U.S. v. Mitchell

• Decision Date: 12 April 2007
• Docket Number: No. 06-40335.,06-40335.
• Citation: 484 F.3d 762
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Keyon LaKeith MITCHELL; Duford Lee Mitchell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

484 F.3d 762 UNITED STATES of America, Plaintiff-Appellee,
v.
Keyon LaKeith MITCHELL; Duford Lee Mitchell, Defendants-Appellants. No. 06-40335. United States Court of Appeals, Fifth Circuit. April 12, 2007. Rehearing Denied May 15, 2007.

[484 F.3d 766]

Tracey M. Baton, Asst. U.S. Atty. (argued), Plano, TX, for Plaintiff-Appellee.

Ronald Wesley Tidwell (argued), Ellis, Young & Tidwell, Paris, TX, for Keyon LaKeith Mitchell.

George E. West, II (argued), Plano, TX, for Duford Lee Mitchell.

Appeals from the United States District Court for the Eastern District of Texas.

Before KING, GARZA and PRADO, Circuit Judges.

KING, Circuit Judge:

Defendants-appellants Keyon LaKeith Mitchell and Duford Lee Mitchell appeal their convictions and sentences stemming from their involvement in a crack-cocaine conspiracy in Paris, Texas. After a jury trial, both were convicted of one count of conspiracy to possess with intent to distribute crack cocaine and one count of possession of a firearm in furtherance of a drug-trafficking crime. For the reasons that follow, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

The government presented evidence at trial that defendant-appellant Keyon Mitchell and co-defendants Corwin Jeffrey and Raphael Robinson¹ were central figures in a crack-cocaine conspiracy in Paris, Texas.

Keyon Mitchell's involvement with crack cocaine began in 2002 when he started driving his friend Jeffrey to DeKalb, Texas—Jeffrey's own car was not reliable enough to take on the highway—so that Jeffrey could purchase crack cocaine to sell in Paris. Keyon Mitchell knew of the reason for the trips to DeKalb; in fact they took his mother's green sedan in order to avoid detection by police. Keyon Mitchell drove Jeffrey to DeKalb approximately ten times in 2002, and Jeffrey purchased four to six ounces of crack cocaine on each trip.

Seeing how much money Jeffrey was making by selling crack cocaine inspired Keyon Mitchell to start selling it himself.

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Jeffrey initially sold Keyon Mitchell two ounces of crack cocaine and showed him how to cut it up, weigh it, and repackage it into smaller amounts for resale. Keyon Mitchell sold this quantity quickly and then continued buying crack cocaine from Jeffrey in two-ounce increments, at least ten times. On one occasion, Keyon Mitchell and Jeffrey pooled their money together to purchase a quarter-kilogram (nine ounces) in DeKalb to sell in Paris.

Later in 2002, Keyon Mitchell, Jeffrey, and Robinson began traveling together on drug runs to Dallas, Texas. Robinson had a supplier in Dallas named "Bowleg." The three men went on at least five runs together in 2002 and 2003 to purchase crack cocaine from "Bowleg." On each trip, the men would drive to the supplier's home, Keyon Mitchell and Jeffrey would give their money to Robinson, and Robinson would go into the home and procure the drugs for all three of them. Each individual would purchase four to six ounces of crack cocaine per trip. The men would then sometimes transport the drugs back to Paris themselves, but on other occasions they would have another individual transport it for them in exchange for drugs. Once back in Paris, the men would repackage the drugs in smaller quantities and then distribute them.

Then at some point in 2003, the men found a new supplier, Chris Culberson, who would deliver the drugs directly to them in Paris. Culberson would not make a delivery for less than nine ounces of crack cocaine. About ten to fifteen times over an approximately one-year period, Culberson delivered crack cocaine to Robinson's home. On about five of these occasions, Robinson agreed to purchase crack cocaine from Culberson on behalf of Keyon Mitchell; Keyon Mitchell gave Robinson his payment in advance, and Robinson conducted the transactions once Culberson arrived. Generally, each man would purchase nine ounces of crack cocaine from Culberson. They distributed the drugs they purchased from Culberson in the Paris area.

Numerous witnesses testified that Keyon Mitchell sold them crack cocaine. The amounts of crack that Keyon Mitchell sold ranged in quantity from approximately 1.5 grams to 2 ounces.²

Defendant-appellant Duford Mitchell, Keyon Mitchell's cousin, also sold crack cocaine in Paris during this period. Duford Mitchell generally obtained his drugs from Keyon Mitchell; indeed, the government alleged that Duford Mitchell was Keyon Mitchell's chief distributor. Numerous witnesses testified that they either purchased crack cocaine from Duford Mitchell or saw him selling crack cocaine in the Booth Alley area of Paris.

On October 1, 2003, Keyon Mitchell, Duford Mitchell, and Jeffrey participated in a break-in of Robinson's home in an attempt to steal Robinson's stash of crack cocaine. On that date, Culberson had delivered an order of crack cocaine to Robinson's home at around 1:00 a.m. Jeffrey and Keyon Mitchell knew that Culberson was making this delivery, and they hatched a scheme to steal the fresh stash so that they could "make extra money." Keyon Mitchell recruited Duford Mitchell into the plan, and Duford Mitchell in turn recruited Brandon Grant. Jeffrey and Keyon Mitchell purchased four ski masks for the robbery. The four robbers met at Keyon Mitchell's father's house, where they gathered firearms, and then they went to Jeffrey's house to pick up black shirts. At about 2:00 a.m., Keyon Mitchell drove them to

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Robinson's home, where he stayed in the car—his arm was in a sling, and he was concerned the sling might reveal his identity to Robinson—while Jeffrey, Duford Mitchell, and Grant, wearing the ski masks and black shirts, entered Robinson's home. Duford Mitchell and Grant also carried firearms. Jeffrey, Duford Mitchell, and Grant scoured Robinson's house for the crack-cocaine stash, but they never found it, and they ultimately left empty-handed.

Keyon Mitchell and Duford Mitchell (collectively, "the defendants") were charged in a two-count superseding indictment on March 10, 2005. Count one charged them with conspiracy to possess with intent to distribute fifty grams or more of crack cocaine in violation of 21 U.S.C. § 846. Count two charged them with possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1); count two specified that the underlying drug-trafficking crime was possession with intent to distribute more than 50 grams of crack cocaine.

The defendants proceeded to trial, and a jury convicted them on both counts. They now appeal.

II. SUFFICIENCY OF THE EVIDENCE

Keyon Mitchell first maintains that there was insufficient evidence to support his conviction on count one for conspiracy to possess with intent to distribute fifty grams or more of crack cocaine.

A. Standard of Review

Because Keyon Mitchell preserved his challenge to the sufficiency of the evidence, we review de novo the district court's denial of his Rule 29 motion for a judgment of acquittal. United States v. Anderson, 174 F.3d 515, 522 (5th Cir.1999) (citing United States v. Payne, 99 F.3d 1273, 1278 (5th Cir.1996)).

In reviewing the sufficiency of the evidence, we view the evidence and the inferences drawn therefrom in the light most favorable to the verdict, and we determine whether a rational jury could have found the defendant guilty beyond a reasonable doubt. Id. (citing United States v. Burton, 126 F.3d 666, 669 (5th Cir.1997); Payne, 99 F.3d at 1278). "The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence." Id. (quoting Burton, 126 F.3d at 669-70). "Moreover, our standard of review does not change if the evidence that sustains the conviction is circumstantial rather than direct." Id. (citing Burton, 126 F.3d at 670; United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir.1993); United States v. Bell, 678 F.2d 547, 549 n. 3 (Former 5th Cir.1982)).

B. Analysis

Count one charged that Keyon Mitchell, together with other named and unnamed individuals, conspired to possess with intent to distribute fifty grams or more of a cocaine mixture or substance containing a detectable amount of crack cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. To have proved Keyon Mitchell's guilt on count one, the government must have established (1) the existence of an agreement between two or more persons to possess with intent to distribute fifty grams or more of crack cocaine, (2) that Keyon Mitchell knew of the conspiracy and intended to join it, and (3) that he participated in the conspiracy. United States v. Morris, 46 F.3d 410, 414-15 (5th Cir.1995) (citing United States v. Maseratti, 1 F.3d 330, 337 (5th Cir.1993)). "Direct evidence of a conspiracy is unnecessary;

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each element may be inferred from circumstantial evidence." United States v. Casilla, 20 F.3d 600, 603 (5th Cir.1994) (citing Cardenas, 9 F.3d at 1157). "An agreement may be inferred from a `concert of action.'" Id. (citing Cardenas, 9 F.3d at 1157; United States v. Natel, 812 F.2d 937, 940 (5th Cir.1987)).

Keyon Mitchell contends that the government failed to present sufficient evidence of an agreement between the alleged co-conspirators. He argues that the government proved merely that there were numerous buyer/seller relationships, not that there was a conspiracy. He concedes that there was sufficient evidence that he and other defendants trafficked in crack cocaine, but he asserts that the traffickers were acting independently rather than in concert. He points to the testimony of alleged co-conspirators that each controlled what he sold, where he sold, and the prices he charged, and that no profits were shared between them.

But the evidence amply supports a finding that Keyon Mitchell entered into an agreement with Jeffrey and Robinson to purchase crack cocaine together for distribution in Paris. On numerous...