United States v. Branham, 022312 FED6, 08-5521

Docket Nº:08-5521, 08-5522
Opinion Judge:MARK A. GOLDSMITH, District Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERRY BRANHAM and KATHY BRANHAM, Defendants-Appellants.
Judge Panel:Before: BOGGS and McKEAGUE, Circuit Judges, and GOLDSMITH, District Judge.
Case Date:February 23, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

TERRY BRANHAM and KATHY BRANHAM, Defendants-Appellants.

No. 08-5521, 08-5522

United States Court of Appeals, Sixth Circuit

February 23, 2012

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

Before: BOGGS and McKEAGUE, Circuit Judges, and GOLDSMITH, District Judge.[*]

OPINION

MARK A. GOLDSMITH, District Judge.

Appellants Terry and Kathy Branham were convicted by a jury of various drug-related crimes stemming from their involvement in a cocaine distribution conspiracy.1 At Terry's sentencing, the district court, over defense objections: (i) applied a two-level enhancement for possession of a dangerous weapon; (ii) applied a two-level enhancement for being a manager or supervisor in the conspiracy; (iii) withheld a two-level reduction for acceptance of responsibility; and (iv) withheld a two-level "safety-valve" reduction. At Kathy's sentencing, the district court, over defense objections: (i) applied a two-level enhancement for possession of a dangerous weapon; (ii) applied a two-level enhancement for obstruction ofjustice; and (iii) withheld a four-level reduction for being a minimal participant. On appeal, Appellants challenge these aspects of their sentences. In addition, Kathy challenges her conviction on the ground that the district court failed to sever her trial or, alternatively, that the district court failed to instruct the jury not to consider evidence relating to her co-defendants in determining her guilt.

For the reasons that follow, we affirm Terry's sentence and Kathy's conviction, but vacate Kathy's sentence and remand for resentencing.

I. FACTUAL BACKGROUND

Appellants Terry and Kathy Branham, husband and wife, and several others, were found guilty by a jury on various drug charges, including conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(2) and 846, distribution of cocaine and aiding and abetting its distribution in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and aiding and abetting the use of a communication facility (telephone) to facilitate the distribution of cocaine in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. In addition, the jury found certain property belonging to Appellants forfeitable to the United States as derived from, or used to facilitate, their illegal drug activity.

The pertinent facts leading up to the convictions are uncontroverted. The general conspiracy operated as follows. Terry Branham, working together with his father and co-defendant, Roy Branham, received their cocaine supply from co-defendants Darrell Triplett and Pamela Justice. Roy and Terry Branham, with the help of Kathy Branham, then re-distributed the cocaine to co-defendants Mica Patrick and Johnny Michael Castle for their own personal use and/or trafficking activities.2 Additional defendants were named in the indictment, but they are not relevant for present purposes.

In 2005 and 2006, the Federal Bureau of Investigation and Kentucky State Police monitored numerous cocaine transactions during which Terry sold cocaine to a confidential informant. Kathy accompanied her husband during one particular transaction occurring on July 21, 2006. On that date, Kathy was present when Terry sold cocaine. After receiving cash from the confidential informant, Terry handed it to his wife and instructed her to count it, which she did.

A few days later, on July 24, 2006, while on his way to sell cocaine to Mica Patrick, Terry called Kathy from the road and instructed her to monitor police activity in the area by listening to a police scanner that the two kept in their home. Earlier on the same day, Kathy spoke to Patrick via telephone about the transaction.

There was no evidence presented at trial that Appellants sold or stored drugs at their house. Rather, the drug transactions occurred mostly in store or restaurant parking lots. In addition, the Government did not present evidence that Appellants brought firearms with them to these locations.

On December 13, 2006, the police executed a search warrant at Appellants' residence. The police did not find drugs or drug paraphernalia in the house, but they did find, among other things: (i) $7, 500 in cash located in the closet of the spare bedroom; (ii) $384 in cash located in a purse; (iii) a loaded Ruger .22 target pistol in the nightstand drawer next to Appellants' shared bed; (iv) a loaded Taurus revolver in the same nightstand drawer; (v) an unloaded Smith and Wesson revolver in the same nightstand drawer; (vi) an unloaded Highpoint rifle in a closet; (vii) an unloaded New Haven 12-gauge shotgun in the closet; (viii) a certificate of deposit from Community Bank in the amount of $5, 129.59; and (ix) evidence of a savings account from Family Bank containing $11, 001.04. The jury found all of these items forfeitable to the United States as directly or indirectly derived from illegal drug sales except items (ii) and (ix). With regard to item (ix), Kathy testified during the forfeiture phase of the trial that the money in her savings account at Family Bank ($11, 001.04) was earned legitimately through her past work in the hotel business. Notably, she did not testify one way or another regarding the source of the remaining items.

Appellants were tried together, along with co-defendants Roy Branham and Tina Mills. Prior to the trial, Tina Mills moved - without success - for a separate trial based on her unique circumstances as a defendant in this matter who was not alleged by the Government to have directly participated in the conspiracy as a buyer or seller of drugs. Neither Terry nor Kathy joined the motion, nor did they independently move for separate trials.

During the trial, Terry did not dispute the fact that he sold cocaine. Rather, he disputed his role in the broader conspiracy, and likewise disputed the allegation that he used a "communication facility" to facilitate his crimes. The jury ultimately found Terry guilty of conspiracy to distribute cocaine, and numerous counts of aiding and abetting the distribution of cocaine and aiding and abetting the use of a communication facility (telephone) to facilitate the distribution of cocaine. The jury found Kathy guilty of conspiracy to distribute cocaine, one count of aiding and abetting the distribution of cocaine, and one count of aiding and abetting the use of a communication facility (telephone) to facilitate the distribution of cocaine.

Terry and Kathy were sentenced to terms of imprisonment of 151 months and 87 months, respectively. Both sentences fall within their respective advisory Guideline ranges of 121-151 months and 78-97 months.

II. ANALYSIS

Appellants argue that their sentences should be vacated, and that re-sentencing is required, because the district court improperly calculated their respective Guideline ranges, resulting in the imposition of procedurally unreasonable sentences. See Gall v. United States, 552 U.S. 38, 51 (2007) (sentence is procedurally unreasonable if the district court improperly calculated the Guidelines range); United States v. Damra, 621 F.3d 474, 508 (6th Cir. 2010) (remand for re-sentencing required if district court miscalculates the applicable Guidelines range). Specifically, Terry contends that the district court erred in computing his total offense level by: (i) applying a two-level enhancement for possession of a dangerous weapon pursuant to U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2D1.1(b)(1) (2007); (ii) applying a two-level enhancement for being a manager or supervisor in the conspiracy pursuant to U.S.S.G. § 3B1.1(c); (iii) withholding a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a); and (iv) withholding a two-level "safety-valve" reduction pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a).

Additionally, Kathy argues that district court miscalculated her total offense level by: (i) applying a two-level enhancement for possession of a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1); (ii) applying a two-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1; and (iii) withholding a four-level reduction for being a "minimal participant" pursuant to U.S.S.G. § 3B1.2(b).

Kathy also attacks her conviction, arguing that the district court erred in refusing to sever her trial from that of her co-defendants or, alternatively, instruct the jury not to consider evidence presented against her co-defendants in determining her guilt. Kathy contends that she is entitled to a new trial.

A. Sentencing Challenges

1. Dangerous Weapon Enhancement (Terry and Kathy Branham)

Terry and Kathy Branham both received two-level enhancements pursuant to U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous weapon in connection with the commission of their drug crimes. The two-level dangerous weapon enhancement is applied "[i]f a dangerous weapon (including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1). The commentary to § 2D1.1(b)(1) provides that "[t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1, cmt. n.3. Under this framework, the Government bears the initial burden of establishing, by a preponderance of the evidence, that (1) the defendant actually or constructively possessed the weapon, and (2) the weapon was possessed during the commission of the offense. United States v. Catalan, 499 F.3d 604, 606 (6th Cir. 2007). If the Governments meets its burden, the burden then shifts to the defendant to show that it was "clearly improbable" that the weapon was connected to the offense. Id. at 606-07. The...

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