U.S. v. Griffin, s. 90-8200

• Decision Date: 22 October 1991
• Docket Number: Nos. 90-8200,90-8201,s. 90-8200
• Citation: 945 F.2d 378
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Winston Allston GRIFFIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Denva Hylton EDWARDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 378

945 F.2d 378

UNITED STATES of America, Plaintiff-Appellee, v. Winston Allston GRIFFIN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Denva Hylton EDWARDS, Defendant-Appellant.

Nos. 90-8200, 90-8201.

United States Court of Appeals, Eleventh Circuit.

Oct. 22, 1991.

Stephen A. Delaney, Howard and Delaney, Marietta, Ga., for Griffin.

Seth Kirschenbaum, Davis, Zipperman, Kirschenbaum & Lotito, Atlanta, Ga., for Edwards.

Joe D. Whitley, U.S. Atty., James W. Kesler, Asst. U.S. Atty., Atlanta, Ga., for the U.S.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and COX, Circuit Judges, and MORGAN, Senior Circuit Judge.

MORGAN, Senior Circuit Judge:

This case concerns various issues pertaining to the sentencing of coconspirators in a drug distribution operation. The district court concluded that transactions with crack cocaine, the amount of cocaine involved, and a supervisory or managerial function were factors enhancing the sentences. Upon review of the record, we affirm.

I. BACKGROUND

Defendants-appellants Winston Allston Griffin and Denva Hylton Edwards participated in a drug distribution conspiracy operating in the metropolitan Atlanta, Georgia area. ¹ The drug operation acquired marijuana from Houston, Texas, and cocaine from Miami, Florida. Rental vehicles were leased in Atlanta and driven to these source cities to obtain the drugs, which were repackaged and sold in Atlanta.

Following a high-speed chase and his arrest for traffic offenses, Charlton Bruff, a resident alien from Jamaica who participated in the drug distribution and who was on probation for a prior state marijuana felony conviction, agreed to function as an informant within the drug operation. In October, 1988, Edwards gave Bruff the downpayment to secure a metropolitan Atlanta apartment from which Bruff could sell drugs. In November and December, 1988, Edwards delivered varying quantities of marijuana to Bruff for sale from this apartment. Bruff gave the marijuana to a Georgia Bureau of Investigation (GBI) agent, who supplied Bruff with money for anticipated sales to create the impression that Bruff actually was selling the drugs received from Edwards. Additionally, Edwards had introduced Bruff to Griffin, a/k/a "Manager," in November, 1988. Having been at Griffin's apartment on various occasions, Bruff knew that Griffin sold marijuana, cocaine and crack cocaine from his apartment as well as supervised the manufacture of crack cocaine there.

On November 24, 1988, Edwards and Bruff went to Houston to obtain marijuana, and on November 27, 1988, and December 20, 1988, they traveled to Miami to acquire cocaine. Bruff estimated that forty pounds of marijuana and five kilograms of cocaine collectively were acquired on these trips. Edwards paid for the drugs. On each of these trips, Bruff secreted the drugs in the interior walls of the rental van.

Prior to the second trip to Miami for cocaine, a meeting was held in Griffin's apartment to collect money and to make arrangements for the purchase of more cocaine in Miami. On December 25, 1988, Edwards delivered to Bruff fourteen "dime bags" containing suspected crack cocaine, which Bruff stated had come from Griffin. Bruff gave authorities information enabling them to verify two trips when Edwards traveled without Bruff to Houston to obtain marijuana. On the second of these trips to Houston, Edwards and a coconspirator were apprehended and arrested for the unlawful possession of approximately thirty-six pounds of marijuana.

On December 29, 1988, Bruff received twenty dime bags of suspected crack cocaine from Griffin at Griffin's apartment. Bruff gave this cocaine to the GBI case agent. An undercover Federal Bureau of Investigation (FBI) agent made two cocaine purchases from Griffin at Bruff's apartment, and negotiated a third. Undercover agents observed both Edwards and Griffin with firearms when drug transactions were conducted.

Griffin and Edwards, together with other coconspirators, were indicted by a federal grand jury for various offenses relating to an ongoing conspiracy to transport marijuana from Houston and cocaine from Miami for distribution in the Atlanta area. Pursuant to plea agreements, Griffin and Edwards pled guilty to interstate travel to promote an enterprise involving the possession and distribution of marijuana and cocaine in violation of 18 U.S.C. § 1952(a)(3). Griffin additionally was charged with using a telephone to facilitate a drug distribution offense in violation of 21 U.S.C. § 843(b). Griffin was sentenced to imprisonment for 108 months, ² and Edwards was sentenced to imprisonment for 120 months. ³ Griffin and Edwards have appealed the propriety of their sentences under the Sentencing Guidelines.

II. ANALYSIS

A. Standard of Review

When reviewing a sentence under the Sentencing Guidelines, "this Court accepts the district court's findings of facts unless they are clearly erroneous and gives due deference to a district court's application of the sentencing guidelines to those facts." United States v. Marin, 916 F.2d 1536, 1538 (11th Cir.1990) (per curiam) (citing 18 U.S.C. § 3742(e)); see United States v. Asseff, 917 F.2d 502, 505 (11th Cir.1990) (per curiam) (The clearly erroneous review standard applies to the factual findings upon which a district court bases a sentence under the Sentencing Guidelines.). Griffin and Edwards have raised various issues concerning their respective sentences imposed by the district court under the Sentencing Guidelines. After reviewing the record, we have determined that only three claims regarding enhancement of the sentences warrant analysis: the transactions with crack as opposed to powder cocaine, the amount of cocaine involved, and a coconspirator's supervisory role.

B. Rock or Powder?

Both Griffin and Edwards complain that their sentences improperly were increased by two levels because the district court concluded that crack, as opposed to powder cocaine, was distributed in the December 25 and 29, 1988 transactions. "Crack," or cocaine in free base form, is a solid, rock-like substance, whereas the term "cocaine" generally refers to the powder form, which contains hydrochloric acid. See United States v. Williams, 876 F.2d 1521, 1525 (11th Cir.1989). Under the Sentencing Guidelines Drug Equivalency Tables, one gram of crack cocaine is treated as twenty grams of heroin, whereas one gram of powder cocaine is equivalent to .2 grams of heroin. This court has recognized that "the difference in penalties between crack and other forms of cocaine demonstrated that Congress considered crack to be a more powerful and dangerous drug." United States v. Catchings, 922 F.2d 777, 780 n. 3 (11th Cir.) (per curiam), cert. denied, --- U.S. ----, 111 S.Ct. 1633, 113 L.Ed.2d 729 (1991); see Williams, 876 F.2d at 1525 (Congress "intended to enhance penalties for crack dealers."); see also United States v. Robinson, 870 F.2d 612, 613 (11th Cir.1989) (per curiam) (This court held that a small portion of crack cocaine could result in the permissible inference that the possessor planned to distribute the crack, even if the same amount of powder cocaine would not justify the distribution presumption.).

In concluding that the two transactions in question involved crack cocaine as opposed to powder cocaine, Griffin and Edwards contend that the district judge considered hearsay, rather than reliable evidence. The probation officer did not compute the cocaine as crack in the respective presentence investigation reports because the lab report merely indicated that the drug was cocaine, and did not state the type or form of cocaine. At the sentencing hearing, the district judge directed the GBI case agent to contact the chemist, who analyzed the cocaine, to ascertain if a determination was made regarding the type of cocaine involved. The agent reported that the chemist did not make such a determination because Georgia law does not require a distinction between crack and powder cocaine.

Bruff, the confidential informant who handled the cocaine package, told the GBI agent to whom he gave the cocaine that it was crack. The GBI agent testified that he identified the cocaine by sight because "it had the consistency of crack cocaine." R6-6-140. In concluding that the cocaine was crack, the district court reasoned:

It seems to the Court on that issue that Mr. Griffin--or it is established that Mr. Griffin on occasions manufactured crack. That's an opportunity. Apparently, it was given to Mr. Bruff with the representation that it was crack. He had the opinion that it was--or belief that it was crack, and this agent confirmed it, so I find that it's crack.

R6-6-141.

"[B]oth the Sentencing Guidelines and case law from this circuit permit a district court to consider reliable hearsay evidence at sentencing." United States v. Query, 928 F.2d 383, 384 (11th Cir.1991); see Sentencing Guidelines § 6A1.3(a) (A sentencing court "may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." (emphasis added)). This court has held that a sentencing court may "consider any information, including reliable hearsay from the trial of a third party, so long as the defendant has 'the opportunity to rebut the evidence or generally to cast doubt upon its reliability.' " Query, 928 F.2d at 385 (quoting United States v. Castellanos, 904 F.2d 1490, 1496 (11th Cir.1990)). Griffin and Edwards were given ample opportunity at the sentencing hearing to challenge the testimony of Bruff and the GBI agent. ⁴ Additionally, they have pursued their arguments in this appeal. Because the district judge based his decision that crack instead of powder cocaine was involved in two transactions on testimony sufficiently reliable to have probable accuracy, we...