U.S. v. Hadden

• Citation: 475 F.3d 652
• Decision Date: 07 February 2007
• Docket Number: No. 03-7508.,03-7508.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donathan Wayne HADDEN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

475 F.3d 652

UNITED STATES of America, Plaintiff-Appellee, v. Donathan Wayne HADDEN, Defendant-Appellant.

No. 03-7508.

United States Court of Appeals, Fourth Circuit.

Argued October 25, 2006.

Decided February 7, 2007.

ARGUED: David Bruce Betts, Columbia, South Carolina, for Appellant. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Office of the United States Attorney, Florence, South Carolina, for Appellee. On Brief: Reginald I. Lloyd, United States Attorney, Columbia, South Carolina, for Appellee.

Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge WIDENER and Judge TRAXLER joined.

WILLIAMS, Circuit Judge.

Donathan Wayne Hadden was convicted on drug and gun offenses and received a sentence of 228 months' imprisonment. After an unsuccessful direct appeal, he filed a petition in the district court under 28 U.S.C.A. § 2255 (West 1994 & Supp. 2006) alleging that his convictions and sentence were unlawful. The district court agreed with Hadden in part, vacated one of Hadden's convictions, and entered a new sentence of 168 months' imprisonment. In entering Hadden's new sentence, the district court did not conduct a resentencing hearing.

Hadden now appeals his 168 month sentence, arguing that he was entitled to a resentencing hearing and that the sentence was erroneous under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons that follow, we affirm.

I.

The procedural posture of this case is complicated, due in large part to the fact that it was percolating up from the district court during the Supreme Court's recent interpretations of the Sixth Amendment in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and Booker. Because understanding the timing of these decisions in relation to Hadden's case is necessary to comprehend fully our resolution of this appeal, we set forth this case's procedural and factual history in some detail.

Beginning in 1997, with the cooperation of drug dealers Darlene Norris and Annie Lewis, the Government began to target Jerry and Sherrie Miller, two of Norris's and Lewis's large-scale buyers. In a series of recorded telephone calls, the Millers indicated that they knew a third party interested in purchasing two pounds of methamphetamine from Norris. Acting as the go-between, the Millers worked with Norris to arrange the transaction on January 20, 1998, at the Coastal Mall in Conway, South Carolina. On the day of the reverse sting operation, Hadden arrived at the mall with the Millers and was arrested. He had three loaded firearms in his truck, digital scales, and $3,500.00 in cash. Ultimately, the Government determined that Sherrie Miller's sister, Sheryl Knight Gruber, had made the arrangement for Hadden to buy the two pounds of methamphetamine.

By superseding indictment, Hadden was charged with conspiracy to possess with intent to distribute and distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846, attempted possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2 (collectively "the drug counts"), and with use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (the 924(c) count). Hadden pleaded not guilty and proceeded to a jury trial.

At trial, the Government called Joseph Evans as a witness. Evans testified that over the course of various transactions, he had purchased approximately three or four pounds of methamphetamine from Hadden that he then resold. Evans purchased all of his methamphetamine from Hadden, except for a one-time purchase from the Millers. On September 5, 1997, Evans was arrested while in possession of eight ounces of methamphetamine, which he testified came from Hadden. After Evans's arrest, Hadden loaned him $5,000.00 to post bond. Hadden continued to loan Evans money in connection with his legal fees, and Evans testified that he continued to purchase methamphetamine from Hadden after his arrest.

The Government also called Gruber, who testified that Evans first introduced her to Hadden in May 1997. Gruber sold methamphetamine that she purchased from Evans and the Millers. In December 1997, Jerry Miller asked Gruber if she knew anyone who wanted to buy two pounds of methamphetamine. Shortly thereafter, Gruber asked Hadden the same question. Hadden responded that he did not know anyone interested at that time, but later phoned Gruber and told her to get in touch with Miller to find out if the two pounds were still available. Gruber agreed to contact Miller and inquire whether the two pounds of methamphetamine were still available for sale. After a series of phone calls in which Gruber acted as the middle person, she put Hadden in touch with Miller for them to deal directly on the transaction.

The Government also called the Millers as witnesses. Jerry Miller testified that he initially informed Hadden that he had one pound of methamphetamine for sale. Hadden indicated that he instead wanted two pounds. Miller first met Hadden minutes before their arrest, and it was his belief that Hadden was there to purchase two pounds of methamphetamine. Sherry Miller likewise testified that she and her husband met Hadden at the mall to sell him two pounds of methamphetamine that they were planning to get from Norris and Lewis.

The Government then called Norris and Lewis as witnesses. Norris testified about phone calls with the Millers, which were recorded on behalf of the Government. The Millers told Norris that they knew a man interested in purchasing two pounds of methamphetamine for $14,000.00 per pound. On the day of the proposed transaction, Lewis met the Millers at the mall. The Millers told her they had to go and meet their man. When they returned, they were followed by a man in a white truck, who was in fact Hadden. Just prior to the arrest, Lewis testified that Miller told her that Hadden was going to pay $32,000.00 for the drugs.

Hadden's defense theory was that he drove 300 miles from Vidalia, Georgia to Conway, South Carolina to pick up $400.00 that Jerry Miller owed Evans, and to attempt to sell Miller digital scales. Hadden attempted to buttress his defense by pointing out that he only had $3,500.00 on his person when he was arrested, far less than the $32,000.00 purchase price of the two pounds of methamphetamine.

At the conclusion of the trial, the jury returned a guilty verdict on all three counts of the superseding indictment.¹ Hadden's presentence report (PSR) held him accountable for 2,684.01 grams of methamphetamine. Under the 1998 Guidelines, Hadden was assigned a base offense level of 34 because the PSR assigned him a criminal history level of II and attributed to him "[a]t least 1.5 KG but less than 5 KG of Methamphetamine, or at least 300 G but less than 1 KG of Methamphetamine (actual)." U.S. Sentencing Guidelines Manual § 2D1.1(c)(3) (1998). The PSR also recommended a two-level upward adjustment for obstruction of justice for a total offense level of 36. This carried with it a Guidelines range of 210 to 262 months' imprisonment. Hadden filed objections to the PSR, arguing that the drug weights attributable to him should be reduced by 680.4 grams and that the two-level adjustment for obstruction of justice was improper. He contended that he would have an adjusted offense level of 32 if his objections were sustained.

The district court conducted a lengthy sentencing hearing at which it attempted to address Hadden's objections and reach a drug weight that could be agreed upon by both parties. The district court determined that the evidence clearly demonstrated that Hadden had attempted to purchase two pounds of methamphetamine during the reverse sting. The district court, however, found merit in Hadden's primary objection to attributing an additional 680.4 grams to him, and accordingly it removed that weight from the calculation. The district court also sustained Hadden's objection to the obstruction of justice enhancement. Nonetheless, based on the two pounds from the reverse sting and the methamphetamine that Evans received from Hadden (some of which was laboratory tested and turned out to be 38.6% actual methamphetamine), Hadden's base offense level remained at 34. Based on this offense level and a criminal history level of II, Hadden's sentencing range was 168 to 210 months' imprisonment.

On June 21, 1999, the district court sentenced Hadden at the low end of the Guidelines range to 168 months' imprisonment on each of the drug counts (to run concurrently) and 60 months' imprisonment on the § 924(c) count (to run consecutively), for a total sentence of 228 months. Because Hadden's 60 month sentence on the § 924(c) count accounted for his gun possession during the commission of his drug crimes, the Government was unable to seek an enhancement of his sentence under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1999) (setting forth an enhancement for possession of a gun during the commission of a drug crime). See U.S. Sentencing Guidelines Manual § 2K2.4 application n. 2; United States v. Clements, 86 F.3d 599, 601 (6th Cir.1996) (noting that if defendant is sentenced under § 924(c), the two-level enhancement under § 2D 1.1(b)(1) is not permitted so as to avoid double-counting). Hadden appealed his convictions and sentence, and we affirmed. United States v. Hadden, 217 F.3d 841 (4th Cir. July 18, 2000) (unpublished).

On February 5, 2002, Hadden filed a petition under § 2255 in the district court raising claims of ineffective assistance of counsel relating to all three counts. As to the § 924(c) count, Hadden argued that trial counsel was ineffective for failing to object to the jury charge based on Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (holding that § 924(c)'s prohibition on the "use" of a gun...