U.S. v Burrell, 050102 FED2, 00-1259-62

Docket Nº:00-1259-62
Party Name:U.S. v Burrell
Case Date:January 29, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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UNITED STATES OF AMERICA, APPELLEE,

v.

STANLEY BURRELL, MICHELLE MILES, BRIAN BURRELL, A/K/A B-WOP, AND DARRYL BANKS, A/K/A POP, DEFENDANTS-APPELLANTS.

Docket No. 00-1259-62

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: January 29, 2001

May 1, 2002

Defendants appeal their convictions and sentences for, among other things, conspiracy to distribute heroin and cocaine base.

Affirmed as to the convictions of Michelle Miles, Brian Burrell, and Darryl Banks, and as to Stanley Burrell's conviction for engaging in a continuing criminal enterprise; vacated as to Stanley Burrell's conviction for narcotics conspiracy; affirmed as to the sentences of Stanley Burrell, Michelle Miles, and Darryl Banks; as to the sentence of Brian Burrell vacated and remanded for resentencing.

Thomas H. Nooter, Freeman, Nooter & Ginsberg, New York, Ny, for Defendant-Appellant Stanley Burrell.

George Sheinberg, Brooklyn, Ny, for Defendant-Appellant Michelle Miles.

Steve Zissou, Bayside, Ny, for Defendant-Appellant Brian Burrell (Randall D. Unger, on the brief).

Ellyn I. Bank, New York, Ny, for Defendant-Appellant Darryl Bank.

Michelle Delong, Emily Berger, Assistant United States Attorneys, of counsel to Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn NY (Kenneth Breen, Assistant United States Attorney, on the brief) for Appellee.

Before: Oakes, Straub, and Pooler, Circuit Judges.

Pooler, Circuit Judge

Stanley Burrell, Michelle Miles, Brian Burrell, and Darryl Banks appeal from their convictions and resulting sentences for a variety of narcotics related offenses. In a summary order also filed today, we rejected all of defendants' objections to their convictions except (1) Stanley Burrell's argument that he could not be convicted both of participation in a continuing criminal enterprise ("CCE") and of conspiracy to possess and distribute narcotics and (2) Darryl Banks' contention that juvenile adjudications were wrongly used against him. We vacated Stanley Burrell's conspiracy conviction in the summary order and will consider Darryl Banks' argument in this opinion. As to the defendants' sentences, we rejected Stanley Burrell's argument that the district court wrongly enhanced his sentence for possession of a gun as well as Brian Burrell's objection to the use of two felony convictions occurring during the course of the conspiracy to enhance his sentence. We left for consideration in this opinion defendants' claim that the district court erred by determining the quantity of drugs attributable to each of them rather than requiring that the indictment charge and the jury find drug quantity and Brian Burrell's objection to the use of two felony convictions to enhance his sentence despite the fact that the convictions were for conduct that was part of the federally charged conspiracy.

BACKGROUND

Stanley Burrell organized and operated a cocaine base ("crack") and heroin distribution network at Marcy Houses, a public housing project in Brooklyn, New York from approximately 1990 to 1997. At first, the Burrell Organization sold crack in plastic vials with gold caps ("goldtops") and heroin in gold glassine bags ("goldbags") close to a Chinese restaurant near Marcy Houses. During 1993, the organization began selling from a courtyard in front of several of the project buildings and from a nearby parking lot and changed the packaging for its crack from goldtops to blacktops. Although the organization continued to sell goldbag heroin, it also sold heroin in glassine bags with the word "Romance," on a slip of paper inside. Miles produced these labels. At its new location, the organization sold drugs twenty-four hours a day and seven days a week.

Miles, who was Stanley Burrell's girlfriend, acted as the business manager for his organization, hiring workers, scheduling shifts, supplying workers, collecting money, and cooking and packaging crack. In March 1995, Miles was arrested in a Marcy Houses apartment after a police officer observed a table full of what appeared to be narcotics through the open door of her apartment. Miles was acquitted of charges stemming from this incident.

Brian Burrell began working for his brother's organization in the early 1990s. In 1991, Brian Burrell was twice arrested in front of the Chinese restaurant. Both times Burrell possessed a substantial amount of crack and heroin, and both arrests resulted in felony convictions that the district court counted as prior felony convictions when it sentenced Brian Burrell to life imprisonment. Upon his release from state prison, Burrell again began to work for the organization.

Banks was a street...

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