U.S. v. Brown

• Decision Date: 07 July 1998
• Docket Number: Nos. 97-2600,97-2997 and 97-3093,s. 97-2600
• Citation: 148 F.3d 1003
• Parties: 49 Fed. R. Evid. Serv. 1041 UNITED STATES of America, Appellee, v. Demetrius BROWN, also known as Pondo, also known as Darius Dixon, also known as Antoine Deonte Moore, Appellant. UNITED STATES of America, Appellee, v. Carlos Laron HEWITT, also known as Lo, also known as Laron Stable, also known as Laron Smith, also known as Laron Stewart, Appellant. UNITED STATES of America, Appellee, v. Michael Lynn FLOWERS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1003

148 F.3d 1003

49 Fed. R. Evid. Serv. 1041

UNITED STATES of America, Appellee, v. Demetrius BROWN, also known as Pondo, also known as Darius

Dixon, also known as Antoine Deonte Moore, Appellant.

UNITED STATES of America, Appellee, v. Carlos Laron HEWITT, also known as Lo, also known as Laron

Stable, also known as Laron Smith, also known as

Laron Stewart, Appellant.

UNITED STATES of America, Appellee, v. Michael Lynn FLOWERS, Appellant.

Nos. 97-2600, 97-2997 and 97-3093.

United States Court of Appeals Eighth Circuit.

Submitted March 10, 1998.

Decided July 7, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied in

No. 97-2997 Aug. 19, 1998.

Rehearing Denied in No. 97-2600 Sept. 18, 1998.

Micahel H. McGlennen, Minneapolis, MN, argued for Brown.

Craig E. Cascarano, Minneapolis, MN, argued for Hewitt.

Robert W. Owens, Jr., Minneapolis, MN, argued, for Flowers.

Michael L. Cheever, Assistant U.S. Attorney, Minneapolis, MN, argued, for Appellee.

Before WOLLMAN and LOKEN, Circuit Judges, and BATAILLON, ¹ District Judge.

WOLLMAN, Circuit Judge.

Carlos Laron Hewitt and Michael Lynn Flowers appeal from their sentences imposed in district court ² subsequent to plea agreements entered on various drug-related offenses. Demetrius Brown appeals from both his conviction and sentence following a jury verdict on similar charges. We affirm.

I.

In early 1994, a street gang, self-described as "The Detroit Boys," began to take over much of the crack cocaine trade in south Minneapolis, Minnesota. The gang was known for a high level of violence and for its modus operandi of using duct tape to restrain and silence victims before assaulting or murdering them. In addition to being violent, the Detroit Boys were a well-organized and highly profitable criminal venture. At the height of its activity, the gang was importing at least one kilogram of powder cocaine per week from sources in Los Angeles, Oakland, and Houston, converting it to crack, and selling the drug through its network of street dealers and crack houses.

Hewitt and Brown sat atop the gang's stratified leadership. Hewitt managed the finances and coordinated all aspects of drug distribution, overseeing in particular the purchase of cocaine from out-of-state sources. Brown was Hewitt's partner and right-hand man. He was involved most heavily in sales, managing the gang's many lieutenants and the workers in its crack houses. Flowers was the gang's primary source of cocaine in Los Angeles. In late 1994, police initiated an investigation of the Detroit Boys. On June 19, 1996, Hewitt, Brown, and Flowers, together with eight other defendants, ³ were charged in a thirteen-count superseding indictment.

II. Carlos Laron Hewitt ⁴

Hewitt was charged with: (1) one count of conspiracy to distribute and possess with intent to distribute cocaine and cocaine base (crack) in violation of 21 U.S.C. §§ 846 and 841(a)(1) (1995); (2) two counts of aiding and abetting possession with intent to distribute cocaine and crack (998 and 340 grams); (3) five counts of using a telephone in connection with a felony drug offense in violation of 21 U.S.C. § 843(b); (4) one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); and (5) one count of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(I). On the day his trial was scheduled to begin, he entered into an agreement to plead guilty to all but the firearm charge, which the government then voluntarily dismissed.

Hewitt was sentenced pursuant to the U.S. Sentencing Guidelines Manual (U.S.S.G.) incorporating the amendments effective November 1, 1996. In imposing sentence, the district court essentially adopted the factual findings and application of the Guidelines set forth in Hewitt's presentence report. Hewitt's convictions were separated into two groups of closely related offenses pursuant to Part D of Chapter Three (Multiple Counts). Regarding the first group (conspiracy, possession with intent to distribute, and use of a telephone in connection with a felony drug offense), Hewitt's base offense level was calculated according to the drug quantity table set forth in section 2D1.1(c). See U.S.S.G. § 2D1.1(a)(3). Hewitt was held accountable for all drugs proved to have been distributed during the conspiracy, which amounted to at least 5.4 kilograms of powder cocaine. He was also connected to at least 1.07 kilograms of crack. The two substances were then converted to their equivalent quantities in marijuana pursuant to the drug equivalency tables. See U.S.S.G. § 2D1.1 cmt. (n.10). This calculation resulted in equivalency amounts of 200 kilograms (cocaine) and 21,400 kilograms (crack) for a total equivalent quantity of 21,600 kilograms of marijuana. ⁵ The attribution of at least 10,000 but less than 30,000 kilograms of marijuana results in a base offense level of 36.

As a result of the finding that he had possessed a firearm in connection with his crimes, Hewitt's base offense level was increased by two pursuant to section 2D1.1(b)(1). In addition, he was found to have been a leader of a criminal activity sufficiently extensive to warrant a four-level increase pursuant to section 3B1.1(a) (Aggravating Role), bringing his adjusted offense level to 42. ⁶ Finally, he received a two-level downward adjustment pursuant to section 3E1.1(a) (Acceptance of Responsibility). Thus, with a total offense level of 40 and a criminal history category of IV, ⁷ he faced a sentencing range of 360 months to life imprisonment. The district court sentenced him to terms of 420, 48, and 240 months to be served concurrently, five years of supervised release, and a $650 special assessment.

Hewitt raises four arguments in his appeal. Each involves a challenge to the court's application of the Guidelines based on its factual findings, which we will not disturb absent clear error. See United States v. Ngo, 132 F.3d 1231, 1233 (8th Cir. 1997) (standard of review for appeal from district court's denial of acceptance of responsibility reduction); United States v. Moss, 138 F.3d 742, 745 (8th Cir.1998) (drug quantity determination); United States v. Rodgers, 122 F.3d 1129, 1133 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 721, 139 L.Ed.2d 660 (1998) (enhancement for leadership role); United States v. McCracken, 110 F.3d 535, 542 (8th Cir.1997) (enhancement for possession of dangerous weapon).

Hewitt first argues that the court erred in granting him a two-level reduction for acceptance of responsibility rather than the three to which he asserts he was entitled. Section 3E1.1(a) of the Guidelines provides that a defendant who "clearly demonstrates acceptance of responsibility for his offense" is entitled to a two-level decrease in his base offense level. When a defendant has met this requirement and has an offense level greater than 16, section 3E1.1(b)(2) allows for an additional one-level decrease where he has also "timely notif[ied] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently." See also United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 126, 136 L.Ed.2d 76 (1996). Although he concedes that a plea of guilty entered on the day of trial normally would not entitle a defendant to the supplemental one-level reduction, Hewitt argues that because the government was also preparing similar cases involving substantially the same facts against his co-defendants, Brown and Williams, his lengthy delay in pleading did not cause the government to significantly squander its resources preparing for trial. He also argues that even his last-minute plea furthered the court's efficient allocation of resources by causing the trial to be shorter in length.

We reject each of these arguments. The presence of an additional defendant against whom a case must be proved by no means suggests that the government's efforts to prepare that case for trial are somehow duplicative of efforts to prepare similar cases against co-defendants, particularly where, as here, that defendant is the purported leader of a multiple-actor criminal conspiracy. The charges against Hewitt were more numerous and substantial than those against Brown or Williams and involved several transactions and occurrences in which they took no direct part. The government was forced to proceed, up until the very morning of trial, as though it would be required to prove Hewitt's guilt beyond reasonable doubt on no less than ten separate counts. Without question, such preparation consumed substantial time, energy, and resources of the government. See United States v. Ayers, 138 F.3d 360, 364 (8th Cir.1998).

Similarly, Hewitt's eleventh-hour plea did little to promote efficient allocation of the court's resources, since the court, like the government, had to conduct its affairs based on the assumption that his case would be tried and to schedule its docket accordingly. See id. That docket indicates that the court was forced to consider twelve motions from Hewitt prior to his decision to change his plea. Thus, the court committed no error when it declined to increase the section 3E1.1 reduction from two levels to three. See, e.g., id.; United States v. Chatman, 119 F.3d 1335, 1342 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 434, 139 L.Ed.2d 333 (1997); United States v. Thompson, 60 F.3d 514, 517 (8th Cir.1995); U.S.S.G. § 3E1.1 cmt. (n.6).

Next, Hewitt contends that the district court erred in holding him accountable for all of the drugs proved to have been involved in the conspiracy. Although he concedes that the quantities of 998.4 grams and 227 grams of powder cocaine seized by authorities on March 25 and April 21, 1996, respectively, were properly attributed to him, Hewitt disputes the court's consideration of any other quantities of powder or crack cocaine.

A...