U.S. v. Hansley
| Decision Date | 14 June 1995 |
| Docket Number | No. 91-4169,91-4169 |
| Citation | 54 F.3d 709 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Johnny Lee HANSLEY, a/k/a Johnnie Lee Hansley, Glenn Hansley, Ray Bennett, Bobby Riley, Earl Jackson, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
J. James Allen, Jacksonville, FL, for J. Hansley.
Neal Betancourt, Jacksonville, FL, for G. Hansley.
James H. Burke, Asst. Federal Public Defender, Jacksonville, FL, for R. Bennett.
Garrett Barket, Jacksonville, FL, for B. Riley.
Robert H. Trachman, Fort Lauderdale, FL, for E. Jackson.
James Klindt, Asst. U.S. Atty., Jacksonville, FL, for the U.S.
Appeals from the United States District Court for the Middle District of Florida.
Before HATCHETT, Circuit Judge, CLARK, Senior Circuit Judge, and YOUNG *, Senior District Judge.
In this appeal, we affirm the convictions and sentences of all appellants, except Earl Jackson. As to Jackson, we affirm his conviction, but remand to the district court for resentencing.
A jury convicted the appellants, Johnny Lee Hansley, Glenn Hansley, Bobby Riley, Ray Bennett, and Earl Jackson for their involvement in a conspiracy to distribute crack cocaine. 1 Hansley, Glenn Hansley, and Riley appeal their convictions. Because all of their arguments are meritless, we affirm their convictions without discussion. 2 Hansley, Riley, Bennett, and Jackson appeal their sentences. We affirm the sentences of Hansley, Riley, and Bennett; we, however, vacate Jackson's sentence and remand for further proceedings.
Hansley led a conspiracy that imported crack cocaine from south Florida and distributed it in Hazelhurst, Georgia. Riley and Jackson were the conspiracy's sources for the crack cocaine in south Florida. Hansley usually sent a courier to obtain the drugs.
Ellis Sellers, one of Hansley's couriers, made approximately fifteen trips to south Florida to purchase cocaine. Hansley usually gave Sellers about $9000 to make the purchase, and Sellers usually returned with approximately the same amount of cocaine. On one trip, however, Hansley gave Sellers approximately $24,000; on this occasion, Sellers returned with a larger quantity of drugs. On June 2, 1990, when Florida law enforcement authorities arrested Sellers while he was returning from one of his routine trips, the officers found him to be in possession of approximately 272 grams of crack cocaine.
Bennett and Glenn Hansley were also couriers. On one trip, authorities pulled their car over and found them to be in possession of $15,000. Authorities also pulled Bennett over on two other trips. On one trip they found $9,718; on the other, they found $7,800.
On September 29, 1990, when Hansley attempted to travel to south Florida, law enforcement authorities stopped him at the Jacksonville International Airport as he was attempting to catch a flight to Miami. The authorities found Hansley in possession of $13,000.
Law enforcement authorities then began to infiltrate the conspiracy. In October 1990, an undercover agent repeatedly met with Hansley at his residence to discuss the possibility of bringing drugs from south Florida to The conspiracy finally came to an end in March 1991, when law enforcement officers executed a search warrant at Hansley's residence. The officers found, among other things, large sums of cash, various incriminating documents, and a Rossi .38 caliber revolver.
Hazelhurst. While at Hansley's residence, the undercover agent observed various drug ledgers. Then, on November 9, 1990, authorities arrested Bennett on a return trip from south Florida, and found him in possession of 278 grams of crack cocaine.
On March 28, 1991, a grand jury returned a three-count indictment against the appellants. Count I charged all of the appellants with conspiring to distribute crack cocaine from 1985 to 1991, in violation of 21 U.S.C. Sec. 846. Count II charged Hansley and Jackson with the substantive offense of possessing crack cocaine with the intent to distribute on June 2, 1990, in violation of 21 U.S.C. Sec. 841(a)(1). Count III charged Hansley and Bennett with the substantive offense of possessing crack cocaine with the intent to distribute on November 9, 1990.
On September 6, 1991, the government filed an information, pursuant to 21 U.S.C. Sec. 851, notifying Bennett that he faced a possible mandatory term of life imprisonment because he had three prior felony drug convictions: (1) a May 26, 1981 Georgia conviction for possessing drugs; (2) a March 20, 1989 Georgia conviction for possessing drugs; and (3) an April 24, 1991 Florida conviction for trafficking in cocaine.
Trial commenced on September 9, 1991. One week later, the jury convicted the appellants on all three counts. The United States Probation Office then prepared a presentence report (PSR) for each appellant. The PSRs stated that the appellants "had reasonably foreseeable knowledge [that] at least 5 kilograms of cocaine base" were involved in the conspiracy. As a result, the PSRs set the appellants' base offense levels at forty, pursuant to U.S.S.G. Sec. 2D1.1(a)(3). 3 Hansley's PSR also assessed him: (1) a two-level increase for possessing a firearm during the commission of the offense; and (2) three additional criminal history points because he committed the instant offenses while serving probation and less than two years after he was released from custody.
Hansley and Jackson filed objections to their base offense levels, arguing that the five-kilogram total was incorrect. Hansley also objected to the two-level increase and to the three additional criminal history points attributed to him. The government filed a response to their objections.
The district court held a sentencing hearing on November 22, 1991. At the hearing, Hansley and Jackson articulated their objections to the five-kilogram calculation. In response, the district court held:
[H]aving presided over the trial of this matter, having considered the arguments of counsel, the objections raised to the presentence investigation report, and the Government's sentencing memorandum, the Court finds that it is reasonably foreseeable that each of the conspirators in this conspiracy knew that there was at least a minimum of 5 kilograms, certainly between 5 and 15, and in all probability exceeding 15 kilograms of crack that were distributed or transported from Miami to Hazelhurst, Georgia and thereby distributed in Hazelhurst, Georgia. The Court therefore finds that there was ample justification for the probation officer's calculation of the 5 to 15 kilograms.
The district court then sentenced Jackson to 400 months imprisonment based on a total offense level of forty-two and a criminal history category of III. After rejecting Hansley's other objections, the district court sentenced him to life imprisonment based on a total offense level of forty-three and a criminal history category of III.
Also at the hearing, Riley, who had not filed any substantive challenges to his PSR, failed to make any objections when given the opportunity. Accordingly, the district court Finally, at the hearing, Bennett argued that his three prior felony drug convictions were not sufficient to sustain a mandatory minimum term of life imprisonment under 21 U.S.C. Sec. 841(b)(1)(A) because his 1989 Georgia conviction and his 1991 Florida conviction were not "spatially or temporally distinct" from the instant federal charges. Furthermore, he argued that "the 81 and the 89 [Georgia] convictions were for simple possession of drugs." The district court, however, found "it mandatory ... to enhance the sentence on both counts as a result of the two prior Georgia convictions." Accordingly, the district court sentenced Bennett to life imprisonment.
sentenced him to 328 months imprisonment based on the PSR's calculations of a total offense level of forty and a criminal history category of I.
Hansley, Jackson, and Riley contend that, when calculating their base offense levels, the district court clearly erred in finding that the conspiracy involved more than five kilograms of crack cocaine. Jackson and Riley further contend that even if the conspiracy involved more than five kilograms of crack cocaine, they are only personally responsible for a lesser quantity.
The government responds that the evidence at trial supported the district court's finding that more than five kilograms of crack cocaine were involved in the conspiracy. The government also argues that Hansley, who was the leader of the conspiracy, is responsible for this entire quantity, and that Jackson, who was a primary source of the drugs, was personally involved in over five kilograms. Moreover, Jackson and Riley should have reasonably foreseen that over five kilograms were involved. The government also asserts that Riley waived this contention because he did not object at the time of sentencing.
Hansley also challenges his sentence on two other grounds. First, he claims that the district court incorrectly applied a two-level increase for possessing a firearm, arguing that he did not possess the firearm during the commission of the conspiracy. The government contends that the firearm was found in his residence, which was a center of drug activity. Second, Hansley argues that he did not commit the instant offenses while on probation, nor did he commit them within two years of being released from custody; therefore, the district court erred in assessing him three additional criminal history points. The government responds that the record clearly shows otherwise.
Finally, Bennett contends that a mandatory minimum term of life imprisonment pursuant to section 841(b)(1)(A) was not warranted based on his two prior Georgia convictions because one of the convictions was an overt act of the instant conspiracy and both convictions only involved the simple possession of drugs. The government asserts that...
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