U.S. v. Smith
| Decision Date | 28 January 1994 |
| Docket Number | No. 92-7614,92-7614 |
| Citation | 13 F.3d 860 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Sheila SMITH and Byron Vandrea Phillips, a/k/a Vincent Andrian Phillips, a/k/a Byron A. Phillips, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas E. Berg, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public
Defender, Houston, TX, for defendant-appellant Sheila Smith.
Thomas W. McQuage, Galveston, TX (Court-appointed), for defendants-appellants Byron Phillips.
Peggy M. Ronca, Paula C. Offenhauser, Asst. U.S. Attys., Gaynelle G. Jones, U.S. Atty., Houston, TX, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before JOHNSON, WIENER and DeMOSS, Circuit Judges.
Defendants-Appellants Sheila Smith and Byron Vandrea Phillips were convicted by a jury of three drug offenses in connection with the sale of crack cocaine to an undercover police officer. Smith and Phillips do not appeal their convictions, but both challenge their sentences. They assert that the trial court incorrectly applied the United States Sentencing Commission Guidelines (the Guidelines) 1 in calculating the quantity of crack cocaine to be considered in their sentencing. We disagree with Smith and therefore affirm her sentence, but we vacate Phillips' sentence and remand for particularized findings and for resentencing consistent with this opinion.
Testimony at trial produced the following facts: Smith and Phillips were arrested during a Houston (Texas) Police Department (HPD) undercover operation. Undercover police officers Donald DeBlanc and Sharon Pouncy were driving by a house in Houston when they were flagged down by defendant Phillips. Phillips asked, "What do you need?" Officer DeBlanc said he was looking for "six or seven rocks." Phillips replied, "I got what you need." At Phillips' instruction, DeBlanc turned his vehicle around, got out and went to the porch of the house, on which defendant Smith was waiting. Smith opened her hand, displayed a number of crack cocaine "rocks," and advised DeBlanc to pick out what he wanted to buy. At the time, two men, Lorenzo Gene Cheney and Troy Adams, were standing on the porch or just inside the open front door. They too displayed rocks of cocaine base to DeBlanc. Phillips vouched for Smith's cocaine, saying, "We have good rocks." DeBlanc selected rocks constituting approximately 2 grams from Smith's hand and handed her a $100 bill, the serial number of which had been previously recorded.
After the sale was completed, DeBlanc, who was wearing a concealed microphone, gave the "bust" signal, and the raid team officers waiting in a nearby van converged on the house. Smith, Phillips, Cheney, and Adams fled into the house and were arrested. 2 None of the four had drugs on their persons when they were taken into custody, but police found "rocks" constituting 3.9 grams of cocaine base on the floor of the front room in the house. An HPD chemist testified that the cocaine on the floor was of a different color and purity than the cocaine Smith sold to the undercover officer, and on cross-examination the chemist agreed that the two samples could have come from different sources. The marked $100 bill that DeBlanc had used to pay Smith was found on the floor near the crack cocaine.
A jury convicted both Smith and Phillips on all three counts charged: (1) conspiracy to possess with intent to distribute crack cocaine; (2) possession with intent to distribute crack cocaine; and (3) distribution of crack cocaine. The trial court held a sentencing hearing for Smith and Phillips, during which the court took into account the total amount of cocaine base seized from the house, not just the 2 grams sold to the undercover Neither Smith nor Phillips testified at trial, and neither defendant put on any evidence. The following additional facts, which were considered by the trial judge in the sentencing process, do not come from trial testimony but from the defendants' presentence investigation reports (PSRs) and from a letter written to the court by Phillips that was made a part of the record of the sentencing hearing. 5
officer. 3 Holding Smith and Phillips accountable for the larger amount made a significant difference under the Guidelines by producing a base offense level of 26 rather than 20. In turn, the greater base offense level resulted in longer sentences for both defendants; that is the main issue in this appeal. 4 Therefore a closer look at the sentencing process is necessary
According to Smith's PSR, the house where the offense occurred belonged to her mother. Smith said that Adams, Cheney, and Phillips lived at the house. Smith was aware that this house was being used as a "crack house." Smith said she bought the rocks that she later sold to the undercover officer from a "source" located down the street from the house, and that she was introduced to her source by Lorenzo Cheney. Smith said that she decided to sell the crack cocaine because she needed money to pay her light bill. She had planned to give Phillips some of the crack cocaine in exchange for his luring buyers to the residence. Smith said that after Phillips flagged down the vehicle driven by the undercover officers, Phillips informed both Smith and Cheney that an individual was interested in buying some rocks. According to Smith, the cocaine rocks found on the floor belonged to Cheney.
According to Phillips' PSR, he claims his only involvement in the offense was telling the buyer where the crack cocaine could be bought. He considers himself to have a drug problem and wants treatment. In the letter written to the court, Phillips claims that Phillips stated that Smith and Cheney were competitors, and that the cocaine on the floor belonged to Cheney. Phillips does not say that he helped Cheney. Phillips never mentioned where he lived or who lived in the house where the offense occurred.
Smith raises two issues on appeal. She claims that the trial court erred by (1) basing
her sentence on the larger amount of cocaine, and (2) denying her a two-point reduction for acceptance of responsibility. Phillips raises one issue, that the trial court erred in basing his sentence on the larger amount of cocaine.
Smith insists that she did not possess the crack cocaine found on the floor of the house, and that it should not have been considered in her sentencing. She points to the following facts drawn from trial testimony: (1) Four persons were arrested and police officers admitted that they did not know who threw the cocaine on the floor; (2) the cocaine on the floor differed in color and purity from the cocaine Smith sold to the officer; and (3) Cheney and Adams were also seen holding cocaine rocks on the porch of the house but were not carrying any cocaine when they were arrested minutes later.
The quantity issue was muddied in that, during the trial, both sides mistakenly assumed that the government had to prove the quantity of cocaine alleged in the indictment to obtain convictions. In reality, a trial court is not bound by a jury's findings as to the quantity of drugs, and a jury finding as to quantity is unnecessary to conviction. The determination of the quantity of drugs is a sentencing issue necessary only to calculate a base offense level, and is a factual determination for the court to make. 6 But the indictment in this case, and the charge that went to the jury, stated that Smith and Phillips possessed and conspired to possess "in excess of five grams of cocaine." The government theorized, and argued to the jury at trial, that Smith threw the 3.9 grams of cocaine on the floor inside the house, pointing to testimony that the $100 bill paid to her by DeBlanc was found on the floor near the cocaine. After hearing this argument, the jury deliberated on a charge which stated that, to find Smith and Phillips guilty, the jury must conclude that they possessed and conspired to possess in excess of five grams of cocaine base. The jury returned verdicts of guilty for both defendants on all counts. The district court, in its order denying the defendants' motion for acquittal, recited the circumstantial evidence of the location of the rocks and the money on the floor, and concluded that the jury must have believed that Smith had thrown down the 3.9 grams of cocaine. "[A]lthough there is a dispute as to whether there were multiple sources of cocaine rocks, on the premises in question, on the relevant date, this jury believed that these Defendants were at least in part responsible for the presence of all or part of the drugs, and the Court agrees."
At the sentencing hearing four months later, all parties had become aware that the quantity of drugs attributable to a defendant is a sentencing issue rather than an element of the offense. At that hearing, however, the trial court did not make a finding as to whether Smith threw the 3.9 grams of cocaine on the floor. Instead, it held Smith accountable for the larger amount of cocaine under the theory of "relevant conduct" as set out in Guideline Sec. 1B1.3(a)(1)(B). That section states that when a defendant participates in "jointly undertaken criminal activity," 7 the sentencing judge should determine that defendant's base offense level by looking not only at the defendant's conduct, but also at "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." Id. Under Sec. 1B1.3, no matter which of the four people in the house threw the cocaine on the floor, Smith can be held accountable for that cocaine for sentencing purposes if the government proves that (1) she agreed to participate...
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