U.S. v. Hicks

• Decision Date: 21 November 1991
• Docket Number: No. 90-5627,90-5627
• Citation: 948 F.2d 877
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Floyd Stevens HICKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 877

948 F.2d 877

UNITED STATES of America, Plaintiff-Appellee, v. Floyd Stevens HICKS, Defendant-Appellant.

No. 90-5627.

United States Court of Appeals Fourth Circuit.

Argued Nov. 2, 1990.

Decided Oct. 23, 1991.

As Amended Nov. 21, 1991.

Locke Turner Clifford, McNairy, Clifford, Clendenin & Parks, Greensboro, N.C. and Daniel A. Kuehnert, Morganton, N.C., argued, for defendant-appellant.

Richard Stanley Glaser, Jr., Asst. U.S. Atty., Greensboro, N.C., argued (Robert H. Edmunds, Jr., U.S. Atty., on brief), for plaintiff-appellee.

Before PHILLIPS, Circuit Judge, CHAPMAN, Senior Circuit Judge, and HOUCK, District Judge for the District of South Carolina, sitting by designation.

OPINION

HOUCK, District Judge:

Floyd Steven Hicks pled guilty to a one count indictment charging him with possession with intent to distribute 2,109.2 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). He received a sentence of eleven years confinement to be followed by four years of supervised release and a fine of a $20,000.00. He appeals from that sentence on the grounds that the district court committed error in converting cash seized from his home to equivalent drug amounts for purposes of relevant conduct and in finding that he obstructed justice. We affirm.

On September 25, 1989, Ephraim Vandorian Stancil was arrested in Moore County, North Carolina, for conspiracy to possess with intent to distribute cocaine. Upon being taken into custody Stancil agreed to cooperate with law enforcement officers and made a statement indicating that Floyd Steven Hicks was a distributor of kilogram quantities of cocaine in the Moore County area. On the same date he talked to Hicks and arranged for the delivery of approximately two kilograms of cocaine for that evening at 9:45 p.m. at a dumpster located on Highway 211 in Moore County at Eagle Springs. Stancil was to bring the money, and Hicks was to bring the cocaine.

Surveillance was established by officers of the Drug Enforcement Agency (DEA), the North Carolina State Bureau of Investigation (SBI), and the Moore County Sheriff's Department at 9:00 p.m. that evening at the dumpster on Highway 211. Hicks arrived at 9:45 driving a white Honda four-door. When approached by the officers, Hicks fled the location in his car and was pursued for several miles in a high speed chase. During that time Hicks reached speeds of up to 95 miles per hour.

Once Hicks was stopped he was arrested, and a search of his person and car was conducted. No controlled substances were recovered at that time.

In a statement made following his arrest Hicks indicated that after he fled the scene, he threw two kilograms of cocaine from his car. He agreed, however, to show officers the area involved. The following day agents from the SBI and Sheriff's Department searched the area identified by Hicks as the location where he had thrown the cocaine. One kilogram was recovered in that search. The search resumed on September 27, 1989, and at that time the second kilogram was recovered.

On the night of his arrest Hicks also cooperated and gave officers permission to search his home at Seven Lakes subdivision in West End, North Carolina. A search of the residence conducted on that evening resulted in the seizure of approximately 107.4 grams of cocaine, approximately 18.8 grams of marijuana, a triple-beam scale and $279,550.00 in cash. In response to questioning regarding the cash, Hicks told a DEA agent that the "majority" of the money was the proceeds of drug transactions. The following day Hicks told another DEA agent that the money was to have been picked up by someone on the evening of September 25, 1989, and was then to be used to purchase cocaine.

Hicks was subsequently indicted and pursuant to a plea agreement pled guilty before Judge N. Carlton Tilley, Jr. At the conclusion of the proceeding the court instructed Hicks as follows:

Mr. Hicks, I must order that you cooperate with the probation office in their compiling a presentence report involving this matter because they will be the ones who make the initial determination and recommendation of what guidelines apply and where you fit within the guidelines. So it is important that you cooperate.

Hicks responded affirmatively.

A pre-sentence report was later prepared by the United States Probation Office which calculated the recommended guideline sentence for Hicks and set forth the reasons therefor. The base offense level was established at 32 pursuant to U.S.S.G. § 2D1.1(a)(3). In arriving at that level the probation officer first considered all relevant conduct as required by U.S.S.G. § 1B1.3(a)(2), determining that the amount of cash seized from Hicks as well as the actual drugs should be considered in calculating the base offense level. Pursuant to Application Note 12 of U.S.S.G. § 2D1.1 and Application Note 2 of U.S.S.G. § 2D1.4, the seized cash was converted into an equivalent cocaine quantity. ¹ The amount of actual drugs and the cocaine equivalent of the cash were then added together and converted into a common drug equivalent of 2,169.071 grams of heroin, as called for under Application Note 10 of U.S.S.G. § 2D1.1. This dictated the Base Offense Level of 32.

To the Base Offense Level of 32, 2 levels were added for obstruction of justice pursuant to U.S.S.G. § 3C1.1 and the application notes thereunder. The probation officer based this increase on several factors. Two events occurred on the night of Hicks' arrest, and they have been discussed in detail above. We refer to the high speed chase and the discharge of the cocaine from the car. Later, after being advised by the court at the guilty plea hearing that he should cooperate with the probation office in the preparation of his presentence report, Hicks lied to the interviewing officer about the amount of the fee he had paid his attorney. He stated to the officer that he had paid $6,000.00 in attorney's fees, when in fact the actual amount of fees he had paid was $60,000.00. The interview in which this information was given occurred on January 9, 1990. On January 19, Hicks' attorney contacted the probation officer and advised him of the true amount of the fee. The attorney said that his client had been unsure about how to respond to the question posed because of the "client/attorney" relationship. The probation officer concluded that the discrepancy was pertinent to the ability of Hicks to pay a fine and was, therefore, a material falsehood.

Hicks did receive a 2 level downward adjustment for acceptance of responsibility in accordance with U.S.S.G. § 3E1.1(a). When all additions and subtractions were made the probation officer calculated Hicks' total offense level to be 32.

The presentence report recommended a criminal history category of II. This determination was based on a previous conviction for driving under the influence.

After the presentence report was completed Hicks filed his objections thereto. In effect, he objected to all of the calculations resulting in the total offense level of 32, except for the 2 level decrease he received for acceptance of responsibility. He also objected to the calculation of a criminal history category of II.

At sentencing the court adopted the findings and recommendations of the presentence report in all respects, with the exception that it found a criminal history category of II to be excessive and reduced it to a criminal history category of I. Hicks appeals all of the adverse determinations made by the court at sentencing.

I

Review of the district court's determinations under the Sentencing Guidelines is governed by 18 U.S.C. § 3742(e) ². We have previously considered this section and found as follows:

The amount of deference due a sentencing judge's application of the guidelines to the facts ... depends on the circumstances of the case. If the issue turns primarily on a factual determination, an appellate court should apply the "clearly erroneous" standard. See Anderson v. City of Bessemer City, 470 U.S. 564, 573-76, 105 S.Ct. 1504, 1511-13, 84 L.Ed.2d 518 (1985). If the issue, for example, turns primarily on the legal interpretation of a guideline term ... the standard moves closer to de novo review.... On mixed questions, courts have not defined any bright-line standard of review. Rather, the standard of review applied varies with the "mix" of the mixed question. If the question:

[I]s 'essentially factual,' ... the concerns of judicial administration will favor the district court, and the district court's determination should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo.

United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc) (citations omitted), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.1989).

II

Hicks first raises as error the determination of the district court that the cash seized from his home should be considered as relevant conduct and used in determining the base offense level. The calculation of the amount of drugs which results in the establishment of the base offense level is a factual determination subject to review only for clear error. Daughtrey, 874 F.2d at 217-18.

Hicks' base offense level is determined by reference to § 2D1.1(a)(3). Therein it states that, for offenses not involving death or serious bodily injury, the offense level is that which is specified by the Drug Quantity Table set forth under subsection (c). The Commentary to this section indicates that "[t]ypes and quantities of drugs not specified in the count of conviction may be considered in determining the offense...