U.S. v. Kellam

• Decision Date: 03 June 2009
• Docket Number: No. 07-4863.,No. 07-4902.,07-4863.,07-4902.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charceil Davis KELLAM, a/k/a Charceil Kellam, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Adelson Michel, a/k/a Mike, a/k/a Cowboy, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

568 F.3d 125

UNITED STATES of America, Plaintiff-Appellee, v. Charceil Davis KELLAM, a/k/a Charceil Kellam, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Adelson Michel, a/k/a Mike, a/k/a Cowboy, Defendant-Appellant.

No. 07-4863.

No. 07-4902.

United States Court of Appeals, Fourth Circuit.

Argued: January 26, 2009.

Decided: June 3, 2009.

ARGUED: Michael Thayer Hemenway, Charlottesville, Virginia, for Appellants. Jean Barrett Hudson, Office of the United States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF: John S. Hart, Jr., Hart Law Offices, Harrisonburg, Virginia, for Appellant Adelson Michel. Julia C. Dudley, Acting United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellee.

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge KING wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.

OPINION

KING, Circuit Judge:

Defendants Charceil Kellam and Adelson Michel appeal from criminal judgments entered against them in the Western District of Virginia, arising from their involvement in a drug distribution conspiracy. Kellam contends that the district court erred in five ways—in dismissing Michel from Count Eight, in denying her motion to suppress, by refusing to dismiss the indictment for lack of a speedy trial, in declining to award judgments of acquittal, and in imposing a statutory enhancement resulting in two concurrent terms of life imprisonment. For his part, Michel presents three contentions—that the evidence failed to prove his involvement in the alleged conspiracy, that the sentencing court erred in its findings on drug quantity, and that the court erroneously adjusted his sentence for being a manager or supervisor of the conspiracy. As explained below, we affirm each of the convictions under challenge, as well as Michel's sentence. We vacate Kellam's sentence and remand.

I.

A.

Beginning in January 2002, agents of the Northwest Virginia Regional Drug Task Force, in cooperation with the DEA and the ATF, began an investigation into a cocaine base distribution ring in northwestern Virginia. The investigation revealed that large quantities of cocaine base (commonly known as "crack" or "crack cocaine") were being smuggled into the Winchester area from Florida. Conservative estimates were that the conspiracy distributed more than 1.5 kilograms of crack cocaine, much of it in a part of Winchester called the "Block." During the investigation, the authorities made approximately fifty controlled buys of crack and executed multiple search warrants.

On September 6, 2006, Kellam and Michel were among twelve defendants charged in a twenty-nine count indictment returned in the Western District of Virginia (the "Indictment").¹ All the defendants were charged in Count One—with conspiracy to distribute fifty grams or more of cocaine base, between January 2002 and September 2006, in violation of 21 U.S.C. § 846. Kellam was charged in four of the twenty-nine counts, and Michel was charged in eight of them. Of significance in these appeals, Kellam and Michel were the only defendants in Count Eight, which alleged a substantive distribution offense occurring on August 2, 2005, involving approximately 57.8 grams of cocaine base, in violation of 21 U.S.C. § 841(a).² Kellam and Michel each pleaded not guilty to the Indictment, and a series of relevant pretrial proceedings followed.

• On January 30, 2007, Kellam filed a motion to suppress the evidence obtained following a stop of her vehicle on April 4, 2006. The district court conducted a suppression hearing on March 2, 2007, at the conclusion of which it delivered findings and conclusions from the bench. Thereafter, on March 6, 2007, the court entered an order denying Kellam's suppression motion.

• On March 21, 2007, Kellam and Michel sought dismissal of the Indictment for violations of the Speedy Trial Act. The following day, the district court addressed the speedy trial issue and denied relief.

• On March 22, 2007, the prosecution filed a motion to dismiss Count Eight as to Michel only, representing that further investigation had revealed that Michel was not involved in distributing the cocaine base specified therein. On March 23, 2007, the court dismissed Count Eight as to Michel, leaving that offense pending against Kellam alone.³

By the time of Kellam and Michel's trial, nine of their ten codefendants had entered pleas of guilty to the Count One conspiracy.⁴ The codefendants' guilty pleas were made pursuant to plea agreements with the prosecution, under which the balance of the Indictment would be dismissed as to them.

B.

The trial of Kellam and Michel was conducted in Harrisonburg over the four-day period from March 26 to March 29, 2007. In its case-in-chief and on rebuttal, the prosecution presented approximately twenty-six witnesses, including thirteen law enforcement officers, three experts, and three cooperating codefendants who had pleaded guilty (Mark Fleurival, Roland Jackson, and Robert Scott). Seven other prosecution witnesses—most of whom had pleaded guilty to related drug crimes—testified to being involved in various crack transactions with Kellam and Michel. In contrast, the defendants called seven witnesses, six of whom were prosecution witnesses recalled for impeachment purposes.⁵ Neither Kellam nor Michel testified at trial. The contentions being made on appeal mirror certain of the defense theories at trial—that the prosecution's witnesses were unreliable and the evidence was insufficient to support convictions.

At the conclusion of the prosecution's case-in-chief, Kellam and Michel moved for judgments of acquittal under Federal Rule of Criminal Procedure 29.⁶ The district court denied those motions, but observed that, "[a]s to Ms. Kellam, the Court agrees that the evidence is much more marginal and extremely close, in the Court's view, on the conspiracy count [than against Michel]." J.A. 996. On March 29, 2007, the jury returned its verdict, finding Kellam guilty of the four offenses in Counts One, Eight, Seventeen, and Eighteen, and Michel guilty on the seven offenses in Counts One through Seven. On April 13, 2007, Kellam filed two additional motions for judgments of acquittal—one challenging the sufficiency of the evidence supporting her convictions and the dismissal of Michel from Count Eight, and the other asserting that the jury venire failed to represent a fair cross-section of the community. The court denied those motions by its Memorandum Opinion of August 6, 2007. See United States v. Kellam, 498 F.Supp.2d 875 (W.D.Va.2007) (the "Rule 29 Opinion").⁷

C.

Prior to trial, on March 8, 2007, the government filed a sentencing enhancement information against Kellam, notifying her that, upon conviction, she would be subject to statutorily enhanced life terms on Counts One and Eight, pursuant to 21 U.S.C. § 841(b)(1)(A), because of her prior drug-related felony convictions (the "Information").⁸ On August 23, 2007, Kellam responded to the Information, asserting that all of the alleged prior convictions were "invalid" because the prosecution "has not proved beyond a reasonable doubt that [she] was convicted" (the "Response"). J.A. 1210-11. During her August 24, 2007 sentencing hearing, the district court addressed the three prior convictions alleged in the Information and analyzed the applicability of the statutory enhancement. The court concluded that two of the prior convictions constituted qualifying convictions under § 841(b)(1)(A), and thus that Kellam was subject to mandatory life terms on Counts One and Eight.

Also at her sentencing hearing, Kellam was found accountable for at least 500 grams but less than 1.5 kilograms of cocaine base, resulting in a Sentencing Guidelines base offense level of 36. See USSG § 2D1.1(c)(2) (2006). The sentencing court assigned her eleven criminal history points, establishing a criminal history category of V. As a result, Kellam's advisory Guidelines sentencing range was 292 to 365 months. Because of the two prior felony drug convictions recognized by the court, however, § 841(b)(1)(A) mandated that life terms be imposed on Counts One and Eight. Thus, Kellam was sentenced to life on each of those counts, plus 360 months on Counts Seventeen and Eighteen, with the four terms to run concurrently.

At Michel's September 6, 2007 sentencing hearing, the district court adopted his presentence report ("PSR"), with some minor exceptions. The court found Michel accountable for at least 1.5 kilograms of cocaine base, and imposed a three-level adjustment for management and supervision of the conspiracy, resulting in a total offense level of 41. See USSG §§ 2D 1.1(c)(1), 3B1.1(b) (2006). With a criminal history category of I, Michel's advisory Guidelines range was 324 to 405 months. Michel was sentenced to terms of 324 months on Counts One and Seven, plus 120 months on each of Counts Two through Six, with all seven terms to run concurrently. On June 3, 2008, the court reduced Michel's aggregate sentence to 262 months, due to intervening changes in the Guidelines with respect to crack cocaine.

Kellam and Michel have filed timely notices of appeal and their appeals have been consolidated. We possess jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II.

A district court's ruling on a prosecution motion to dismiss an indictment, or a portion thereof, is generally reviewed for abuse of discretion. See United States v. Goodson, 204 F.3d 508, 512 (4th Cir.2000). In assessing a trial court's ruling on a motion to suppress, we review factual findings for clear error and legal determinations de novo. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Wardrick, 350 F.3d 446, 451 (4th Cir.2003). We review de novo a district court's rulings on a speedy trial issue. See United States v. Jarrell,...