United States v. Washington

FILED
United States Court of Appeals
Tenth Circuit
October 22, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v. No. 09-3216
(D.C. No. 2:07-CR-20090-KHV-2)
TONY WASHINGTON, (D. Kan.)
Defendant–Appellant.
ORDER AND JUDGMENT *
Before TACHA, LUCERO, and MURPHY, Circuit Judges.
Tony Washington was convicted by a jury of one count of conspiracy to
distribute or possess with intent to distribute fifty grams or more of cocaine base
(“crack cocaine”) and marijuana, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii), all in violation of 21 U.S.C. § 846 (“Count One”); and one count of
conspiracy to maintain a residence for the purpose of distributing and using
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
cocaine base and marijuana, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C.
§ 2, all in violation of 21 U.S.C. § 846 (“Count Four”). 1 He was sentenced to a
term of imprisonment of 300 months on Count One and 240 months on Count
Four, to run concurrently. He appeals his convictions and sentences. Exercising
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
I
Washington raises four issues on appeal. He contends: (1) there was
insufficient evidence to support his convictions; (2) the jury instructions omitted
an element of the offenses—the alleged conspirators’ interdependence; (3) neither
the drug quantity that determined his base offense level nor two enhancements the
district court applied were proven by a preponderance of the evidence; and (4) his
sentence was substantively unreasonable and unconstitutional because the
crack/powder cocaine sentencing disparity disproportionately impacts African-
Americans including Washington.
A
Washington argues that the evidence presented at trial was insufficient
because there was no evidence that he and anyone else acted interdependently,
which is one element of a conspiracy charge under 21 U.S.C. § 846. See United
1
Although Count One and Count Four charged Washington and his six
co-defendants with conspiracy to distribute cocaine base and marijuana, the jury
instructions and the verdict form referred to cocaine base or marijuana. Further,
throughout his briefs, Washington’s arguments concern only cocaine base. We
therefore do not consider the marijuana aspects of either count.
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States v. Wright, 506 F.3d 1293, 1298 & n.3. (10th Cir. 2007). We review
challenges to the sufficiency of the evidence de novo, viewing the evidence and
drawing all reasonable inferences in favor of the jury’s verdict. Id. at 1297. A
conviction may be reversed only if “no reasonable juror could have reached the
disputed verdict.” United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997).
Washington argues that, although there was evidence that he and his
co-conspirators had buyer-seller relationships, shared suppliers, and were
competitors, there was no evidence that they acted together for their mutual
benefit. Instead, he argues, each of the conspirators acted for his or her own
benefit. We disagree. The evidence at trial indicated that twice a week over the
course of several months in 2007, Washington pooled his money with that of one
of his indicted co-conspirators, Elton Simmons, and another individual, Travis
Williams, in order to purchase several ounces of powder cocaine. 2 The evidence
further showed that Washington and Simmons would then convert the powder
cocaine into crack cocaine at Washington’s apartment on Appleton Street in
Parsons, Kansas, and sell the crack cocaine to others, including two of their
indicted co-conspirators, Carol Boyce and Carlton Coleman. Boyce testified that
she assisted Washington in the distribution of crack cocaine, either by bringing
him new customers or selling to other people, and that Washington sometimes
2
At sentencing, the district court found that a total of 680.4 grams of cocaine
was acquired in this manner (1.5 ounces twice per week for eight weeks).
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gave her crack cocaine as compensation for her sales efforts. Boyce also testified
that on three occasions she obtained approximately fourteen grams of crack
cocaine for Washington to distribute, and in return he provided her with crack
cocaine. Coleman also testified that he sold crack for Washington, although the
quantity is unclear.
Washington points to some contrary evidence, but viewed in the light most
favorable to the verdict, there was sufficient evidence Washington intended to act
together with others “for their shared mutual benefit within the scope of the
conspiracy charged,” which is the hallmark of the interdependence element of a
conspiracy charge. United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir.
2009) (quotation omitted). This is not a case merely involving a shared supplier,
which we have said is insufficient to establish interdependence. See id. at 1330.
There is more, including selling to others in a cooperative manner, see id., and
acting with others in a mutually beneficial manner for the distribution of crack
cocaine.
With respect to Count Four, Washington summarily stated in his opening
brief that the evidence was insufficient, but he did not develop any argument or
explain why the evidence was insufficient. And despite the government’s
delineation of such evidence in its response brief, Washington replied merely that
it was improper to use acts that established Count Four to support a conviction on
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Count One. 3 Thus, we do not consider this issue. See Am. Airlines v.
Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992) (“It is insufficient merely to
state in one’s brief that one is appealing an adverse ruling below without
advancing reasoned argument as to the grounds for the appeal.”); see also Fed. R.
App. P. 28(a)(4).
B
Washington’s second argument is that the district court erred when it gave
a jury instruction that omitted an element of the conspiracy offenses: the alleged
conspirators’ interdependence. Because he did not raise this issue at trial, we
review for plain error, which is an error that is plain, affects substantial rights,
and “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Duran, 133 F.3d 1324, 1330 (10th Cir. 1998)
(quotation and alteration omitted).
Applying these standards, we conclude that there was no plain error in the
district court’s instructions. The omission of “interdependence” as a separately
numbered element in a conspiracy instruction is not plainly erroneous provided
3
To the extent the latter argument is a complaint that Counts One and Four of
the indictment suffered from a multiplicity problem and prejudiced him in the
eyes of the jury, Washington waived the issue by not raising it before trial. See
United States v. Morehead, 959 F.2d 1489, 1506 & n.11 (10th Cir. 1992)
(explaining that multiplicity occurs when multiple counts cover the same criminal
behavior and that, absent pretrial objection to the indictment, review is limited to
the validity of multiple sentences), aff’d en banc, United States v. Hill, 971 F.2d
1461 (10th Cir. 1992).
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that “the instructions as a whole adequately apprized the jury of the need to find
interdependence.” United States v. Heckard, 238 F.3d 1222, 1232 (10th Cir.
2001). The elements instructions referenced an agreement between two or more
persons to distribute crack cocaine and to maintain an apartment for that purpose,
as charged in the indictment, thereby distinguishing the charged conspiratorial
conduct from mere buyer or seller conduct. This point was driven home in
Instruction Number 17: “The mere existence of a buyer-seller relationship does
not establish a conspriacy to distribute or possess with intent to distribute.”
Notably, the jury acquitted Washington on two counts of simple distribution,
which suggests the instructions adequately distinguished the conspiracy charges
from the distribution charges.
Instruction Number 18 applied to both counts. In it, the district court
instructed the jury that it had to find Washington understood “the unlawful
character of the plan, and intentionally encourage[d], advise[d] or assist[ed] for
the purpose of furthering the plan.” The court further instructed:
To be a member of the conspiracy, defendant need not know all of
the other members or all of the details of the conspiracy, or the
means by which its purposes were to be accomplished. Each member
of the conspiracy may perform separate and distinct acts. For
defendant to be a member of the conspiracy, however, the
government must prove beyond a reasonable doubt that defendant
was aware of the common purpose and was a willing participant with
the intent to advance the purposes of the conspiracy. A person who
has no knowledge of a conspiracy, but just happens to act in a way
which furthers its objectives or purpose, does not thereby become a
conspirator.
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(Emphases added.) The reference to an awareness of a “common purpose” and
the requirement that a defendant be a “willing participant with the intent to
advance the purposes of the conspiracy” is analogous to the terminology we
approved in Heckard, 238 F.3d at 1232 (“join together”; “partners in crime”) and
United States v. Russell, 109 F.3d 1503, 1513 (10th Cir. 1997) (“a mutual
understanding to try to accomplish a common and unlawful plan”) as adequate
substitutes for the term “interdependent.”
C
Washington challenges the district court’s application of the United States
Sentencing Guidelines in determining his sentencing range. He contends that the
base offense level and two enhancements were not proven by a preponderance of
the evidence. In reviewing the court’s application of the Guidelines, we examine
“the district court’s findings of fact for clear error and legal conclusions de
novo.” United States v. Beltran, 571 F.3d 1013, 1020 (10th Cir. 2009). “We will
not disturb a factual finding unless it has no basis in the record[,] and in
reviewing the court’s decision to apply an enhancement, we view the evidence
and inferences therefrom in the light most favorable to the district court’s
determination.” Id. (quotation and alterations omitted).
1
“The trial court may rely upon an estimate [of drug quantity] to establish
the defendant’s guideline offense level so long as the information relied upon has
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some basis of support in the facts of the particular case and bears sufficient
indicia of reliability.” United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir.
2005) (quotations omitted). Our review of the district court’s calculation of drug
quantity for Guidelines purposes is for clear error. United States v. Todd,
515 F.3d 1128, 1135 (10th Cir. 2008).
The district court estimated that 889.67 grams of cocaine base was
attributable to Washington, as follows: 42.52 grams obtained for him by Boyce;
81.7 grams seized in a traffic stop of one of his distributors; 85.05 grams based on
$2,600 confiscated from him when he arrived at the home of another conspirator
while law enforcement officers were executing a warrant there; and 680.4 grams
that represented 1.5 ounces, twice a week, for eight weeks that Washington,
Simmons, and Williams purchased with their pooled money. Because the total
was greater than 500 grams but less than 1.5 kilograms, the court determined the
base offense level to be 34 under U.S.S.G. § 2D1.1(c)(3). 4 Although Washington
challenges both the conversion of the $2,600 into 85.05 grams and the estimation
that he, Simmons, and Williams purchased 680.4 grams, he recognizes that only
the challenge to the 680.4 grams can lower the drug quantity below 500 grams
and thereby reduce his base offense level under U.S.S.G. § 2D1.1(c)(4). We
therefore confine our analysis to the 680.4 grams.
4
All citations to the Guidelines are to the November 1, 2008 edition that was
used for sentencing in this case.
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Washington contends that he, Simmons, and Williams purchased 1.5 ounces
of cocaine over an eight-week period once every two weeks rather than twice
every week, as the district court found. The district court based that
determination on Simmons’ testimony. Washington points to two exchanges at
trial and argues that the court should have found that the frequency was once
every two weeks. In the first exchange, the prosecutor asked Simmons, “How
often would you or [Williams] go to Coffeyville to get cocaine?” Simmons
responded, “He would go maybe twice a week.” Shortly thereafter, the prosecutor
asked, “[W]as it about every two weeks you would get this cocaine from
Coffeyville?” Simmons replied “Yes.” Simmons also replied in the affirmative
when asked “Travis would make trips to Coffeyville about twice a week?”
Based on the inconsistency between “twice a week” and “every two
weeks,” Washington seeks a lesser estimate. But the inference the district court
drew from the evidence is certainly not “without factual support.” See Todd,
515 F.3d at 1135. The district court, thus, did not commit clear error with respect
the amount of cocaine base attributed to Washington.
2
Washington asserts that the evidence was insufficient to support the
three-level enhancement the district court applied for his role in the offense under
U.S.S.G. § 3B1.1(b). That provision states: “If the defendant was a manager or
supervisor (but not an organizer or leader) and the criminal activity involved five
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or more participants or was otherwise extensive, increase by 3 levels.” U.S.S.G.
§ 3B1.1(b). Washington contends that there was no evidence he exercised control
or decision-making authority over another participant.
In applying the enhancement, the district court relied on testimony that
Coleman, Boyce, and a person named “Misty” conducted drug transactions for
Washington, and evidence that another person, Sandy Kelly, watched the
surveillance monitors at Washington’s apartment. Having reviewed the trial
transcript and Washington’s arguments, we conclude the district court did not
clearly err in its finding that the enhancement applies. 5
3
The district court also imposed a two-level enhancement for the possession
of a firearm under U.S.S.G. § 2D1.1(b)(1), finding that “clearly there were guns
in proximity to the drugs and the residence where the drugs and drug proceeds
were stored as well as drug paraphernalia.” In order for this enhancement to
apply, “the government must show a temporal proximity between a weapon, the
5
In his reply brief, Washington reiterates his multiplicity argument, see
supra note 3, contending that to the extent evidence necessary to convict on Count
Four was used at sentencing to support the enhancement for his role in the
offense, he was subject to double jeopardy. Despite his failure to raise a pretrial
objection to the indictment on multiplicity grounds, we may review this argument
because it pertains to his sentence, not his conviction. See Morehead, 959 F.2d
at 1506 & n.11. Nonetheless, there is a clear distinction between his conspiracy
to maintain the Appleton Street apartment as a crack house and his exercise of
authority over Boyce, Coleman, and “Misty” with regard to distribution of
cocaine, and over Kelly with regard to the manner in which the crack house
functioned. Accordingly, we see no multiplicity problem.
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drug trafficking activity, and a defendant.” Beltran, 571 F.3d at 1021. “If the
government meets its burden, this enhancement should be applied unless a
defendant can show that it is clearly improbable that the weapon was possessed in
connection with a drug offense.” Id. (quotation omitted).
The district court properly applied the enhancement. The record contains
substantial evidence of temporal proximity between firearms, drug trafficking
activity, and Washington, and he has not shown that it was clearly improbable
that the weapons were possessed in connection with a drug offense.
D
Washington’s final contention concerns the district judge’s refusal to grant
his request for a downward variance based on the disparate impact the
crack/powder sentencing disparity has on African-Americans. The court stated:
I’m not going to grant a variance based on the argument about the
crack and powder cocaine discrepancy. I think if and when the drug
guidelines are . . . revised and made retroactive, you know that drill,
we know how to adjust them and we’ve been through that in the past.
I’m going to go by the guidelines which are applicable to this offense
conduct.
To the extent Washington has framed his challenge to the court’s refusal to
grant a downward variance as a violation of his equal protection rights or
substantive due process, we have previously rejected such arguments, see, e.g.,
United States v. Williamson, 53 F.3d 1500, 1530 (10th Cir. 1995) (equal
protection); United States v. Turner, 928 F.2d 956, 960 (10th Cir. 1991)
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(substantive due process), and we may not overrule those decisions “absent
en banc consideration or a superseding contrary decision by the Supreme Court,”
Mendiola v. Holder, 585 F.3d 1303, 1310 (10th Cir. 2009) (quotation omitted).
We therefore review only whether the district court abused its discretion in
denying the variance. See Beltran, 571 F.3d at 1018.
Where a district court acknowledges its discretion to depart from the
Guidelines’ calculation of a base offense level resting on the quantity of crack
cocaine but concludes that a departure is unwarranted under the defendant’s
circumstances, nothing mandates that the court “reduce a defendant’s sentence in
order to eliminate the crack/powder sentencing disparities.” United States v.
Caldwell, 585 F.3d 1347, 1355 (10th Cir. 2009), cert. denied, No. 09-11496, 2010
WL 2516004, (U.S. Oct. 4, 2010). Here, the district court was aware of its
discretion to depart from the Guidelines but emphasized that it was going to apply
the Guidelines “applicable to this offense conduct.” In doing so, it is apparent the
court concluded that a departure was unwarranted under Washington’s
circumstances. Accordingly, the court did not abuse its discretion in denying the
variance. 6
6
We note that the Fair Sentencing Act of 2010 was enacted on August 3,
2010, to “restore fairness to Federal cocaine sentencing.” Pub. L. No. 111-220,
124 Stat. 2372, 2372 (the “Act”). But in relevant part, the Act only increased the
minimum quantity of cocaine base, from 50 grams to 280 grams, necessary to
trigger a ten-year minimum sentence. See id., § 2, 124 Stat. at 2372. This in
effect reduced the statutory crack/powder cocaine disparity from 100:1 to
(continued...)
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II
The judgment is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
6
(...continued)
approximately 18:1, as five kilograms or more of powder cocaine is necessary to
trigger the same minimum sentence under 21 U.S.C. § 841(b)(1)(A)(ii).
Because Washington’s sentence was based on more than 280 grams of cocaine
base, the Act alone does not affect his mandatory minimum sentence or his
Guidelines sentence, even if the Act is considered retroactive or applicable to
cases on direct review, a determination we need not and do not make. However,
the Act provides emergency authority for the United States Sentencing
Commission (the “Commission”) to “promulgate the guidelines, policy
statements, or amendments provided for in this Act as soon as practicable and in
any event not later than 90 days after the date of enactment of this Act” and to
“make such conforming amendment to the Federal sentencing guidelines as the
Commission determines necessary to achieve consistency with other guideline
provisions and applicable law.” Pub. L. No. 111-220, § 8, 124 Stat. at 2374.
Thus, if the Commission lowers the sentencing range on which Washington’s
sentence is based, he may be entitled to seek modification of his term of
imprisonment under 18 U.S.C. § 3582(c)(2).
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