United States v. Brandon Sykes , 854 F.3d 457 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1668
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Brandon Jermaine Sykes
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: January 12, 2017
Filed: April 14, 2017
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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Brandon Sykes pleaded guilty to one count of conspiracy to distribute a
mixture or substance containing a detectable amount of cocaine base in violation of
21 U.S.C. §§ 841(a)(1) and 846. After calculating a Guidelines range of 360 months
to life, the district court1 sentenced Sykes to 360 months in prison. On appeal, Sykes
argues the district court improperly calculated the drug quantity determining his base
offense level. He also argues the district court erred in applying three sentencing
enhancements. We affirm.
I.
The written plea agreement describes Sykes’s offense as follows. Around April
2013, Sykes entered into an agreement with individuals living in Chicago and
Moline, Illinois, and Davenport, Iowa, to distribute cocaine base. Sykes and his
girlfriend, Shataria Beason, would “receive cocaine from a source in Chicago.”
Beason would drive to Chicago to pick up the cocaine and then supply Sykes with
cocaine base, which he sold. Sykes also “received two (2) ounces of powder cocaine
from another source in Chicago and then converts [sic] it into four (4) ounces of
[cocaine base].”
In March 2015, law enforcement used a confidential source to conduct four
controlled buys of cocaine base from Sykes at his Davenport residence. On April 1,
2015, law enforcement executed search warrants at both Sykes’s and Beason’s
residences. At Sykes’s residence, law enforcement seized packaging materials; $748
in cash; a nylon gun case; and two items, a measuring cup and razor blade, with
cocaine residue. At Beason’s residence in Moline, law enforcement seized 28 grams
of cocaine base; $6,000 in cash; a .380 caliber pistol; and a .45 caliber pistol.
Sykes was later arrested, pleaded guilty to one count of conspiracy to distribute
a substance or mixture containing cocaine base, and stipulated to the above facts. At
sentencing, the district court found that the drug-quantity evidence, including
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
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additional officer testimony at the sentencing hearing, supported a base offense level
of 34. See U.S.S.G. § 2D1.1(c)(3) (fixing a base offense level of 34 to offenses
involving more than 2,800 grams but less than 8,400 grams of cocaine base). The
district court also applied several sentencing enhancements. These included
enhancements for managing or supervising criminal activity involving five or more
participants, id. § 3B1.1(b); using violence or making a credible threat to use
violence, id. § 2D1.1(b)(2); and maintaining a premises for the purpose of
manufacturing or distributing a controlled substance, id. § 2D1.1(b)(12). After
applying other enhancements and adjustments, the district court found a total offense
level of 40 and a criminal history category of VI. This resulted in a Guidelines range
of 360 months to life in prison. Both the government and Sykes requested a sentence
at the bottom of the Guidelines range, and Sykes was sentenced to 360 months in
prison.
II.
We review the district court’s “factual findings for clear error and its
interpretation of the Guidelines de novo.” United States v. Vickers, 528 F.3d 1116,
1120 (8th Cir. 2008). On appeal, Sykes argues the district court erred in finding the
drug-quantity evidence supported a base offense level of 34. Instead, Sykes argues
the drug-quantity evidence only supports a base offense level of 32. He also argues
the district court erred in applying three sentencing enhancements. For the following
reasons, we conclude the district court properly applied the sentencing enhancements.
We further conclude that we need not reach the question of whether the district court
erred in applying a base offense level of 34, rather than a base offense level of 32.
A.
A defendant is subject to a three-level role enhancement “[i]f the defendant was
a manager or supervisor (but not an organizer or leader) and the criminal activity
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involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b).
On appeal, Sykes argues he was not a manager or supervisor in the conspiracy to
distribute cocaine base. Testimony at the sentencing hearing, however, established
that Sykes “would bring the powder cocaine to Davenport where he had a 60-year-old
female . . . cook the powder cocaine into crack cocaine.” Additionally, the
presentence investigation report (“PSR”) stated that Sykes did not store drugs at his
residence at night because he worried law enforcement would perform a raid during
that time; rather, Sykes “had Beason bring the drugs to his house every morning and
he sold it all day. Each night, Beason picked up the drugs and took them back to her
house so Sykes would not get caught with it at his residence.” Sykes did not object
to these facts in the PSR, and the district court therefore was entitled to rely upon
them. See United States v. Bledsoe, 445 F.3d 1069, 1073 (8th Cir. 2006). These
facts were sufficient to support the district court’s finding that Sykes was a manager
or supervisor under § 3B1.1(b). See United States v. Gaines, 639 F.3d 423, 428–29
& n.4 (8th Cir. 2011) (stating that the terms “manager” and “supervisor” are broadly
construed under the Guidelines and that control over another participant is sufficient,
but not necessary, for the enhancement); United States v. Cole, 657 F.3d 685, 687–88
(8th Cir. 2011) (per curiam) (upholding the enhancement where the defendant
directed a participant to transport drugs).
As to the district court’s finding that five or more participants were involved,
Sykes contends only that his two cocaine suppliers in Chicago were not participants
under the Guidelines. An ongoing supplier relationship, however, is sufficient to
support a finding that the supplier was a participant under § 3B1.1. United States v.
Starks, 815 F.3d 438, 441 (8th Cir. 2016); United States v. Garcia, 703 F.3d 471,
475–76 (8th Cir. 2013). Further, in the plea agreement’s stipulation of facts, Sykes
admitted to agreeing to distribute cocaine base with “individuals” living in Chicago,
Moline, and Davenport. Although the plea agreement does not specify whether these
“individuals” include the Chicago suppliers, the record strongly suggests, and the
district court could have reasonably inferred, that the two Chicago suppliers were the
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Chicago parties to the agreement. We therefore conclude the district court did not err
in applying the three-level role enhancement.
B.
A defendant is subject to a two-level enhancement “[i]f the defendant used
violence, made a credible threat to use violence, or directed the use of violence.”
U.S.S.G. § 2D1.1(b)(2). At the sentencing hearing, Detective Brandon Koepke
testified as to three threatening or violent incidents that the confidential source (“CS”)
reported to him.
First, the CS reported that, at a meeting with Sykes at an automotive shop,
Sykes said he was going to find and shoot an individual who allegedly stole cocaine
base from one of Sykes’s customers. When Sykes made this threat, the CS reported,
Sykes had a .45 caliber pistol with a black handle and gray slide, and an unnamed
passenger in Sykes’s vehicle had an all-chrome .380 caliber pistol. Second, the day
after officers executed the search warrants, a “frantic” and “obviously excited” CS
reported that Sykes threatened the CS with a firearm. The CS said he met with Sykes
at a barbershop and, there, Sykes accused the CS of stealing cocaine base and cash.
The CS reported that Sykes told the CS he had “some hours” to return the items
before Sykes began killing the CS’s family members and that Sykes then lifted up the
front of his shirt, revealing a black pistol. And, third, the CS reported an altercation
with Sykes shortly after the barbershop incident. Specifically, the CS said Sykes
pulled out into an intersection to stop the CS’s vehicle from moving; the CS exited
his vehicle; and Sykes and the CS got into a fistfight in the middle of the street.
On appeal, Sykes argues the CS’s reports to Detective Koepke are incredible,
uncorroborated, and illogical. Sykes notes that Detective Koepke testified the CS was
the only witness to Sykes’s threats and the altercation in the street. Sykes also notes
that Detective Koepke testified officers were not using the CS for any active
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investigations because they received reports the CS was selling cocaine base. This,
according to Sykes, is evidence of the CS’s motive to eliminate Sykes as a
competitor. Finally, Sykes argues the CS’s report that Sykes threatened him with a
firearm at the barbershop is illogical. Specifically, Sykes argues that he could not
have had a firearm that day because his firearms had already been seized during
execution of the search warrants.
We find no error in the district court’s application of the enhancement for
“us[ing] violence” or “mak[ing] a credible threat to use violence.” U.S.S.G.
§ 2D1.1(b)(2). Detective Koepke testified that officers had not been able to
corroborate allegations the CS was selling cocaine base. According to Detective
Koepke, officers decided, as a precautionary matter, that it would be best not to use
the CS as an informant again until they could verify or discredit the allegations
against the CS. Further, there were “sufficient indicia of reliability” to support the
CS’s reports. See United States v. Agboola, 417 F.3d 860, 865 (8th Cir. 2005)
(“When resolving a disputed sentencing factor, the court may consider relevant
information without regard to its admissibility under evidentiary rules, and hearsay
testimony is admissible, so long as sufficient indicia of reliability exist.” (citations
omitted)). For example, Detective Koepke testified that the CS’s descriptions of the
firearms at the automotive shop matched “to a T” the firearms seized during execution
of the search warrants. Detective Koepke also testified that the CS had worked with
other officers in the past and that there was no reason to believe the CS has ever lied
to law enforcement. Additionally, Detective Koepke stated that, in a post-Miranda-
warning interview, Sykes admitted he was at the barbershop on the day of the threat.
According to Detective Koepke, Sykes admitted to asking a known crack dealer at the
barbershop whether he could borrow the dealer’s revolver for a robbery. The dealer
agreed, and Sykes planned on visiting the dealer’s residence that day to obtain the
firearm. Thus, at the very least, Sykes admitted to having access to a firearm on the
day of threat. Accordingly, we find no error in the application of the enhancement.
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C.
A defendant is subject to a two-level enhancement “[i]f the defendant
maintained a premises for the purpose of manufacturing or distributing a controlled
substance.” U.S.S.G. § 2D1.1(b)(12). This enhancement “applies when a defendant
uses the premises for the purpose of substantial drug-trafficking activities, even if the
premises was also her family home at the times in question.” United States v. Miller,
698 F.3d 699, 707 (8th Cir. 2012). Here, the facts stated above support a finding that
Sykes used his residence for substantial drug-trafficking activities. We therefore find
no error in the district court’s application of drug-premises enhancement.
D.
Finally, Sykes argues the district court erred in calculating the drug quantity
determining his base offense level. He argues that, properly calculated, the drug-
quantity evidence supports only a base offense level of 32, rather than the base
offense level of 34 found by the district court. See U.S.S.G. § 2D1.1(c).
We need not consider Sykes’s arguments. Even if the district court erred in
calculating the drug quantity and a base offense level of 32 applied, such error would
be harmless. With a base offense level of 32, in addition to the enhancements and
adjustments applied by the district court, Sykes’s total offense level would only
decrease from 40 to 38. Therefore, considering Sykes’s criminal history category of
VI, the applicable Guidelines range of 360 months to life would not change. Both
Sykes and the government, moreover, requested a sentence at the bottom of this
range, and the district court granted those requests. In other words, even if we
accepted the entirety of Sykes’s arguments regarding the drug-quantity calculation
and concluded that the district court erred, such error did not substantially influence
sentencing because the district court nevertheless arrived at the proper Guidelines
range. See United States v. Dace, 842 F.3d 1067, 1069 (8th Cir. 2016) (per curiam)
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(“A failure to properly calculate the advisory Guidelines range is a significant
procedural error.” (quoting United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir.
2008))); United States v. Gray, 622 F. App’x 601, 603 (8th Cir. 2015) (per curiam)
(“Because [the defendant’s] sentencing Guidelines calculations were the same . . . ,
any error in applying this Guideline was harmless.”).
III.
For the foregoing reasons, we affirm.
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