United States v. Britton

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 9, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-50110
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT R. BRITTON, JR.; ROBIN GATEWOOD,
Defendants-Appellants.
Appeal from the United States District Court
For the Western District of Texas
(7:05-CR-138-3)
Before REAVLEY, DeMOSS, and BENAVIDES, Circuit
Judges.
PER CURIAM:*
*
Pursuant to 5th Cir. R. 47.5, the Court has
determined that this opinion should not be published and
Defendants-Appellants Robert Britton and Robin
Gatewood were indicted and tried together for their
involvement in a conspiracy to sell cocaine base ("crack")
in Midland, Texas. A jury convicted each appellant of
conspiracy to possess and distribute fifty grams or more of
crack (count one) and aiding and abetting each other to
possess with the intent to distribute 500 grams or more of
powder cocaine (count three). Gatewood was additionally
convicted of aiding and abetting two others in the
possession with intent to distribute five or more grams of
crack (counts four and nine). The district court sentenced
Britton to 188 months imprisonment. Gatewood received
four concurrent life sentences. Each appellant raises one
point of error.
is not precedent except under the limited circumstances
set forth in 5th Cir. R. 47.5.4.
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I.
Police in Midland, Texas conducted an exhaustive
investigation into a drug ring they suspected was
distributing crack cocaine in 2004 and 2005. The
investigation revealed at least eight individuals were
involved in the conspiracy; some purchased powder cocaine
and turned it into crack, and others distributed it in and
around Midland. Following the conclusion of the
investigation, a grand jury returned an eleven count
indictment against, among others, Britton and Gatewood.
Britton's involvement in the conspiracy is not
materially disputed on appeal. At trial, co-conspirator
Carmellia Price, who previously pled guilty, testified that
Britton primarily served as a driver for Gatewood and other
co-conspirators. She recalled a number of instances when
Britton provided rides in exchange for crack. In particular,
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she testified that Britton drove Gatewood and herself to
Lubbock to buy cocaine on at least one occasion. In April
2005, officers questioned Britton and he admitted traveling
to Lubbock with Gatewood in 2004 to pick up two
kilograms of cocaine.
Co-conspirator Price further testified she began buying
crack from Gatewood around June 2004. She also stated
she sold crack for Gatewood, sometimes in quantities of
more than three-quarters of an ounce per week
(approximately 21 grams). Further, she witnessed
Gatewood sell crack to others on numerous occasions,
including one transaction involving a Crown Royal bag
containing a considerable amount of crack.
Twakeshia Howard, another co-conspirator who pled
guilty and testified at trial, stated that she also sold crack
obtained from Gatewood. She would obtain crack from
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Gatewood worth $200 to $300 several times per week to
re-sell. She also testified that she occasionally traveled to
Lubbock with Gatewood and Britton to buy cocaine.
Co-conspirators John Smith and Shanskurria Sheppard gave
similar testimony. Each obtained crack from Gatewood to
re-sell, and each recounted various drug deals they
witnessed involving Gatewood. Another drug dealer, Nigel
Harris, testified that he witnessed Gatewood purchase 250
grams of powder cocaine on one occasion.
In addition to testimony concerning the Appellants'
involvement, the government presented evidence to
establish the existence and scope of the conspiracy, the
quantity and type of drugs seized during the investigation,
and the conversion ratio of powder cocaine to crack.
At sentencing, the district court attributed to Britton
1.5 kilograms of crack for his role in the conspiracy, based
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on the fact Britton admitted to picking up two kilograms of
powder cocaine.
II.
On appeal Britton challenges the district court’s finding
that two kilograms of powder cocaine translates into 1.5
kilograms of crack for sentencing purposes. “This Court
reviews for clear error a district court's factual
determination regarding, for sentencing purposes, the
quantity of drugs used to establish a base offense level. . .
” United States v. Turner, 319 F.3d 716, 724 (5th Cir.
2003). Such a finding is clearly erroneous if it is not
plausible “in light of the record as a whole.” Id. (quoting
United States v. Johnston, 127 F.3d 380, 403 (5th Cir.
1997)).
The district court is required to find the quantity of
drugs by a preponderance of the evidence. Johnston, 127
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F.3d at 403. Britton admitted obtaining two kilograms of
powder cocaine in Lubbock. Consequently, Britton does not
challenge the district court’s finding that two kilograms of
powder cocaine are attributable to him; he merely
challenges the ratio used by the court to equate the powder
cocaine to crack.
Equating a quantity of cocaine to crack for sentencing
purposes is allowed by the guidelines, and Britton has not
challenged on appeal the fact the court did so. See United
States v. Booker, 334 F.3d 406, 414 (5th Cir. 2003)
(“Conversion of powder cocaine to crack cocaine for
sentencing purposes is permissible if such conversion was
foreseeable to the defendant.”).
No evidence was presented concerning how much
crack was actually produced from the powder cocaine
purchased in Lubbock. So to determine the proper
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conversion ratio, the PSR writer relied on testimony from
several police officers who stated that two kilograms of
powder cocaine can be made into four kilograms of crack (a
1 to 2 ratio). Nigel Harris, the admitted drug dealer who
testified at trial, also estimated a conversion ratio of 1 to 2.
The PSR adopted this estimate. However, the district
court did not adopt the PSR’s conversion ratio and instead
attributed 1.5 kilograms of crack to Britton for his role in
the conspiracy (a 1 to .75 ratio).
We find the district court’s conversion ratio (1 to .75)
to be a reasonable estimate based on the testimony, and
hold it did not constitute clear error. The ratio was lower
than all of the conversion ratios presented at sentencing,
except one. While the ratio used here was higher than in
United States v. Booker, 334 F.3d 406, 414 n.3 (5th Cir.
2003) (mentioning a 1 to .5 ratio), that case did not
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establish the correct ratio as a matter of law. See id. at
413-14 & n.3. The ratio in Booker was not an issue and the
court merely mentioned the ratio in a footnote. See id. at
414 n.3.
Even if it was error to apply the 1 to .75 ratio as
opposed to the 1 to .5 ratio from Booker, the sentence here
is nonetheless presumed reasonable. The properly
calculated guideline range using the Booker ratio (1 to .5)
is 168 to 210 months. Because the 188-month sentence
imposed by the court falls within this 168 to 210 range it is
presumptively reasonable. See United States v. Medina-
Arguenta, 454 F.3d 479, 483 (5th Cir. 2006) (holding that
when a court “miscalculates the guideline range yet
imposes a sentence that falls within a properly calculated
guideline range, the sentence enjoys a presumption of
reasonableness.”). Britton has not overcome that
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presumption. Thus, we find no error and affirm Britton’s
sentence.
In his appeal, Gatewood challenges the sufficiency of
the evidence. After reviewing the briefs, record, and
applicable law, we find that a rational jury could have found
the essential elements of the crime beyond a reasonable
doubt. See United States v. Patterson, 431 F.3d 832, 836
(5th Cir. 2005). Thus, we find no error and affirm.
AFFIRMED.
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