United States v. Donnell Coppedge

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4550
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNELL COPPEDGE,
Defendant - Appellant.
No. 10-4764
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD JUNIOR COPPEDGE, a/k/a Droopy, a/k/a Droop,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:09-cr-00054-F-1; 4:09-cr-00054-F-2)
Submitted: July 23, 2012 Decided: July 30, 2012
Before GREGORY, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant Donald Junior Coppedge; Michael W.
Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel Hill, North
Carolina, for Appellant Donnell Coppedge. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Kristine L.
Fritz, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
I.
Donald Junior Coppedge was arrested by the state police on
June 3, 2009, on drug-related charges. A grand jury later
returned a five-count superseding indictment against both Donald
and Donnell Coppedge, alleging various drug-related offenses.
While in custody, Donald made several unsolicited statements to
law enforcement officials. Soon after he began to speak, he was
advised of his Miranda rights, orally agreed to waive them, and
continued to speak. The following day, he continued to make
statements to law enforcement; he was again advised of his
Miranda rights and waived them in writing. On July 21, 2009,
while Donald was being transported from state to federal
custody, he began speaking again to Detective Rose Edmonds of
the Greenville Drug Task Force and FBI Agent Joseph Lewis. He
was advised of his Miranda rights a third time and signed
another written waiver. After signing the form, Donald told the
detectives that he wanted to speak to his attorney, Derek Brown,
who had represented him in relation to the state charges.
Detective Edmonds had Brown’s phone number programmed in his
cell phone and allowed Donald to call Brown. After speaking
with Brown, Donald said he wanted to talk to Detective Edmonds.
During that conversation, Donald made several incriminating
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statements about his past involvement in the purchase and
distribution of crack cocaine and powder cocaine.
Prior to trial, Donald moved to suppress the statements he
made to law enforcement officers on July 21, claiming that these
statements were involuntary under the Fifth Amendment and taken
in violation of his right to counsel under the Sixth Amendment.
The district court held a hearing and denied the motion.
Also prior to trial, the Government filed notices of intent
to seek enhanced penalties against both Appellants 1 under 18
U.S.C. § 841. The notice listed two prior felony drug
convictions for Donald: a 2005 conviction for the sale of a
controlled substance and a 1998 conviction for possession with
intent to sell and deliver a controlled substance. This notice
increased Donald’s maximum term of imprisonment on each count
from 20 to 30 years.
The jury found Donald guilty of counts two and five,
distribution of a quantity of cocaine base and possession with
intent to distribute a quantity of cocaine. It found Donnell
guilty of count four, possession with intent to distribute 50
grams or more of cocaine base and aiding and abetting.
1
While the Government filed notices against both
Appellants, only Donald challenges the enhancement to this
Court.
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Donald’s presentence report (“PSR”) found that he was
accountable for more than 6.9 kilograms of cocaine base and 2.7
kilograms of cocaine. Three offense levels were added for his
role as a manager or supervisor. Two levels were also added
because the district court found that he attempted to obstruct
justice with false testimony he gave at the suppression hearing.
The PSR further noted that Donald had two previous drug
convictions, making him a career offender. With a total offense
level of 43 and a criminal history category of VI, Donald’s
guidelines range was 360 months’ imprisonment. He was sentenced
to two concurrent 240-month sentences.
At his own sentencing hearing, Donnell challenged several
factual findings in the presentence report. The court held a
hearing and permitted the parties to call witnesses; after a law
enforcement officer testified, the court indicated the
difficulty it would have in determining the drug weight
attributable to Donnell. J.A. 1153 (“[This is] an absolutely
impossible task.”). It was also considering whether to impose a
firearm and leadership role enhancement. Defense counsel
requested a moment to speak with his client, and after
conferring with Donnell said, “[Donnell] would be willing to
stipulate as to the applicability of the firearm and the
leadership role if the Government was willing to agree as to the
relevant conduct being that which the jury found, the 73.5
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grams.” J.A. 1156. The Government agreed to the stipulation.
The court conducted a brief colloquy with the Appellant to
ensure he understood what the stipulation meant. The sentencing
guidelines range was then recalculated based on the agreed-upon
facts, yielding a range of 168 to 210 months’ imprisonment. The
court again confirmed that Donnell withdrew all of his pro se
motions and objections and then granted the request that the PSR
be modified to reflect the revised calculations. Donnell was
then sentenced to 198 months. Both Appellants timely appealed.
II.
Donald and Donnell Coppedge make five arguments on appeal,
contending that the district court (1) erred in denying Donald’s
motion to suppress the statements he made on July 21, 2009;
(2) improperly applied the career offender enhancement and the
§ 841 statutory maximum sentence in calculating Donald’s
sentencing guidelines range; (3) attributed an incorrect drug
weight to Donald; (4) erroneously failed to apply the Fair
Sentencing Act to Donald’s sentence; and (5) improperly applied
the managerial enhancement to Donald.
We hold that the district court did not err in denying
Donald’s motion to suppress nor in its sentencing of either
Appellant. We therefore affirm the convictions and sentences.
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A.
The Appellants first argue that the district court erred in
denying Donald’s motion to suppress the inculpatory statements
he made to law enforcement officials on July 21, 2009. In
reviewing a motion to suppress, this Court reviews “factual
findings for clear error and legal conclusions de novo.” United
States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009). When the
district court denies the motion, the evidence is reviewed “in
the light most favorable to the Government.” United States v.
Green, 599 F.3d 360, 375 (4th Cir. 2010).
The Fifth Amendment protects the right against self
incrimination. In Miranda v. Arizona, the Supreme Court held
that because custodial interrogations work “inherently
compelling pressures” on the person being interrogated, the
police must inform him that he has the right to remain silent
and to the presence of an attorney. 384 U.S. 436, 467, 444
(1966). However, the defendant may waive these rights so long
as he does so “knowingly and voluntarily.” North Carolina v.
Butler, 441 U.S. 369, 373 (1979). “Knowing” requires the waiver
to be made with “full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon
it.” Moran v. Burbine, 475 U.S. 312, 421 (1986). The
voluntariness prong requires that the waiver be “the product of
a free and deliberate choice rather than intimidation, coercion,
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or deception.” Id. The determination of whether a waiver is
valid is based on the “totality of the circumstances surrounding
the interrogation.” Id.The Appellant first disputes the district court’s
determination that he was ever informed of his Miranda rights.
See Br. of Appellant at 38, 39. The district court, however,
found that Donald was read his rights by the officers prior to
each of his statements. J.A. 169, 170, 171. These factual
findings are based on the district court’s hearing and assessing
the credibility of the witnesses -- both Donald, who testified
in his own defense, and the investigating officers. J.A. 168.
Because Donald makes no argument as to why the district court’s
factual findings should be rejected but simply asserts that he
was never read his Miranda rights, we reject this argument.
Donald next argues that the waiver of his Miranda rights
was not knowing and voluntary. Several facts noted by the
district court belie this contention. On each of the three
occasions that he spoke to the police, Donald was read his
rights and waived them orally or in writing. On the last
occasion, when he gave the most inculpatory statements, he spoke
only after he called his attorney from a detective’s cellular
phone. The district court further considered Coppedge’s
personal characteristics, including his “familiarity with the
criminal justice system, the setting of the various
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‘interviews,’ [and] the fact that each was initiated by Coppedge
himself or at his request . . . .” J.A. 173. Finally, the
court noted the fact that Donald repeatedly told law enforcement
that he wished to cooperate with them. Given these facts, we
hold that the district court did not err in finding that
Donald’s waiver was knowing and voluntary.
B.
Donald also argues that the district court incorrectly
calculated his sentence by erroneously finding that one of his
prior convictions was a felony. Whether a prior conviction is a
felony for purposes of the career offender sentencing guidelines
or a § 841 enhancement is a question of law this Court reviews
de novo. United States v. Abu Ali, 528 F.3d 210 (4th Cir.
2008).
Under the federal sentencing guidelines, a defendant is a
“career offender” if, inter alia, he has “at least two prior
felony convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a). The term “controlled
substance offense” is later defined as “an offense under federal
or state law, punishable by imprisonment for a term exceeding
one year . . . .” Id. § 4B1.2(b). Similarly, if the Government
seeks a sentencing enhancement under § 841(b)(1)(C), then if it
proves the defendant was convicted of “a prior conviction for a
felony drug offense,” the statutory maximum is thirty years’
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imprisonment. 21 U.S.C. § 841(b)(1)(C). A “felony drug
offense” likewise requires that the offense carry a maximum term
that exceeds one year of imprisonment. Carachuri-Rosendo v.
Holder, 130 S. Ct. 2577, 2581-83 (2010).
Donald first argues that one of the convictions the PSR
relied on in finding that he was a career offender was not a
felony. On October 12, 1998, Donald pled guilty to possession
with intent to sell and deliver cocaine in Wayne County Superior
Court in North Carolina. J.A. 1192. He received a 6 to 8 month
sentence. Id. The Government concedes that the 1998 Wayne
County conviction can no longer count as a felony for sentencing
purposes in light of this Court’s decision in United States v.
Simmons, 649 F.3d 327 (4th Cir. 2011) (en banc). Nevertheless,
the Government urges that this did not affect Donald’s
guidelines calculation or sentence, and thus he has no basis for
relief.
Donald’s presentence report added 2 criminal history points
as a result of this conviction pursuant to U.S.S.G. § 4A1.1(b).
His criminal history points totaled 16, establishing a criminal
history category of VI. But the 2 points added to Donald’s
criminal history as a result of the 1998 conviction would have
been added even if the PSR had not classified that offense as a
felony: those 2 points were added pursuant to U.S.S.G.
§ 4A1.1(b). That section states, “Add 2 points for each prior
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sentence of imprisonment of at least sixty days not counted in
(a).” U.S.S.G. § 4A1.1(b). Because Donald was sentenced to 6
to 8 months’ imprisonment on that conviction, the same 2 points
would have been added and Donald still would have been
classified as a category VI offender. With respect to the
computation of the offense level, the PSR did apply the career
offender enhancement and initially set the offense level to 34.
See U.S.S.G. § 4B1.1. However, § 4B1.1 notes that it only
applies “[i]f the offense level for a career offender from the
table in this subsection is greater than the offense level
otherwise applicable . . . .” Id. § 4B1.1(b). When the PSR
calculated the offense level based on the particular facts of
the case -- the base offense level, the managerial role
enhancement, and the obstruction of justice enhancement -- the
offense level came to 43. Thus as the PSR noted, “in that the
offense level calculated above is greater than the offense level
determined by 4B1.1, 34, the higher offense level is utilized.”
The PSR therefore correctly calculated the Appellant’s guideline
sentence.
With respect to the application of § 841’s increase to the
statutory maximum sentence, Donald makes the same argument,
contending that the 1998 Wayne County offense was not a felony
conviction. The Government notes that while Donald challenges
one of his two felony convictions, he does not contest the other
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one. In June 2005 Donald was convicted of the sale or delivery
of a Schedule II controlled substance in Greene County Superior
Court in North Carolina. This conviction is punishable by more
than a year in prison, and Donald was sentenced to fifteen to
eighteen months’ custody. Thus, the enhancement did apply and
the statutory maximum was properly calculated.
C.
Donald next challenges the drug weight attributed to him by
the district court. The court attributed 7 kilograms of cocaine
base and 2 kilograms of cocaine to him. Sentencing issues are
reviews under an abuse-of-discretion standard, “which translates
to review for ‘reasonableness.’” United States v. Mendoza
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). With respect to
drug weight in particular, this Court reviews that question “for
clear error.” United States v. Slade, 631 F.3d 185, 188 (4th
Cir. 1999).
Donald argues that “[t]he bulk of this weight was testified
to solely by law enforcement officers testifying as to what they
were told by cooperating witnesses or defendants, all of whom
had signed plea agreements.” Br. of Appellant 45. But this is
simply not true: At trial, several other individuals testified
as to Donald’s activities in the drug trade. James Hart, for
example, testified that he was addicted to crack cocaine and
that he bought “a lot” of it from Donald, one of his regular
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suppliers, over the course of several years. John Mack Smith
testified that he spent his entire weekly paycheck on crack
cocaine and that he often purchased from Donald and Donnell.
Jason Kelley told the court that he began to sell drugs to
Donald in the early 2000s. He sold crack cocaine to Donald once
or twice a week in an amount between one and two ounces for
several years. These witnesses all corroborate the testimony of
the law enforcement officers indicating that Donald was involved
in the sale of a large quantity of drugs over a period of
several years. Because the Appellant “bears the burden of
establishing that the information relied upon by the district
court . . . is erroneous,” Slade, 631 F.3d at 188, and his
assertions purporting to establish the erroneous nature of the
testimony are inaccurate, we affirm the district court’s
finding.
D.
Donald goes on to assert the constitutionality of his
sentence, ostensibly claiming that the district court’s failure
to apply the Fair Sentencing Act (“FSA”) violated the Eighth
Amendment. 2 This Court reviews issues of law de novo. United
States v. Kellam, 568 F.3d 125, 132 (4th Cir. 2009).
2
While the Appellants’ brief titles this section “The
district court erred in imposing an enhanced sentence . . .
constituted cruel and unusual punishment and a violation of due
(Continued)
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The FSA increased the quantity of crack cocaine necessary
to trigger certain mandatory minimums under 21 U.S.C.
§ 841(b)(1). Pub. L. No. 111-220, 124 Stat. 2372. The statute
was signed into law on August 3, 2010, see id.; Donald, however,
was sentenced on July 8, 2010. This Court has already held that
the FSA does not apply retroactively. United States v. Bullard,
645 F.3d 237, 248-49 (4th Cir. 2011) (“We agree [with the
Government] and join all of our sister circuits to have
addressed the issue in holding that the Savings Statute does
indeed preclude retroactive application of the FSA.”). We
therefore reject this claim of error.
E.
Finally, Donnell challenges the district court’s
application of the managerial enhancement. With respect to the
standard of review, Donnell argues that Olano’s four-pronged
plain error test should apply: “Because trial counsel for
defendant Donnell Coppedge interposed no objection to the role
enhancement . . . the plain error standard applies.” Br. of
Appellant 60. To the contrary, Donnell did object to the
enhancement; in court, however, he chose to withdraw the
process,” there is no actual argument that the sentence was
unconstitutional. Rather, it argues only that the FSA should
retroactively apply to his sentence to avoid “serious
constitutional problems.” Br. of Appellant 56.
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objection and stipulated to the applicability of the
enhancement. As the Olano Court noted, “Waiver is different
from forfeiture. Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.” United States
v. Olano, 507 U.S. 725, 733 (1993). Because Donnell
affirmatively waived his objection, it is not reviewable on
appeal. United States v. Claridy, 601 F.3d 276, 284 n.2 (4th
Cir. 2010).
III.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process. For
the reasons discussed above, we affirm the district court’s
decision.
AFFIRMED
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