U.S. v. Bryant

• Decision Date: 08 July 2009
• Docket Number: No. 08-1160.,08-1160.
• Citation: 571 F.3d 147
• Parties: UNITED STATES of America, Appellee, v. Chris BRYANT, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

571 F.3d 147

UNITED STATES of America, Appellee, v. Chris BRYANT, Defendant, Appellant.

No. 08-1160.

United States Court of Appeals, First Circuit.

Heard February 5, 2009.

Decided July 8, 2009.

William W. Fick, Federal Defender Office, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before TORRUELLA, STAHL, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

On September 14, 2007, defendant Chris Bryant pleaded guilty to a one-count indictment charging him with distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). At a sentencing hearing on December 19, 2007, the district court sentenced Bryant to ninety-months imprisonment, based in part on its determination that he qualified as a career offender under U.S.S.G. § 4B1.1. The court also imposed a five-year term of supervised release. In this appeal, Bryant challenges the district court's career offender designation and the district court's determination that an earlier uncharged transaction involving Bryant constituted relevant conduct under U.S.S.G. § 1B1.3. After careful consideration, we affirm in part, reverse in part, and remand for further proceedings.

I. Background

As this appeal follows Bryant's guilty plea, we draw the facts from the presentencing report ("PSR") and the transcript of the sentencing hearing. See United States v. Jaca-Nazario, 521 F.3d 50, 52 (1st Cir.2008).

In the summer and fall of 2006, Bryant participated in two sales of crack cocaine to an undercover officer in Mattapan, Massachusetts. The first occurred on August 2, 2006, and the second occurred on November 15, 2006. Bryant was not charged with the August 2, 2006 transaction.

On August 2, 2006, at about 1:15 p.m., an undercover officer drove into an area near 17 Gleason Street, looking for an individual from whom he had previously purchased crack cocaine. He passed four black males sitting on the curb. One of the four men called out to the officer and asked him what he was looking for. The officer responded that he was inquiring about his prior contact, providing a description of the individual. One of the males then said that the person whom the officer had described was not around and again asked the officer what he was looking for. The officer replied that he wanted $150 worth of "flav," a reference to cocaine. One of the males offered instead to sell marijuana to the officer, but the officer declined the offer. Upon hearing his response, that same male began making calls to locate crack cocaine that the officer could then purchase. At this time, another male, later identified as Bryant, asked the officer if he was a cop. The officer said no and showed Bryant his cellular telephone, which contained the target individual's phone number. Bryant and another male at the scene, Kyle Alston, then told the officer to meet them at another location, the corner of Gleason and Bradshaw streets.

The officer met Bryant and Alston at the designated corner, and then walked with them to another nearby corner. Alston asked the officer for money, indicating that he would be using it to buy the drugs. Bryant told the officer that it was "ok" and that he should try the "product" because it was "high-quality." Bryant also stated that the "product" was his and that he smoked marijuana, but was selling cocaine to make some money. Alston returned and handed the officer a plastic bag containing four rocks of what was later determined to be 0.7 grams of crack cocaine. Bryant told the officer that he should hide the drugs in his anal cavity because the police were in the area. The officer exchanged phone numbers with Bryant.

After the sale to the officer was completed, Bryant and Alston were stopped by other police officers. Soon thereafter, Bryant and Alston saw the undercover officer again and told him to be careful because police were in the area.

The second transaction occurred over three months later, on November 15, 2006. The same undercover officer was driving on Bradshaw Street when he saw Bryant. The officer asked Bryant if he recognized him. Bryant indicated that he did and asked the officer what he wanted. The officer told Bryant that he wanted the same thing as last time. Bryant said he would take care of him and then entered the officer's car and asked him to drive around the block. Bryant called multiple people in an attempt to locate drugs for the officer. Bryant then directed the officer to Baker Avenue, and asked him to park the car. Bryant requested money from the officer. After some hesitation, the officer gave Bryant money. Bryant exited the car and entered 18 Baker Avenue. He returned to the car shortly thereafter. The officer subsequently drove Bryant back to Gleason Street, where, upon the officer's request, Bryant dropped a plastic bag containing six rocks of what was later determined to be 0.74 grams of crack cocaine into the cupholder of the officer's car.

On January 10, 2007, federal authorities arrested Bryant pursuant to a complaint alleging distribution of cocaine base. Bryant's one-count indictment, handed down on February 28, 2007, charged him with knowingly and intentionally distributing a quantity of cocaine base on November 15, 2006, in violation of 21 U.S.C. § 841(a)(1) as well as with a related forfeiture allegation under 21 U.S.C. § 853. The indictment did not reference the August 2, 2006 transaction. Bryant entered a plea of guilty on September 14, 2007. On November 9, 2007, the Probation Office issued an initial PSR.

As originally issued, the PSR stated that Bryant was responsible for both the 0.74 grams of crack cocaine the undercover officer purchased in the November 15, 2006 transaction and for the 0.70 grams of crack cocaine the undercover officer purchased in the August 2, 2006 uncharged transaction. Based on this total of 1.44 grams of crack cocaine, the PSR calculated Bryant's base offense level ("BOL") to be 16. The PSR reduced the BOL by three levels for acceptance of responsibility, bringing the total offense level to 13. The PSR applied a criminal history category of II due to one countable prior New York conviction for attempted sale of a controlled substance in 1996 (hereinafter the "New York conviction"). The PSR calculated a Guideline Sentencing Range ("GSR") of 15-21 months imprisonment. See U.S.S.G. § 5A.

On November 20, 2007, the government objected to the PSR's calculation of Bryant's criminal history. The government contended that the PSR omitted a November 1997 conviction from the Suffolk Superior Court for conspiracy to violate the Massachusetts controlled substance laws in November 1997 (hereinafter the "Suffolk Superior Court conviction"). The government argued that this additional conviction would result in Bryant's designation as a career offender and a GSR of 151-188 months of imprisonment.

Bryant also objected to the PSR. He objected to the offense level calculations in the PSR arguing that the uncharged sale of 0.7 grams of crack cocaine on August 2, 2006 should not be included as relevant conduct. Bryant contended that the August 2, 2006 and the November 15, 2006 sale were not part of a "common scheme or plan" nor were they part of the "same course of conduct" within the meaning of U.S.S.G. § 1B1.3(a)(2). Bryant also objected to his potential designation as a career offender, alleging that the Suffolk Superior Court conviction was no longer valid and in any event could not qualify as a career offender predicate because the object of a conspiracy to violate the drug laws in Massachusetts is not necessarily a "controlled substance offense" within the meaning of U.S.S.G. § 4B1.2(b). Similarly, Bryant claimed that in the absence of court records of the type required by the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), there was insufficient evidence to prove the existence of the New York conviction.

In response to these objections, the Probation Office issued a revised PSR, dated December 6, 2007, which concluded that Bryant was a career offender under U.S.S.G. § 4B1.1 and agreed with the government that the GSR was 151 to 188 months.

The district court held a sentencing hearing on December 19, 2007. It began by noting the "enormous" disparity between the offense level attributed to the drug distribution offense for which Bryant was being sentenced, and the offense level computation resulting from the application of the career offender provisions. The district court noted that it was disinclined to impose a sentence either within the career offender guideline range or within the lower range calculated in the initial PSR, citing problems with the evidence used to establish the appropriate predicate offenses and convictions. However, the district court also noted that Bryant was a "serious offender" and extenuating circumstances were present in this case that would lead it to impose a much higher sentence than that called for by a simple application of 1.44 grams of crack cocaine and criminal history category III.¹

After giving Bryant's counsel the opportunity to address the objections he had made to the PSR, the district court concluded that it would hold Bryant responsible for the August 2, 2006 transaction. With respect to Bryant's objection to the use of the Suffolk Superior Court conviction, the district court found that Bryant pleaded guilty to a conspiracy to traffic in cocaine and that the conviction constituted a predicate for establishing that he was a career offender. Finally, with respect to the New York conviction, the district court found that, based upon the preponderance of the evidence, there was sufficient evidence to show that Bryant was convicted for that offense. The district court, therefore, found that the government offered sufficient proof to a...