U.S. v. Jackson

• Decision Date: 14 July 1995
• Docket Number: 143,159,D,Nos. 158,163,160,s. 158
• Citation: 60 F.3d 128
• Parties: 42 Fed. R. Evid. Serv. 904 UNITED STATES of America, Appellee, v. Joseph JACKSON; Kevin Anthony Richardson; Ryan O. Ragland; Robert G. Ragland; Abdullah Muhammad; Michael Elliot; Darnell Gordino; Frederic Mitchell; Dana Gordino; Terry Kierce and James Moore, Defendants, Lopez D. Jones, also known as "Donald Lopez Jones", also known as "Rock", also known as "L", also known as "Lopez", also known as "Loggie"; Che Collins, Reorn Mark Jones, also known as "Mark", also known as "Jonesy", also known as "J", and Michael Barretto, also known as "Chico", also known as "Suave", and Kevin Blackmon, also known as "WB", also known as "Waterbed", also known as "Kev", Defendants-Appellants. ockets 93-1619, 93-1620, 93-1621, 93-1622, 93-1628.
• Court: U.S. Court of Appeals — Second Circuit

Page 128

60 F.3d 128

42 Fed. R. Evid. Serv. 904

UNITED STATES of America, Appellee, v. Joseph JACKSON; Kevin Anthony Richardson; Ryan O. Ragland;

Robert G. Ragland; Abdullah Muhammad; Michael Elliot;

Darnell Gordino; Frederic Mitchell; Dana Gordino; Terry

Kierce and James Moore, Defendants,

Lopez D. Jones, also known as "Donald Lopez Jones", also

known as "Rock", also known as "L", also known as "Lopez",

also known as "Loggie"; Che Collins, Reorn Mark Jones, also

known as "Mark", also known as "Jonesy", also known as "J",

and Michael Barretto, also known as "Chico", also known as

"Suave", and Kevin Blackmon, also known as "WB", also known

as "Waterbed", also known as "Kev", Defendants-Appellants.

Nos. 158, 159, 143, 160, 163, Dockets 93-1619, 93-1620,

93-1621, 93-1622, 93-1628.

United States Court of Appeals, Second Circuit.

Argued Oct. 14, 1994.

Decided July 14, 1995.

Gerald Bodell, Stratford, CT and Timothy P. Pothin, New Haven, CT, for defendant-appellant Lopez D. Jones.

William F. Tiernan, New Haven, CT, for defendant-appellant Che Collins.

William B. Barnes, Fairfield, CT (Rosenstein & Barnes, Fairfield, CT), for defendant-appellant Reorn Mark Jones.

Frank J. Riccio, Bridgeport, CT, for defendant-appellant Michael Barretto.

Vito A. Castignoli, Milford, CT, for defendant-appellant Kevin Blackmon.

Christopher F. Droney, U.S. Atty., New Haven, CT, Anthony E. Kaplan, Peter D. Markle, H. Gordon Hall, Asst. U.S. Attys., David P. Gold, Sr. Asst. U.S. Atty., for appellee.

Before NEWMAN, Chief Judge, WALKER, and CALABRESI, Circuit Judges.

WALKER, Circuit Judge:

Five defendants-appellants appeal their judgments of conviction and sentences following a jury trial in the United States District Court for the District of Connecticut (Ellen Bree Burns, District Judge ). Their appeal involves a series of challenges commonly brought in drug conspiracy appeals, "the disposition of which will have little precedential import." United States v. Rodriguez, 943 F.2d 215, 216 (2d Cir.1991) (limiting opinion to single issue of precedential import). We write this opinion to address two issues of first impression: 1) whether the United States Sentencing Commission exceeded its statutory authority in treating a drug conspiracy conviction as a predicate for sentencing a defendant as a career offender pursuant to U.S.S.G. Sec. 4B1.1; and 2) whether Federal Rule of Evidence 615, which requires sequestration of witnesses except in three limited circumstances, exempts from sequestration no more than one government case agent under each exception.

BACKGROUND

Appellants Lopez Jones, Reorn Mark Jones, Michael Barretto, Che Collins, and Kevin Blackmon were among sixteen people indicted following a lengthy investigation of the "Jungle Boys" drug gang in New Haven, Connecticut. All five were tried by a jury and convicted of conspiring to distribute narcotics in violation of 21 U.S.C. Sec. 846. Lopez and Reorn Jones were also convicted as supervisors of a continuing criminal enterprise under 21 U.S.C. Sec. 848. In addition, Reorn Jones was found guilty of acting as an accessory in the sale of cocaine, 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, and as an accessory in the sale of cocaine within 1000 feet of a school, 21 U.S.C. Secs. 841(a)(1), 860 and 18 U.S.C. Sec. 2. Collins was convicted of the sale of cocaine, 21 U.S.C. Sec. 841(a)(1), and the distribution of cocaine within 1000 feet of a school, 21 U.S.C. Secs. 841(a)(1), 860, as well as conspiracy to possess with intent to distribute cocaine, 21 U.S.C. Sec. 846.

As a career offender, Blackmon was sentenced to 292 months imprisonment. Reorn Jones and Collins each received a 292-month term of incarceration, while Lopez Jones and Barretto were sentenced to 328 and 168 months, respectively. The five defendants each received five years of supervised release as well as the obligatory assessments.

While the appellants present a number of challenges to their convictions and/or sentences, we limit our discussion to the career offender and Rule 615 issues, which were raised by four of the five appellants. We have considered the remaining claims of the defendants-appellants, and we find them to be without merit.

DISCUSSION

I. Career Offender Sentence

Blackmon challenges his sentence as a career offender on the ground that a prior drug conspiracy conviction cannot be a predicate for career offender status. We find this argument to be without merit.

The Sentencing Guidelines describe three criteria for sentencing a defendant as a career offender:

(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 U.S.S.G. Sec. 4B1.1. A "controlled substance offense" includes any "offense under a federal or state law prohibiting the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. Sec. 4B1.2(2). Application Note 1 broadens the definition to include "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses."

convictions of either a crime of violence or a controlled substance offense.

In this case, Blackmon was over eighteen years of age and had two prior convictions, one for manslaughter and one for assault in the second degree with a firearm. As a result, he satisfied the first and third elements of Sec. 4B1.1, a fact that Blackmon does not contest. Because he was convicted of conspiracy to distribute a controlled substance, Judge Burns found that he fulfilled the second element as well and sentenced him as a career offender. The sole issue for decision therefore is whether the term "controlled substance offense" includes a drug conspiracy conviction.

In claiming that it does not, Blackmon does not challenge the application of the Sentencing Guidelines; Judge Burns clearly followed the explicit language of the guidelines and commentary. Instead, Blackmon argues that the Sentencing Commission exceeded its statutory mandate under 28 U.S.C. Sec. 994(h) by including drug conspiracies as controlled substance offenses.

We begin by noting that even though the broadened definition of "controlled substance offenses" articulated in the commentary does not appear in an actual guideline, it is binding authority. Commentary "that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, --- U.S. ----, ----, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993); see also U.S.S.G. Sec. 1B1.7 (Failure to follow commentary that interprets or explains the application of a guideline "could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal."). Application Note 1 is authoritative because it interprets and explains Sec. 4B1.2 by listing offenses that constitute "controlled substance offenses" and "crimes of violence." See Stinson, --- U.S. at ----, 113 S.Ct. at 1920 (finding commentary to Sec. 4B1.2, which stated that "the offense of unlawful possession of a firearm by a felon" was not a "crime of violence," to be interpretive and therefore authoritative). As we explain below, this interpretation is not inconsistent with, let alone a violation of, 28 U.S.C. Sec. 994(h) or any other statute. Consequently, the commentary is binding authority.

In challenging the Sentencing Commission's authority to promulgate Application Note 1, Blackmon relies principally on United States v. Price, 990 F.2d 1367 (D.C.Cir.1993), the first case to address this issue. In Price, the D.C. Circuit focused on the Commission's explicit statement in the Background Commentary to Ch. 4, Pt. B that 28 U.S.C. Sec. 994(h) mandated the adoption of the career offender guideline. Although the court recognized that the Commission's enabling legislation, 28 U.S.C. Sec. 994(a), gave it discretionary authority to establish guidelines for the determination of sentences, it noted the Commission's failure to state expressly that its promulgation of Ch. 4, Pt. B was based on Sec. 994(a). As a result, the D.C. Circuit concluded that the sole authority for the guideline provisions of that part came from Sec. 994(h). Id. at 1369.

The Price court then found that 28 U.S.C. Sec. 994(h) provided no authority to include drug conspiracies as predicates for a controlled substance offense. Section 994(h), in spelling out the authority for career criminal sentences for offenders convicted of a felony that is a crime of violence or a controlled substance offense, defines a controlled substance offense as those "described in" 21 U.S.C. Secs. 841, 952(a), 955, 955a, and 959, none of which is a conspiracy offense. 28 U.S.C. Secs. 994(h)(1)(B), (2)(B); Price, 990 F.2d at 1368-69. The court distinguished between conspiracies and their underlying substantive crimes on the basis that a conspiracy "requires only the meeting of the conspirators' minds, plus an overt act that Since the Price decision, a majority of the circuits to consider the question have rejected Price. See United States v. Williams, 53 F.3d 769, 772-73 (6th Cir.1995); United States v. Weir, 51 F.3d 1031, 1031 (11th Cir.1995); United States v. Piper, 35 F.3d 611, 618 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1118, 130 L.Ed.2d 1082 (1995); United States v. Kennedy, 32 F.3d 876, 888 (4th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 939, 130 L.Ed.2d 883 (1995); United States v. Damerville, 27 F.3d 254, 257 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 445, 130 L.Ed.2d 355 (1994); United States v. Hightower, 25 F.3d 182, 187 (3d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 370, 130...