United States v. Cross

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0030n.06
Filed: January 12, 2005
No. 03-3562
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
JEROME CROSS, ) OHIO
)
Defendant-Appellant. )
Before: SILER, MOORE, and COLE, Circuit Judges.
SILER, Circuit Judge. Defendant Jerome Cross appeals his sentences based on drug
trafficking and firearm convictions, claiming that the jury’s findings were not supported by
sufficient evidence and the district court erred in its application of the United States Sentencing
Guidelines. We AFFIRM.
BACKGROUND
From 1999 through 2002, a drug trafficking conspiracy was headquartered in the Columbus,
Ohio home of Derrick Billups. Billups’s supplier, Cross, would bring the drugs from Michigan to
Columbus and often would “cook” the cocaine into crack for resale and/or delivery to lower-level
drug traffickers to distribute. In late 2000, Billups moved the conspiracy’s headquarters to a
different home in Columbus.1 Billups kept a gun in his home to be used by fellow drug traffickers
1
Like Billups’s first home, this was a “stash” house used to store drugs.
staying there if needed to “protect the drugs” in case of robbery. In April 2002, federal officers
executed a search warrant at Billups’s home, whereupon they discovered cocaine, crack, and items
used to manufacture crack. Cross, the only person at home at the time of the raid, crawled out of
a bedroom. In that bedroom was Cross’s cellular telephone, $5,000 in cash, and a loaded .45-caliber
pistol. When the officers searched Cross, they discovered $2,300 in cash, including two pre-
recorded $100 bills that a confidential informant had used for a crack purchase two days earlier.
Cross was later convicted of conspiracy to possess with intent to distribute in excess of fifty
grams of cocaine base, or crack, and in excess of five kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii) and (iii), and 846; possession with intent to distribute in excess of five
kilograms of cocaine, in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(A)(ii), and 18 U.S.C. § 2;
possession with intent to distribute in excess of five grams of cocaine base, or crack, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and 18 U.S.C. § 2; and possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). His base offense level was increased
by four levels after the district court found he had an aggravating role in the conspiracy as an
organizer or leader. See USSG § 3B1.1. He was sentenced to 360-months’ imprisonment on the
first three counts and 60-months’ imprisonment on the fourth count, for a total of 420-months’
imprisonment.
DISCUSSION
Cross first argues that his convictions for conspiracy, drug trafficking, and possession of a
firearm in furtherance of a drug trafficking crime were not supported by sufficient evidence. In
reviewing Cross’s “challenges to the sufficiency of the evidence supporting [his] criminal
convictions, we must ask ‘whether, after viewing the evidence in the light most favorable to the
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prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.’” United States v. Layne, 192 F.3d 556, 567 (6th Cir. 1999) (citations omitted).
The evidence was more than sufficient to justify each conviction. First, Cross brought
multiple kilograms of cocaine to Columbus on several occasions, “cooked” the cocaine into crack
with Billups, and distributed the cocaine to lower-level drug traffickers to sell. Although these
lower-level traffickers were allowed to keep a portion of the drug proceeds, the rest of the money
went to Billups, and Billups’s supplier was Cross. Viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of a conspiracy
beyond a reasonable doubt. See United States v. Gibbs, 182 F.3d 408, 420 (6th Cir. 1999). Second,
to violate 21 U.S.C. § 841(a)(1), the government must demonstrate that Cross “(1) knowing[ly] (2)
possess[ed] . . . a controlled substance (3) with intent to distribute.” United States v. Mackey, 265
F.3d 457, 460 (6th Cir. 2001) (quoting United States v. Christian, 786 F.2d 203, 210 (6th Cir. 1986)
(citation omitted)). Here, there was sufficient evidence to find that Cross possessed cocaine and
crack with intent to distribute. When the house was raided, Cross, who used the house to “cook”
cocaine into crack, was the only person at home. The search of the house yielded large quantities
of drugs and his fingerprints were discovered on (1) an industrial press used to manufacture crack,
(2) a jar of “cut,” and (3) a box of latex gloves. See United States v. Clark, 928 F.2d 733, 736 (6th
Cir. 1991). Moreover, Cross’s intent to distribute was properly inferred from the large quantities
of cocaine and crack in his possession. See United States v. Welch, 97 F.3d 142, 149 (6th Cir. 1996).
Third, the firearm was moved around inside the house, from place to place, and the drug traffickers
would inform their cohorts of its location in case it was needed. Because the gun was loaded and
was moved around the house so as to be strategically located for quick access, drugs were
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manufactured and stored in the house, and $5,000 in cash was found in the same bedroom as Cross,
there was also sufficient evidence to support this conviction. See Mackey, 265 F.3d at 462-63.
Cross next argues that the district court plainly erred in instructing the jury as to the parties’
stipulations and the definition of reasonable doubt. Cross bears a heavy burden in demonstrating
that the district court’s jury instructions, to which he failed to object, constituted plain error. See
United States v. Jones, 108 F.3d 668, 670 (6th Cir. 1997) (en banc). To establish plain error under
Fed. R. Crim. P. 52(b), we must complete four analyses: (1) did an error occur; (2) if so, was the
error plain; (3) if plain, did the error affect substantial rights; and (4) whether this plain error
“affecting substantial rights seriously affected the fairness, integrity or public reputation of judicial
proceedings.” Id. (citation omitted).
There was no plain error regarding either instruction. Here, the parties stipulated to the
quantity, i.e., weight, of cocaine and crack seized. Although the district court instructed the jury that
the parties had stipulated to the quantity of drugs, it further instructed that the government must
prove that quantity Cross intended to distribute beyond a reasonable doubt. Cf. Jones, 108 F.3d at
671. Furthermore, there was no effect on Cross’s substantial rights or the outcome of the trial, since
the error was not prejudicial. See id. at 672 (“nearly impossible” to establish that erroneous
instruction affected trial’s outcome since defendant made stipulation).
Additionally, the district court provided a thorough definition of “reasonable doubt” to the
jury. While the instruction’s use of “moral certainty” may be “ambiguous in the abstract, the rest
of the instruction given in [Cross’s] case lends content to the phrase.” Victor v. Nebraska, 511 U.S.
1, 14 (1994). This instruction accurately recited the government’s burden of proof. Like Victor, the
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district court here prefaced its “moral certainty” language with the same “an abiding conviction”
language. See id. at 7, 21; Workman v. Bell, 178 F.3d 759, 776-77 (6th Cir. 1998).
Cross lastly argues that the district court clearly erred by increasing his base offense level.
Pursuant to USSG § 3B1.1(a), the district court found that Cross was an organizer or leader of a
conspiracy which involved five or more participants and increased his base offense level by four
levels. We will not disturb the district court’s decision to enhance Cross’s base offense level due
to his leadership in the conspiracy unless such finding was clearly erroneous. See United States v.
Finkley, 324 F.3d 401, 403 (6th Cir. 2003).
This argument too fails, as the government proved the applicability of USSG § 3B1.1 by a
preponderance of the evidence. Cross was the supplier to the conspiracy and “cooked” the cocaine
into crack. See id., application note 4 (consider defendant’s “nature of participation in the
commission of the offense”); United States v. Owusu, 199 F.3d 329, 346-47 (6th Cir. 2000). Cross
also kept a larger share of the drug proceeds than his co-conspirators, as evidenced by his expensive
jewelry, luxury automobiles, and the large amount of cash he had when arrested, especially in light
of the fact that he was unemployed. See USSG § 3B1.1, application note 4 (defendant “claimed
right to a larger share of the fruits of the crime”). While Cross further argues that Blakely v.
Washington, — U.S. —, 124 S. Ct. 2531 (2004), mandates that his upward enhancement is
unconstitutional, we recently held that Blakely does not invalidate the Sentencing Guidelines. See
United States v. Koch, 383 F.3d 436 (6th Cir. Aug. 13, 2004) (en banc).
AFFIRMED.
Judge MOORE concurs in the judgment only.
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