U.S. v. Bradford

• Decision Date: 24 August 2007
• Docket Number: No. 06-3872.,06-3872.
• Citation: 499 F.3d 910
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven BRADFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

499 F.3d 910

UNITED STATES of America, Plaintiff-Appellee, v. Steven BRADFORD, Defendant-Appellant.

No. 06-3872.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2007.

Filed: August 24, 2007.

Webb L. Wassmer, argued, Cedar Rapids, IA, for appellant.

Charles J. Williams, Assistant U.S. Attorney, argued, Cedar Rapids, IA, for appellee.

Before MELLOY, SMITH, and GRUENDER, Circuit Judges.

MELLOY, Circuit Judge.

Steven Bradford pleaded guilty to conspiring to distribute at least 100 grams of heroin, in violation of 21 U.S.C. § 846. The district court¹ found by a preponderance of the evidence that Bradford sold heroin to an individual identified as J.H. during the course of the conspiracy, and that the sale of heroin to J.H. resulted in J.H.'s death. The district court then sentenced Bradford to 210 months' imprisonment. Bradford appeals his sentence, arguing the following: (1) the district court's finding that Bradford distributed heroin to J.H. is clearly erroneous; (2) the district court erred in departing upward pursuant to U.S.S.G. §§ 5K2.21 and 5K2.1; (3) the district court violated Bradford's Sixth-Amendment and due-process rights when the court increased Bradford's sentence based on a factual finding supported only by a preponderance of the evidence; (4) the district court erred in finding the government had not breached the plea agreement; and (5) the district court erred by denying Bradford a reduction for acceptance of responsibility.² For the following reasons, we affirm.

I. Background

A. Offense Conduct

Bradford stipulated to the following facts as the factual basis for his guilty plea. On or about September 19, 2005, a confidential informant ("CI") informed law enforcement officers that he had purchased $100 worth of heroin from a person named "Wimp" at an apartment in Cedar Rapids, Iowa, on several occasions in the previous year. That same day, the CI made a recorded phone call to Wimp and arranged to purchase $100 worth of heroin from Wimp at the same apartment.

Later that afternoon, the CI met with Wimp at the apartment. While the CI and Wimp were inside, Bradford and a woman arrived in a Chevrolet Monte Carlo, and Bradford entered the apartment. The CI gave $100 in pre-serialized currency to Wimp, who then purchased three baggies of heroin from Bradford. The total amount of heroin in the baggies was less than one gram.

On September 22, 2005, the CI placed a call to Wimp to set up another purchase of $100 worth of heroin. The CI met Wimp and a female known as "Ran" at the same apartment. The CI gave Ran $100 in pre-serialized currency. Shortly thereafter, Bradford arrived in the Monte Carlo. Ran entered the Monte Carlo and gave Bradford the pre-serialized currency in exchanged for less than one gram of heroin. Ran left the Monte Carlo and gave the heroin to the CI.

After the controlled buy, Bradford left the apartment in the Monte Carlo. Law enforcement officers stopped the vehicle and arrested Bradford on an outstanding warrant. During a search incident to arrest, officers recovered the pre-serialized currency from the just-completed controlled buy. The same day, law enforcement officers executed a search warrant at Bradford's residence in Cedar Rapids. During the search, officers seized a digital scale, baggies, documents, and $1,445 in cash, including the $100 pre-serialized currency from the September 19, 2005 controlled buy.

Bradford pleaded guilty to one count of a three-count superseding indictment. That count charged that, between about 2004 and September of 2005, Bradford conspired to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846. In exchange for his plea of guilty, the government agreed to dismiss the other two counts of the indictment, and it promised not to file "additional Title 21 drug-related criminal charges based upon or arising from information now in [the government's] possession." (Italicized words handwritten in the plea agreement). On December 28, 2005, the court accepted Bradford's guilty plea.

B. Relevant Conduct Background

The following facts are taken largely from testimony at an October 11, 2006 sentencing hearing and the district court's sentencing memorandum. In 2004, the Iowa Division of Narcotics Enforcement ("DNE") participated in an ad hoc Drug Task Force ("Task Force") along with other local and federal law enforcement agencies. The Task Force was formed after a number of individuals died from heroin overdoses in the Cedar Rapids area. The Task Force's investigation led to Bradford's conviction in this case.

DNE Special Agent Joshua Lupkes and DEA Special Agent Jarad Harper participated in the Task Force's investigation. During the investigation, Agent Harper learned that Bradford was a heroin dealer and that his nickname was "B." In June of 2004, there were at least four heroin dealers in the Cedar Rapids area who were using the nickname "B." Agent Harper also found out that Bradford preferred to sell heroin to his customers indirectly. Bradford sold heroin through Winfred Lovelady and Leona Ferguson.

Rachel Hoskins, her boyfriend, James Callanan, and one of her best friends, J.H., were heroin users. Hoskins and Callanan used heroin daily. On June 10, 2004, Hoskins and Callanan were in Cedar Rapids, and J.H. was in Independence, Iowa. At some time during the afternoon or early evening, J.H. called Hoskins and asked her if she could give him a ride to Cedar Rapids. J.H. wanted to go to Cedar Rapids to buy some heroin and a quarter-pound bag of marijuana.

Hoskins and Callanan drove to Independence and picked up J.H. During the drive back to Cedar Rapids, Hoskins used a cell phone to call Bradford. Hoskins knew Bradford as a heroin dealer named "B." She had purchased heroin from him numerous times over the years. Bradford refused to talk to Hoskins, however, and he hung up on her. Bradford had "cut off" Hoskins and Callanan because Hoskins had previously and duplicitously used a Wal-Mart gift card with a zero balance to purchase heroin from Bradford.

Hoskins testified that J.H. then called Bradford using J.H.'s phone, and Bradford called J.H. back. During the conversation, J.H. introduced himself as a friend of Hoskins and Callanan. Upon arrival in Cedar Rapids, J.H. called Bradford again. After driving around for ten minutes, J.H. received a call back from Bradford, who directed J.H. to the corner of 16th Street SE and 7th Avenue SE.

Around 9:30 to 10:00 p.m., Hoskins parked her car on 16th Street SE between 6th and 7th Avenues SE in Cedar Rapids. Hoskins parked the car behind a van about one-quarter to one-half block from 7th Avenue SE. She parked her car there so that Bradford could not see her or Callanan. After Hoskins parked the car, Bradford called J.H. again. J.H. got out of the car and walked down 16th Street SE towards 7th Avenue SE. At the corner of 16th Street SE and 7th Avenue SE, J.H. met Bradford. Hoskins testified that, sitting in her car, she was able to recognize Bradford. Although the sun had set, she said a streetlight on the opposite side of the street lit the corner.

Less than one minute after meeting, J.H. and Bradford walked down 7th Avenue SE towards 15th Street SE. Bradford had come to the corner from the direction of 7th Avenue SE. The two men walked out of Hoskins's sight. J.H. later approached Hoskins's car from behind and got in. He had a $50 rock of heroin. In Cedar Rapids, heroin users were usually able to purchase a quarter of a gram of heroin for $40 to $50.

After J.H. bought the rock of heroin, Hoskins, J.H., and Callanan went to Callanan's apartment. J.H. and Callanan got high on heroin, and J.H. went into a bedroom to use more. After doing so, his lips turned blue. In a crude attempt to provide medical care, Hoskins gave J.H. mouth-to-mouth resuscitation and sat him up. According to Hoskins, J.H.'s breathing and pulse were then "fine." Throughout the night, Hoskins checked on J.H.

The next morning, J.H. started making a gurgling sound. Hoskins called 911 and attempted to provide CPR. Police officers and paramedics arrived and tried to resuscitate J.H., but he died in the apartment.

Shortly after J.H. died, law enforcement officers took Hoskins to the police station. They asked her where J.H. obtained the heroin. Hoskins told officers she did not know. She told officers she had picked up J.H. near a restaurant in Cedar Rapids, and at that time, he had already used heroin. After further questioning, Hoskins changed her story. She told officers that she and Callanan had driven J.H. to the southeast side of Cedar Rapids and had parked on 17th Street SE near 6th or 7th Avenues SE. She told them that J.H. went into an unknown house and bought heroin from an unknown person. Hoskins told this same story to J.H.'s mother.

In December 2005, approximately a year-and-a-half after J.H.'s death, Special Agent Wade Kisner, another member of the Task Force, interviewed Hoskins. Hoskins changed her story again. This time, Hoskins told Agent Kisner that she had dropped off J.H. on 15th Street SE between 5th and 6th Avenues SE, and that J.H. had purchased the heroin from a dealer she knew as "B" and provided two possible phone numbers for "B." Hoskins testified that she had previously lied to officers because she and Callanan were heroin addicts who did not want to lose their source. They also did not want to get into trouble for helping J.H. buy the heroin that killed him.

On January 5, 2006, Agent Kisner and another Task Force agent again interviewed Hoskins about the circumstances surrounding J.H.'s death. They showed her a photo lineup array of six men and asked if "B" was in the array. Hoskins positively identified Bradford as the "B" who had sold heroin to J.H.

C. Bradford II

Based on this information, a grand jury charged Bradford in a one-count indictment in a separate case, United States v. Bradford, (Bradford II), 433 F.Supp.2d 1001 (N.D.Iowa 2006). The...