United States v. Morris

United States Court of Appeals
For the First Circuit
No. 13-1369
UNITED STATES OF AMERICA,
Appellee,
v.
RYAN MORRIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
Matthew R. Segal, with whom Nashwa Gewaily, Courtney M.
Hostetler, Miriam I. Mack, and American Civil Liberties Union, were
on the brief, for appellant.
Jennifer Hay Zacks, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
May 7, 2015
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Federal law mandates a
minimum ten-year prison sentence for a convicted member of a drug
conspiracy responsible for more than 280 grams of crack. 21
U.S.C. §§ 841(b)(1)(A)(iii); 846. So far as it matters to this
appeal, the district court made a finding of drug quantity, by a
preponderance of the evidence: that the admitted conspirator Ryan
Morris was personally responsible for 765.5 grams of crack. The
court consequently imposed the mandatory ten-year sentence. While
judicial fact-finding of drug quantities sufficient by statute to
trigger mandatory minimum sentences was permissible at the time of
the sentencing hearing, during the pendency of Morris's appeal the
Supreme Court held that the Sixth Amendment guarantees that such
qualifying fact issues are subject to jury findings beyond a
reasonable doubt. Alleyne v. United States, 133 S. Ct. 2151, 2160
(2013).
The question here is whether the minimum sentence imposed
under the district court's judgment may nevertheless be affirmed as
resting on harmless constitutional error falling short of affecting
the defendant's substantial rights. We conclude that the error is
ultimately harmless, in light of concessions made by Morris's
counsel and overwhelming evidence that Morris was responsible for
at least 280 grams of crack, and thus affirm.
I.
In December 2010, after investigating the activities of
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a drug ring operating in Dorchester, Massachusetts, the government
charged nineteen individuals, including Ryan Morris, with
conspiracy to distribute more than 500 grams of cocaine and more
than 280 grams of crack, as well as offenses stated in fifteen
additional counts. Shortly before the indictment was returned,
investigators legally searched Morris's apartment, which yielded up
123.5 grams of crack. In October 2012, Morris pleaded guilty to
the conspiracy count,1 but he did not admit that the conspiracy
collectively or he individually was responsible for a particular
quantity of either form of drug, the questions of quantity being
expressly left for later determination by the sentencing judge.
In advance of Morris's sentencing hearing, the probation
office prepared a presentence report concluding, based on the
government's investigation, that Morris himself was responsible for
10 kilograms of cocaine, and 123.5 grams of crack. Because
responsibility for 5 kilograms of cocaine triggers a mandatory
minimum ten-year sentence, see 21 U.S.C. §§ 841(b)(1)(A)(ii), 846,
the report recommended that Morris be sentenced accordingly. He
objected to the conclusion about the cocaine quantity and the
ensuing recommendation.
At the hearing, Morris took the stand and disputed that
he had ever dealt in kilograms of cocaine. He said that he bought
1
Morris also pleaded guilty to one count of possession of
more than 28 grams of crack with intent to distribute. But this
count and its sentence are not pertinent to this appeal.
-3-
cocaine in quantities never greater than 62 grams, which he would
cook into crack and then sell. Between direct and cross-
examination, Morris admitted to four specific transactions between
May and July 2010 involving 62 grams of cocaine each, for a total
of 248 grams. When pressed on cross-examination to state the total
number of transactions, he acknowledged more, albeit less exactly:
Q: About how many times do you think you purchased
cocaine from Michael Williams [another member of the
conspiracy]?
A: Probably twelve times.
Q: Twelve times?
A: Tops, probably twelve.
Q: Starting in 2010 at some point . . . "twelve times"?
A: Twelve times from when I started dealing with Mike. I
can't remember when I first started dealing with Mike,
but I know it was about twelve times total.
Q: Okay. Well, you said you first started dealing with
Mike in 2010, so we'll say in 2010 you dealt with Michael
Williams twelve times; is that your testimony? That's
what you're telling the Court?
A: Precisely, I guess, yeah, about twelve.
Q: And it was always 62 grams?
A: No. Sometimes it would be smaller than that.
Q: What was the smallest amount you ever purchased from
Michael Williams?
A: Twenty-eight.
Q: An ounce?
A: Yes.
Q: How many times did you purchase an ounce from Michael
Williams?
A: I can't remember.
Q: Well, why don't you give it your best guess?
A: Probably like three times.
Q: So, three times you purchased an ounce, and the other
times was a 62?
A: Yeah.
The district court found that Morris was not responsible for any
kilogram transactions of cocaine, but because he had disputed being
a cocaine dealer by admitting to being a crack dealer, the judge
-4-
proceeded to consider what crack quantity he should be found
responsible for.
Morris argued that he should be responsible only for the
amounts converted from four specifically identified cocaine
purchases, that is, a total of 248 grams of crack. He argued that
the details of the remaining transactions were speculative guesses,
and he suggested that the 123.5 grams of crack found in the search
might be a leftover portion of the 248 grams.
The district court rejected Morris's position, and found
by a preponderance of the evidence that he was responsible for
crack cooked from the quantities of cocaine procured in at least
twelve transactions, nine of 62 grams and three of 28. To this,
the court added the stash of 123.5 grams of crack, which the
district court found was not derived from the admitted
transactions, given the "time frame between" between the purchases
(May-July 2010) and the seizure (December 2010). The court thus
calculated that Morris was responsible for 765.5 grams of crack,
calling that conclusion "conservative." Because this exceeded the
280 gram threshold, the judge imposed a ten-year mandatory minimum
sentence, although he said that he would impose a lower one if that
were open to him.
While Morris's appeal was pending, the Supreme Court
handed down Alleyne, which held that the Sixth Amendment requires
any fact mandating the imposition (or an increase) of a particular
-5-
minimum sentence to be treated as an element of the crime. 133 S.
Ct. at 2160-63. Accordingly, under the principle of Apprendi v.
New Jersey, 530 U.S. 466, 484 (2000), "the Sixth Amendment provides
defendants with the right to have a jury find those facts beyond a
reasonable doubt," in the absence of a defendant's admission.
Alleyne, 133 S. Ct. at 2160.
II.
Because Morris preserved no Sixth Amendment claim in the
trial court, we review for plain error, the burden being on Morris
to show (1) an error (2) that is clear and obvious, (3) affecting
his substantial rights, and (4) seriously impairing the integrity
of judicial proceedings. United States v. Santiago, 775 F.3d 104,
106 (1st Cir. 2014). The government concedes the first two prongs
of plain error in imposing the mandatory minimum based on the
judge's finding of crack quantity by a preponderance, rather than
a jury's finding beyond a reasonable doubt or Morris's specific
admission.2
As for the third prong of plain error review, in
substance it is harmless error analysis, except that the defendant
bears the burden of persuasion. Ramirez-Burgos v. United States,
2
The government equates the requirement of United States v.
Colon-Solis, 354 F.3d 101 (1st Cir. 2004), to limit the sentencing
level to a defendant's specific responsibility rather than that of
a conspiracy collectively, id. at 103, with the Sixth Amendment
requirement recognized in Alleyne, see United States v. Pizarro,
772 F.3d 284, 290-94 (1st Cir. 2014), though in this case neither
fact was found or admitted.
-6-
313 F.3d 23, 29 (1st Cir. 2002). An Alleyne error is harmless when
"it can fairly be said beyond any reasonable doubt that the
assigned error did not contribute to the result of which the
appellant complains." United States v. Harakaly, 734 F.3d 88, 95
(1st Cir. 2013) (quoting United States v. Pérez–Ruiz, 353 F.3d 1,
17 (1st Cir. 2003)). In drug cases, "overwhelming evidence of the
requisite drug types and quantities" generally serves as a proxy
for determining whether the Alleyne error contributed to the
result. Harakaly, 734 F.3d at 95 (quoting Pérez–Ruiz, 353 F.3d at
18) (preserved Alleyne error); see also United States v. Razo, No.
13-2176, 2015 WL 1455076, at *8 (1st Cir. Apr. 1, 2015) (same);
United States v. Paladin, 748 F.3d 438, 453 (1st Cir. 2014) (third
prong of plain error, substantial rights-harmlessness); United
States v. Delgado-Marrero, 744 F.3d 167, 189 (1st Cir. 2014)
(fourth prong of plain error, integrity of proceedings). By
"overwhelming evidence," we mean here a corpus of evidence such
that no reasonable jury could find, based on the record, that the
crack quantity was less than that required for the mandatory
minimum to apply.
Much of Morris's brief is devoted to disputing the
pertinence of the "overwhelming evidence" standard, but he cites no
persuasive authority to support his position.3 To begin with, the
3
Indeed, Morris concedes that one of his arguments, that
Alleyne error is structural, is expressly foreclosed by circuit
precedent. Harakaly, 734 F.3d at 74-75.
-7-
cases applying the overwhelming evidence standard to address the
harmlessness of Alleyne and Apprendi errors are legion. E.g.,
Razo, 2015 WL 1455076, at *8; Paladin, 748 F.3d at 453;
Delgado-Marrero, 744 F.3d at 189; United States v. Correy, 570 F.3d
373, 377 (1st Cir. 2009); United States v. Casas, 425 F.3d 23, 65-
66 (1st Cir. 2005); United States v. Morgan, 384 F.3d 1, 8 (1st
Cir. 2004); United States v. Soto-Beníquez, 356 F.3d 1, 46 (1st
Cir. 2003); United States v. Nelson-Rodriguez, 319 F.3d 12, 45-46
(1st Cir. 2003).
Morris nonetheless contends that this court should apply
a "causal-connection" test, which "asks whether the district court
might have imposed a lower sentence if it had complied with the
Sixth Amendment's restrictions on judicial factfinding."
Appellant's Reply Br. 2. But Morris presents a false choice. On
the assumption that this issue had been entrusted to a properly
instructed, rational jury, the district court could not have
imposed a lower sentence, given overwhelming evidence that Morris
was responsible for at least 280 grams of crack. Thus it comes as
no surprise that the principal cases Morris cites in support of his
causal-connection test are fully consistent with the overwhelming
evidence test. See United States v. Barnes, 769 F.3d 94, 99 n.5
(1st Cir. 2014) (challenge to a sentence above the mandatory
minimum; citing Harakaly); United States v. Pena, 742 F.3d 508, 514
(1st Cir. 2014) (government concedes Alleyne error not harmless;
-8-
same); United States v. Delgado-Marrero, 744 F.3d 167, 189-90 (1st
Cir. 2014) ("scant evidence" of fact mandating minimum sentence;
same).
At oral argument, Morris sought to invoke a different
standard for harmlessness that this court has applied in the
context of error under United States v. Booker, 543 U.S. 220(2005). See, e.g., United States v. Vázquez-Rivera, 407 F.3d 476,
490 (1st Cir. 2005). But the applicability of such precedents to
Alleyne errors is foreclosed by Harakaly and its progeny, as cited
earlier.
In a supplemental filing, Morris seeks to benefit from
United States v. Pizarro, 772 F.3d 284, 294-95 (1st Cir. 2014),
which distinguished between two forms of Alleyne error, at "trial"
versus at "sentencing." The former is subject to harmless or plain
error review, whereas the latter requires automatic reversal. Id.
at 296. Morris contends that this case involves Alleyne
"sentencing" error.
But he misreads Pizarro, which calls for reversal as
"sentencing" error when the quantity issue had been submitted to a
jury that rejected a finding in the government's favor. Id."Trial" error in Pizarro, on the other hand, was simply a failure
to instruct the jury on the quantity issue. Id. at 294-296. The
Alleyne error in this case, determining a mandatory sentence on the
basis of a fact not admitted in connection with a guilty plea
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(which here was expressly reserved, without objection, for the
judge at sentencing), is akin to that of failing to instruct the
jury on an element of the crime; in each circumstance, a crucial
but unadmitted fact has escaped the required opportunity for a
jury's determination. Thus, plain error review is in order, and we
apply the overwhelming evidence test under the third prong.
III.
Under this test, we have no hesitation in concluding that
the evidence is overwhelming that Morris is responsible for at
least 280 grams of crack. Morris made a critical concession in the
district court. His lawyer said to the judge, "[I]f you are going
to find any grams of cocaine base or attribute to Mr. Morris, I
would ask that you find that the four transactions between May 30th
and July 5th of 2010 . . . ." Soon thereafter, the attorney added,
"I would just ask the Court to just attribute four transactions of
62 grams each." We think these statements are most reasonably read
as an admission on Morris's part that not only should he be held
responsible for four transactions of 62 grams of cocaine but also
that the court could attribute "cocaine base" (i.e., crack)
quantities to him based on a 1:1 ratio with cocaine.4 Morris thus
4
The plausibility of our reading of Morris as having conceded
as unremarkable a 1:1 cocaine/crack conversion ratio is bolstered
by the many (albeit not unanimous) legal authorities citing that
same ratio as a properly found fact. See, e.g., United States v.
Fox, 189 F.3d 1115, 1120 (9th Cir. 1999) ("[Officer] Bryant
testified that in a laboratory there is typically a ten percent
weight loss when cooking cocaine power into crack, but that on the
-10-
conceded responsibility for 248 grams of crack. See United States
v. Etienne, 772 F.3d 907, 923 (1st Cir. 2014) (where the defendant
agrees to having conducted certain drug transactions, this "clearly
establishe[s]" drug quantity sufficient to trigger a mandatory
minimum sentence). The only question remaining, then, is whether
the evidence is overwhelming that Morris is responsible for at
least another 32 grams.
We believe that it is. The district court found that
Morris was responsible for another 517.5 grams of crack,5 well
above the additional 32 grams necessary to trigger the mandatory
minimum sentence. While that finding was based on a preponderance
standard, the evidence underlying the district court's calculations
was Morris's own testimony, as quoted earlier, and obviously a
defendant's admissions can support an inference of drug quantity
beyond a reasonable doubt. See Harakaly, 734 F.3d at 96-97.
Although not all testimony offered by a defendant should be treated
street one gram of powder cocaine typically converts into one gram
of crack cocaine, because street cookers use baking soda and tap
water to increase the weight."); United States v. Taylor, 116 F.3d
269, 272 (7th Cir. 1997) ("Powder cocaine normally converts to
crack cocaine in a one to one ratio . . . ."); United States v.
Lucas, 193 Fed. App'x 844, 846 (11th Cir. 2006) ("Special Agent
Todd Hixson testified that a quantity of powder cocaine converts
approximately to the same amount of crack cocaine."); United States
v. McMurray, 833 F. Supp. 1454, 1473 & n.29 (D. Neb. 1993)
(applying a 1:1 ratio and citing M. Khalsa et al., Smoked Cocaine:
Patterns of Use and Pulmonary Consequences, 24 J. Psychoactive
Drugs 265, 267 (1992)).
5
517.5 grams is the district court's finding of 765.5 grams,
less the 248 grams admitted.
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as a reliable admission, there is good reason to treat Morris's
testimony that way. He took the stand to dispute the government's
cocaine quantity recommendations, and so had every incentive to
minimize (and very likely did minimize) the degree to which he was
involved in purchasing drugs. He testified that he was involved in
about eight other drug transactions of at least 28 grams each (the
twelve to which he testified, less the four conceded). Accordingly,
his own testimony, despite its imprecise aspects, establishes
beyond any doubt that he is responsible for far more than another
32 grams of crack.
Morris raises various questions about the district
court's calculations of the drug quantity, noting that there was no
direct evidence, only circumstantial evidence; suggesting that his
own testimony was potentially unreliable; contending that the
district court made possibly suspect inferences about quantity loss
in the cocaine/crack conversion and the temporal gap between the
cocaine transactions and the residence search; and observing that
the district court acknowledged its own lack of certainty and cited
the preponderance standard in reaching its conclusions. These
criticisms would have some force and could be persuasive if we were
asked whether the evidence overwhelmingly establishes that Morris
was responsible for another 517.5 grams of crack above the 248
grams admitted. But, as mentioned earlier, the question is only
whether Morris is responsible for another 32 grams. As to that,
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Morris's criticisms do not raise doubt in our mind.6
In sum, we conclude there is overwhelming evidence that
Morris is responsible for at least 280 grams of crack, and has thus
failed to meet his burden of persuasion under the third prong of
plain error review.
IV.
The judgment of the district court is affirmed.
6
Even using the more conservative cocaine/crack conversion
ratio of 1:0.5, see, e.g., United States v. Booker, 334 F.3d 406,
413–14 & n.3 (5th Cir. 2003), the quantity of crack (321 grams
based on 642 grams of cocaine purchased from the twelve
transactions) surpasses the threshold triggering the mandatory
minimum, without counting the crack seized from Morris's residence.
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