U.S. v. Hester

• Decision Date: 26 October 1990
• Docket Number: No. 89-2471,89-2471
• Citation: 917 F.2d 1083
• Parties: UNITED STATES of America, Appellee, v. Dell HESTER a/k/a Jerry Smith, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1083

917 F.2d 1083

UNITED STATES of America, Appellee, v. Dell HESTER a/k/a Jerry Smith, Appellant.

No. 89-2471.

United States Court of Appeals Eighth Circuit.

Submitted April 9, 1990.

Decided Oct. 26, 1990.

Gregory G. Fenlon, St. Louis, Mo., for appellant.

Raymond M. Meyer, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ARNOLD, Circuit Judge, BRIGHT, Senior Circuit Judge, and FAGG, Circuit Judge.

FAGG, Circuit Judge.

Dell Hester appeals his convictions for possession with intent to distribute cocaine and conspiracy to distribute cocaine. See 21 U.S.C. Secs. 841(a)(1), 846 (1988). Hester also appeals his guidelines sentences. We affirm.

Government agents arrested Hester and his companion Sheila Hill when a pat down search of Hill revealed a package of cocaine taped securely to her body. Hill testified at trial that Hester was present when a coconspirator taped the cocaine to her, Hester was instructed by the coconspirator to deliver the cocaine personally to a buyer in St. Louis, and Hester accompanied Hill from Los Angeles to St. Louis as her bodyguard.

Hester argues there was insufficient evidence to convict him of the charged offenses. He also argues the district court committed error in denying his bill of particulars. These arguments are without merit.

We must view the evidence in the light most favorable to the government, and having done so, we reject Hester's argument that the government failed to prove his constructive possession of cocaine. Hill's testimony establishes that, although she had physical possession, Hester was in control of the cocaine. United States v. Holm, 836 F.2d 1119, 1123 (8th Cir.1988). Her testimony is also sufficient to prove Hester contributed to the conspiracy through his participation in the distribution scheme. United States v. Drews, 877 F.2d 10, 13 (8th Cir.1989). Because a bill of particulars is not a proper tool for discovery, we cannot say the district court abused its discretion in denying Hester's discovery-oriented bill of particulars. United States v. Hill, 589 F.2d 1344, 1352 (8th Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979).

Hester also asserts he was sentenced improperly as a career offender because one of the convictions the district court relied on is a misdemeanor. See U.S.S.G. Sec. 4B1.1 (Jan.1988). Hester's argument misses the mark. Hester received a sentence of forty-five days in the county jail for selling a counterfeit controlled substance under Cal. Health & Safety Code Sec. 11355 (West Supp.1980). Although California classifies this conviction as a misdemeanor, see Cal. Penal Code Sec. 17(b)(1) (West Supp.1980); People v. Holt, 37 Cal.3d 436, 208 Cal.Rptr. 547, 555 n. 7, 690 P.2d 1207, 1215 n. 7 (1984), Hester's offense is considered a felony for purposes of section 4B1.1.

The commentary to section 4B1.1 defines a felony conviction as an offense "punishable by ... imprisonment for a term exceeding one year, regardless of whether [the] offense is specifically designated as a felony and regardless of the actual sentence imposed." U.S.S.G. Sec. 4B1.1 application note 1 (incorporating U.S.S.G. Sec. 4B1.2 application note 3). Under section 11355, Hester could have been confined in the "state prison for a term of 16 months, or 2 or 3 years." People v. Jackson, 196 Cal.App.3d 380, 242 Cal.Rptr. 1, 2 n. 2 (1987) (citing Cal.Penal Code Sec. 18 (West Supp.1980)). Because the potential punishment for Hester's offense exceeds one year, his California conviction must be treated as a felony for federal sentencing purposes under section 4B1.1. United States v. Thomas, 894 F.2d 996, 997 (8th Cir.) (per curiam), cert. denied, --- U.S. ----, 110 S.Ct. 1935, 109 L.Ed.2d 298 (1990); United States v. Whyte, 892 F.2d 1170, 1172-73 (3d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1793, 108 L.Ed.2d 794 (1990). Hester's other assertions about his guidelines sentences are without merit.

We thus affirm Hester's convictions and sentences.

BRIGHT, Senior Circuit Judge, concurring in part, dissenting in part.

I dissent. I must respectfully disagree with the majority's approval of Hester's sentence as a career offender under the Guidelines, see United States Sentencing Commission, Guidelines Manual Secs. 4B1.1-4B1.2 (Oct.1987) (as amended January 15, 1988) (amended Nov. 1, 1989) [hereinafter U.S.S.G.]. Here, the court approves a sentence of twenty-five years--more than three times the sentence the court could have imposed had Hester been considered an ordinary offender. ¹ In my view, this decision misinterprets the career offender provision and violates any sense of fundamental fairness at sentencing.

In sentencing Hester as a "career offender," the district judge accepted the probation officer's analysis that Hester possessed the requisite two prior felony convictions for either a violent crime or a controlled substance offense, see U.S.S.G. Sec. 4B1.1. There is no dispute that one of Hester's convictions, a robbery, qualified as one such conviction. However, Hester contends that the second conviction, a violation of California drug laws, does not constitute a prior felony conviction for a controlled substance offense for the purposes of the career offender enhancement. In my view, Hester is correct, and therefore his sentence must be overturned.

Under the Guidelines, the Government bears the burden of proving the factual prerequisites for the career offender enhancement by a preponderance of the evidence. See United States v. Williams, 905 F.2d 217, 218 (8th Cir.1990). The scant documentation submitted by the Government fails to shoulder that burden.

The Government's documents indicate that, in September 1980, the California authorities charged Hester with violating Cal. Health & Safety Code Sec. 11379.5 (West Compact Ed.1980) (amended 1984, 1985, 1989). ² The complaint alleged that "DELL HESTER ... did willfully and unlawfully sell, furnish, administer, give away, manufacture, compound, transport and import into this state a controlled substance to wit, phencyclidine." Under California law, this offense is a felony calling for a three to five year term of imprisonment. See Cal.Penal Code Sec. 17(a) (West Compact Ed.1980). As such, this offense qualifies as a felony controlled substance offense for the purposes of the Guidelines' career offender provision. See U.S.S.G. Sec. 4B1.2(2) & comment. (n. 3). Accordingly, had Hester been convicted of selling phencyclidine under section 11379.5, this would end our inquiry.

However, by an information dated October 6, 1980, the California authorities amended the charge against Hester to allege a felony violation of Cal. Health & Safety Code Sec. 11355 (West Compact Ed.1980) (amended 1983, 1984, 1986, 1987). This information accused Hester of the following conduct:

DELL HESTER, on or about the 5th day of September, 1980 at and in the County of Los Angeles, State of California, did willfully and unlawfully agree, consent, and offer to unlawfully sell, furnish, transport, administer, and give a controlled substance, to wit, phencyclidine, and did then sell, deliver, furnish, transport, administer, and give, and offer, arrange, and negotiate to have sold, delivered, transported, furnished, administered, and given to Officers Williams and Jones, a liquid substance and material in lieu of said controlled substance.

(Emphasis added). Assuming, arguendo, that Hester subsequently pleaded guilty to violating section 11355, ³ the Government's documentation fails to demonstrate that the conduct charged above constituted (1) a controlled substance offense under U.S.S.G. Sec. 4B1.2(2), or (2) a prior felony conviction as defined in U.S.S.G. Sec. 4B1.2, comment. (n. 3).

The Guidelines in effect at the time of Hester's sentencing defined the term "controlled substance offense" as follows: "The term 'controlled substance offense' as used in this provision means an offense identified in 21 U.S.C. Secs. 841, 845b, 856, 952(a), 955, 955a, 959; and similar offenses." U.S.S.G. Sec. 4B1.2(2). Without exception, above-listed sections of the United States Code require a defendant to actually have dealings with (or attempt to have dealings with) a controlled or counterfeit substance. ⁴ By contrast, the California provision under which Hester was apparently charged contains no such requirement. Rather, section 11355 applies where a defendant merely agrees to provide a controlled substance "and then sells ... any other liquid, substance, or material in lieu of any such controlled substance."

Additionally, nowhere does the information (or any other document supplied by the Government) state that Hester, in fact, provided a controlled or counterfeit substance. By the Government's own admission, Hester did not provide phencyclidine. Sent. tr. at 5. Further, according to the amended information, Hester did only two things: (1) promise to provide a controlled substance; and (2) provide "a liquid substance and material in lieu of" the promised controlled substance. Thus, although Hester could have provided cigarettes dipped in a controlled substance, he also could have provided a cigarette dipped in Coca-cola. As a result, the instant record is insufficient to show that the career offender provision applies to the conduct that was the subject of Hester's California charges.

The Government also has failed to demonstrate that Hester's purported violation of section 11355 constituted a prior felony conviction. For the purposes of the Guidelines' career offender provisions, " '[p]rior felony conviction' means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." U.S.S.G. Sec. 4B1.2, comment. (n. 3) (emphasis added). By contrast, offenses under section 11355 are punishable only by "imprisonment in the county jail...