U.S. v. Hodges

• Decision Date: 07 June 1991
• Docket Number: 90-1155 and 90-1260,Nos. 90-1124,90-1154,s. 90-1124
• Citation: 935 F.2d 766
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant (90-1260), v. Ronald HODGES (90-1124/1260), Defendant-Appellant, Cross-Appellee, Robert Hodges (90-1154), Timothy Hodges (90-1155), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 766

935 F.2d 766

UNITED STATES of America, Plaintiff-Appellee Cross-Appellant (90-1260), v. Ronald HODGES (90-1124/1260), Defendant-Appellant, Cross-Appellee Robert Hodges (90-1154) Timothy Hodges (90-1155), Defendants-Appellants.

Nos. 90-1124, 90-1154, 90-1155 and 90-1260.

United States Court of Appeals Sixth Circuit.

Argued March 11, 1991.

Decided June 7, 1991.

Michael Hluchaniuk, Asst. U.S. Atty. (argued), Bay City, Mich., for U.S.

Robert J. Rhead (argued), Midland, Mich., for Ronald Hodges.

Before KRUPANSKY and BOGGS, Circuit Judges, and ENGEL, Senior Circuit Judge.

ENGEL, Senior Circuit Judge.

Defendants-appellants Timothy Hodges ("Timothy"), Robert Hodges ("Robert"), and Ronald Hodges ("Ronald"), three brothers, were convicted for their participation in a conspiracy to distribute 500 grams or more of cocaine between August, 1985, and May, 1989, in violation of 21 U.S.C. Secs. 841 and 846. Robert was also convicted on four additional counts charging him with distribution of cocaine in February, 1988, and both Robert and Ronald were convicted on another count charging them with distribution of cocaine in June, 1988.

Defendant Timothy, a Saginaw County Deputy Sheriff, argues that the government presented insufficient evidence to support his drug conspiracy conviction and his guideline offense level. All three defendants assert that their right to a jury trial was violated because the court, not the jury, made specific findings as to the quantity of drugs involved in the conspiracy. Defendant Robert makes the same argument with regard to the court's finding that he possessed a firearm in the course of a drug transaction. The government cross-appeals the lower court's refusal to impose a mandatory minimum sentence of ten years on defendant Ronald, as allegedly required by 21 U.S.C. Sec. 841(b). For the reasons that follow, we affirm all of the convictions but remand the case for resentencing of Ronald's conviction under section 841(b).

I.

The government's case at trial consisted principally of testimony by police officers working undercover and two cocaine traffickers turned government informants. The testimony of the government's primary witness, Randy Smith, provided the vast majority of the evidence implicating defendants. ¹ He testified that he bought cocaine from Robert and Ronald approximately every two weeks between August 1985 and the summer of 1986, involving about 3.5 grams ( 1/8 ounce) each time. This would result in an amount somewhere around 75 grams. The witness stated that he thereafter increased his purchases to one ounce per month and possibly one ounce per week. ² Smith was a roommate of Timothy's prior to the drug transactions and up until approximately May of 1987.

The witness also testified that he went with Robert to Pontiac, Michigan in the spring of 1987, at which time they bought ten ounces. In addition, Robert and Timothy used Smith's car, according to Smith, to make three or four other trips to Pontiac to purchase cocaine during that same period. In response to the U.S. Attorney's query as to whether Timothy ever mentioned being involved in his brothers' drug business, Smith said "he had mentioned he was able to taste it," which meant, according to one government witness, that Timothy judged the quality of cocaine for his brothers.

On another occasion, in the latter part of 1987, witness Smith indicated he saw Robert with an estimated 10 to 15 ounces of cocaine after Robert had taken a trip to Flint. According to Smith, on four to six occasions from November of 1987 to April of 1988 he accompanied Robert to the Flint area where they bought an average of ten ounces of cocaine, but he later testified it was anywhere from five to ten ounces for a total of about 35 ounces. Smith also stated that on about ten other occasions either Robert or Ronald (they alternated about equally) dropped off an average of six ounces of cocaine at his house. In conclusion, he testified that a total of about 95 ounces went through his hands as a result of his latest dealings with Robert or Ronald.

If these 95 ounces were added to only the 10 ounces that Smith and Robert obtained in Pontiac, the total would exceed 100 ounces which is equivalent to 2.8 kilograms. There was also testimony by other witnesses indicating that defendants were involved in additional drug transactions. ³ The trial court calculated that the total amount of cocaine involved in the conspiracy fell within the range of at least 2 kilograms but less than 3.5 kilograms. Other facts peculiar to each defendant's involvement in the drug transactions at issue will, in addition to this fact summary, be set forth where pertinent in the discussion below.

II.

Initially, we point out that most of the issues presented to us in this appeal have been settled by our court or another circuit. Further, the factual findings of the district court and the jury in our opinion are not clearly erroneous and will therefore not be disturbed. The only error we find is one of law. For convenience and clarity, the various issues on appeal are listed under the defendant who is contesting them.

A. Robert Hodges

Defendant Robert was sentenced to 135 months imprisonment for conspiracy to distribute cocaine and the distribution of cocaine pursuant to 21 U.S.C. Secs. 841 and 846. His sentence was on the low end of the applicable guideline range of 135 to 168 months. To get to that range, his sentence was enhanced by the court for possession of a firearm, for his role in the conspiracy, and because of a prior controlled substance conviction.

Robert first argues that a jury determination regarding the quantity of drugs in the alleged conspiracy would certainly have resulted in a sentence of incarceration substantially less than that which he received. Robert contends that not only are significant findings made without the benefit of a jury, but in addition he has been deprived of the standard of proof "beyond a reasonable doubt" and the presumption of innocence as to those findings. The fact that a judge is able to increase sentences under a lower standard of proof, according to Robert, "is especially bothersome in this case where the trial court stated on the record that the Government's primary witness, Randy Smith, was ['not all that credible'] and that if it were up to the Court, the Court could not convict based on that testimony." Robert essentially argues that the sentence enhancement violated his sixth amendment right to a jury trial.

Judge Churchill sympathized with Robert and expressed his concerns about the constitutionality of a trial judge's ability to enhance sentences without jury findings on the facts on which those enhancements depend. He noted his concern was especially pronounced in cases where the sentences imposed are quite serious. The trial judge, however, also recognized that the applicable authority seemed to resolve the issue against defendant and ultimately decided to follow precedent.

It is clear that the great weight of authority (if not all cases) holds that the quantity of the drug involved in an illegal transaction is only relevant to the sentence that will be imposed and is not part of the offense. See, e.g., United States v. McNeese, 901 F.2d 585, 600-01 (7th Cir.1990) ("The quantity of the controlled substance is not an essential element of the crimes proscribed under section 841(a)(1) and 846; rather, it is a sentencing issue to be raised after proof of a defendant's underlying guilt."); United States v. Gibbs, 813 F.2d 596 (3rd Cir.1987) (amount of drug involved is only relevant to sentence imposed and does not constitute element of offense); United States v. Wood, 834 F.2d 1382 (8th Cir.1987) (section 841(b) is nothing more than a sentence enhancement provision, and thus a jury need not make a special determination as to quantity). Nevertheless, each of those cases affirmed the defendant's sentence without addressing the specific issue presented here. See, e.g., United States v. Moreno, 899 F.2d 465 (6th Cir.1990) (the court in Wood ended its analysis with the conclusion that section 841(b) is only a sentence enhancement provision, and thus it did not address the argument that under the constitution the quantity of drugs had to be determined by a jury).

We rejected Robert's sixth amendment argument, at least implicitly, in Moreno, supra. Although the indictment in that case alleged that the defendants conspired to distribute more than five kilograms of cocaine, the jury was instructed that it could choose to return a verdict convicting the defendants of conspiring to distribute either 5 kilograms or 500 or more grams of cocaine, the latter being a "lesser included offense." The jury chose the latter option. Thereafter, the district court calculated the base offense level of the defendants for a conspiracy to distribute 500 or more grams of cocaine, although the court found by a preponderance of the evidence that the conspiracy involved over five kilograms of cocaine. The trial court reasoned it was bound by the jury's verdict which stated a lesser quantity. Moreno, 899 F.2d at 472.

On appeal, we initially agreed with the Eighth and the Third Circuits that section 841(b) sets forth penalty provisions only and does not separate "lesser included offenses." We further stated that the district court is not bound by a jury's verdict as to the amount of drugs involved in a particular scheme. Indeed, we held that it is the trial judge's perogative to make such determinations. Id. at 473. "Because section 841(b) is a penalty provision only," we reasoned that "a determination of the quantity of cocaine by a preponderance of the evidence ... satisfies due process...." Id. (emphasis added). Thus, we concluded in Moreno that it was lawful for the judge, by the preponderance of the evidence standard, to find the existence of five kilograms of cocaine in the conspiracy and impose a sentence calculated upon that...