U.S. v. Frazier, s. 93-3480

• Decision Date: 02 August 1996
• Docket Number: Nos. 93-3480,93-3565,s. 93-3480
• Citation: 89 F.3d 1501
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry FRAZIER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Darence Eugene HUTCHINSON, Kenya Brown, Albert Lintez Brown, a/k/a "Pee Pee" a/k/a "James", Henry Graham, Raymond D. Griffin, Kenyatta Brown, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1501

89 F.3d 1501

UNITED STATES of America, Plaintiff-Appellee, v. Larry FRAZIER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Darence Eugene HUTCHINSON, Kenya Brown, Albert Lintez Brown, a/k/a "Pee Pee" a/k/a "James", Henry Graham, Raymond D. Griffin, Kenyatta Brown,

Defendants-Appellants.

Nos. 93-3480, 93-3565.

United States Court of Appeals, Eleventh Circuit.

Aug. 2, 1996.

H. Manuel Hernandez, Longwood, FL, for Frazier.

Paul J. Byron, Asst. U.S. Attys., Tamra Phipps, Tampa, FL, for Appellee in No. 93-3480.

James T. Skuthan, Asst. Federal Public Defender, Orlando, FL, for Hutchinson.

Brian J. Gillis, Longwood, FL, for K. Brown.

Christopher L. Smith, Winter Springs, FL, for A. Brown.

Dean F. Mosley, Orlando, FL, for H. Graham.

Michael W. Nielsen, Dowdy & Nielsen, Winter Springs, FL, for Kenyatta Brown.

Rosemary T. Cakmis, Federal Public Defender, Orlando, FL, for R. Griffin.

Paul G. Byron, Asst. U.S. Atty., U.S. Attorney's Office, Orlando, FL, for Appellee in No. 93-3565.

Appeals from the United States District Court for the Middle District of Florida.

Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior Circuit Judge.

HATCHETT, Circuit Judge:

Appellants Darence Hutchinson, Henry Graham, Raymond Griffin, Albert Brown, Kenyatta Brown, and Kenya Brown were acquitted of a drug conspiracy charge but convicted of numerous substantive narcotics and firearms violations. Appellant Larry Frazier pleaded guilty to conspiracy to possess with the intent to distribute cocaine base and two substantive drug offenses. We (1) vacate the 21 U.S.C. § 841 convictions of Hutchinson, Griffin, Albert Brown, Kenyatta Brown, and Kenya Brown on double jeopardy grounds and remand for resentencing under 21 U.S.C. § 860; (2) affirm the district court's holding that Hutchinson's prior conviction under Florida Statutes § 817.563 constitutes a predicate controlled substance offense for career offender sentencing purposes; and (3) vacate the district court's findings as to the quantity of drugs attributable to Hutchinson, Albert Brown, and Kenyatta Brown for sentencing purposes and remand for further factual findings on that issue. We find no merit to the appellants' remaining claims of error. ¹

FACTS

In December 1992, the Titusville Police Department and the Bureau of Alcohol, Tobacco, and Firearms (BATF) began investigating drug trafficking activities at the Forrest Villas Apartments. The investigation concentrated on four adjacent apartments, numbers 1912, 1910, 1908, and 1906, and another apartment, number 1852-2A. The apartments were located approximately 300 feet from an elementary school. The police and BATF agents conducted visual and videotape surveillance of the apartments and Agents determined that (1) Hutchinson occupied apartment 1912 with a codefendant; (2) Graham, Kenyatta Brown, and a codefendant occupied apartment 1910; (3) Griffin occupied apartment 1908; and (4) Albert Brown and Hanley occupied apartment 1852-2A. Kenya Brown did not reside at Forrest Villas although he frequented the complex. Several unindicted individuals used apartment 1906. During the surveillance, the appellants and their codefendants commonly entered one another's apartments.

                used audiotape recordings of undercover transactions to identify individuals selling drugs and possessing weapons.   BATF agents conducted undercover operations at the apartment complex in January and February 1993, and continued periodic visual surveillance until they executed search warrants in April 1993
                

A resident of Forrest Villas, Mitch Sohm, worked as a confidential informant and purchased cocaine and weapons from the appellants. Sohm purchased cocaine base from Hutchinson, Graham, Griffin, and Albert Brown. He also purchased an illegal shotgun from Albert Brown and Hanley. After Sohm made these transactions, he introduced the appellants to undercover BATF Special Agent Stephen Martin. Martin subsequently negotiated to purchase cocaine base from Kenya Brown, and purchased the drug from Hutchinson, Graham, Griffin, Albert Brown, and Kenyatta Brown. Martin also negotiated to purchase weapons from Kenya Brown and purchased weapons from Hutchinson, Griffin, Albert Brown, and Kenyatta Brown.

PROCEDURAL HISTORY

In April 1993, a grand jury in the Middle District of Florida returned a twenty-four count indictment against all the appellants except Frazier. In June 1993, the grand jury returned a forty-seven count superseding indictment that included Frazier. Count 1 of the superseding indictment charged all of the appellants (and six codefendants) with conspiring to possess with the intent to distribute cocaine base in violation of 21 U.S.C. § 846. The appellants were also named in numerous substantive counts.

In September 1993, Frazier pleaded guilty to all counts against him. On September 29, 1993, a jury returned verdicts acquitting the other appellants of the conspiracy count. As to the substantive counts, the jury (1) acquitted Hutchinson on three counts and convicted him on fourteen (Counts 2, 4-15, 38); (2) acquitted Graham on two counts and convicted him on eight (Counts 16-23); (3) convicted Griffin on all four counts against him (Counts 12, 13, 25, 26); (4) convicted Albert Brown on all nine counts against him (Counts 27-35); (5) convicted Kenyatta Brown on both counts against him (Counts 34, 35); and (6) acquitted Kenya Brown on two counts and convicted him on two (Counts 36, 37). The district court sentenced Frazier in November 1993, and the remaining appellants in December 1993.

ISSUES

The issues we discuss are: (1) whether Hutchinson, Griffin, Albert Brown, Kenyatta Brown, and Kenya Brown received multiple punishments for the same offense conduct in violation of the Fifth Amendment's Double Jeopardy Clause; (2) whether the district court properly relied on a prior state conviction in sentencing Hutchinson as a career offender pursuant to Sentencing Guidelines sections 4B1.1 and 4B1.2; and (3) whether the district court erred in calculating the drug quantities attributable to Hutchinson, Albert Brown, and Kenyatta Brown.

DISCUSSION

A. Double Jeopardy

With the exception of Graham and Frazier, all the appellants contend that they received multiple punishments for the same conduct in violation of the Fifth Amendment's Double Jeopardy Clause. Specifically, they argue that they were impermissibly convicted of two crimes, possession with the intent to distribute cocaine base under 21 U.S.C. § 841(a) and possession with the intent to distribute cocaine base within 1,000 feet of an elementary school under 21 U.S.C. § 860, for the same offense conduct.

In United States v. Freyre-Lazaro, 3 F.3d 1496, 1507 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1385, 128 L.Ed.2d 59 (1994), this court held that "a § 841(a) violation is a lesser included offense of § 860," and, consequently, "s 841(a) and ... § 860 constitute the same offense for double jeopardy purposes." Accordingly, we vacate the section 841 convictions of Hutchinson, Griffin, Albert Brown, Kenyatta Brown, and Kenya Brown and remand for resentencing under section 860. Freyre-Lazaro, 3 F.3d at 1507.

B. Career Offender Status

Hutchinson argues that the district court erroneously sentenced him as a career offender under Sentencing Guidelines sections 4B1.1 and 4B1.2. "This court applies the de novo standard of review when interpreting questions of law arising under the Sentencing Guidelines." United States v. Smith, 54 F.3d 690, 691 (11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 329, 133 L.Ed.2d 229 (1995).

Section 4B1.1 of the guidelines classifies a defendant as a career offender if

(1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1 (1993). ² Hutchinson admits that the first and second criteria apply to him, and he concedes that his 1986 robbery conviction constitutes a predicate offense under section 4B1.1. Hutchinson argues, however, that the district court erred in counting his prior Florida felony conviction for selling a substance in lieu of a controlled substance as a predicate "controlled substance offense" under section 4B1.1.

Section 4B1.2(2) of the guidelines defines the term "controlled substance offense" as "an offense under a federal or state law prohibiting the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(2) (1993). The commentary to section 4B1.2 states that the term "controlled substance offense" includes "the offenses of aiding and abetting, conspiring, and attempting to commit" such an offense. U.S.S.G. § 4B1.2, comment. (n. 1) (1993). It is the practice of this circuit to "look at the elements of the convicted offense, not the conduct underlying the conviction, in determining if a prior conviction is a controlled substance offense under § 4B1.2(2)." United States v. Lipsey, 40 F.3d 1200, 1201 (11th Cir.1994).

In 1990, Hutchinson pleaded nolo contendere to a violation of Florida Statutes § 817.563. That law reads, in relevant part:

Controlled substance named or described in s. 893.03; sale of substance in lieu thereof

It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance.

Fla.Stat.Ann. § 817.563 (West 1994) (emphasis added). ³ Looking at the elements of the convicted offense, we conclude that the district...