17 F.3d 816 (6th Cir. 1994), 92-2051, United States v. Obiukwu

Docket Nº:Joseph OBIUKWU (92-2051) and Thomas Glenn (92-2120),
Citation:17 F.3d 816
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:February 03, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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17 F.3d 816 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joseph OBIUKWU (92-2051) and Thomas Glenn (92-2120),

Defendants-Appellants.

Nos. 92-2051, 92-2120.

United States Court of Appeals, Sixth Circuit

February 3, 1994

Argued Jan. 19, 1994.

[*]

Kathleen Moro Nesi, Asst. U.S. Atty., Office of the U.S. Atty., J. Michael Buckley, Office of the U.S. Atty., Detroit, MI, for U.S.

Curtis L. Blood (argued and briefed), Collinsville, IL, for Joseph Obiukwu.

Joseph Obiukwu, pro se.

Mark E. Weaver (argued), Birmingham, MI, for Thomas Glenn.

Before: KENNEDY and NELSON, Circuit Judges; and CONTIE, Senior Circuit Judge.

PER CURIAM.

Convicted of conspiring to distribute heroin and sentenced to terms of imprisonment

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exceeding 12 years in length, the defendants have appealed both their convictions and their sentences. We shall affirm the convictions. Because the district court failed to make appropriate factual findings on the amount of illegal drugs for which each defendant was responsible, we shall vacate the sentences and remand the case for further factfinding and resentencing.

I

In March of 1991 the Drug Enforcement Administration began an investigation of suspected illegal narcotics-dealing activity by a resident of Detroit, Michigan, named Abiodun Adeshina. On April 5, 1991, an undercover DEA agent, Durell Hope, agreed to purchase half an ounce of heroin from Mr. Adeshina. When they met that evening to consummate the transaction, Adeshina had Hope drive him to defendant Thomas Glenn's house. When the two men arrived there, however, Mr. Glenn, whom Adeshina identified as a supplier, was not at home. At Adeshina's direction, Agent Hope then drove to the house of Glenn's sister. Mr. Glenn was not there either, and no heroin changed hands that night.

Five days later Agent Hope returned to Mr. Adeshina's residence in another attempt to buy heroin. When he arrived at the house, Thomas Glenn and a woman named Christine Black were on the premises with Mr. Adeshina. Glenn produced a plastic bag containing an ounce of heroin, which he showed to Agent Hope. No one had a scale with which to weigh the half-ounce of heroin that Hope had agreed to purchase, and Glenn refused to give Hope the entire ounce and take payment for it later.

The three men then drove to a nearby liquor store, where Agent Hope gave Adeshina $3,750 for the half-ounce of heroin. After leaving the scene for a few minutes, Glenn returned and gave Adeshina the correct amount of the drug; Adeshina passed the drug to Agent Hope.

On April 17, 1991, Agent Hope returned to Adeshina's residence to negotiate another heroin purchase. This time defendant Joseph Obiukwu was at the house when Hope arrived. Adeshina told Hope that Obiukwu supplied heroin of high quality, and he explained to the agent that he had multiple sources, including Obiukwu and Glenn. Hope and Adeshina agreed on the sale of one ounce of heroin for $7,500, and, after consulting with Obiukwu, Adeshina told Agent Hope that the heroin would be available the following day.

Agent Hope returned to Adeshina's residence on April 18 to buy the ounce of heroin. Obiukwu was not present when Hope arrived, but Adeshina and Ms. Black told Hope that he would be there soon. While they waited for Obiukwu, Hope and Adeshina discussed a projected purchase of 500 grams of heroin, which Adeshina said he could obtain from a source in New Jersey. Obiukwu failed to arrive, and Hope told Adeshina that he wanted to leave. Adeshina then tried to telephone Obiukwu and left a message on his answering machine. Attempting to persuade Hope not to leave, Adeshina told Hope that Obiukwu had more than a kilogram of heroin available for sale.

Agent Hope met Adeshina in a parking lot on April 24 and purchased 26.6 grams of heroin obtained from Mr. Obiukwu. Adeshina, accompanied by an unknown man, sold Hope an additional 25.3 grams of heroin on May 15.

On May 31 agents of the DEA executed a search warrant on a van driven by Mr. Obiukwu. The search uncovered what appeared to be a drug ledger, containing names, dollar and gram amounts, and an entry reading "$36,000" next to what appeared to be Mr. Adeshina's name. Mr. Adeshina testified at trial that on the day of the search he had owed Obiukwu $36,000 for heroin purchased on credit.

On June 14 Adeshina agreed to sell Agent Hope four ounces of heroin for $25,000. Hope testified at trial that Mr. Adeshina appeared nervous during this meeting and that he mentioned Mr. Obiukwu's recent arrest.

Working independently, police officers in Oak Park, Michigan, arrested Thomas Glenn on July 2, 1991. At the time of his arrest Mr. Glenn was carrying 9.25 grams of a

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heroin mixture, an address book, and $679 in cash. The address book contained Mr. Adeshina's nickname and his home telephone and pager numbers. A briefcase in Mr. Glenn's possession contained $49,960 in cash, $16,000 in cashier's checks, receipts for $99,000 in cashier's checks, and 46 grams of a cocaine-heroin mixture. Found under the mattress in the motel room where Glenn was arrested were a loaded handgun, $22,000 in cash, and a quantity of cocaine.

Mr. Glenn went to trial in a state court...

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