U.S. v. Ward

• Decision Date: 23 October 2007
• Docket Number: No. 06-5136.,No. 06-5680.,No. 06-5410.,06-5136.,06-5410.,06-5680.
• Citation: 506 F.3d 468
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin Junior WARD (06-5136), Berreese Latrell Winton (06-5410), and Stephen C. Cook (06-5680), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

506 F.3d 468 UNITED STATES of America, Plaintiff-Appellee,
v.
Calvin Junior WARD (06-5136), Berreese Latrell Winton (06-5410), and Stephen C. Cook (06-5680), Defendants-Appellants. No. 06-5136. No. 06-5410. No. 06-5680. United States Court of Appeals, Sixth Circuit. Argued and Submitted: September 11, 2007. Decided and Filed: October 23, 2007.

[506 F.3d 470]

ARGUED: Clayton M. Whittaker, Mack & Whittaker, Chattanooga, Tennessee, for Appellant. Robert C. Anderson, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee. ON BRIEF: Clayton M. Whittaker, Mack & Whittaker, Chattanooga, Tennessee, John C. Cavett, Jr., Cavett & Abbott, Chattanooga, Tennessee, Bryan H. Hoss, Davis & Hoss,

[506 F.3d 471]

Chattanooga, Tennessee, for Appellants. Robert C. Anderson, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before: GUY, ROGERS, and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Defendants Calvin Ward, Berreese Winton, and Stephen Cook pled guilty to various drug trafficking crimes. In a joint sentencing hearing, the district court sentenced Ward to 210 months' imprisonment and Winton to 292 months' imprisonment. Shortly thereafter, the district court sentenced Cook to 294 months' imprisonment.

All three defendants now appeal their respective sentences. Ward objects to the use of a prior felony drug conviction as a predicate offense for purposes of career offender status. Winton argues that the district court erred when it applied a two-level firearm enhancement. Cook raises three objections, contending that the two-level enhancement for his leadership role was improper, the enhancement provision is unconstitutionally vague, and his sentence was unreasonable. Contrary to defendants' arguments, the district court did not commit error when it sentenced each defendant, and so we affirm all three judgments.

I. BACKGROUND

Law enforcement authorities commenced the investigation that led to co-defendants Ward's, Winton's and Cook's arrests and convictions when they received information that Cook was selling a large volume of crack cocaine in the Tullahoma, Tennessee area. As part of that investigation, a confidential informant ("CI") purchased crack cocaine from Ward beginning in June 2004 and ending in February 2005.

On February 10, 2005, Ward was advised that a warrant had been issued for his arrest for selling crack cocaine. Ward waived his rights and explained to investigating officers that since March 2002, Cook was Ward's primary source of crack cocaine. Ward advised that from March 2002 through February 10, 2005, he purchased a total of 2 to 3 kilograms of crack cocaine from Cook.

On August 3, 2005, a CI arranged for a controlled purchase of crack cocaine from Cook. After Cook fronted crack cocaine to the CI, a search warrant was obtained to search Cook's residence. When officers arrived to execute the search warrant, Cook and Winton were in the front yard. Both Cook and Winton were searched. The search revealed that Winton had a plastic bag containing crack cocaine and cash. Among the items seized from Cook's residence was a Smith and Wesson 9-millimeter handgun with a loaded magazine.

On August 10, 2005, Winton waived his rights and explained that he began purchasing crack cocaine from Cook in mid-March 2003. From that time until his arrest, Winton purchased an average of 4½ to 5 ounces of crack cocaine per week from Cook. Winton also stated that Cook always carried a gun during their drug transactions, either a 9-millimeter pistol, a .25 automatic pistol, a .380 pistol, or a Glock .40 pistol.

Winton explained that Ward made crack cocaine deliveries on behalf of Cook. Winton estimated that on 20 separate occasions, Ward delivered crack to him after Winton had ordered the crack cocaine from Cook. Winton said that when Cook was unavailable, Winton would order crack cocaine from Ward.

On June 30, 2005, a federal grand jury charged defendants Cook and Ward in a

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ten-count indictment with conspiracy to distribute fifty grams or more of crack cocaine and related substantive drug distribution counts. On August 23, 2005, the grand jury returned a fourteen-count superseding indictment charging three additional counts against Cook and adding co-defendant Winton, who was charged with a substantive drug offense in count twelve.

On October 6, 2005, Ward pled guilty to conspiracy to distribute five or more grams of crack cocaine, a lesser included offense in count one, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B). That same day, Winton pled guilty to count twelve, which charged possession with intent to distribute five or more grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). On November 3, 2005, Cook pled guilty to count one, which charged conspiracy to distribute fifty or more grams of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A); and to count fourteen, which charged possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

On January 6, 2006, the district court sentenced Winton to 292 months' imprisonment and Ward to 210 months' imprisonment. On April 7, 2006, Cook was sentenced to 234 months' imprisonment on count one and to a statutorily mandated consecutive term of 60 months' imprisonment on count fourteen, for a total of 294 months' imprisonment. All three defendants filed timely notices of appeal.

II. ANALYSIS

A. Ward's objection to use of prior felony drug conviction.

Ward asserts one objection to the sentence imposed by the district court.¹ He challenges the district court's use of his prior conviction for selling crack cocaine on January 31, 2002 as a predicate offense for purposes of career offender status.²

This Court reviews for clear error a district court's findings of fact with respect to its application of the Sentencing Guidelines; conclusions of law, however, are reviewed de novo. United States v. Galloway, 439 F.3d 320, 322 (6th Cir.2006). A factual finding is clearly erroneous "when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir.2006) (citation omitted). Whether conduct is "related" for purposes of calculating a defendant's career offender status is a fact-specific determination that this Court reviews for clear error. United States v. Horn, 355 F.3d 610, 612-13 (6th Cir.2004).

To qualify as a career offender under U.S.S.G. § 4B1.1, a defendant who was over the age of eighteen at the time he committed the instant offense must have "at least two prior felony convictions of . . . a controlled substance offense." U.S.S.G.

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§ 4B1.1(a)(1), (3). The term "two prior felony convictions" means defendant (1) "committed the instant offense of conviction subsequent to sustaining at least two felony convictions" and (2) "the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of § 4A1.1(a), (b), or (c)." U.S.S.G. § 4B1.2(c). "The term `prior sentence' means any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1).

Ward argues that his January 2002 offense is "related" to the present offense because it was part of a single common scheme or plan inasmuch as he purchased the crack cocaine at co-conspirator Cook's residence, albeit through another person.³ Because the prior offense and the present offense are "related," Ward argues the prior conviction should not have been used to adjudicate him a career offender.

Ward's argument "illustrates a common misconception about the term `related cases' in § 4A1.2(a)(2)." United States v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992). In Beddow, the defendant argued that his possession of a concealed weapon (i.e., the alleged prior state offense and conviction) and the money laundering offenses (i.e., the present offenses) "occurred on a single occasion" because he was arrested for both crimes at the same time and both offenses were part of "a single common scheme or plan." Id. The Court rejected the defendant's argument and explained that the question of "related cases" referred to in § 4A1.2(a)(2) applies to the relationship between prior sentences, not to the relationship between prior sentences and the present offense. Id. (citing United States v. Walling, 936 F.2d 469, 471 (10th Cir.1991) (emphasis added)). Here, Ward's "related" argument fails for the same reason. See also United Sates v. Evans, 187 F.3d 638, 1999 WL 552608 (6th Cir.1999) (unpublished) (applying the Beddow analysis to reject the defendant's argument that his prior drug sentence was "related" to his present offense because he obtained the cocaine that led to his prior sentence from his alleged co-conspirators in the present offense).

To the extent Ward's argument is that his prior conviction is part of the present offense, his argument similarly fails.⁴ See U.S.S.G. § 4A1.2(a)(1) (providing that a "prior sentence" is any sentence previously imposed for "conduct not part of the instant offense"); Evans, 187 F.3d 638, 1999 WL 552608 at *2 (Cole, J., concurring).

Indeed, it is undisputed that at the time of the January 2002 offense, Ward had multiple suppliers of crack cocaine other than Cook. It is undisputed that Ward did not buy the crack cocaine that was the subject of the January 2002 offense directly from Cook. It is undisputed that Cook

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did not trust Ward enough to sell him crack cocaine directly until March 2002. Moreover, the instant superseding indictment involves conspiracy conduct that started in March 2002, a start date provided by Ward himself. The superseding indictment not only did not charge any specific violations or overt acts in January...