United States v. Donald Womack

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1682
_____________
UNITED STATES OF AMERICA
v.
DONALD WOMACK, SR.,
a/k/a KAS,
a/k/a Kasul,
a/k/a D-Rock
Donald Womack, Sr.,
Appellant
______________
No. 18-1605
______________
UNITED STATES OF AMERICA
v.
SPENCER PAYNE, also known as BOODINE, also known
as NUR,
Spencer Payne,
Appellant
______________
No. 18-2560
______________
UNITED STATES OF AMERICA
v.
BREON BURTON,
a/k/a BRE,
Breon Burton,
Appellant
______________
No. 19-3935
______________
UNITED STATES OF AMERICA
v.
RONELL WHITEHEAD,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court Nos. 2-14-cr-0323-002, 2-14-cr-0323-011,
2-14-cr-0323-008, and 2-14-cr-0323-006)
District Judge: Honorable Gerald A. McHugh
Argued March 14, 2022
Before: JORDAN, RESTREPO, and PORTER, Circuit Judges
(Opinion filed: November 29, 2022)
Richard Coughlin
Julie A. McGrain [Argued]
Office of Federal Public Defender
800-840 Cooper Street, Suite 350
Camden, New Jersey 08102
Counsel for Appellant Donald Womack, Sr.
2
Martin I. Isenberg [Argued]
Scher & Isenberg, LLC
Two Penn Center Plaza, Suite 1020
Philadelphia, PA 19102
Counsel for Appellant Spencer Payne
Carina Laguzzi [Argued]
Laguzzi Law, P.C.
P.O. Box 30095
Philadelphia, PA 19103
Counsel for Appellant Breon Burton
Peter Goldberger [Argued]
Pamela A. Wilk
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant Ronell Whitehead
Jacqueline C. Romero
Robert E. Eckert, Jr.
Robert A. Zauzmer [Argued]
Emily McKillip
A. Nicole Phillips
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee United States of America
OPINION OF THE COURT
RESTREPO, Circuit Judge
These four separate appeals, consolidated for purposes
of disposition, arise from guilty verdicts rendered after a jury
trial on drug trafficking conspiracy charges and other related
3
criminal charges against appellants Donald Womack, Sr.,
Spencer Payne, Breon Burton, Ronell Whitehead (collectively
“Appellants”),1 and three additional co-defendants.
Appellants appeal various aspects of their convictions and
sentences. For the reasons that follow, we affirm the
Judgments of conviction and sentence.
I.
(A) THE INVESTIGATION, INDICTMENT, AND INDIVIDUAL
CHARGES
In 2012, the Drug Enforcement Administration
(“DEA”), the Federal Bureau of Investigation (“FBI”), and
the City of Chester Police Department initiated a joint
investigation of a drug trafficking conspiracy (“Rose and
Upland DTG” or “DTG”) that operated primarily in the Rose
and Upland neighborhood of the City of Chester,
Pennsylvania. Using confidential informants, controlled
purchases of narcotics, surveillance, pole cameras, pen
registers, and court-authorized wiretaps of co-conspirators
William Dorsey and Paris Church, the investigative team
identified alleged members of the conspiracy, including
Appellants.
The investigation revealed evidence supporting
charges that Appellants were members of the Rose and
Upland DTG that sold cocaine base (“crack”), powder
cocaine (“cocaine”), and heroin. Evidence supported the
Government’s position that defendant William Dorsey was
the head of the DTG, and that Appellants were co-
conspirators with Dorsey and the other members of the DTG.
1
Appellants have each filed their own briefs on appeal raising
issues challenging the convictions and sentences,
respectively, and the Government has filed a separate
responsive brief in each of the four appeals responding to the
claims raised by each Appellant. Separate appendices were
filed in each of Appellants’ appeals. Therefore, specific
citations to the appendices and briefs referred to below
identify in which Appellant’s appeal the respective
appendices and briefs were filed.
4
The evidence indicated that DTG members routinely
carried, and sometimes used, loaded firearms or had firearms
available in hidden locations, including their stash locations.
In particular, to facilitate their drug trafficking, members of
the DTG illegally carried guns and stashed both drugs and
guns in alleyways and in a nearby playground.
During the course of the investigation, law
enforcement conducted numerous controlled purchases of
drugs from members of the DTG, using cooperating sources
and undercover officers. The controlled purchases were
surveilled, audiotaped, and videotaped by the DEA and the
FBI.
On April 1, 2015, a federal grand jury returned a 261-
count Second Superseding Indictment (“the Indictment”),
charging Appellants and 18 others with conspiracy to
distribute 280 grams or more of crack, 500 grams or more of
cocaine, and 100 grams or more of heroin, in violation of 21
U.S.C. § 846 (Count 1). Count One alleged that these
individuals comprised a conspiracy that the Government
labeled the “Rose and Upland Drug Trafficking Group”
because the alleged criminal enterprise was centered in the
vicinity of Rose and Upland Streets in Chester.
In addition to the conspiracy count, the Indictment
charged alleged co-conspirators with various substantive
counts (“individual substantive charges”), respectively.
These individual substantive charges included distribution of
controlled substances (including heroin, crack, and cocaine),
possession of controlled substances with intent to distribute,
and firearms charges, which included possession of firearms
by felons and possession of firearms in furtherance of a drug
trafficking offense. Some Appellants entered guilty pleas to
individual substantive charges against them, but none of them
pled guilty to the conspiracy charge (Count One).
With regard to Womack, the individual substantive
charges against him were two counts of unlawful use of a
communication facility in furtherance of a drug trafficking
offense, in violation of 21 U.S.C. § 843(b) (Counts 163 and
191), one count of possession of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C)
5
(Count 170), one count of conspiracy to possess marijuana
with intent to distribute, in violation of 21 U.S.C. § 846(Count 260), and one count of attempt to possess marijuana
with intent to distribute, in violation of 21 U.S.C. § 846 and
18 U.S.C. § 2 (Count 261). On February 20, 2016, the
District Court granted the Government’s motion to dismiss
Counts 260 and 261 without prejudice.
As for Payne, the Indictment charged him with seven
counts of distribution of crack and cocaine, in violation of 21
U.S.C. § 841(a)(1) (Counts 52, 62, 70, 72, 130, 153, and 183),
six counts of distribution of crack within 1,000 feet of a
school, in violation of 21 U.S.C. § 860 (Counts 53, 63, 71, 73,
131, and 154), and five counts of use of a communication
facility in furtherance of a drug felony, in violation of 21
U.S.C. § 843(b) (Counts 125, 141, 184, 185, 188). He
proceeded to trial on all counts.
Burton was charged with: distribution of heroin, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts 6, 8,
10, and 14); distribution of heroin within 1,000 feet of a
protected location, in violation of 21 U.S.C. § 860(a) (Counts
7, 9, 11, and 15); distribution of crack and heroin, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts 20, 24, 32,
and 37); distribution of crack and heroin within 1,000 feet of
a protected location, in violation of 21 U.S.C. § 860(a)
(Counts 21, 25, 33, and 38); distribution of crack in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 26);
distribution of crack within 1,0000 feet of a protected
location, in violation of 21 U.S.C. § 860(a) (Count 27);
distribution of cocaine and heroin, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C) (Count 39); distribution of cocaine
and heroin within 1,0000 feet of a protected location in
violation of 21 U.S.C. § 860(a) (Count 40); possession of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c) (Count 41); being a felon in possession
of a firearm, in violation of 21 U.S.C. § 922(g) (Count 42);
and possession of crack with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 43). On
February 9, 2016, Burton pled guilty to all of these individual
substantive charges.
6
With regard to Whitehead, the Indictment charged him
with three counts of distribution of crack, in violation of 21
U.S.C. § 841(a)(1) (Counts 50, 62, and 90), and three
associated counts of distribution of crack within 1,000 feet of
a protected location, in violation of 21 U.S.C. § 860 (Counts
51, 63, and 91). On October 23, 2015, Whitehead entered an
open guilty plea to these individual substantive charges.
(B) THE TRIAL, CONVICTIONS, AND SENTENCES
On February 22, 2016, seven co-defendants (the four
Appellants, along with Paris Church, Jamear McGurn, and
John Dennis) proceeded to trial on the Count One conspiracy
charge against each of them and the remaining additional
individual substantive charges against the respective co-
defendants. Nearly a month later, in March of 2016, a jury
found, among other things, all four Appellants guilty of
Conspiracy. In addition, some Appellants were found guilty
of individual substantive charges.
In addition to the Conspiracy conviction, Womack was
convicted on the individual substantive charges of unlawful
use of a communication facility in Counts 163 and 191. He
was acquitted on Count 170 (cocaine possession with intent to
distribute). The District Court sentenced Womack to 216
months on Count One Conspiracy and 48 months on each of
Counts 163 and 191, to be served concurrently to each other
and to Count One, for a total aggregate sentence of 216
months. The Court also imposed five years of supervised
release and a $400 special assessment.
Payne was convicted by the jury of five counts of
distribution of crack and cocaine (Counts 52, 62, 70, 72, and
183), four counts of distribution of controlled substances
within 1,000 feet of a school (Counts 53, 63, 71, and 73), and
five counts of use of a communication facility in furtherance
of a drug felony (Counts 125, 141, 184, 185, and 188). The
jury acquitted Payne on two counts of crack distribution
(Counts 130 and 153) and two counts of crack distribution in
a school zone (Counts 131 and 154). On March 6, 2018, the
District Court sentenced Payne to a prison term of 192
months, to be followed by a term of supervised release of six
7
years, and he was ordered to pay a special assessment totaling
$1,100.00.
Burton pled guilty to all 23 counts against him, except
the Conspiracy charge, of which the jury found him guilty.
The District Court sentenced Burton on July 6, 2018 to 300
months in prison, to be followed by a term of supervised
release of eight years, and a special assessment of $1,400.
Whitehead, who pled guilty to the six individual
substantive charges against him, was convicted by the jury of
the Conspiracy charge. The District Court sentenced
Whitehead on December 10, 2019, and imposed a sentence of
264 months in prison on Count One, and 216 months in
prison on Counts 51, 63, and 91, to be served concurrently
with the sentence on Count One.2 The District Court further
imposed 10 years of supervised release on Count One, and a
term of six years of supervised release on each of Counts 51,
63, and 91, such terms to run concurrently, and a $400 special
assessment.
Following sentencing, Appellants filed timely notices
of appeal, respectively, and the appeals were consolidated for
purposes of disposition. 3
II.4
2
No sentence was imposed on Counts 50, 62, and 90 because
they were lesser included offenses of Counts 51, 62, and 91,
respectively, and therefore merged for sentencing purposes.
3
Womack filed a premature notice of appeal on March 28,
2016, one week after the jury returned its guilty verdict, and
this Court ordered the appeal stayed pending entry of a
Judgment and Commitment Order by the District Court. The
District Court imposed sentence on April 5, 2019 and entered
its Judgment on April 10, 2019. Womack filed a duplicate
notice of appeal on April 18, 2019.
8
(A) CHALLENGES TO CONVICTIONS
1. Womack’s and Whitehead’s Claims of
Improper Expert Testimony in Violation of
Evidence Rule 704(b)
Appellants Womack and Whitehead argue that the
District Court violated Federal Rule of Evidence 704(b)
because they contend the Government’s expert witness on
drug trafficking organizations, DEA Special Agent Randy
Updegraff,5 was allowed to opine on the ultimate issue of
Appellants’ intent to engage in a conspiracy.6 Pointing out
that Special Agent Updegraff, a lead case agent, testified both
as a fact witness and, when recalled, as an expert, Womack
and Whitehead complain that Updegraff’s testimony
constituted a prohibited opinion on the Appellants’ intent to
agree, an element of the charged offense of conspiracy.
Womack and Whitehead further argue on appeal that
admission of this testimony was prejudicial error, and
therefore requires reversal and remand for a new trial.
The Government responds that Updegraff’s testimony
“does not trespass on the jury’s function.” Gov’t Resp. to
Womack Br. 18. Further, it points out that “[m]uch of
Updegraff’s testimony [as an expert] . . . related to
terminology used by the defendants.” Id. at 19.
4
The District Court had jurisdiction pursuant to 18 U.S.C. §
3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 and
28 U.S.C. § 1291.
5
Special Agent Updegraff was qualified as an expert witness
in narcotics trafficking, and Appellants do not dispute his
qualification.
6
“Womack joins Whitehead in his argument regarding the
District Court’s (alleged) error in allowing DEA Special
Agent Randy Updegraff to offer his opinion as an expert
witness that the evidence at trial was consistent with
collective, group drug distribution and inconsistent with
independent, separate drug dealing by the defendants.”
Womack Br. 18 (parenthetical added).
9
We review the District Court’s decision to admit the
challenged testimony in this case for abuse of discretion.7 See
United States v. 68.94 Acres of Land, 918 F.2d 389, 392 (3d
Cir. 1990). We will reverse only if the error “affected the
outcome of the district court proceedings.” See United States
v. Amirnazmi, 645 F.3d 564, 594 (3d Cir. 2011) (quoting
United States v. Vazquez-Lebron, 582 F.3d 443, 446 (3d Cir.
2009) (internal quotation marks omitted)). An error is
harmless when it is “highly probable that it did not prejudice
the outcome.” 8 United States v Cross, 308 F.3d 308, 317 (3d
Cir. 2002).
Federal Rule of Evidence 704(b) provides: “In a
criminal case, an expert witness must not state an opinion
about whether the defendant did or did not have a mental state
or condition that constitutes an element of the crime charged
or of a defense. Those matters are for the trier of fact alone.”
Here, the Government argues that Agent Updegraff carefully
confined his testimony to the matters permitted by Rule 704.
“[E]xperienced narcotics agent[s] may testify about the
significance of certain conduct or methods of operation to the
drug distribution business, as such testimony is often helpful
in assisting the trier of fact understand the evidence.” United
States v. Griffith, 118 F.3d 318, 321 (5th Cir. 1997) (quoting
United States v. Washington, 44 F.3d 1271, 1283 (5th Cir.
1995)). Thus, “[e]xpert testimony concerning the modus
operandi of individuals involved in drug trafficking does not
violate Rule 704(b).” United States v. Watson, 260 F3d. 301,
308 (3d Cir. 2001). For example, an expert may testify about
the various counter-surveillance techniques used by drug
dealers to avoid detection by the police. Id.7
The defendants collectively objected to Agent Updegraff’s
expert testimony on this issue at trial, and their objections
were overruled.
8
Whitehead’s counsel on appeal acknowledged at argument
that harmless error is the standard applicable to this claim.
See also Womack Br. 18 (arguing that “[a]dmission of this
testimony was prejudicial error”).
10
“Expert testimony is admissible if it merely ‘support[s]
an inference or conclusion that the defendant did or did not
have the requisite mens rea, so long as the expert does not
draw the ultimate inference or conclusion for the jury and the
ultimate inference or conclusion does not necessarily follow
from the testimony.’” Id. at 309 (quoting United States v.
Bennett, 161 F.3d 171, 183 (3d Cir. 1998)). “It is only as to
the last step in the inferential process – a conclusion as to the
defendant’s mental state – that Rule 704(b) commands the
expert to be silent.” Id. (quoting United States v. Dunn, 846
F.2d 761, 762 (D.C. Cir. 1988)). “Rule 704(b) may be
violated when the prosecutor’s question is plainly designed to
elicit the expert’s testimony about the mental state of the
defendant, or when the expert triggers the application of Rule
704(b) by directly referring to the defendant’s intent, mental
state or mens rea.” Id. at 309 (citations omitted).
Appellants contend the following testimony “veered
into territory barred by Rule 704(b),” see Whitehead Br. 19:
Q: And Agent Updegraff, can you give
the jury some examples of indicia that a
group is operating in a particular area.
And if you want to distinguish it to
Chester versus Philadelphia or some
other area, that is fine as well.
A: Sure, in this instance, in this case,
some of the indicia of operating as a
group is what we would consider is
when you have individuals operating in
an area, the time period that they are
out in the area, the locale, whether the
area is kind of secreted from easy view
by law enforcement. The operation of
the individuals that are in this area,
whether as we’ve seen in this case
using alleyways to hide from law
enforcement. Secreting their narcotics
in alleyways. Part of it being a group
activity is the alleyways are utilized by
numerous, numerous individuals to
secrete narcotics, which gives an
11
indication to me that there is a level –
there is a level of trust in the area, that
they can secrete their narcotics in these
alleyways without fear of them being
taken by other members of the group.
Also, the shared sales that we’ve
observed throughout the course of this
is another indication. Also the weapons
that we find that were recovered during
the course of – during the course of this
investigation.
Whitehead App. 1779. Womack and Whitehead believe that,
“[t]hough the prosecutor’s question was mainly phrased in
general terms, the agent’s answers were specific to this case
and directly stated that the defendants acted as a group.”
Whitehead Br. 20.
The Government responds that Updegraff’s testimony
merely points “to a number of factors that, in his experience,
indicate that people in the drug trade are operating together”
and that “[n]ot surprisingly, he testifies about factors that are
supported by the evidence in this case.” Gov’t Resp. to
Womack Br. 18. They contend, “There would be no point in
Updegraff reeling off a list of indicia that he has seen in other
cases, but that were not present in this case,” and that the
“jury was left to exercise its own judgment about whether the
evidence proved the facts . . . [and] whether those facts
indicate in this case that the defendants have agreed to work
together.” Id.
As Whitehead’s counsel on appeal acknowledged at
argument, Appellants primarily challenge Updegraff’s
testimony referring to the defendants as a “group.” Id. In
support of this argument, Womack and Whitehead point to
the following testimony:
Q: What about fighting amongst –
have you encountered instances where
individuals are fighting amongst each
other?
12
A: . . . Sometimes these individuals
don’t have the best conflict resolution
skills. So I have encountered within the
group where there have been instances
of conflict. But in this case, no. What
we did see in this particular group was
individuals from outside the area were
not welcome.
Whitehead Br. 20-21 (quoting Whitehead App. 1781-1782)
(emph. added by Whitehead). Womack and Whitehead
complain that Updegraff’s testimony drew the ultimate
conclusion for the jury as to the mens rea element of
agreement and related intent – that the defendants acted in
concert, as a group, in distributing drugs.
The Government responds that Updegraff did not
improperly opine on the ultimate issue of Appellants’ mens
rea. Rather, the Government argues, Womack and Whitehead
are aggrieved because Updegraff’s testimony helped disprove
their contention that all the people selling drugs in the Rose
and Upland neighborhood were acting alone.
We are not persuaded by Appellants’ argument to the
extent they argue Updegraff’s reference to the defendants as a
“group” was “tantamount to testifying as to the specific
defendants and their intent to agree.” Whitehead Br. 21. The
mere use of the collective noun, “group,” or similar collective
nouns generally, do not equate to providing an opinion that a
particular group – here, consisting of long-term residents who
frequented the Rose and Upland area – had formed any intent
to agree on a common objective or had any common intent or
mental state, much less that they formed an agreement to
distribute drugs, and therefore had become a conspiracy. A
collective noun, such as “group,” does not, as Womack and
Whitehead suggest, necessarily imply a mens rea of common
agreement or intent.
Furthermore, even assuming arguendo the instances of
Updegraff’s testimony challenged by Whitehead and
Womack otherwise crossed the Rule 704(b) line, and that the
admission of this evidence were erroneous, any error was
harmless in light of the other evidence. The evidence at trial
13
indicated that Womack and Whitehead were members of the
DTG, which sold crack, cocaine, and heroin, primarily in the
area of Rose and Upland Streets in Chester. Evidence
showed that defendant William Dorsey was the head of the
DTG, and that Womack and Whitehead were co-conspirators
with Dorsey and the other members of the DTG.
Evidence further showed that DTG members routinely
carried, and sometimes used, loaded firearms or had firearms
available in hidden locations including their stash locations.
To facilitate their drug trafficking the members of the DTG
illegally carried guns and stashed both drugs and guns in
alleyways and in a nearby playground. Law enforcement
conducted numerous controlled purchases of drugs from
members of the DTG, using cooperating sources and
undercover officers. Controlled purchases and use of
firearms were surveilled, audiotaped, and videotaped by the
DEA and the FBI. We find that any arguable violation of
Rule 704(b) was harmless and not reversible error in light of
the evidence that supports Womack’s and Whitehead’s
membership in the conspiracy.
2. Claims of Womack and Whitehead Regarding
Jury Instructions and Interrogatories on
Attributable Drug Quantity
Appellants Whitehead and Womack9 argue that the
District Court erred in its instructions and interrogatories to
the jury concerning the quantity of drugs for which they were
held responsible. Because an objection in this regard was not
preserved at trial, this argument is reviewed on appeal for
plain error. United States v. Boone, 279 F.3d 163, 174 n.6
(3d Cir. 2002).
It is a defendant’s burden to establish plain error.
United States v. Olano, 507 U.S. 725, 734-35 (1993). To
satisfy this burden, a defendant must prove that: (1) the Court
erred; (2) the error was obvious under the law at the time of
review; and (3) the error affected substantial rights, that is,
9
“Pursuant to Fed. R. App. P. 28(i), Womack joins in the
arguments of Appellant [Whitehead].” Womack Br. 22.
14
the error affected the outcome of the proceedings. Johnson v.
United States, 520 U.S. 461, 467 (1997). If all three elements
are established, the Court may, but need not, exercise its
discretion to award relief. Id. That discretion should be
exercised only in cases where the defendant is “actually
innocent” or the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Olano,
507 U.S. at 736 (quoting United States v. Atkinson, 297 U.S.
157, 160 (1936)).
The District Court instructed the jury as follows:
I mentioned this before, but will
reiterate again, I instruct you as a
matter of law that cocaine, cocaine
base, also known as crack, and heroin
are controlled substances and are
prohibited under federal law. It is for
you to decide, however, whether the
government has proven beyond a
reasonable doubt that any defendant
distributed a mixture or substance
containing such an illegal substance.
The evidence received in this case
need not prove the actual amount of the
controlled substance that was part of
any alleged transaction or the exact
amount of the controlled substance
alleged in the indictment as distributed
by the defendant. However, and you
will see this when we get to the jury
interrogatories, in some instances the
jury interrogatories will ask you to
make specific findings regarding an
amount attributable or reasonably
foreseeable as to the quantity of illegal
substances with respect to each
defendant allegedly involved in the
conspiracy. Where there is such an
interrogatory asking you for an amount,
if you first found the defendant guilty
of the charge, meaning you agreed that
15
that distribution took place, then in
answering the following question about
amount, this is all clearly set forth, the
issue will be whether the government
has proved beyond a reasonable doubt
that at least the measurable amount
indicated was in fact knowingly and
intentionally distributed, even if it
cannot prove the actual amount. So the
burden of proof that the government
has as to the specific amounts is, they
must show at least a certain amount
beyond a reasonable doubt. Again,
when we go through the interrogatories,
I will show you how those questions
arise.
Whitehead App. 1991. The Court also specifically instructed
the jury that its findings in response to the interrogatories
must be unanimous and beyond a reasonable doubt.
Specifically, the District Court charged the jury as follows:
Now, the evidence in this case need
not prove the actual amount of the
controlled substance that was part of
the alleged transaction or the exact
amount of the controlled substance
alleged in the indictment as possessed
by the defendant with intent to
distribute. However, as I mentioned, in
those instances where you have
interrogatory findings, and you are
asked to make specific findings about
an attributable or reasonably
foreseeable quantity of illegal
substances, I’m going to direct you to
the following. Where there is such an
interrogatory, if and only if you found
the defendant guilty of that charge, then
in answering the following question
about the amount, the issue is whether
the government has proven beyond a
reasonable doubt that at least that
16
measurable amount indicated in the
interrogatory was in fact knowingly and
intentionally distributed, even if it
cannot prove the actual amount. Again,
the interrogatory will ask you have
they, beyond a reasonable doubt,
proven that amount, as to that particular
charge.
Now, with respect to the conspiracy
charge, again in some cases you will be
asked to answer questions known as
jury interrogatories and to decide
whether the offense involves certain
weights or quantities of controlled
substances. And I will ask you to
follow them along. And once again,
unless you find a defendant guilty of
the crime, then the question as to the
amount is irrelevant and need not be
considered.
If you find a defendant guilty, then
with respect to not only the substantive
charge itself your verdict must be
unanimous, but with respect to any
questions about quantities of drugs your
verdict must also be unanimous. All
right? Which means the government
must have persuaded you beyond a
reasonable doubt as to any weight or
quantity of the controlled substances in
question. That same burden of proof
applies not just to guilt or innocence,
but it applies as well if there is a
question about an amount.
Id.Answering interrogatories, the jury found Whitehead
and Womack each responsible for a conspiracy involving 280
grams or more of crack, and 500 grams or more of cocaine.
17
The jury found Womack also responsible for a conspiracy
involving heroin.
The interrogatory that Womack and Whitehead
challenge reads:
Do you unanimously agree, by proof
beyond a reasonable doubt, that the
quantity of the mixture or substance
containing a detectable amount of
cocaine base (“crack”) which was
involved in the conspiracy and which
was attributable to and/or reasonably
foreseeable to the defendant was 280
grams or more?
Id. at 122-24 (interrogatories on the counts against Womack),
128-29 (interrogatories on the counts against Whitehead).
The jury answered “yes” to this question as to both Womack
and Whitehead, and “yes” to a further question asking
similarly if the jury found that the quantity of (powdered)
cocaine involved in the conspiracy and that was attributable
to and/or reasonably foreseeable to Womack and Whitehead,
respectively, was 500 grams or more.
“The jury, when determining drug quantity for
purposes of the mandatory minimum [in a controlled
substances conspiracy case], may attribute to a defendant only
those quantities involved in violations of § 841(a) that were
within the scope of, or in furtherance of, the conspiracy and
were reasonably foreseeable to the defendant as a
consequence of the unlawful agreement.” United States v.
Williams, 974 F.3d 320, 366 (3d Cir. 2020). “[T]he proper
inquiry is to determine the violations of § 841(a) within the
scope of the conspiracy, or in furtherance of it, that were
reasonably foreseeable to the defendant as a natural result of
his unlawful agreement. All drug quantities involved therein
are attributable to the defendant.” Id. at 366-67.
Womack and Whitehead argue that these
interrogatories and the related jury instructions did not
18
conform to Williams.10 They request a new trial, or at least
resentencing at a lower offense level.
Womack and Whitehead complain that the
interrogatories asked the jury to ascertain whether “the
quantity of the mixture or substance containing a detectable
amount of cocaine base (‘crack’) which was involved in the
conspiracy and which was attributable to and/or reasonably
foreseeable to the defendant was 280 grams or more.”
Whitehead Br. 35 (quoting Whitehead App. 716-17) (emph.
added by Whitehead). They argue that the interrogatories did
not define “involved in the conspiracy,” or “attributable to . . .
the defendant.” Id. at 35. Appellants contend that the District
Court did not require the jury to “determine the violations of
§ 841(a)” whose quantities were, for each separate defendant,
“within the scope of the conspiracy, or in furtherance of it,”
nor those which “were reasonably foreseeable to the
defendant as a natural result of his unlawful agreement.” Id.
(quoting Williams, 974 F.3d at 366). They further complain
on appeal that the interrogatories did not require the jury to
find “both within-the-scope (or in furtherance) and
foreseeability, as required by Williams but rather allowed
conviction on either one.” Whitehead Br. 35 (emph. in
original).
We find the District Court did not err in its wording of
the challenged interrogatories and instructions. The
interrogatories referred to the quantity of the substance
containing the controlled substance “which was involved in
the conspiracy and which was attributable to and/or
reasonably foreseeable to the defendant.” Womack App.
122-24 (emph. added), 128-29 (emph. added). As the
Government points out, in context, it was made clear that in
order to include an amount of crack or other illegal substance
relevant to each respective defendant, the jury was required to
find that it was involved in the conspiracy. The jury was then
required to determine whether the crack or other substance
10
We note that Williams was decided in 2020, several years
after appellants were convicted, and as we point out supra,
under plain error review, a defendant must prove, among
other things, that the alleged error was obvious under the law
at the time of review, see Johnson, 520 U.S. at 467.
19
was “attributable to . . . the defendant,” “reasonably
foreseeable to the defendant,” or both. The instructions and
interrogatories clearly directed the jury that if, after finding
that the particular amount of crack or otherwise was
“involved in the conspiracy,” the jury found that it was not
attributable to the defendant and that it was not reasonably
foreseeable to him, it could not be included.
The instructions and interrogatories given by the
District Court as to the quantity of drugs attributable to
Womack and Whitehead, respectively, did not constitute
error, much less plain error. Further, even assuming
arguendo the instructions or interrogatories somehow
constituted error, neither Womack nor Whitehead has
produced any persuasive reason to believe that the jury’s
quantity findings or the outcome of the proceedings would
have been different with different wording of the special
interrogatories or instructions or further explanations of the
applicable terms consistent with applicable law. In any event,
Womack and Whitehead have not met their burden of
establishing that their substantial rights were affected, i.e.,
that any error affected the outcome of the proceedings. See
Johnson, 520 U.S. at 467.
3. Claims of Burton and Whitehead on
Admissibility of Evidence of Firearms and
Violence
Appellants Burton and Whitehead argue that the
District Court erred in admitting evidence of firearms and acts
of violence in the vicinity of Rose and Upland Streets during
the period of the conspiracy. They contend that this evidence
was unduly prejudicial and that the prejudice outweighed the
probative value, in violation of Federal Rule of Evidence
403.11
11
Although Burton’s brief on appeal also mentions Fed. R.
Evid. 404(b), which relates to evidence of other crimes,
wrongs, or acts, he also acknowledges in his brief (and his
counsel acknowledged at argument on appeal) that the issue
on appeal here does not concern Rule 404(b), but rather
concerns Rule 403. See Burton Br. 21 (pointing out that
20
A district court’s ruling on the admission of evidence
is generally reviewed for abuse of discretion. United States v.
Green, 617 F.3d 233, 239 (3d Cir. 2010). Where the
appellant did not object to the admission of evidence in the
trial court, review is for plain error. Boone, 279 F.3d at 174
n.6.
Whitehead claims in his brief on appeal that evidence
of shootings was admitted “over strenuous objection, . . .
despite the District Court’s finding and the Government’s
stipulation that the underlying ‘beef’ was unrelated to the
drug trade.” Whitehead Br. 10 (citing Whitehead App. 1771,
1178). The Government responds that none of the defendants
objected to the evidence on the ground that Whitehead raises.
Nonetheless, the Government argues the District Court did
not abuse its discretion in admitting the challenged evidence,
in any event. We agree that the District Court properly
admitted the evidence of violence and firearms possession
and use, and Burton and Whitehead fail to show abuse of
discretion.
Rule 403 provides: “The court may exclude relevant
evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. “Evidence cannot be excluded under Rule
403 merely because its unfairly prejudicial effect is greater
than its probative value. Rather, evidence can be kept out
only if its unfairly prejudicial effect ‘substantially
certain caselaw “deals with Federal Rule of Evidence 404(b)
or the ‘prior bad acts’ rule whereas the instant case deals with
acts committed during the conspiracy that are (allegedly)
more prejudicial than probative.”) (parenthetical added). In
any event, as Burton suggests, there was no violation of Rule
404(b) here, where there was no admission of “[e]vidence of
any other crime, wrong, or act . . . to prove [Burton’s]
character,” see Fed. R. Evid. 404(b). Rather, evidence was
admitted to show the possession and use of firearms by
Burton and other members of the conspiracy in furtherance of
their agreement.
21
outweigh[s]’ its probative value.” Cross, 308 F.3d at 323(quoting Fed. R. Evid. 403). Moreover, when evidence is
highly probative, “even a large risk of unfair prejudice may
be tolerable.” Id. Here, the District Court properly admitted
the evidence of violence and firearms possession and use, and
there was no abuse of discretion.
“[T]he possession of weapons is highly probative of
the large scale of a narcotics distribution conspiracy and the
type of protection the conspirators felt they needed to protect
their operation.” See United States v. Price, 13 F.3d 711,
717 (3d Cir. 1994) (internal quotation marks omitted). Here,
the District Court properly admitted the evidence being
challenged on appeal because the danger of unfair prejudice
did not substantially outweigh the probative value of the
evidence under Rule 403. See, e.g., United States v. Balter,
91 F.3d 427, 442 (3d Cir. 1996) (District Court is afforded
“broad discretion” to determine the admissibility of evidence
under Rule 403).
The Second Superseding Indictment alleged multiple
“overt acts” that describe members of the DTG carrying or
using firearms, and storing them in common areas (such as
the alleyways and other locations) for use by members of the
DTG in order to protect themselves and their drug trafficking
territory “[i]n furtherance of the conspiracy, and to
accomplish its objects.” Burton Supp. App. 10-41. Evidence
of possession and use of firearms by the conspirators in this
case was critical in light of the Government’s theory of the
case that through the use of firearms and other acts of
violence, the conspirators together declared and defended
their turf, such that sales of illegal drugs were not solo acts,
but conduct made possible by and in furtherance of a
conspiracy.
William Dorsey, a leader of the conspiracy, testified
that members of the DTG stashed guns in alleyways and a
nearby playground so they could be accessed by the members
of the DTG and that, “[i]f someone came through shooting
you could shoot back.” Id. at 129. Dorsey identified photos
of guns recovered by law enforcement and guns kept by
members of the DTG, including Burton. Dorsey stated that
22
he saw various members of the DTG in possession of
firearms, for the purposes he described.
Dorsey testified that a “beef” emerged between
younger members of the group and “another younger crowd
from a different part of town,” which he and others tried to
resolve because the violence was bad for business. Id. at 124.
One incident to which Dorsey testified took place on April
17, 2013, in which Whitehead was shot in the playground that
was frequented by the DTG.
Dorsey said that 10 days later, on April 27, 2013,
another shooting occurred on Upland Street. Dorsey testified
that he returned fire on individuals who were shooting as they
drove on Upland and Rose Streets. He further testified that
the shootings on April 17 and 27 were amongst others that
had occurred during that time, and that he was upset about the
violence because the group could not make any money with
shootings going on which resulted in more police presence in
the area.
After this portion of Dorsey’s testimony, the Court
instructed the jury:
There has been discussion about a beef,
is the term that has been used, between
some people near Rose and Upland and
some people from another area of
Chester. Just want to make it clear, that
there is no suggestion by the
government that that was in any way
related to the drug trade, and also want
to make it clear that that is no part of
the charges in this case. It is not for
your consideration, other than it sets the
background for what you just witnessed
in terms of Mr. Dorsey’s behavior on
that date. . . . But whatever the
underlying beef was, that is not in front
of you . . . and the government has
stipulated at sidebar it was not related
to any drug trade which is the subject
of this case.
23
Id. at 127-28 (emph. added). Dorsey then testified to a third
shooting that occurred on August 21, 2013, in which he shot
at a vehicle in the area.
We agree with the Government that Dorsey’s
testimony was highly relevant to establish the use of guns to
protect the conspiracy, and that the Court also assured that the
jury was instructed regarding the proper use of the evidence
and the Government’s stipulation. Further, as we explained
in United States v. Bailey, 840 F.3d 99 (3d Cir. 2016), “such a
stipulation mitigates the danger of unfair prejudice.” Id. at
120 (citing United States v. Jones, 566 F.3d 353, 363-65 (3d
Cir. 2009)). The District Court’s limiting instructions here
made clear to the jury that there was no suggestion by the
Government that the aforementioned underlying “beef” was
in any way related to the charges in this case. See Burton
Supp. App. at 127-28; see also Bailey, 840 F.3d at 120.
At the trial, the testimony of several witnesses,
including cooperating defendants and other witnesses,
included descriptions of possession, stashing, and retrieving
firearms in alleys and a playground, as well as shootings
involving members of the DTG. The testimony of Dorsey, a
leader of the conspiracy, clearly indicated the use and purpose
of firearms for protecting and furthering the conspiracy, and
the testimony of other witnesses involving firearms and
violence bolstered and corroborated that testimony.
The testimony challenged by Burton and Whitehead on
appeal about the possession and use of firearms was highly
probative of the Government’s theory that conspirators kept
firearms at the ready in the area they controlled to protect the
drug trafficking activity and deter interlopers, and the District
Court properly gave limiting instructions to the jury where
necessary in response to objections. See Price, 13 F.3d at 717(acknowledging that firearms possession is highly probative
of the type of protection narcotics distribution conspirators
felt they needed to protect their operation).
As for prejudice, “the prejudice against which [Rule
403] guards is unfair prejudice – prejudice of the sort which
clouds impartial scrutiny and reasoned evaluation of the facts,
24
which inhibits neutral application of principles of law to the
facts as found.” United States v. Starnes, 583 F.3d 196, 215
(3d Cir. 2009) (quoting Goodman v. Pa. Tpk. Comm’n, 293
F.3d 655, 670 (3d Cir. 2002)). Here, the evidence relating to
the non-drug-related “beef,” the consequent shootings, and
the efforts of Dorsey, Burton, Whitehead and others to reduce
the negative impact on their drug profits was relevant,
probative, and not unfairly prejudicial, particularly in light of
the District Court’s limiting instructions to the jury. The
District Court neither erred nor abused its discretion in
admitting the evidence challenged on appeal.
(B) SENTENCING CHALLENGES
1. Whitehead’s Career Offender Status
Whitehead argues that the District Court erred in
finding that he was a career offender under Section 4B1.2 of
the United States Sentencing Guidelines (“Guidelines” or
“Sentencing Guidelines”). Whether a conviction constitutes a
predicate career offender offense under the Guidelines is a
question of law subject to plenary review. United States v.
Abdullah, 905 F.3d 739, 743 n.6 (3d Cir. 2018).
Section 4B1.1(a) of the Guidelines states:
A defendant is a career offender if (1)
the defendant was at least eighteen
years old at the time the defendant
committed the instant offense of
conviction; (2) the instant offense of
conviction is a felony that is either a
crime of violence or a controlled
substance offense; and (3) the
defendant has at least two prior felony
convictions of either a crime of
violence or a controlled substance
offense.
U.S.S.G. § 4B.1(a). Section 4B1.2(b) states:
25
The term “controlled substance
offense” means an offense under
federal or state law, punishable by
imprisonment for a term exceeding one
year, that prohibits the manufacture,
import, export, distribution, or
dispensing of a controlled substance (or
a counterfeit substance) or the
possession of a controlled substance (or
a counterfeit substance) with intent to
manufacture, import, export, distribute,
or dispense.
Id. § 4B1.2(b). On appeal, Whitehead points out that the
Presentence Investigation Report (“PSR”) classified him as a
career offender based on his having at least two prior felony
convictions for controlled substance offenses in the Court of
Common Pleas of Delaware County, Pennsylvania. This
required his offense level to be raised from 34 to 37.
At one of the three hearings on Whitehead’s
sentencing, the Government introduced certified copies of
state court records, which the District Court found established
that Whitehead’s 2000 and 2006 convictions were for
offenses that each qualified as a “controlled substance
offense” under Section 4B1.2(b) of the Guidelines. On
appeal, Whitehead argues that the District Court erred in
finding that he was a career offender. We disagree.
“We use the categorical approach to determine if a past
conviction is a career offender predicate, considering only the
elements of the conviction statute, not the facts of the
defendant’s actual misconduct.” United States v. Dawson, 32
F.4th 254, 260 (3d Cir. 2022). “We compare the elements of
that statute with the relevant Guidelines provision – here, §
4B1.2(b)’s definition of a ‘controlled substance offense.’”
Id. (citing United States v. Williams, 898 F.3d 323, 334 (3d
Cir. 2018)). “If the statute proscribes a broader range of
conduct than the Guideline, then a conviction for the state
offense will not count as a controlled substance offense.” Id.There appears to be no dispute on appeal that this is
one of a “narrow range of cases” where the court may apply
26
the “modified categorical approach.” See United States v.
Abbott, 748 F.3d 154, 157 (3d Cir. 2014) (citing Taylor v.
United States, 495 U.S. 575, 602 (1990)). This approach
allows a court to look beyond the elements of a prior
conviction to decide if it can serve as a predicate offense. Id.In particular, the Court can “look beyond the face of the
statute to the ‘charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented’ to determine
which of the alternative elements was involved in the
defendant’s conviction.” Id. (quoting Shepard v. United
States, 544 U.S. 13, 16 (2005)).
“[T]he modified categorical approach may be used
when a statute underlying a prior conviction ‘lists multiple,
alternative elements,’ . . . rather than a ‘single, indivisible set
of elements.’” Id. (citing Descamps v. United States, 133 S.
Ct. 2276, 2285, 2282 (2013)) (citations omitted). These are
known as “divisible statutes.” Id. (citing Descamps, 133 S.
Ct. at 2281). “The purpose of the modified categorical
approach is to ‘help effectuate the categorical analysis when a
divisible statute . . . renders opaque which element played a
part in the defendant’s conviction.’” Id. (citing Descamps,
133 S. Ct. at 2283).
Whitehead does not dispute that his two cited prior
convictions (collectively “Predicate Offenses”) were for
violations of 35 Pa. Stat. § 780-113(a)(30), which prohibits a
variety of drug offenses. In Abbott, our Court noted that 35
Pa. Stat. Ann. § 780-113(a)(30) is a divisible statute subject to
the modified categorical approach. Abbott, 748 F.3d at 160.
Thus, the District Court was entitled to consider the certified
records of conviction to determine the precise offense of
conviction. See United States v. McCants, 952 F.3d 416, 427
(3d Cir. 2020).
For each of the Predicate Offenses, each Criminal
Information makes clear that the substance involved was
cocaine, see Whitehead App. 2068, 2095, and each Certificate
of Imposition of Judgment of Sentence identifies the offense
as “Delivery of a Controlled Substance,” see id. at 2050,
2075. Whitehead does not dispute the accuracy of these
certified records of conviction or the propriety of the District
27
Court relying on state certified records for sentencing
purposes in this case.
Whitehead’s objection on appeal to his classification
as a career offender is not based on a question about the
nature of the substance involved in the prior offenses – there
is no dispute that the substance involved in the Predicate
Offenses was cocaine. The issue he raises is whether the
conduct element of the Predicate Offenses was within the
scope of what section 4B1.2(b) covers.
Whitehead contends that “the Career Offender
guideline requires that the prior state offense have been for
‘distribution or dispensing of a controlled substance,’” see
Whitehead Br. 45 (citing U.S.S.G. § 4B1.2(b)), but that
“‘delivery,’ as defined in Pennsylvania, encompasses more
conduct than ‘distribution or dispensing’ and is therefore
impermissibly ‘broader,’” id. In particular, he argues that
Pennsylvania law defines “delivery” as any “transfer [of a
substance] from one person to another,” and that “[d]elivery”
under Pennsylvania law can exist in any of three forms:
“administering,” “dispensing,” and “distributing.” Id. at 45-
46.
Whitehead argues that Section 780-113(a)(30) is
broader than a “controlled substance offense” as defined in
Section 4B1.2, because he contends Section 780-113(a)(30)
prohibits administering a controlled substance, and a
“controlled substance offense” as defined in Section 4B1.2(b)
does not. His argument, however, is without merit because
Section 780-113(a)(30) prohibits manufacturing or delivering
a controlled substance, or possessing a controlled substance
with intent to manufacture or deliver it, by unauthorized
persons. It says nothing about administering drugs.
The relevant Pennsylvania statute provides:
(a) The following acts and the causing
thereof within the Commonwealth
are hereby prohibited: . . .
(30) Except as authorized by this
act, the manufacture, delivery, or
28
possession with intent to
manufacture or deliver, a
controlled substance by a person
not registered under this act, or a
practitioner not registered or
licensed by the appropriate State
board, or knowingly creating,
delivering or possessing with
intent to deliver, a counterfeit
controlled substance.
35 Pa. Stat. § 780-113(a)(30). Section 780-102(b) defines
“deliver” and “delivery” as “the actual, constructive, or
attempted transfer from one person to another of a controlled
substance, other drug, device or cosmetic whether or not there
is an agency relationship.”12 Id. § 780-102(b). That section
defines “distribute” as “to deliver other than by administering
or dispensing a controlled substance, other drug, device or
cosmetic.”13 Id. § 780-102(b). On the other hand,
“Administer” is defined under Pennsylvania law as “the direct
application of a controlled substance, other drug or device,
whether by injection, inhalation, ingestion, or any other
means, to the body of a patient or research subject.” Id.
It appears only three of Section 780-113’s
subsections use the term “administer.” Section 780-
113(a)(30) is not one of those three subsections, all of which
pertain to practitioners, their professional assistants, and other
registered persons. Section 780-113(a)(13) relates to the sale,
dispensing, distribution, prescription, or gift of a controlled
substance to a drug-dependent person “unless said drug is
12
“[T]he federal counterpart to this statute, the Controlled
Substances Act (CSA), also defines the ‘delivery’ of a
controlled substance to mean ‘the actual constructive, or
attempted transfer of a controlled substance,’ 21 U.S.C. §
802(8).” United States v. Glass, 904 F.3d 319, 322 (3d Cir.
2018).
13
The federal counterpart is nearly identical. Title 21 U.S.C.
§ 802(11) states that “[t]he term ‘distribute’ means to deliver
(other than by administering or dispensing) a controlled
substance or a listed chemical.”
29
prescribed, administered, dispensed or given for the cure or
treatment of some malady other than drug dependency,”
except under specified exceptions. Id. § 780-113(a)(13).
Section 78-113(a)(14) prohibits the
administration, dispensing, delivery,
gift or prescription of any controlled
substance by any practitioner or
professional assistant under the
practitioner’s direction and supervision
unless done (i) in good faith in the
course of his professional practice; (ii)
within the scope of the patient
relationship; (iii) in accordance with
treatment principles accepted by a
responsible segment of the medical
profession.
Id. § 78-1139a)(14). Finally, section 780-113(a)(35) relates
to the misrepresentation of noncontrolled substances as
controlled substances. Subsection 780-113(a)(35)(v)(C)
exempts from its provisions “[l]icensed medical practitioners,
pharmacists and other persons authorized to dispense or
administer controlled substances and acting in the legitimate
performance of their professional license pursuant to
subclause (v)(B).” Id. § 78-1139a)(35)(v)(B).
Not only does Section 780-113(a)(30) say nothing
about prohibiting the administration of controlled substances,
but it expressly excludes the possibility that “administering,”
as defined in Section 780-102, falls within its scope. Since,
as explained above, “administering” means applying a “direct
application of a controlled substance, other drug or device . . .
to the body of a patient or research subject,” see id. § 780-
102(b), by definition, it is limited to actions of practitioners or
other registered persons within the context of a patient
relationship or research study. Section 780-113(a)(30)
expressly excludes actions by such persons. It prohibits “the
manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a person
not registered under this act, or a practitioner not registered
or licensed by the appropriate State board” and excludes
30
actions “authorized by this act.” Id. § 780-113(a)(30) (emph.
added).
Whitehead’s prior convictions were for violations
under 35 Pa. Stat. § 780-113(a)(30). Section 780-113(a)(30)
does not prohibit administering a controlled substance, and it
is therefore not broader than a “controlled substance offense”
in that regard under section 4B1.2 of the Guidelines. The
District Court did not err in finding the Predicate Offenses
constituted predicate career offender offenses under the
Guidelines.
2. Payne’s and Burton’s Claims Regarding
Acceptance of Responsibility
Payne and Burton argue that the District Court erred in
finding that they did not qualify for a 2-level reduction in
their Sentencing Guidelines offense levels for acceptance of
responsibility. “Under the sentencing guidelines, a defendant
is entitled to a two-level reduction to his calculated offense
level if he ‘clearly demonstrates acceptance of responsibility
for his offense.’” United States v. Muhammad, 146 F.3d 161,
167 (3d Cir. 1998) (quoting U.S.S.G. § 3E1.1(a)).
We apply a clearly erroneous standard of review to the
District Court’s decisions that Payne and Burton were not
entitled to a reduction in their offense levels for acceptance of
responsibility. Id. “Because the sentencing judge ‘is in a
unique position to evaluate a defendant’s acceptance of
responsibility,’ we give great deference on review to a
sentencing judge’s decision not to apply the two-level
reduction for acceptance of responsibility to a particular
defendant.” United States v. Barr, 963 F.2d 641, 657 (3d Cir.
1992) (citing U.S.S.G. § 3E1.1 app. note 5).
Payne argues that although he put the Government to
its burden of proof at trial, he was entitled to a reduction of
his sentence under the Guidelines for acceptance of
responsibility because, in a pretrial meeting with the
Government, which he describes as a “proffer session,” he
admitted that he did distribute controlled substances, and that
he also communicated this in his opening statement and
closing argument at trial. The District Court found that
31
there are charges to which Mr. Payne
acknowledged responsibility, but for
which – others for which he did not and
the jury found him guilty most
importantly in conspiracy and he also in
adopting a certain strategic position at
trial had the benefit of an acquittal on
four counts and so weighs heavily on
my decision in not finding that there
was an acceptance of responsibility.
Payne Am. App. 34.
Burton argues that the District Court erred in denying a
downward departure in light of the fact that he pled guilty to
the individual substantive charges. In denying a downward
variance for acceptance of responsibility as to Burton, the
District Court noted that although Burton pled guilty to the
individual substantive charges, there was no
“acknowledgement globally of responsibility” in this case,
since Burton proceeded to trial on the Conspiracy charge.
Burton Jt. App. 60. The Court further noted that in light of
the
overwhelming evidence by way of
videotape and audiotape of the
controlled buys and where Mr. Burton
was arrested in possession of two
firearms, there’s actually a tactical
advantage to the pleas that he entered
and I commend you for that. . . . And
it’s saying to the jury well, we’ll admit
to these things while we defend
conspiracy. And so I think that as a
result of that advantage, again, which
was good lawyering on your part, I
don’t believe that acceptance of
responsibility would be something that
would entitle Mr. Burton to that
downward adjustment.
Id. at 60-61.
32
Application note 2 to Guidelines section 3E1.1
provides in relevant part: “This adjustment is not intended to
apply to a defendant who puts the government to its burden of
proof at trial by denying the essential factual elements of guilt
. . .” The District Court’s determination that Payne and
Burton did not clearly show that they had accepted
responsibility under section 3E1.1 was not clearly erroneous,
where, among other things, Payne and Burton have never
admitted that they were guilty of conspiracy, as charged in the
indictment, and where they put the Government to its burden
of proof at trial to establish that they participated in the
conspiracy, and they were found guilty by a jury. They
certainly did not “clearly demonstrate[] acceptance of
responsibility for [that] offense.” See Muhammad, 146 F.3d
at 167 (quoting U.S.S.G. § 3E1.1(a)).
3. District Court’s Calculation of Drug Quantity
Attributed to Burton
Burton argues that the District Court erred in its
determination of the amount of drugs that could properly be
attributed to him in relation to the conspiracy. Because
Burton did not raise in the District Court the grounds he raises
on appeal with regard to his sentence, our review on appeal is
only to ensure that plain error was not committed. United
States v. Couch, 291 F.3d 251, 252-53 (3d Cir. 2002) (citing
Fed. R. Crim. P. 52(b)).
Burton pled guilty to all 23 counts against him, except
the Conspiracy charge, of which the jury found him guilty.
The District Court sentenced Burton on July 6, 2018 to 300
months in prison, to be followed by a term of supervised
release of eight years, and a special assessment of $1,400.
In the PSR, the Probation Office estimated,
conservatively, that Burton should be held accountable for the
distribution of at least 1,050 grams of crack. It estimated that
the conspiracy involved at least 1,000 grams of cocaine and
200 grams of heroin. These amounts equated, under the
Guidelines equivalency table, to 4149.55 kilograms of
marijuana, producing an offense level of 32, increased by one
33
under section 2D1.2(a)(1) based on conduct in proximity to a
protected location. The advisory Guidelines range was 235 to
293 months, at the applicable criminal history category VI.
On appeal, Burton cites Apprendi v. New Jersey, 530
U.S. 466 (2000), and United States v. Cotton, 535 U.S. 625(2002), and he argues that “the current law under [these two
cases] require[s] that a sentencing factor deemed an element
under Apprendi must be charged in the indictment and
submitted to the jury.” Burton Br. 31. In Apprendi, the
Supreme Court held that “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.
In federal prosecutions, such facts must also be charged in the
indictment.” Cotton, 535 U.S. at 627 (internal quotation
marks and citations omitted).
Here, Burton does not argue that his sentence was
“beyond the prescribed statutory maximum,” much less
demonstrate that it was. Indeed, the Government argues that
the statutory maximum for Burton’s many offenses measures
in the hundreds of years. In any event, since Burton does not
argue that the sentence imposed here exceeded the statutory
maximum for Burton’s conviction, any claim of an Apprendi
violation is without merit. See, e.g., United States v.
Williams, 235 F.3d 858, 862-63 (3d Cir. 2000); United States
v. Cepero, 224 F.3d 267, n.5 (3d Cir. 2000) (en banc)
(“Because application of the Sentencing Guidelines in this
case does not implicate a fact that would increase the penalty
of a crime beyond the statutory maximum, the teachings of
[Apprendi] are not relevant here.”).14
14
In his brief on appeal, see Burton Br. 32, Burton also cites
United States v. Miele, 989 F.2d 659 (3d Cir. 1993), where
our Court found that evidence of drug quantity considered at
sentencing must have a sufficient indicia of reliability to
support its probable accuracy. Id. at 668; see also United
States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993)
(acknowledging that “in calculating the amount of drugs
involved in a particular operation, a degree of estimation is
sometimes necessary”). Here, Burton offers no argument
about the unreliability of any evidence considered by the
District Court at sentencing.
34
On appeal, Burton also complains that the PSR’s
mathematical calculations appear to be inconsistent. See
Burton Br. 30 (citing PSR ¶ 268). In particular, he notes that
in one paragraph of the PSR, it found that, according to the
trial testimony, several co-conspirators generally purchased 7
to 14 grams of crack every 3 to 5 days, and that using a
conservative estimate that defendant distributed crack on 75
days and sold 7 grams per day, the defendant would have
been responsible for distribution of approximately 525 grams
of crack. Therefore, conservatively taking into account that
Burton conspired to distribute drugs with at least one other
person, the PSR found he should be held accountable for the
distribution of at least 1,050 grams of crack.
Burton correctly points out that if a conspirator
purchased 7 to 14 grams every 3 to 5 days, the most
conservative view would be that a conspirator purchased 7
grams every 5 days, meaning that during a 75-day period a
conspirator would purchase and be responsible for the
distribution of 105 grams of crack, not 525 grams. See id. at
30. While acknowledging this as well, the Government
responds that, based on the trial evidence, the record supports
a conservative estimate well in excess of the quantity assessed
in the PSR. We agree.
At trial, there was extensive testimony about the
quantities of cocaine and heroin that Dorsey supplied to
members of the DTG, including Burton. The evidence
indicated that Burton resold that cocaine in the form of
powder cocaine or crack in bulk quantities to other members
of the DTG for resale in the Rose and Upland neighborhood.
Dorsey testified that between August 2012 and September
2014, he and other members of the DTG sold drugs in the
Rose and Upland area: “between dime and 20 sales - $10 and
$20 sales” of “crack and powder cocaine” and that drugs were
sold in the area all day, seven days per week. Burton Supp.
App. 99-101.
The testimony indicated that during the time of
Burton’s participation in the conspiracy, he was selling
cocaine, crack, and heroin, along with his co-defendants.
Officer Timothy Garron testified to frequently seeing Burton
35
with co-defendants Charles Stansbury, Kareem York,
JaVaughn Anderson, Whitehead, Jamear McGurn, and
Edwards in the neighborhood playground, particularly in
March and April of 2013. Id. at 162. Officer Garron’s
testimony also indicated that he observed Burton and these
other DTG members engaging in what he believed, based on
his knowledge and experience, to be drug sales in the
alleyways of the Rose and Upland area, on a near-daily basis.
Id. at 164-68. The testimony was corroborated with pole
camera footage showing Burton and his co-conspirators in
these areas. Id.
A civilian witness also testified to purchasing crack
from Burton as much as three to four times per week over the
course of several months. Id. at 190-91. Her testimony
indicates that she purchased between $40 and $200 worth of
crack from Burton on these occasions, and pole camera
footage of two of those purchases was played for the jury
during her testimony. Id.
Co-conspirator Anderson testified that Burton was
selling him approximately a half-ounce to an ounce of crack
per day when they were together in the Rose and Upland area
from approximately February 2013 to April 30, 2013. Id. at
312-13. Anderson testified that he purchased “eight-balls”
(3.5 grams) to quarter-ounces (7 grams) of crack from Burton,
which Anderson would resell within three to four days. Id.
He also identified multiple other individuals who were selling
drugs with him in the area. Id.
Anderson testified that he observed Burton selling
crack and heroin. Id. at 313. With regard to crack, Anderson
testified that he observed Burton selling at least a half to an
ounce, “which is 28 grams, and a half is 14 grams,” and he
testified he observed Burton sell a “half ounce of crack” (14
grams) “on a daily basis.” Id. Anderson also testified that he
observed Whitehead supply Burton with an ounce (28 grams)
of crack on each of approximately four or five separate
occasions. He also witnessed Burton supply a particular
juvenile with a “ballgame, 3.5 grams” of crack on
approximately four occasions, and co-conspirator Erven
Towers-Rolon with approximately 14 grams of crack on at
least three occasions. Id. at 313-14. Anderson also observed
36
Burton supply Stansbury with approximately 3.5 grams of
crack on at least two occasions. Id.
Based on the trial evidence, the record supports a
conservative estimate well in excess of the aforementioned
quantity assessed in the PSR for which Burton could be held
accountable. Moreover, as the Government points out, in
taking into account that Burton conspired to distribute drugs,
it appears the Probation Office was also extremely
conservative in simply doubling its quantity attributable to
Burton, as if only one other confederate sold on behalf of the
DTG. Burton cannot establish on the existing record that the
District Court committed plain error in the drug quantity it
attributed to him in relation to the conspiracy.
4. Burton’s Claim for Minimal Role Reduction at
Sentencing
Burton argues that the District Court erred in not
granting a reduction in his offense level under the Sentencing
Guidelines for a “mitigating role.” Burton Br. 35. As we
have previously clarified:
We employ a mixed standard of review
when considering whether a defendant
was entitled to a base level reduction
for being a minimal or minor
participant in the criminal activity.
When the district court’s denial of a
downward adjustment is based
primarily on a legal interpretation of the
Guidelines the defendant claims to be
erroneous, we exercise plenary review.
By contrast, when the defendant takes
issue with the district court’s denial of a
reduction for being a minimal or minor
participant which was based primarily
on factual determinations, we review
only for clear error.
United States v. Carr, 25 F.3d 1194, 1207 (3d Cir. 1994)
(citations omitted). Here, the challenge is factual and
37
reviewed for clear error. Burton “bears the burden of
demonstrating that other participants were involved and that
under the [applicable standards] and the facts of his particular
case, the minor role adjustment should apply.” United States
v. Isaza-Zapata, 148 F.3d 236, 240 (3d Cir. 1998).
Section 3B1.2 of the Guidelines provides:
Based on the defendant’s role in the
offense, decrease the offense level as
follows:
(a) If the defendant was a minimal
participant in any criminal
activity, decrease by 4 levels.
(b) If the defendant was a minor
participant in any criminal
activity, decrease by 2 levels.
In cases falling between (a) and (b),
decrease by 3 levels.
U.S.S.G. § 3B1.2. The commentary states: “This section
provides a range of adjustments for a defendant who plays a
part in committing the offense that makes him substantially
less culpable than the average participant in the criminal
activity.” Id. § 3B1.2 app. note 3(A). The commentary
further states:
Subsection (a) applies to a defendant
described in Application Note 3(A)
who plays a minimal role in the
criminal activity. It is intended to cover
defendants who are plainly among the
least culpable of those involved in the
conduct of a group. Under this
provision, the defendant’s lack of
knowledge or understanding of the
scope and structure of the enterprise
and of the activities of others is
indicative of a role as minimal
participant.
38
Id. § 3B1.2 app. note 4.
District courts “are allowed broad discretion in
applying [section 3B1.2], and their rulings are left largely
undisturbed by the courts of appeal.” Isaza-Zapata, 148 F.3d
at 238. In determining whether a role adjustment is
warranted, courts should consider, among other factors: “(1)
the defendant’s awareness of the nature and scope of the
criminal enterprise; (2) the nature of the defendant’s
relationship to the other participants; and (3) the importance
of the defendant’s actions to the success of the venture.”
United States v. Brown, 250 F.3d 811, 819 (3d Cir. 2001).
Here, after hearing argument and considering the
evidence, the District Court explained:
I’m going to decline to reduce the
offense level on the basis of minimal
involvement in part because it was the
theme of the defense at trial and the
jury rejected the idea that Mr. Burton
was not involved beyond a reasonable
doubt, a much more onerous standard.
I have . . . [a] 78 page presentence
investigation report and mindful of the
argument that it was a minor role, went
back and read in detail through the
summation of the evidence which
included the controlled buys, the
surveillance and based upon that, I am
persuaded that although Mr. Burton’s
involvement was less than some of the
other conspirators, he cannot properly
under the guideline be considered a
minimal role in the conspiracy, and I
think the chronological argument is
undercut in two respects. First on the
front end, before controlled buys start,
there’s obviously investigation which I
recall from the trial showing Mr.
Burton’s involvement to identify
himself as someone to whom – from
39
whom controlled buys would be made.
And then on the back end, it was the
arrest with the firearms that terminated
his involvement.
. . . I am ultimately not persuaded
and so, I will deny a downward
reduction on that basis.
Burton Supp. App. 519.
The evidence supports the District Court’s denial of a
reduction in Burton’s offense level under the Guidelines for a
mitigating role. He pled guilty to 23 counts, including
firearms charges and distribution of crack and heroin within
the Rose and Upland area. The evidence indicated he was
aware of the nature and scope of the drug enterprise, and as
the District Court pointed out, the jury found the evidence
proved beyond a reasonable doubt that Burton’s defense of a
minimal or minor involvement in his participation of the
conspiracy was without merit.15 Indeed, William Dorsey,
Braheem Edwards, Naim Butler, and JaVaughn Anderson
testified that Burton regularly interacted with leaders of the
conspiracy, and evidence such as pole camera footage showed
Burton with the other DTG members in the Rose and Upland
area engaging in drug sales. Dorsey and Edwards each
testified to supplying Burton with bulk quantities of crack and
heroin for redistribution. Id. at 106-07, 489-90. Burton is
unable to show clear error in the District Court’s finding that
he was not entitled to a reduction in sentencing under section
3B1.2 of the Guidelines for his role in the offense.
5. Womack’s Sentence Enhancement for Firearms
Possession in Furtherance of Conspiracy
Appellant Womack argues that the District Court erred
in applying the 2-level enhancement under Guidelines section
15
As mentioned supra, Appellants do not argue on appeal
that there was insufficient evidence to support the
convictions.
40
2D1.1(b)(1) for possession of a dangerous weapon in
connection with the conspiracy offense. The question
whether a dangerous weapon was possessed in connection
with the offense is reviewed for clear error. United States v.
Demes, 941 F.2d 220, 222-23 (3d Cir. 1991).
Section 2D1.1(b)(1) of the Guidelines imposes a 2-
level sentence enhancement if “a dangerous weapon
(including a firearm) was possessed.” Also, Guidelines
section 1B1.3(a)(1)(B) states that “in the case of a jointly
undertaken criminal activity[,] all reasonably foreseeable acts
. . . that occurred during the commission of the offense of
conviction” are considered to be part of relevant conduct.
Here, Womack does not dispute that the Rose and
Upland DTG used and possessed firearms in furtherance of
the conspiracy. He contends that the evidence was
insufficient to establish that he knew, or had reason to know,
that his co-conspirators were in possession of a firearm. The
District Court rejected Womack’s arguments, and found that
the enhancement was warranted.
In denying Womack’s objection to the enhancement,
the District Court pointed out Womack’s personal history
with firearms and drug dealing as pertinent to whether it
would be reasonably foreseeable to him that this relatively
large enterprise engaging in these quantities of drugs would
involve weapons. In addition to being convicted in 1986 for
drug possession with intent to deliver and being arrested for
carrying a firearm during that time period, the District Court
pointed to Womack pleading guilty in federal court to a
conspiracy to rob a competing drug dealer, where that
conspiracy involved supplying a cooperating witness with a
firearm that did not have a serial number.
The Court further pointed to the testimony of
JaVaughn Anderson about a conversation between Womack
and Dorsey wherein Womack was bemoaning the fact that
there was gunplay at Rose and Upland, because he said that
was bad for business. See Womack App. 1722-24 (Anderson
relaying a conversation he heard between Dorsey and
Womack about the need to retaliate against interlopers by
“shooting back” because the interlopers were “making it hard
41
to make money.”). The Court also noted the close
relationship between Dorsey and Womack, and the evidence,
including videotape evidence of Dorsey discharging a firearm
on the streets. Id. at 872 (Dorsey testifying about his “close”
relationship with Womack, who was “family,” and revealing
that “we talked about everything”), 1717-18 (Anderson
testifying that Womack was Dorsey’s older cousin).
Based on Womack’s personal experience with drug
dealing and guns, Womack’s close relationship with Dorsey,
the testimony that Womack and Dorsey had a conversation
about the shootings occurring in the Rose and Upland area,
and the evidence of firearm possession and use by Dorsey and
other DTG members, the District Court found it was
reasonably foreseeable to Womack that members of the
conspiracy would possess and use a firearm in furtherance of
the purposes of the conspiracy. Id. at 2227-29. Based on the
totality of the evidence before the District Court at
sentencing, we find no error, much less clear error, in the
District Court’s determination that the 2-level enhancement
under Guidelines section 2D1.1(b)(1) applies.
III.
For the foregoing reasons, we affirm the Judgments of
conviction and sentence of Appellants.
42