U.S. v. Boone
| Decision Date | 29 January 2002 |
| Docket Number | No. 99-5439.,No. 99-5695.,No. 99-5894.,99-5439.,99-5695.,99-5894. |
| Citation | 279 F.3d 163 |
| Parties | UNITED STATES of America, v. Larry BOONE, Appellant. United States of America, v. Thomas Weston, aka Rasul Thomas Weston, Appellant. United States of America, Appellant, v. Thomas Weston, aka Rasul. |
| Court | U.S. Court of Appeals — Third Circuit |
David E. Schafer (Argued), Assistant Federal Public Defender, Trenton, NJ, Attorney for appellant Boone in No. 99-5439.
David L. Rhoads (Argued), Trenton, NJ, Attorney for Appellant Weston in No. 99-5695 and cross-appellee in No. 99-5894.
Robert J. Cleary, United States Attorney, Norman Gross (Argued), Assistant United States Attorney, Camden, NJ, Attorneys for appellee in Nos. 99-5439/5695 and cross-appellant in No. 99-5894.
Before ROTH, McKEE and RENDELL, Circuit Judges.
A jury convicted Thomas Weston and Larry Boone of conspiring to distribute and possess with intent to distribute cocaine and cocaine base ("crack"). Both have appealed alleging numerous trial and sentencing errors. The government has also filed a cross-appeal challenging Weston's sentence based upon the district court's calculation of Weston's Base Offense Level.
For the reasons that follow, we will affirm the convictions of both defendants on all counts of the indictment, and we will also affirm Boone's sentence. However, for reasons set forth below, we will vacate Weston's sentence and remand for re-sentencing consistent with this opinion.
Thomas Weston manufactured crack cocaine and enlisted numerous persons to distribute large quantities of crack and powder cocaine in Asbury Park, New Jersey between 1995 and 1998. The evidence at trial established that Weston purchased 3 to 5 kilograms of cocaine powder from a wholesale distributer in New York City. He converted cocaine powder into crack cocaine, delivered cocaine to a coterie of street level dealers for distribution in Asbury Park, and personally "cooked" at least 200 grams of cocaine powder into crack cocaine.
Weston solicited Stewart Mills, a hot dog vendor in Asbury Park, to sell crack cocaine for him. However, Mills was a reformed drug addict who was strongly opposed to drug-dealing. Unbeknownst to Weston, Mills told local law enforcement officials about Weston's drug activities and agreed to broker controlled drug deals between Weston and undercover agents posing as drug buyers.
Weston told Mills that crack should be sold at $900 an ounce, and that Mills would have to sell a minimum of 4 ounces. Weston also gave Mills code words and numbers that Mills was to use when communicating with Weston about drug transactions. Weston eventually agreed to sell four ounces of crack to a buyer whom Mills introduced as a drug user named "Malik." Malik was actually Gregory Hilton, an undercover agent of the Drug Enforcement Agency. Mills and Weston agreed that the sale would occur on July 11, 1997, in Howell, New Jersey, at a flea market known as the "Collingswood Auction."
Thereafter, Mills paged Weston from a public telephone as instructed by the DEA agents. He entered the number "3600" which represented the price (i.e.$3,600) that Agent Hilton was willing to pay for 4 ounces of crack as Weston had requested. Weston called Mills back and arranged a meeting at Weston's home in Asbury Park, and Mills and Weston then met to finalize the arrangements.
Weston next contacted Curtis Farris (a/k/a "C-Allah") and offered him $500 to deliver the drugs to the buyer at the Collingswood Auction. Farris agreed and told Weston that he would have someone else make the actual delivery. Farris selected Larry Boone (a/k/a "God Supreme"). Boone had sold cocaine for Farris before, and Farris knew that Boone and Mills were friendly.
Farris offered Boone $100 and an eighth of an ounce of cocaine to deliver the package of cocaine to Collingswood Auction and collect the sales price. Boone agreed. Meanwhile, Weston partially reneged on his agreement with Mills to provide four ounces of crack cocaine, and unilaterally substituted 111 grams (approximately four ounces) of cocaine powder for delivery to Farris. On the afternoon of July 11, 1997, Farris drove Boone to the Collingswood Auction in a black Jeep. En route, Farris gave Boone a brown paper bag. That bag contained a smaller plastic bag containing 111 grams of powder cocaine that Weston had supplied.
Law enforcement officials who had set up surveillance at the Collingswood Auction saw Weston and two other people arrive 2:45 p.m. Farris and Boone arrived about ten minutes later. Boone approached Mills and said he was "there to do the deal." Mills introduced Farris and Boone to Agent Hilton, posing as "Malik." Hilton accompanied Boone to Farris' car as directed. Once inside the car, Boone took a clear plastic bag from his jacket. The bag contained the distinctive white cocaine powder. Agent Hilton never saw the brown paper bag.
Although Weston had set a price of $3,600, unbeknownst to Farris, Boone demanded $3,700 from Agent Hilton. Hilton briefly complained about the increase but ultimately paid it as he did not want to compromise the investigation by walking away from the transaction. Hilton agreed and Boone handed him the plastic bag of cocaine which Agent Hilton opened and examined in Boone's presence inside the Jeep. After inspecting the cocaine in front of Boone, Hilton produced $3,700 in cash which he counted in Boone's presence and handed to Boone so that Boone could recount it. After Hilton left the Jeep, Boone surreptitiously skimmed $100 from the $3,700 payment, and drove off followed by Weston who had driven another car to the flea market to observe the transaction.1
About a week later, Boone came to Mills' home. Boone announced that he "was back rolling," which meant that he was selling cocaine again. He informed Mills that he (Boone) had a "connection" and could get Mills all the "weight" (large quantities of cocaine) that Mills wanted. During that meeting, Boone gave Mills his "business card."
Several weeks later, again acting at the request of DEA, Mills brokered another sale of four ounces of cocaine from Weston to Agent Hilton posing as "Malik." During a surreptitiously recorded conversation on July 22, 1997, Mills told Weston that Malik wanted to buy four ounces of crack for $3,600 during the following week. Weston again gave Farris powder cocaine, rather than crack. However, Farris used Herbert Jones to make the delivery to Hilton because he could not find Boone. Jones made the delivery on August 1, 1997. This time the transfer occurred in a restaurant that Mills owned.
Mills again met Weston on October 4, 1997. The meeting occurred inside a bar, and during the meeting Mills (who was equipped with a hidden recorder) asked Weston why he had delivered powder cocaine on July 11 and August 1 rather than the crack that Malik requested. Weston initially claimed that he no longer "cooked up crack." However, Weston then directed Mills out of the bar so they could speak without being overheard. Using slang terms for manufacturing crack ("cooking," "laying out," "bringing back"), Weston told Mills that he (Weston) would convert the four ounces of cocaine that he most recently sold to Malik into four and one-half ounces of crack. Weston also told Mills that he could provide Mills with additional crack cocaine if he wanted it. Later, Weston told Mills to pick up some powder cocaine, and bring it to Weston's home so that Weston could "cook it up."
Weston, Boone and Jones were arrested by warrant and complaint on June 3, 1998. Farris was arrested on September 11, 1998. On October 27, 1998, a federal grand jury issued a superseding indictment charging Weston, Boone, Farris and Jones with conspiring to distribute, and possessing with intent to distribute, more than 5 grams of cocaine base (crack cocaine) and more than 200 grams of cocaine, contrary to 21 U.S.C. § 841(a)(1), in violation of 21 U.S.C. § 846. The government also filed an enhanced penalty information against Weston, pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 851(a)(1). The requested enhancement was based upon Weston's 1992 sentence of four years incarceration in Maryland for possession of 39 grams of crack cocaine with intent to distribute.
Farris entered into a plea agreement whereby he agreed to cooperate with the government and plead guilty to the superseding indictment. Jones also pleaded guilty. Boone and Weston proceeded to trial where the jury convicted them of the charged conspiracy.
Prior to sentencing, the Probation Office calculated Weston's Adjusted and Total Offense Level at 40.2 In light of Weston's five criminal history points, and Criminal History Category of III, Weston's Guidelines Range was 360 months to life imprisonment. Following three days of sentencing hearings, the district court reduced the Total Offense Level from 40 to 32.3 The court refused to consider any of the crack cocaine that Weston cooked as "relevant conduct" under the Guidelines. This reduced the Guideline Range calculated by the pre-sentence report by more than half. The district court also reduced Weston's Criminal History Category to II, resulting in a Guidelines Range of 135 to 168 months. The district court then imposed a sentence of 168 months and a term of supervised release of 8 years.
Because Boone had been convicted of two previous drug-trafficking felonies in New Jersey state courts, as well as aggravated assault with a deadly weapon, the district court found that Boone was a "career offender" under the Sentencing Guidelines. The court assigned Boone a Base Offense Level of 32, and a Criminal History Category of VI. The court declined Boone's request for a three level downward adjustment for "acceptance of...
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