McPhearson v. United States

• Decision Date: 05 April 2012
• Docket Number: No. 09–6509.,09–6509.
• Citation: 675 F.3d 553
• Parties: Martedis McPHEARSON, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

675 F.3d 553

Martedis McPHEARSON, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 09–6509.

United States Court of Appeals, Sixth Circuit.

Argued: March 6, 2012.Decided and Filed: April 5, 2012.

ARGUED: Russell Burke, Vanderbilt Law School, Nashville, Tennessee, for Appellant. James Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee. ON BRIEF: Alistair E. Newbern, Vanderbilt Law School, Nashville, Tennessee, for Appellant. James Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee.Before: KEITH, BOGGS, and MOORE, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Martedis McPhearson (“McPhearson”) appeals the denial of his motion to correct his sentence under 28 U.S.C. § 2255. In March 2007, a jury convicted McPhearson of knowingly possessing with the intent to distribute approximately 4.9 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Upon the conclusion of direct review, McPhearson sought relief under § 2255, arguing that trial counsel was ineffective for failing to raise at sentencing the contention that a portion of the 4.9 grams of cocaine base was for McPhearson's personal use and therefore should be excluded from the drug-quantity calculation used by the district court in setting McPhearson's sentence. The district court held that McPhearson could not establish either deficient performance or prejudice from trial counsel's failure to make this argument because the court believed that the jury's conviction amounted to a rejection of McPhearson's testimony that the 4.9 grams of cocaine base found on his person was attributable to personal use. We hold that because the jury's verdict did not establish that all 4.9 grams were intended for distribution, the district court erred in finding that counsel's failure to raise personal use at sentencing was not deficient performance. We are unable to determine whether McPhearson suffered any prejudice, however, because the record is incomplete. We therefore VACATE the district court's order denying McPhearson relief and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

McPhearson was arrested on December 12, 2003, after he allegedly made three separate sales of cocaine base to a confidential informant in the amounts of .3 grams, .4 grams, and .3 grams.¹ At the time of his arrest, officers searched McPhearson and found a plastic bag in his pocket containing 4.9 grams of cocaine base. McPhearson was indicted along with a co-defendant, and on November 15, 2004, a grand jury returned a superseding indictment charging McPhearson with four separate counts of possession with intent to distribute cocaine base, one for each of the purported sales in the amounts of .3 grams, .4 grams, and .3 grams, respectively, and one count for the 4.9 grams found on his person when he was arrested.²

A jury trial was held in the United States District Court for the Western District of Tennessee on March 26 and 27, 2007. The confidential informant testified that McPhearson sold him the three smaller amounts of cocaine base on three separate occasions. McPhearson testified in his own defense. McPhearson denied ever selling the confidential informant cocaine base, but admitted that he possessed 4.9 grams of cocaine base at the time of his arrest, which he claimed he purchased from a friend for personal use. McPhearson explained that he had been in a severe car accident in late 2002, a year before his arrest, which required a lengthy hospital stay and caused numerous injuries that left him in extreme pain.³ He testified that he began using painkillers and other drugs, including cocaine, to help mitigate the pain from the accident. His mother also testified that McPhearson's injuries from the accident were severe and left him in great pain. Counsel for McPhearson attempted to introduce evidence of McPhearson's medical records and photographs from the accident, but the district court excluded them as irrelevant, stating that “if this becomes an issue, then they'll be part of the record at sentencing.” R. 181, Criminal Docket (Trial Tr. at 121:7–8). The district court also permitted the government to confront McPhearson on cross-examination with previously suppressed evidence to challenge his statements that the drugs were for personal use. The relevant suppressed evidence consisted of 21.9 grams of marijuana, scales, and small plastic bags that were found as the result of an illegal search of his residence. Id. at 103:12–104:12. McPhearson denied knowledge of the scales or the bags, stating they did not belong to him. Id. at 105:21–108:13. He testified that the marijuana belonged to his cousin, who lived with him and with whom he had smoked marijuana in the past. Id. at 105:1–20.

The district court instructed the jury that to convict McPhearson of violating 21 U.S.C. § 841(a)(1) for any of the four counts, the government had to prove beyond a reasonable doubt: “[ (1) ] that the defendant possessed cocaine base, or crack cocaine; [ (2) ] that the defendant knew that he possessed cocaine base, as alleged; And [ (3) ], that the defendant intended to distribute the cocaine base, as alleged.” R. 197, Criminal Docket (Trial Tr. at 45:5–10). The district judge further explained these elements as follows:

The first thing you must determine is whether the defendant possessed cocaine base. That is, the government must prove that the material that the defendant is charged with possessing with intent to distribute is, in fact, cocaine base, also known as crack cocaine.... If you find that the material involved in this case is cocaine base, you need not be concerned with the quantity. So long as you find that the defendant knowingly possessed cocaine base, the amount involved is not important.

If you find that the defendant knowingly possessed this controlled substance, then you must decide whether the defendant intended to distribute them. The government must prove beyond a reasonable doubt that the defendant had control over the drugs with the state of mind or purpose to transfer them to another person....

Basically, what you're determining is whether the drugs in the defendant's possession were for his personal use or for the purpose of distribution. Often it's possible to make this determination from the quantity of drugs found in the defendant's possession. For example, it would be highly unlikely that a person with large amounts of controlled substances possessed them all for personal consumption. The possession of a large quantity of drugs does not necessarily mean that the defendant intended to distribute them. On the other hand, a defendant may have intended to distribute drugs even if he did not possess large amounts of them.

Id. at 45:17–47:13. On Count Four, the court instructed the jury on the lesser included offense:

Now, on count 4, if you find the defendant not guilty of possession of cocaine base with intent to distribute, or if, after making every reasonable effort to reach a unanimous verdict on that charge, you find that you cannot agree, then you must go on to consider whether the government has proved the lesser charge of simple possession of cocaine base. The difference between those two crimes is that to convict the defendant of the lesser charge, the government does not have to prove that the defendant intended to distribute the cocaine base. This is an element of the greater charge but not the lesser charge.

Id. at 47:20–48:5. The district court did not ask the jury to make any specific finding of fact regarding the amount of drugs intended for distribution or, alternatively, for personal use.

The jury convicted McPhearson on Count 4 of the indictment, relating to the 4.9 grams of cocaine base found on his person at the time of his arrest. The jury was unable to reach a verdict on the three counts relating to the alleged sales to the confidential informant in the amounts of .3 grams, .4 grams, and .3 grams, respectively. The district court subsequently granted the government's motion to dismiss those counts.

At sentencing, the district court calculated the relevant drug quantity as 5.9 grams of cocaine base. R. 182, Criminal Docket (Sentencing Hr'g Tr. at 176:11–24). This included the 4.9 grams from the Count 4 conviction and the district court's approximation that the other three dismissed counts should be included and amounted to roughly one gram of cocaine base. McPhearson's counsel argued that the marijuana should be excluded because it was only for personal use, but counsel did not make a similar argument for any of the cocaine base, arguing instead that no evidence supported the inclusion of the three drug-sale amounts. The district court excluded the marijuana quantity, finding its impact negligible on the relevant sentencing guidelines range, but found that a preponderance of the evidence supported the confidential informant's testimony that McPhearson made the sales involved in the counts that the jury could not agree on. The district court determined that McPhearson's sentencing guidelines range was 140 to 175 months and sentenced McPhearson to 140 months' imprisonment. Counsel for McPhearson did not introduce at sentencing any of the medical records or photographs from his accident, nor did counsel make any arguments or objections with respect to excluding amounts of cocaine base for personal use.

McPhearson raised three issues on direct appeal: (1) the trial court abused its discretion in excluding medical records from trial; (2) the district court made impermissible findings of fact at sentencing; and (3) the then-pending amendments relating to cocaine-base offenses should be applied to his case. While his case was pending, the Sentencing Commission made retroactive the first set of reductions to the guidelines based on cocaine-base offenses. The Sixth Circuit remanded his case for consideration of his motion for...