514 F.3d 60 (1st Cir. 2008), 06-2471, United States v. Dickerson

Docket Nº:06-2471.
Citation:514 F.3d 60
Party Name:UNITED STATES of America, Appellee, v. Earl DICKERSON, Defendant, Appellant.
Case Date:January 24, 2008
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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514 F.3d 60 (1st Cir. 2008)

UNITED STATES of America, Appellee,

v.

Earl DICKERSON, Defendant, Appellant.

No. 06-2471.

United States Court of Appeals, First Circuit.

Jan. 24, 2008

Heard Dec. 6, 2007.

Appeal from the United States District Court for the District of Massachusetts [Hon. Rya W. Zobel, U.S. District Judge]

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[Copyrighted Material Omitted]

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Aziz Safar with whom Safar Law Office was on brief for appellant.

James F. Lang, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Earl Dickerson has been sentenced to life imprisonment following his convictions for serious drug offenses involving over sixty grams of cocaine base and being a felon in possession of a firearm. Because he had four prior convictions for felony drug offenses, as outlined in an information filed by the prosecution under 21 U.S.C. § 851(a), the life sentence was mandatory.

The primary issue on appeal is Dickerson's unpreserved claim that the trial judge did not expressly instruct the jury that its findings of drug quantities had to be beyond a reasonable doubt. From this, he argues the specific drug quantities found cannot be utilized for sentencing, and so a lesser default maximum sentence than life imprisonment must be imposed.

Dickerson also claims there was error in the § 851 proceedings about his prior convictions because he was not given the chance to challenge the information filed by the government before his sentence was imposed. Dickerson's last claim is that the court erred in denying his motion to suppress evidence of over fifty-five grams of cocaine base found in a "hide" compartment in his second car during a warrantless search.

We affirm.

I.

Because there is no challenge to the sufficiency of the evidence, we discuss only those facts pertinent to the issues raised.

A. Purported Apprendi Error in Instructions as to Drug Quantity

The indictment against Dickerson included two counts of possession with intent to distribute.1 The first stemmed from drugs found in the bedroom of Dickerson's apartment and charged possession with intent to distribute five or more grams of cocaine base in violation of 21 U.S.C. § 841(a), for which the penalty is located in 21 U.S.C. § 841(b)(1)(B). The second count related to the drugs found in Dickerson's car and charged possession with intent to distribute fifty or more grams of cocaine base, also in violation of 21 U.S.C. § 841(a), the penalty for which is located in 21 U.S.C. § 841(b)(1)(A). Section 841(b)(1)(B) provides a maximum term of life imprisonment if a defendant has a prior conviction for a felony drug offense; § 841(b)(1)(A) provides a mandatory life

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sentence if a defendant has two or more prior felony drug convictions.

Drug quantity and type generally must be determined by a jury beyond a reasonable doubt before a defendant may receive a sentence in excess of the default statutory maximum. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Perez-Ruiz, 353 F.3d 1, 15 (1st Cir. 2003); cf. United States v. Collazo-Aponte, 281 F.3d 320, 324 (1st Cir. 2002); United States v. Baltas, 236 F.3d 27, 40-41 (1st Cir. 2001). If no specific quantity of cocaine base is identified, the default statutory maximum for violations of 21 U.S.C. § 841(a) is twenty years, or thirty years if the defendant has a prior felony conviction. 21 U.S.C. § 841(b)(1)(C); see also Perez-Ruiz, 353 F.3d at 15; United States v. Robinson, 241 F.3d 115, 118 (1st Cir. 2001).

Here, the requisite drug quantities and types were both charged in the indictment and found by the jury. The verdict slip that the jury filled out expressly sought the jury's determination about the quantities of cocaine base involved. Under the caption for each of the counts, the slip stated: "If you found the defendant guilty, please indicate the amount of cocaine base defendant possessed: ____ Grams." On Count One, the jury filled in "10.99" grams of cocaine base; on Count Two, "57.83" grams of cocaine base.

Dickerson's claim of Apprendi error stems from the fact that the jury instructions did not specifically repeat the drug quantities and types charged and did not specify that the government needed to prove these quantities and types beyond a reasonable doubt. The district court, however, did instruct the jury as to the presumption of innocence, and it specified that the presumption of innocence remains with the defendant throughout the trial and is not overcome unless, based on all of the evidence, the jurors are convinced beyond a reasonable doubt of the defendant's guilt. The court instructed the jury: "You cannot find the defendant guilty on the basis of probable cause, nor on the basis of a...

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