction. As detailed below, we disagree and therefore
also affirm the revocation of his supervised release.
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approximately fifty customers, and he would resell the crack he purchased from
Coffey at a profit. Once, Coffey told Jones that Jones was one of Coffey’s best
customers because he bought so much crack. Jones estimated that in one year’s time,
he paid Coffey more than $300,000 for crack purchases.
Roderick Jennings, also a crack dealer, testified that he was in Omaha for
roughly two to three months in the fall of 2001. Jennings came to Omaha as a
fugitive, with charges pending in Colorado. He sought to deal crack in Omaha to
support himself while on the run. Jennings met Coffey through a mutual friend, and
Coffey agreed to sell Jennings nine ounces of crack. He bought nine ounces of crack
from Coffey for $6,300 during their first deal. The crack was packaged in nine
individual one-ounce bags. Four or five days later Jennings then bought another
eighteen ounces from Coffey for a purchase price of $13,200. After another four or
five days passed, Jennings purchased another eighteen ounces of crack from Coffey
for the same price.
Jimmy Swain, another drug dealer, said that he started purchasing drugs from
Coffey in approximately August or September of 2001. He testified that he only dealt
with Coffey for about one and one-half weeks, while his main supplier was not
available. He stated that during that time, he bought crack from Coffey in one-half
ounce or one-ounce quantities. Swain testified that the crack he obtained from Coffey
was prepackaged in smaller, seven-gram amounts. Swain recalled that Coffey once
asked Swain to ride around with him to sell some crack. As they drove, Swain’s
acquaintances would ask Swain if he had any crack, and Swain would direct them to
Coffey. Coffey possessed approximately eight quarter-ounce packages of crack during
this encounter. Altogether, Swain estimated that he purchased as much as nine ounces
of crack from Coffey. Swain advised the jury that he had pled guilty to conspiracy to
distribute crack and had a cooperation agreement that could enable him to receive a
sentence reduction if he testified truthfully.
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Like Swain, Curtis Holmes pled guilty to conspiracy to distribute crack.
Holmes received a 292-month sentence, but told the jury that he hoped that he would
get a sentence reduction in exchange for the information he was providing to the
government. Holmes met Coffey around June of 2001. They met one another through
another crack dealer, who Holmes knew only as “E.” Holmes recalled being present
at an apartment with Coffey and another of their mutual suppliers, “Vinnie,” in
October of 2001. Holmes saw Vinnie measure out nine ounces of crack, wrapped as
individual ounces. When Coffey arrived, Vinnie took Coffey into a bedroom, carrying
the nine ounces of crack. When they emerged, Vinnie no longer had the drugs.
Holmes witnessed this happen again about a week later, but this time Holmes saw
Vinnie measure out fifteen to eighteen ounces of crack before disappearing into a
bedroom with Coffey and the drugs. A few days following this encounter, Holmes
was present at the apartment when Coffey arrived and gave Vinnie several thousand
dollars in cash. Holmes opined that the money was payment for fifteen to eighteen
ounces of crack Coffey had gotten from Vinnie a couple of days earlier.
Danae Scott was associated with Curtis Holmes, and was acquainted with
Vinnie because he dated Scott’s friend. Scott testified that she traveled with Vinnie
to Omaha twice. Both times Vinnie met with Coffey. She corroborated Holmes’s
account of the transactions he saw: Coffey would arrive at Vinnie’s apartment, Coffey
and Vinnie would retreat to a bedroom, and then Coffey would leave shortly
thereafter.
Coffey had three witnesses testify on his behalf. Greg Lloyd testified that
Coffey was employed during the time he was alleged to be dealing drugs. He said that
Coffey lived modestly and did not have extravagant clothes or cars, or lots of cash on
hand. Glyniss Thompson testified that Coffey lived with her during the period of the
indictment, worked, and did not drive a fancy car or wear fancy clothes. In fact, she
said that Coffey had cars repossessed during their relationship because he could not
pay for them. Lastly, Coffey’s mother, Diane Coffey, testified on his behalf. She said
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Coffey had a job and had trouble paying his bills. She also testified that she never saw
Coffey in possession of drugs.
The jury convicted Coffey of conspiracy to distribute or possession with intent
to distribute crack. The verdict form asked the jury to indicate what amount of crack
was attributable to Coffey: less than five grams, between five and fifty grams, or fifty-
plus grams. The jury checked the box for fifty or more grams. Although an offense
like Coffey’s involving fifty grams of crack would result in an offense level of 32,3 the
presentence report suggested holding Coffey responsible for approximately 2.7
kilograms of crack, with a resultant offense level of 38.4 Coffey objected, arguing that
there was insufficient evidence to calculate any quantity of drugs for his offense. The
district court overruled Coffey’s objection and adopted the presentence report’s drug
quantity calculation. With an offense level of 38 and a criminal history category of
IV, Coffey’s sentencing range was 324 to 405 months. Coffey was sentenced to 324
months in prison, and this appeal followed.
ANALYSIS
“A conspiracy conviction will be upheld where the evidence shows that a
conspiracy existed for an illegal purpose, the defendant knew of the conspiracy, and
the defendant intentionally joined it.” United States v. Cuervo, 354 F.3d 969, 985 (8th
Cir. 2004). “[T]he government must show an agreement between at least two people,
and that the agreement’s objective was a violation of the law.” Id.As recounted above, the government’s evidence showed that Coffey was
deeply involved in a conspiracy to distribute crack. Jones, Jennings, and Swain were
all drug dealers. Each testified that they bought large quantities of crack from Coffey,
3
USSG § 2D1.1(c)(4).
4
USSG § 2D1.1(c)(1).
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and that each discrete sale involved more than a user quantity. Their testimony
established that Coffey was responsible for the sales of several pounds of crack and
received hundreds of thousands of dollars for his efforts. Jennings and Swain both
stated that the crack they purchased from Coffey was already broken into smaller
quantities. Thus, it was permissible for the jury to infer, due to the sheer size of the
transactions and the way the drugs were packaged that these were not mere
buyer/seller transactions. Accord United States v. Oleson, 310 F.3d 1085, 1089 (8th
Cir. 2002) (upholding drug conspiracy conviction in light of large amount of
contraband involved in sales and standardized transactions). On the contrary, the
government presented evidence that Coffey would buy large quantities of crack from
a distributor and then resell them to fellow dealers in packaging and amounts
consistent with the further distribution of the drug.
Coffey asserts that the government’s evidence must fail because it was contrary
to the evidence that he maintained a modest, financially unstable lifestyle, and because
the government’s witnesses were biased against him. The “issue of witness credibility
is virtually unreviewable on appeal because it is ‘preeminently the job of the finder of
fact.’” United States v. Rayl, 270 F.3d 709, 713 (8th Cir. 2001) (quoting United States
v. E.R.B., 86 F.3d 129, 130 (8th Cir. 1996)); United States v. Dabney, 367 F.3d 1040,
1042-43 (8th Cir. 2004) (recognizing that an attack on the credibility of cooperating
witnesses “resounds like a closing argument to a jury” and is typically not within the
province of an appellate court to reconsider). Given our restrictive standard, Coffey’s
case does not present a compelling argument for acquittal based on witness credibility.
While Jones and Swain had cooperation agreements, Jennings did not. All of them
testified to essentially the same type of large-scale transactions. Holmes and Scott
corroborated Coffey’s drug dealing by their observations of Coffey’s interactions with
other suppliers. The fact that Coffey’s witnesses disputed the government’s case does
not provide us with a basis to overturn the jury verdict.
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Finally, Coffey claims that he was sentenced in violation of his Sixth
Amendment right to a jury trial, as recognized in Blakely v. Washington, 124 S.Ct.
2531 (2004). He argues that the district court impermissibly held him responsible for
a higher drug quantity than the amount the jury attributed to him. Prior to sentencing,
Coffey asserted that there was insufficient evidence to calculate any drug quantity
against him. The district court overruled his objection and sentenced Coffey using an
offense level applicable to 2.7 kilograms of crack, despite no jury finding in support
of this amount.
Whether or not Blakely applied to the United States Sentencing Guidelines is
no longer an open question: the Supreme Court has now held that it does. See
generally United States v. Booker, 543 U.S. ___, 2005 WL 50108 (Jan. 12, 2005).
Booker holds the mandatory guidelines scheme employed by federal courts is
unconstitutional. Id., 543 U.S. ___, slip. op. at 4-5 & n.1; 19-20 (Op. of Stevens, J.,
for the Court); 2005 WL 50108, at *5-6 & n.1; 15. Instead, the Guidelines are now
“effectively advisory,” and defendants such as Coffey who have preserved the issue
are entitled to new sentencing proceedings.5 Id., 543 U.S. ___, slip. op. at 2 (Op. of
Breyer, J., for the Court); 2005 WL 50108, at *16. We thus remand for resentencing
in accordance with Booker.
CONCLUSION
We affirm the district court’s denial of Coffey’s motion for acquittal, affirm
the revocation of his supervised release due to the instant offense, and remand for
reconsideration of his sentence.
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5
We express no opinion on whether a sentence handed down under the
mandatory Guidelines system is plainly erroneous, nor do we consider the outer limits
of precisely what will preserve the issue.
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