United States v. Gardner

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0321p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 04-1161
v.
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DONALD GARDNER, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 03-00006—Gordon J. Quist, District Judge.
Argued: June 17, 2005
Decided and Filed: August 1, 2005
Before: NELSON and GILMAN, Circuit Judges; DONALD, District Judge.*
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COUNSEL
ARGUED: Stuart W. Harris, KEGLER, BROWN, HILL & RITTER, Columbus, Ohio, for
Appellant. Joan E. Meyer, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Stuart W. Harris, KEGLER, BROWN, HILL & RITTER, Columbus, Ohio, for
Appellant. Joan E. Meyer, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Donald Gardner pled guilty to charges of
possessing crack cocaine with the intent to distribute and of being a felon in possession of a firearm.
The district court sentenced him to 210 months in prison followed by five years of supervised
release. On appeal, Gardner argues that his guilty plea should be set aside because it was not made
knowingly and voluntarily and because he was denied the effective assistance of counsel. He also
contends that the district court erred in imposing a drug-quantity enhancement based upon nearly
$16,000 found in Gardner’s pickup truck at the time of his arrest. Finally, Gardner argues that his
sentence should be vacated in light of United States v. Booker, 125 S. Ct. 738 (2005). For the
reasons set forth below, we AFFIRM the judgment of the district court with respect to Gardner’s
*
The Honorable Bernice B. Donald, United States District Judge for the Western District of Tennessee, sitting
by designation.
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guilty plea and the court’s calculation of the drug quantity, but VACATE Gardner’s sentence and
REMAND the case for resentencing in light of Booker.
I. BACKGROUND
Gardner was arrested in October of 2002 after the police received a tip from a confidential
informant that Gardner had been spotted with a large amount of cash and a quantity of crack cocaine
in an area of Grand Rapids, Michigan known for heavy drug activity. In conjunction with Gardner’s
arrest, the police seized from his pickup truck 45 grams of crack cocaine, $15,796 in cash (wrapped
in bundles of $1,000 each), 2 cellular phones, a pager, and several slips of paper containing names
and telephone numbers. A subsequent search of his apartment and garage uncovered an additional
27 grams of crack cocaine, a .44-caliber revolver, and 50 live rounds of ammunition.
The indictment charged Gardner with “knowingly, intentionally, and unlawfully possess[ing]
with intent to distribute 50 grams or more of a mixture or substance containing cocaine base (crack
cocaine),” in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(iii), and with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). He pled guilty to both
counts.
At Gardner’s sentencing hearing, the district court imposed an enhancement for possession
of a dangerous weapon and a drug-quantity enhancement based upon the nearly $16,000 in cash
found in Gardner’s pickup truck, which the court determined was the proceeds from selling 598.74
grams of crack cocaine. Gardner objected to the latter enhancement, claiming that the money was
unrelated to his cocaine dealing. He instead maintained that the bulk of the cash was from the sale
of furniture and audio equipment at his cousin’s nightclub, and the rest was from the sale of
marijuana. The district court rejected Gardner’s explanation and sentenced him to 210 months of
imprisonment, followed by five years of supervised release. Gardner timely appealed.
II. ANALYSIS
A. Standard of review
Because Gardner has waited until this appeal to first raise an issue regarding the district
court’s alleged failure to comply with the requirements of Rule 11 of the Federal Rules of Criminal
Procedure, the “plain error” standard of review is applicable. See United States v. Vonn, 535 U.S.
55, 59 (2002). Rule 11 sets forth the procedures that a district court must follow before accepting
a guilty plea.
Gardner also claims that he was denied the effective assistance of counsel. We review such
a claim de novo. United States v. Wagner, 382 F.3d 598, 615 (6th Cir. 2004).
Finally, Gardner contends that he is entitled to be resentenced in light of Booker, 125 S. Ct.
738. Following Booker, sentencing courts are no longer obligated to treat the United States
Sentencing Guidelines as mandatory, but they must continue to give consideration to the Guidelines.
Id. at 757, 764-65. We review the district court’s interpretation of the now-advisory Sentencing
Guidelines de novo. United States v. Chriswell, 401 F.3d 459, 463 (6th Cir. 2005). But a district
court’s ruling on the amount of cocaine for which a defendant is to be held accountable at sentencing
is a finding of fact that will not be set aside unless clearly erroneous. United States v. Walton, 908
F.2d 1289, 1300-01 (6th Cir. 1990).
No. 04-1161 United States v. Gardner Page 3
B. The district court did not err in accepting Gardner’s guilty plea
Gardner argues that his guilty plea was not made knowingly and voluntarily. He contends
that his plea should be set aside because it was entered without a written plea agreement and with
no “meaningful interaction” between Gardner and the district court.
To be valid, a guilty plea must be entered knowingly, voluntarily, and intelligently. Brady
v. United States, 397 U.S. 742, 748 (1970). Rule 11 of the Federal Rules of Civil Procedure
requires that a district court verify that the defendant’s plea is voluntary and that the
defendant understands his or her applicable constitutional rights, the nature of the
crime charged, the consequences of the guilty plea, and the factual basis for
concluding that the defendant committed the crime charged.
United States v. Webb, 403 F.3d 373, 378-79 (6th Cir. 2005). The purpose of Rule 11 is to assist
the district court in determining whether a defendant’s guilty plea is truly voluntary and to produce
a complete record of the factors relevant to this determination. McCarthy v. United States, 394 U.S.
459, 465 (1969).
Gardner contends that his plea colloquy did not satisfy the “core concerns” of Rule 11 as
articulated in United States v. DeBusk, 976 F.2d 300 (6th Cir. 1992); namely, “Was the plea
coerced? Does the accused understand the nature of the charges? And does the accused understand
the consequences of the plea?” Id. at 306 (citation and quotation marks omitted). Specifically, he
claims that the district court failed “to provide a thorough review of the oral plea agreement.” This
contention, however, is not supported by the record. At Gardner’s plea hearing, the district court
carefully reviewed with him the provisions of the plea agreement and the rights that he was waiving
as a result of pleading guilty. The charges in the indictment were read aloud, and the penalties for
each offense were explained to Gardner. In addition, the district court specifically addressed
Gardner’s right to a trial by jury, his right not to testify, the presumption of innocence, and the
government’s burden of proof. Before his plea was entered, Gardner stated that he understood the
nature of the offenses and acknowledged his guilt. He also said that he understood the consequences
of his plea and the rights that he was waiving by pleading guilty.
The fact that most of the questions posed by the district court to Gardner required only a yes-
or-no answer does not, as Gardner asserts, render their exchange meaningless. As this court has
previously noted,
[t]here is no requirement that in order to rely on a defendant’s answer in a guilty-plea
colloquy to conclude that the defendant pleaded guilty knowingly and voluntarily,
those answers must be lengthy and all-encompassing; a straightforward and simple
“Yes, your Honor” is sufficient to bind a defendant to its consequences.
United States v. Walker, 160 F.3d 1078, 1096 (6th Cir. 1998). Moreover, the district court gave
Gardner ample opportunity to ask any questions of the court about the charges or his rights,
explaining that “[i]f you have any question lingering in your mind, ask the question. There is no
such thing as a dumb question here. Nothing.”
We conclude that Gardner’s plea colloquy met the requirements established by Rule 11.
Consequently, his plea was knowing, voluntary, and intelligent and should not be set aside. See
McCarthy, 394 U.S. at 467 (“To the extent that the district judge thus exposes the defendant’s state
of mind on the record through personal interrogation, he not only facilitates his own determination
of a guilty plea’s voluntariness, but he also facilitates that determination in any subsequent post-
conviction proceeding based upon a claim that the plea was involuntary.”).
No. 04-1161 United States v. Gardner Page 4
C. Gardner’s claim of ineffective assistance of counsel is not ripe for review
Gardner also argues that his right to the effective assistance of counsel was violated by his
attorney’s failure to ensure that Gardner understood the nature and consequences of his guilty plea.
Specifically, he claims that his attorney erred in failing to inform him that the government planned
to assert that the nearly $16,000 found in Gardner’s pickup truck should be considered as the
proceeds of crack cocaine sales for the purpose of calculating Gardner’s sentence.
A guilty plea can be involuntary as a result of the ineffective assistance of counsel. See Hill
v. Lockhart, 474 U.S. 52, 59 (1985) (holding that a petitioner claiming the ineffective assistance of
counsel with respect to a guilty plea must show that “there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial”). But
ordinarily we will not review a claim of ineffective assistance of counsel on direct appeal because
the record is usually insufficient to permit an adequate review of such a claim. United States v.
Shabazz, 263 F.3d 603, 612 (6th Cir. 2001). These claims are more properly raised in a
postconviction proceeding brought pursuant to 28 U.S.C. § 2255. United States v. Long, 190 F.3d
471, 478 (6th Cir. 1999); cf. United States v. Hall, 200 F.3d 962, 965 (6th Cir. 2000) (finding that
“[a]n exception exists, however, when the record is adequately developed to allow this Court to
assess the merits of the issue”).
Here, the alleged ineffectiveness of Gardner’s counsel is not apparent. The record contains
no evidence regarding what advice, if any, his counsel provided with regard to the potential drug-
quantity enhancement. We therefore decline to address Gardner’s claims of ineffective assistance
of counsel until the facts surrounding his attorney’s alleged misconduct can be more appropriately
developed by the district court. See Long, 190 F.3d at 478 (refusing to assess on direct appeal the
merits of a claim of ineffective assistance of counsel because the record was inadequate); see also
United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000) (holding that claims of ineffective
assistance of counsel “should be raised in habeas corpus proceedings, which permit counsel to
develop a record as to what counsel did, why it was done, and what, if any, prejudice resulted”)
(quotation marks omitted).
D. The district court did not err in determining the amount of crack cocaine sold by
Gardner for sentencing purposes
Gardner next contends that the district court erred in calculating his sentence by improperly
considering the $15,796 found in his pickup truck at the time of his arrest as the proceeds of crack
cocaine sales. He claims that the court’s conclusion was based upon “speculation or conjecture.”
In reality, according to Gardner, $10,796 of this money was the result of the sale of furniture and
audio equipment from his cousin’s nightclub and the remaining $5,000 came from the sale of
marijuana.
Where the quantity of drugs at issue cannot be easily determined, the district court may
estimate the amount, but the “court must err on the side of caution.” United States v. Walton, 908
F.2d 1289, 1302 (6th Cir. 1990). This court has determined that the due process rights of the
defendant are violated if the district court “‘create[s]’ a quantity when there is absolutely no
evidence to support that amount.” United States v. Zimmer, 14 F.3d 286, 290 (6th Cir. 1994). For
example, this court held in Walton that the sentencing court could not base its conclusion that the
defendants had sold at least 455 grams of cocaine over a 130-week period solely on evidence that
they had been dealing 3.5 grams per week at the beginning of that period (3.5 grams/week multiplied
by 130 weeks equals 455 grams). The court found that the evidence was insufficient to support a
finding of continuous drug dealing during the entire period. Walton, 908 F.2d at 1301-04. Likewise,
this court held in Zimmer that the district court could not determine the amount of marijuana
allegedly grown by the defendant in the previous eight years based solely on the amount seized at
No. 04-1161 United States v. Gardner Page 5
the time of the defendant’s arrest, because the court was simply guessing as to the scope and success
of the defendant’s past operations. 14 F.3d at 289-90.
In other cases, however, this court has “approve[d] the conversion of seized funds into an
equivalent amount of drugs,” provided that the converted amount is supported by a preponderance
of the evidence. United States v. Samour, 9 F.3d 531, 537 (6th Cir. 1993), overruled on other
grounds by United States v. Reed, 77 F.3d 139 (6th Cir. 1996); United States v. Keszthelyi, 308 F.3d
557, 577 (6th Cir. 2002) (holding that there was sufficient evidence to support the district court’s
conclusion that a number of large cash deposits made into the defendant’s bank accounts were
attributable to drug sales, and that the district court had properly based the amount of cocaine sold
by the defendant on the amount of those deposits); United States v. Berry, 90 F.3d 148, 153 (6th
Cir. 1996) (affirming the district court’s conclusion that the $6,300 found in the defendant’s car
“represented proceeds of drug-related activities,” given that the defendant had been unemployed for
almost a year and a half at the time he was arrested); United States v. Bingham, 81 F.3d 617, 634
(6th Cir. 1996) (approving the district court’s determination of drug quantity based upon a tally sheet
kept by a known drug dealer, because the tally sheet indicated that the defendant had purchased
$1,000 of cocaine, which equaled 28 grams).
Here, as in the above cases, there was sufficient evidence for the district court to approximate
the quantity of crack cocaine sold by Gardner. Specifically, Gardner was observed late at night in
a high-drug-traffic area sitting in a pickup truck not registered to him. The cash found in the vehicle
was located in close proximity to the crack cocaine and was wrapped in bundles of $1,000 each,
which is consistent with the manner in which drug dealers maintain their proceeds. A subsequent
search of Gardner’s apartment found jars and cooking utensils covered with cocaine residue, as well
as packaging materials and more crack cocaine. The district court reviewed the evidence and
concluded that
if you just look at the . . . presentence report, all the facts and circumstances in that
report lead up to a rational conclusion by a preponderance of the
evidence—circumstantial though it may be—that [Gardner] got that money by
selling crack cocaine. There is no evidence—no evidence at all that he sold
marijuana. The marijuana that was found in his apartment was use amount.
And as far as the sale of the furniture and sound equipment at the nightclub
goes, without evidence of that, as to the money coming from that sale, [Gardner’s]
mere statement of it, it’s hard to believe. . . . [T]here are a lot of statements floating
around out there, but where is the proof?
Given the weight of the evidence suggesting that the money found in Gardner’s pickup truck came
from the sale of crack cocaine and the lack of any evidence to support Gardner’s claim that it was
actually from the sale of other items, the district court’s calculation of the drug quantity was not
clearly erroneous.
E. Gardner’s sentence should be remanded in light of Booker
Even though the district court did not err in considering the money found in Gardner’s
pickup truck as proceeds from the sale of 598.74 grams of crack cocaine, we nevertheless vacate
Gardner’s sentence and remand the case for resentencing in light of Booker. See United States v.
McDaniel, 398 F.3d 540, 547-51 (6th Cir. 2005) (vacating the defendant’s sentence because of
Booker, but ruling on the district court’s interpretation of the Sentencing Guidelines “because the
district court will need to consider the Guidelines-recommended sentences on remand”). This court
also held in United States v. Barnett, 398 F.3d 516, 529-30 (6th Cir. 2005), that remand of a pre-
Booker sentence is required absent “clear and specific evidence that the district court would not
have, in any event, sentenced the defendant to a lower sentence under an advisory Guidelines
No. 04-1161 United States v. Gardner Page 6
regime.” In the present case, the court sentenced Gardner to 210 months’ imprisonment, at the low
end of the range of 210 to 262 months provided by the Sentencing Guidelines. We therefore vacate
Gardner’s sentence and remand this case for resentencing.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court with
respect to Gardner’s guilty plea and the court’s calculation of the drug quantity, but VACATE
Gardner’s sentence and REMAND the case for resentencing in light of Booker.