United States v. Walter Ray Hamilton

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16983
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-00235-MHC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER RAY HAMILTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(September 27, 2017)
Before MARTIN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Walter Ray Hamilton appeals the 75-month sentence he received after
pleading guilty to one count of conspiracy to possess with the intent to distribute
marijuana, in violation of 21 U.S.C. § 846, and one count of maintaining a drug-
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involved premises, in violation of 21 U.S.C. §§ 856(a)(1), 860(a). After careful
review, we affirm Hamilton’s sentence and remand for the limited purpose of
correcting clerical errors in the judgment.
I.
At sentencing, Hamilton admitted that he leased a home in Chamblee,
Georgia, which he operated as a “stash house” for a drug trafficking organization.
He did not dispute the presentence investigation report (“PSR”) saying that in June
2014, U.S. Drug Enforcement Administration agents saw Hamilton unload boxes
from two cars that stopped at the stash house. The agents also saw Hamilton’s
codefendants leave the stash house with a container, get in a truck, and drive away.
When the agents stopped and searched that truck, they found 3.996 kilograms of
cocaine. A few days later, agents watched Hamilton put something in a car. When
they stopped and searched that car, they found 6 kilograms of marijuana. Later
that same day, agents saw Hamilton and his codefendants drive away from the
stash house in four separate cars. They stopped and searched the car Hamilton was
in and found, among other things, a list of tracking numbers for packages, one of
which contained 10 kilograms of marijuana. They also stopped and searched
Hamilton’s codefendants’ cars and found 55 kilograms of marijuana. In searching
the stash house, the agents found another 4.4 kilograms of marijuana.
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To arrive at Hamilton’s offense level, the PSR counted the amounts of
cocaine and marijuana the agents seized from the stash house, the cars leaving the
stash house, and the package from the list of tracking numbers. Based on the
weight of these drugs and other facts, the PSR determined Hamilton’s guideline
imprisonment range was 87 to 108 months.
Hamilton objected to the PSR’s inclusion of the 3.996 kilograms of cocaine
in calculating his offense level. At sentencing, he argued there was no evidence of
him “touching, carrying, [or] speaking about the cocaine.” Instead, Hamilton
contended he knew only about the marijuana and his role in the conspiracy was
limited to marijuana. The district court overruled the objection. The court found
Hamilton had been directly involved with the people who used the stash house,
which he ran for the conspiracy. The district court thus found the cocaine could be
attributed to Hamilton under either of two theories of “relevant conduct” from the
United States Sentencing Guidelines (“USSG”): aiding and abetting, USSG
§ 1B1.3(a)(1)(A), or jointly undertaken criminal activity, id. § 1B1.3(a)(1)(B).
The district court sentenced Hamilton to 75-months imprisonment. This
appeal followed.
II.
Hamilton argues on appeal that the district court erred in holding him
responsible under USSG § 1B1.3 for the 3.996 kilograms of cocaine the agents
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found when they searched his codefendants’ truck. He says it was not reasonably
foreseeable that the drug conspiracy included cocaine. We review de novo
whether the district court correctly applied USSG § 1B1.3. United States v.
McCrimmon, 362 F.3d 725, 728 (11th Cir. 2004) (per curiam).
Section 1B1.3(a)(1)(A) says a defendant’s base offense level “shall be
determined” from “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant.” Id. “A
defendant’s accountability under subsection (a)(1)(A) is not limited by what is
reasonably foreseeable because the reasonable foreseeability requirement only
applies to the conduct of others.” United States v. Alvarez-Coria, 447 F.3d 1340,
1344 (11th Cir. 2006) (per curiam).
On this record, Hamilton can be sentenced for the cocaine because he aided
and abetted the trafficking of the drugs through the stash house. See id.; United
States v. Gomez, 905 F.2d 1513, 1513–14 (11th Cir. 1990). Hamilton leased and
ran the stash house for the conspiracy. He also unloaded boxes from cars into the
stash house on the same day his codefendants left the stash house with the cocaine.
Because Hamilton can be sentenced for the cocaine on the basis of his own
conduct, we need not question whether it was reasonably foreseeable to Hamilton
that cocaine was part of the conspiracy. See Alvarez-Coria, 447 F.3d at 1344
(“Whether the presence of [a specific drug] was reasonably foreseeable to [the
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defendant] is immaterial because [the defendant] is being held accountable for his
own conduct, not the conduct of his co-conspirators.”). The district court therefore
did not err in including the cocaine when sentencing Hamilton.
III.
The government requests that we remand to the district court to correct
clerical errors in the judgment under Federal Rule of Criminal Procedure 36. The
judgment makes three clerical errors: (1) it says that Hamilton pled guilty only to
Count Two; (2) it lists Count One as including cocaine and marijuana; and (3) it
states that Hamilton must serve a three-year term of supervised release after his
imprisonment. However, Hamilton pled guilty to Count One as to the marijuana,
but not the cocaine. And at sentencing, the district court ordered Hamilton to serve
concurrent terms of supervised release of three years as to Count One and six years
as to Count Two. We therefore remand to the district court for the limited purpose
of correcting these errors in the judgment under Rule 36.
AFFIRMED IN PART AND REMANDED IN PART.
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