United States v. Tawanne Lucas

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14714 AUGUST 9, 2006
No. 05-14715 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
D. C. Docket Nos. 05-00030-CR-CG & 05-00071-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAWANNE LUCAS,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Alabama
_________________________
(August 9, 2006)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Tawanne Lucas appeals his 210-month sentence for possession with intent to
distribute crack cocaine, 21 U.S.C. § 841(a)(1), arguing that (1) the district court
clearly erred in determining the drug quantity attributable to him, (2) the district
court erred by failing to apply the beyond-a-reasonable-doubt standard of proof in
resolving contested facts at sentencing, and (3) the district court clearly erred when
it applied a two-level enhancement for possession of a firearm in connection with a
drug offense pursuant to U.S.S.G. § 2D1.1(b)(1).1
We are not persuaded by Lucas’s arguments, and we affirm the district
court’s sentence.
I.
First, Lucas argues that the district court clearly erred in determining the
drug quantity attributable to him by relying on the testimony of Antonio Law, who
provided inconsistent testimony as to the number of times he sold cocaine to Lucas
and the amount of cocaine he sold during each transaction. We review a district
court’s determination of drug quantity under § 2D1.1(c) for clear error. United
States v. Ryan, 289 F.3d 1339, 1347 (11th Cir. 2002). “When a defendant
challenges one of the factual bases of his sentence, as set forth in the PS[I], the
Government has the burden of establishing the disputed fact by a preponderance of
1
Two cases, No. 05-14714 and No. 05-14715 have been consolidated here. The issues
addressed in the text were raised in No. 05-14714. No 05-17415 involved an appeal of a concurrent
120-month sentence for possession of a firearm by a convicted felon, 18 U.S.C § 922(g)(1). Lucas
has not raised any arguments with respect to that sentence on appeal, thus abandoning same.
2
the evidence.” United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995).
The standards for reviewing the application of the Guidelines before United States
v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), apply after
Booker as well. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005).
“A sentencing court under Booker still must calculate the Guidelines, and, such
consideration necessarily requires the sentencing court to calculate the Guidelines
sentencing range in the same manner as before Booker.” Id. at 1178-79. We give
great deference to a district court’s assessment of evidence and the credibility of
witnesses. United States v. Lee, 68 F.3d 1267, 1276 (11th Cir. 1995). Section
2D1.1(c)(2) provides that a defendant who is responsible for 50 kilograms but less
than 150 kilograms of powder cocaine or 500 grams but less than 1.5 kilograms of
crack cocaine shall have a base offense level of 36. U.S.S.G. § 2D1.1(c)(2).
Lucas argues that Law’s testimony was not credible because Law was
inconsistent in calculating how much cocaine powder he had sold to Lucas. Law
first stated to a DEA agent (who also testified at the sentencing hearing) that he
was involved in about 100 transactions to Lucas (1 per week over the course of 2
years), he then impliedly testified that he sold Lucas cocaine over 200 times (2 to 3
transactions per week over 2 years), then again testified during the same
proceeding that he was only involved in 20 transactions. Law also provided
3
differing accounts as to the amount of cocaine sold during each transaction; the
accounts varied from one to three ounces.
Lucas argues that the district court did not calculate the cocaine quantity
cautiously, as required by the law of this Circuit. See United States v. Zapata, 139
F.3d 1355, 1359 (11th Cir. 1998). However, based on Law’s testimony, the most
conservative estimate would be 20 ounces (20 transactions at 1 ounce per
transaction).2 Twenty ounces (567 grams) would exceed the 500 gram threshold.
We cannot conclude that the district court clearly erred in finding that at least a
half kilogram was involved. Accordingly, we hold that the district court did not
clearly err in finding that Lucas’s drug quantity was over 500 grams for sentencing
purposes.
Alternatively, Lucas argues that the district court erred in attributing to him
500 grams of crack cocaine, when the witness Law testified that he sold Lucas
powder cocaine. Law, however, testified that Lucas converted the powder cocaine
into crack cocaine. Law claimed to have seen the crack cocaine on about 10
occasions. Law testified that he never saw Lucas sell powder cocaine and only
knew Lucas to sell crack. Finally, Special Agent Todd Hixson testifed that a
2
The evidence provided by Law was that each transaction was one to two ounces, or two to
three ounces. In his testimony before the sentencing judge, Law clarified that he would sell an ounce
at a time when supplies were short.
4
quantity of powder cocaine converts approximately to the same amount of crack
cocaine. Therefore, the powder cocaine from Law would convert into at least 500
grams of crack cocaine. Accordingly, we hold that the district court did not err in
attributing 500 grams of crack cocaine to Lucas.
II.
Next, Lucas argues that the district court erred in resolving factual disputes
at his sentencing hearing under the preponderance of the evidence standard of
proof, instead of under a beyond a reasonable doubt standard of proof. The parties
dispute whether Lucas properly objected to the standard of proof in the district
court. We will not decide this issue because, even if Lucas properly objected, his
claim fails.
When the district court applies the guideline range in an advisory manner,
nothing in Booker prohibits district courts from making, under a preponderance of
the evidence standard, additional factual findings that go beyond a defendant’s
admission. See United States v. Ndiaye, 434 F.3d 1270, 1300-01 (11th Cir. 2006);
United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005);United States v.
Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005). As we “have explained, ‘all
nine [justices] agreed that the use of extra-verdict enhancements in an advisory
guidelines system is not unconstitutional.’” Chau, 426 F.3d at 1323 (quoting
5
Rodriguez, 398 F.3d at 1301 (11th Cir. 2005)). Further, “the district court’s
factual findings for purposes of sentencing may be based on, among other things,
evidence heard during trial, undisputed statements in the PSI, or evidence
presented during the sentencing hearing.” United States v. Polar, 369 F.3d 1248,
1255 (11th Cir. 2004).
We have continually recognized the district court’s authority to resolve
factual disputes under the preponderance of the evidence standard of proof under
advisory guidelines. Accordingly, Lucas’s Booker argument is without merit.
III.
Lastly, Lucas argues that the district court clearly erred in applying a two-
level enhancement for possession of a firearm in connection with a drug offense
pursuant to U.S.S.G. § 2D1.1(b)(1). We review for clear error the district court’s
findings of fact when it enhances a defendant’s sentence in cases involving
U.S.S.G. § 2D1.1(b)(1), and review the application of the sentencing guidelines de
novo. United States v. Gallo, 195 F.3d 1278, 1280 (11th Cir. 1999).
Under the guidelines, a defendant should receive a two-level enhancement if
he possessed a firearm. U.S.S.G. § 2D1.1(b)(1). The commentary to § 2D1.1
states that the adjustment should be applied if the firearm was present, unless it is
clearly improbable that the weapon was connected with the offense. U.S.S.G.
6
§ 2D1.1(b)(1), comment. (n.3). The government has the burden of proving that
“the firearm was present at the site of the charged conduct.” United States v.
Hall, 46 F.3d 62, 63 (11th Cir. 1995). Then the burden shifts to the defendant to
demonstrate that “a connection between the firearm and the offense is clearly
improbable.” Id.Police officers discovered firearms in Lucas’s home where he was also
arrested for drug possession. Qurinus Lucas, Lucas’s brother who also lived in the
home, testified that the firearms belonged to their grandfather, were locked in a
closet in their grandfather’s old room, they did not have ammunition for them, and
there may have only been one pistol. However, the eight guns in question were
actually found underneath a mattress next to where Lucas had crack cocaine on top
of a dresser. There were also two handguns among the firearms, as well as
ammunition. Given Qurinus’s lack of knowledge concerning the type of guns, the
presence of ammunition, and their location, the district court could properly find
his testimony incredible and find that it was not clearly improbable that the
firearms were connected to Lucas’s drug offense. Accordingly, the district court
did not err in applying the enhancement, and we affirm on this ground.
AFFIRMED. 3
3
Lucas’s request for oral argument is denied.
7