U.S. v. Pruitt
| Decision Date | 15 June 1998 |
| Docket Number | 95-6393,96-5222,96-6026 and 96-6337,Nos. 95-5983,s. 95-5983 |
| Citation | 156 F.3d 638 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tobias Marco PRUITT (95-5983); Cory D. Evans (95-6393); John Herbert Talley, a/k/a Hot Rod (96-5222); Michael Clay (96-6026); Kelcey Tramayne Kendrick (96-6337), Defendants-Appellants. . Argued (95-6393; 96-5222/6026/6337) |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gregg L. Sullivan, Asst. U.S. Attorney (briefed), Office of U.S. Attorney, Chattanooga, TN, for Plaintiff-Appellee in docket No. 95-5983.
Gregg L. Sullivan, Asst. U.S. Attorney (argued and briefed), Office of U.S. Attorney, Chattanooga, TN, for Plaintiff-Appellee in docket Nos. 95-6393, 96-5222, 96-6026 and 96-6337.
Ashley L. Ownby (briefed), Cleveland, TN, for Defendant-Appellant in docket No. 95-5983.
Charles P. Dupree (argued and briefed), Chattanooga, TN, for Defendant-Appellant in docket No. 95-6393.
Henry D. Fincher (argued and briefed), Cookeville, TN, for Defendant-Appellant in docket No. 96-5222.
Neal L. Thompson (argued and briefed), Chattanooga, TN, for Defendant-Appellant in docket No. 96-6026.
R. Dee Hobbs (argued and briefed), Bell, Turner & Hobbs, Chattanooga, TN, for Defendant-Appellant in docket No. 96-6337.
Before: WELLFORD, MOORE, and CLAY, Circuit Judges.
The five defendants in these consolidated appeals, Tobias M. Pruitt, Cory D. Evans, John Herbert Talley, Michael Clay, and Kelcey Tramayne Kendrick, raise a number of challenges to their respective convictions and sentences. The defendants were part of a drug conspiracy involving the sale of crack cocaine. Pruitt, Evans, Clay, and Kendrick pleaded guilty. In light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), all four of these defendants' convictions under 18 U.S.C. § 924(c) for carrying or using a firearm during and in relation to the drug conspiracy were vacated. Clay and Kendrick, however, had their sentences enhanced pursuant to U.S.S.G. § 2D1.1(b)(1) for possessing a firearm in connection with the drug conspiracy. These four defendants now raise various challenges to their sentences on appeal. Talley was convicted in a trial by jury and now appeals his conviction and sentence based on ineffective assistance of counsel, the application and constitutionality of 21 U.S.C. § 841(b), and a separate state law claim. For the reasons discussed below, we AFFIRM the convictions and sentences of all of the defendants; we do not, however, address the merits of defendant Talley's ineffective assistance of counsel claim.
These five defendants, along with nine other individuals, were indicted by a federal grand jury in Chattanooga, Tennessee, on December 6, 1994. The defendants had been under investigation for some time by the Federal Bureau of Investigation for their alleged involvement in a drug-selling conspiracy. The facts related to the criminal activity of the individual defendants are discussed below in the sections dealing with their individual claims.
The thirty-three count indictment included a charge in Count 1 against all of the defendants for conspiring to possess with intent to distribute crack cocaine from at least October 1992 to on or about December 20, 1993, in violation of 21 U.S.C. § 841(a)(1). All of the defendants were also charged in Count 2 with conspiracy to use and carry firearms during and in relation to the drug conspiracy in violation of 18 U.S.C. § 924(c). Defendants Clay and Kendrick were also charged with substantive 18 U.S.C. § 924(c) violations.
Pruitt entered a written plea agreement with the government wherein he pleaded guilty to Counts 1 and 2. On July 6, 1995, he was sentenced to a total of 120 months' imprisonment followed by a five-year period of supervised release. He filed a timely notice of appeal on July 10, 1995.
Evans pleaded guilty to Counts 1 and 2 and was sentenced to 292 months' incarceration, followed by a five-year period of supervised release. His sentence reflected a downward departure for his cooperation. Evans filed a notice of appeal on August 25, 1995.
Clay pleaded guilty to Counts 1 and 32, and he was sentenced to 130 months' incarceration, followed by supervised release for five years. His sentence reflected a downward departure for cooperation with the government. Clay filed a notice of appeal on September 5, 1995.
Kendrick pleaded guilty to Counts 1 and 31 and was sentenced to 195 months' incarceration followed by supervised release for five years. Kendrick filed a notice of appeal on September 5, 1995.
Talley was convicted by a jury trial of Count 1 and Counts 20 and 21 (use of a communications facility to facilitate a drug felony). The jury acquitted Talley of Count 2, conspiracy to use and carry firearms during and in relation to a drug trafficking offense. Because Talley had been convicted of at least two previous felony drug offenses and trafficked in excess of fifty grams of crack cocaine in the present case, he was sentenced to life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). Talley filed a notice of appeal on December 12, 1995.
We granted motions filed by Pruitt, Clay, Evans, and Kendrick to remand to the district court so that they could file motions to vacate their § 924(c) convictions based on the intervening Supreme Court decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Talley did not request a remand.
Pruitt filed a motion with the district court after the remand objecting to his conviction under Count 2, the § 924(c) conviction. His conviction was vacated. Evans filed a motion pursuant to 28 U.S.C. § 2255, see R. 346 (Evans Pet.), and a motion after remand objecting to his conviction under Count 2. His conviction on this charge was also vacated. Both Pruitt's and Evans's sentences remained the same because their sentences on Count 2 were to run concurrently with their longer Count 1 sentences.
Clay filed a motion pursuant to 28 U.S.C. § 2255 to vacate his § 924(c) conviction. The government conceded that Clay's § 924(c) conviction should be vacated, and the district court therefore vacated his Count 32 conviction for a violation of § 924(c). Having found that Clay possessed a firearm in connection with drug trafficking, however, the district court imposed a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1). His overall sentence was thereby reduced by twenty-two months. Clay then renewed his notice of appeal.
The government opposed a similar motion made by Kendrick, arguing that his actions satisfied the Bailey test for a § 924(c) violation. The district court vacated the § 924(c) conviction, but it imposed a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) after holding a sentencing hearing. Kendrick's revised sentence reflected a decrease of fifteen months' incarceration from his original sentence. Kendrick renewed his notice of appeal.
The appeals of all of the defendants were consolidated by order of this court on October 15, 1996. The defendants have raised a number of arguments challenging their convictions and sentences. Because the aggregation of the drug amounts attributable to Talley presents the most significant issue in these cases, we begin with this issue.
Talley objects to the application of 21 U.S.C. § 841(b)(1)(A) and to the constitutionality of this section on several grounds. For Talley, the pertinent part of § 841(b)(1)(A) provides for a mandatory life sentence for defendants who have been convicted of possessing with the intent to distribute cocaine base if the present case involves fifty grams or more of cocaine base and the defendant has two or more prior convictions for felony drug offenses that have become final. See 21 U.S.C. § 841. Each of Talley's challenges is addressed below in turn.
Section 841(b)(1)(A) of Title 21 mandates minimum sentences for people convicted of crimes involving large quantities of drugs. It states,
In the case of a violation of subsection (a) of this section [prohibiting possession or sale of controlled substances] involving ... 50 grams or more of a mixture ... which contains cocaine base ... such person shall be sentenced to a term of imprisonment which may not be less than 10 years.... If any person commits a violation of this subparagraph ... after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release.
21 U.S.C. § 841(b)(1)(A) (emphasis added). Section 846 provides, "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy."
Talley argues that under United States v. Winston, 37 F.3d 235 (6th Cir.1994), the district court erred in sentencing him to a mandatory life sentence on the basis of 21 U.S.C. § 841(b)(1)(A). 1 Winston held:
It is obvious from the statute's face--from its use of the phrase "a violation"--that this section refers to a single violation. Thus, where a defendant violates subsection (a) more than once, possessing less than 50 grams of cocaine base on each separate occasion, subsection (b) does not apply, for there is no single violation involving "50 grams or more" of cocaine base. This is true even if the sum total of the cocaine base involved all together, over the multiple violations, amounts to more than 50 grams.
Id. at 240. The defendant in Winston had conspired with another person to sell twenty-three grams of...
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