U.S. v. Dowling, 04-10464.

• Decision Date: 23 March 2005
• Docket Number: No. 04-10464.,04-10464.
• Citation: 403 F.3d 1242
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Avonda Vanay DOWLING, a.k.a. Avonda Jackson, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

403 F.3d 1242

UNITED STATES of America, Plaintiff-Appellee, v. Avonda Vanay DOWLING, a.k.a. Avonda Jackson, etc., Defendant-Appellant.

No. 04-10464.

United States Court of Appeals, Eleventh Circuit.

March 23, 2005.

Appeal from the United States District Court for the Southern District of Florida.

Marisa Tinkler Mendez (Court-Appointed), Marisa Tinkler Mendez, P.A., Miami, FL, for Defendant-Appellant.

Phillip DiRosa, Ft. Lauderdale, FL, Anne R. Schultz, Asst. U.S. Atty., Sally M. Richardson, Miami, FL, for Plaintiff-Appellee.

Before ANDERSON, PRYOR and HILL, Circuit Judges.

ANDERSON, Circuit Judge:

Appellant Avonda Dowling appeals her conviction of conspiracy to distribute cocaine and her sentence of 240 months' imprisonment. She alleges four grounds for reversal: (1) that there was insufficient evidence to support her conviction for the charged offense; (2) that the district court's alleged mistreatment of her trial counsel in front of the jury violated her right to receive a fair trial; (3) that the district court erred in denying her motion for a new trial on several grounds; and (4) that her sentence is unconstitutional in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm her conviction. We also affirm sentence, concluding that her argument based on Booker cannot survive plain error review because Dowling cannot show that the error affected her substantial rights. See United States v. Rodriguez, 398 F.3d 1291 (11th Cir.2005).

On November 14, 2002, a federal grand jury returned a single-count indictment against Dowling and four co-defendants. The five defendants were charged with conspiring, between 1984 and sometime in 1999, to distribute at least five kilograms of cocaine and at least fifty grams of cocaine base (crack) in violation of 21 U.S.C. § 846. Three of the defendants pleaded guilty, and only Dowling and one co-defendant proceeded to trial.

At trial, the government presented a number of witnesses who testified concerning their drug transactions with Dowling and the extent and organization of her group, the "Vonda Gang." Several of these witnesses testified that they dealt with Dowling on a weekly basis and routinely purchased large quantities (up to 2 kilograms at a time) of cocaine from her. The government's witnesses also testified to Dowling's involvement in at least two murders in the furtherance of her drug distribution conspiracy. Finally, the government's witnesses testified that Dowling continued to oversee drug distribution operations from prison after her 1998 arrest.

In response, Dowling admitted prior involvement in drug dealing but testified that she had completely withdrawn from the conspiracy in late 1995, therefore entitling her to the protection of the five year statute of limitations applicable to her November 2002 indictment. She denied that she or her associates had ever used violence or the threat of violence to further their conspiracy, and claimed that they had dealt only small amounts of cocaine. She offered the testimony of several witnesses who claimed that she had stopped selling cocaine by 1996. Dowling also personally testified that she was not in possession of any drugs when she was arrested in 1998, that the approximately $8,000 in cash she was carrying at the time was money that she had won gambling with a local bookmaker, and that she had not had any involvement with drug distribution while incarcerated.

In addition, Dowling attacked the government's case by arguing that most of its witnesses were convicts who had perjured themselves in an effort to obtain sentence reductions for cooperating with law enforcement. She presented witnesses who said they had overheard fellow inmates conspiring to lie about her drug activities in order to obtain favorable treatment. She also presented witnesses who claimed that she had no involvement with drug activities after her incarceration, and she produced two witnesses who claimed to have lied to law enforcement about the extent of her drug activities.

During its rebuttal, the government recalled several of its witnesses to testify that they had not discussed the case with other witnesses. Several of them further testified that Dowling and her associates had tried to influence their testimony. The officer who arrested Dowling in 1998 testified that he seized "a large amount of drugs" from the purse of another passenger in the car as well as over $8,000 in cash and two grams of cocaine from Dowling's purse. He further testified that Dowling admitted that all of the drugs were hers, and that a search of the impounded vehicle yielded numerous small bags of marijuana, cocaine, crack, and heroin.

The jury found Dowling guilty. The jury, however, returned a special verdict regarding the amount of drugs involved, finding that Dowling conspired to distribute less than 500 grams of cocaine and no crack. At sentencing, the district court applied the Federal Sentencing Guidelines ("Guidelines"). The court found that, according to Dowling's own testimony, the conspiracy involved at least 150 kilograms of powder cocaine and 1.5 kilograms of crack, establishing a base level of 38. The court, expressing some hesitation, then found that the conspiracy involved a murder, and using the applicable cross-reference, increased Dowling's Guideline level to 43. The court finally increased four Guideline levels, based upon its finding that Dowling was the organizer/leader of the conspiracy, and arrived at Guideline level 47. The maximum Guideline level is 43, and the court determined that the sentencing guidelines recommended a sentence of life at this level. The court, however, recognized that the jury's verdict that found Dowling guilty of conspiring to distribute less than 500 grams of cocaine authorized a maximum sentence of only twenty years under the relevant provisions of the United States Code. Accordingly, the court sentenced Dowling to 240 months' imprisonment.

After oral argument and careful consideration, we readily conclude that the first three arguments asserted by Dowling are without merit. First, we find there was more than sufficient evidence to support the jury's verdict of conspiracy to distribute 500 grams of cocaine in light of the extensive amount of testimony against Dowling on this issue, including her own. Second, Dowling's allegation that mistreatment of her trial counsel in front of the jury violated her right to receive a fair trial is not supported by the record. A careful review of the record reveals that, while Dowling is correct that her counsel's closing argument was repeatedly interrupted and he was frequently admonished, those interruptions were clearly warranted and not frivolous. Finally, we find nothing in the record to support Dowling's motion for a new trial, and we reject her argument that the district court erred in denying her motion.

Dowling's final claim, that her sentence is unconstitutional in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), requires a more detailed analysis. In sentencing Dowling, the district court, like nearly all sentencing courts at the time, applied the Federal Sentencing Guidelines as mandatory. After the Supreme Court's opinion in Booker, we know that a mandatory application of the Guidelines can violate a defendant's Sixth Amendment rights. See United States v. Duncan, 400 F.3d 1297, 1306, 2005 WL 428414 at *1 (11th Cir. Feb. 24, 2005) (discussing the two majority opinions in Booker).

The first question that an appellate court reviewing a Booker claim must ask is: did the defendant make a constitutional objection? See United States v. Candelario, 240 F.3d 1300, 1303-04 (11th Cir.2001). We conclude that Dowling did not make a Sixth Amendment objection in the district court which could preserve Booker error. This Court in Candelario described the kind of objection which would preserve an Apprendi¹ error:

not every objection is a constitutional objection. A defendant may be deemed to have made a constitutional objection if his objection invokes Apprendi or Jones.² The defendant may also be deemed to have made a constitutional objection if he contends that "the issue of drug quantity should go to the jury." Other potential constitutional objections include that an element of the offense was not proved, that the judge cannot determine quantity, or that quantity must be proved beyond a reasonable doubt (and not by a preponderance of the evidence).

Id. at 1304 (internal citations omitted).

Because Booker is based on the Apprendi line of cases, we follow the rule set out in Candelario and apply similar standards to determine whether Dowling has preserved her claim with respect to Booker. Candelario held that an objection based solely upon sufficiency of the evidence does not preserve a constitutional error under Apprendi. Id. at 1308 (citing United States v. Swatzie, 228 F.3d 1278, 1283 (11th Cir.2000), for the proposition that a defendant's objection to the amount and form of cocaine did not preserve Apprendi error where the defendant did not raise Apprendi or Jones,"or otherwise base his objection on the fact that drug quantity (and type) must be found by the jury beyond a reasonable doubt.").

In the instant case, Dowling's objections to the pre-sentence report were set out in her attorney's January 5, 2004 letter to the probation officer. That letter included the following language: "The jury verdict finding Avonda Dowling guilty of conspiracy to possess with intent to distribute less than 500 grams of powder cocaine, under the unique facts and circumstances of this case, must be respected. Therefore, the base offense level is no greater than level 24." We can assume arguendo that Booker error would be preserved if an objection in the instant case had in fact fairly apprised the district court that the objection was an insistence that the jury verdict of less than 500 grams was...