U.S. v. Jackson

• Decision Date: 23 October 1998
• Docket Number: No. 97-3122,97-3122
• Citation: 161 F.3d 24
• Parties: UNITED STATES of America, Appellee v. Adolph JACKSON, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 24

161 F.3d 24

333 U.S.App.D.C. 125

UNITED STATES of America, Appellee v. Adolph JACKSON, Appellant

No. 97-3122.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 29, 1998.

Decided Oct. 23, 1998.

Antoini M. Jones argued the cause and filed the brief for appellant.

Rachel Carlson Lieber, Assistant United States Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, United States Attorney, John R. Fisher Mary-Patrice Brown, Richard L. Edwards and Mary B. Murphy, Assistant United States Attorneys.

Before EDWARDS, Chief Judge, and WALD and SENTELLE, Circuit Judges.

SENTELLE, Circuit Judge:

Adolph Jackson entered a plea of guilty to one count of Possession with Intent to Distribute Five Kilograms or More of Cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii)(II). He appeals from a judgment imposing a sentence of 132 months. Jackson argues that the district court improperly concluded that an earlier incident of uncharged conduct four years before the offense of conviction was in the same "course of conduct" and was thus appropriately included as "relevant conduct" for the purposes of determining the base offense level under U.S.S.G. § 1B1.3. We reject appellant's argument and affirm his sentence.

I. Background

Adolph Jackson was arrested as a result of a reverse sting operation facilitated by the cooperation of Rayful Edmond. Edmond, a purported drug lord, had been convicted of various federal narcotics offenses in 1990, and received concurrent sentences of life without parole. See United States v. Edmond, 52 F.3d 1080 (D.C.Cir.1995). While in prison, Edmond continued his drug activity by using the facility's visitation and telephone privileges to broker drug transactions between individuals in Colombia and in Washington, D.C. Edmond's telephone calls from prison were tape recorded consistent with Bureau of Prison policy, and in 1994, federal investigators became aware of his illegal activities and commenced an investigation. Edmond agreed to plead guilty to conspiracy to distribute cocaine, and began to cooperate with the government. He represented to his former contacts in the illicit drug industry that he had resumed his pattern of brokering large drug deals between parties in D.C. and in Colombia, with the government providing the cocaine in reverse sting operations.

In 1996, Adolph Jackson became the target of one such reverse sting. Edmond claimed that he had arranged a large drug transaction between Jackson and the Colombians in 1992. The government planned the sting so that Jackson would be led to believe that he was transacting with the same Colombian parties he had in 1992, with Edmond as intermediary. The sting was successful, and Jackson was arrested on August 7, 1996. A two-count indictment was filed the next day, charging him with one count of Conspiracy to Possess with Intent to Distribute Five Kilograms or More of Cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(ii)(II), and one count of Possession with Intent to Distribute Five Kilograms or More of Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)(II). On November 1, 1996, Jackson entered a plea of guilty to the second count of the indictment.

On April 1 and 2, 1997, the district court held a sentencing hearing which focused on whether Jackson's alleged 1992 drug transaction would be considered "relevant conduct" for the purpose of establishing his base offense level under U.S.S.G. § 1B1.3. The government presented two witnesses at the hearing, Rayful Edmond and Detective Gonzalez, a D.C. police officer. Edmond testified regarding the 1992 transaction and its similarity to the feigned 1996 transaction. He explained that the Colombians with whom he arranged his transactions from prison were "Chickie" and "Negro" Trujillo-Blanco, and that a representative of the Colombians named Memo would typically meet with the D.C. parties in New York City to complete the transaction. According to Edmond, he arranged a transaction between defendant and the Colombians in 1992. Edmond testified that the 1992 transaction involved the purchase of 25 kilograms of powder cocaine by defendant and his then partner, Marcus Haynes, who was the subject of a separate reverse sting. Jackson and Haynes allegedly received the cocaine from Memo in a meeting in New York City in July or August of 1992. Edmond further testified that while he was not present at the actual transaction, prior and subsequent conversations with the parties involved confirmed that the transaction had been completed. According to Edmond Jackson and Haynes were not entirely satisfied with Memo as intermediary due to late changes he had made in the deal. Edmond testified that shortly after the 1992 transaction, Chickie was killed, and Negro went into hiding, so that further transactions with them were not possible at that time. Portions of Edmond's testimony were supported by recordings of his phone conversations from prison.

Both Edmond and Detective Gonzales testified regarding the 1996 sting. Edmond explained that he contacted Jackson in 1996 and led him to believe that contact with Negro had been reestablished and that there was a new intermediary with whom a deal could be transacted. Detective Gonzales was the undercover officer who posed as the "new Memo" in the 1996 transaction. In his testimony at the sentencing hearing, Gonzales explained that he structured the 1996 transaction to parallel the 1992 transaction. Gonzales testified that he met with Jackson in a Newark hotel, and that Jackson did not seem confused or surprised when Gonzales mentioned Chickie and Negro during that meeting. The 1996 transaction involved ten kilograms of cocaine.

The district court concluded that the government had established that the 1992 transaction was relevant conduct under U.S.S.G. § 1B1.3. Since the 1992 conduct was deemed relevant, the defendant was responsible not only for the ten kilograms involved in the 1996 transaction, but for the twenty-five kilograms involved in the 1992 transaction. This increased defendant's base offense level from 32 to 34. After an adjustment for acceptance of responsibility, the defendant had an offense level of 31. With a criminal history of 2, this led to a sentencing range of 121 to 151 months. The judge imposed a sentence of 132 months, from which Jackson appeals.

Jackson argues that his alleged 1992 drug transaction should not have been used to determine his base offense level under § 1B1.3. He makes two arguments: first, that more than a simple preponderance should have been required to establish the 1992 transaction, and second, that the 1992 transaction is too distant in time to be considered part of the same course of conduct as the 1996 offense.

II. Standard of Proof at Sentencing

The preponderance standard for factual determinations at sentencing is suggested by the Guidelines themselves, see U.S.S.G. § 6A1.3 (Policy Statement) commentary. The Supreme Court has held that the application of the preponderance standard at sentencing generally satisfies due process. McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 637, 136 L.Ed.2d 554 (1997). In addition, this court has consistently stated that only a preponderance is required for proof of facts at sentencing. For example, in United States v. Lam Kwong-Wah, 966 F.2d 682 (D.C.Cir.1992), we held that a preponderance standard was acceptable regarding a sentencing court's finding of scienter with respect to the amount of drugs involved in conspiracy or distribution, even if the amount could have a significant impact on the length of the sentence. See also United States v. Pinnick, 47 F.3d 434, 437 (D.C.Cir.1995) (government must establish acts constituting relevant conduct by a preponderance); United States v. Gottfried, 58 F.3d 648, 652 (D.C.Cir.1995) (same). Although appellant argues that the evidence of the 1992 transaction was insufficient to prove the incident by even a preponderance, we have considered this argument, and find it to be without merit.

To support his argument that a higher standard of proof should have been required, appellant cites United States v. Shonubi, 103 F.3d 1085 (2d Cir.1997), which held that a more rigorous standard should be employed where the disputed conduct will significantly enhance a sentence. As on two prior occasions on which appellants have raised this same argument, we find that the facts before us do not involve any extraordinary circumstances so that we need not determine whether a higher standard could ever apply. See Lam Kwong-Wah, 966 F.2d at 682, and United States v. Toms, 136 F.3d 176 (D.C.Cir.1998). Even if a higher standard might be required where an extremely large difference in sentences is at stake, this is not such a case. 21 U.S.C. § 841(b)(1)(A)(ii) provides a ten-year minimum sentence for the offense on which defendant entered a plea. The 132-month sentence imposed in this case was only twelve months more than this ten-year minimum. In contrast, the relevant conduct determination in Shonubi led to an increase of at least fifty-four months. See 103 F.3d at 1087. Furthermore, treating Jackson's 1992 conduct as relevant increased his base offense level by only two points. A two-point increase was also at issue in Watts, 117 S.Ct. at 634. There, the Court acknowledged the divergence of opinion among lower courts regarding whether relevant conduct which would dramatically increase the sentence would require a higher standard of proof. Id. at 637. However, the Court held that there were no such exceptional circumstances in that case, so that proof by a preponderance was enough, and the Court had no need to address whether a higher standard would ever be required. Id. at 638. We reach an identical conclusion here.

III. The Relevant Conduct Determination

Appellant...