U.S. v. Simmons
| Decision Date | 29 July 1992 |
| Docket Number | Nos. 91-1368,91-1426,s. 91-1368 |
| Citation | 964 F.2d 763 |
| Parties | , 35 Fed. R. Evid. Serv. 930 UNITED STATES of America, Appellee, v. James B. SIMMONS, Appellant. UNITED STATES of America, Appellee, v. Charles H. BOWERS, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas D. Carver, Springfield, Mo., for Simmons.
Robert J. Buonauro, Orlando, Fla., for Bowers.
Robert E. Monroe, Springfield, Mo., for appellee.
Before LAY, * Chief Judge, BRIGHT and HENLEY, Senior Circuit Judges.
James B. Simmons and Charles H. Bowers separately appeal their convictions and sentencing for possession and distribution of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B) and (b)(1)(C) (1988), distribution of crack on university property in violation of 21 U.S.C. § 845a(a) (1988) and conspiracy to distribute crack in violation of 21 U.S.C. § 846 (1988). After a joint trial, a jury convicted Bowers on one count of conspiracy to distribute more than fifty grams of cocaine base in violation of sections 846 and 841(b)(1)(A) (Count I), one count of distribution of cocaine base in violation of sections 841(a)(1) and (b)(1)(C) (Count III), one count of distribution of cocaine base on university property in violation of section 845a(a) (Count IV), one count of distribution of more than five grams of cocaine base in violation of sections 841(a)(1) and (b)(1)(B) (Count V), and one count of possession with intent to distribute cocaine base in violation of sections 841(a)(1) and (b)(1)(C) (Count VI). The jury acquitted Bowers on Count II (possession with intent to distribute more than five grams). The jury convicted Simmons on Count I (conspiracy to distribute more than fifty grams of cocaine base), Count III (distribution of cocaine base in violation of sections 841(a)(1) and (b)(1)(C)) and Count IV (distribution of cocaine base on university property).
The district judge applied section 2D1.1(c)(5) of the Sentencing Guidelines, which relates to offenses involving at least 150 grams but less than 500 grams of cocaine base. See United States Sentencing Commission, Guidelines Manual, § 2D1.1(c) (Nov.1990) 1 [hereinafter U.S.S.G.]. Bowers received a 262 month sentence (twenty-one years plus ten months) with a concurrent lesser sentence of 240 months (twenty years). Simmons received a sentence of three concurrent 135 month terms (eleven and one-quarter years). Appellants raise numerous issues on appeal, including: (1) Jencks Act violations; (2) improper governmental use of a confidential informant; (3) failure to suppress unlawfully seized evidence; (4) insufficiency of the evidence of conspiracy; (5) erroneous application of the Sentencing Guidelines; (6) failure to order disclosure of a confidential probation report; and (7) the 100:1 ratio in the Sentencing Guidelines for cocaine base discriminates against African-Americans in violation of the due process clause, the equal protection clause and the eighth amendment. We affirm the convictions but remand to the district court to resentence Charles Bowers.
This case concerns two young African-American men, Charles H. Bowers (age twenty-six) and James B. Simmons (age twenty-four), who received scholarships to play football at Evangel College in Springfield, Missouri. At some point, the record is not clear as to the precise time, they began to distribute crack. This was their first offense. The district court imposed heavy sentences pursuant to the probation officer's calculations under the federal guidelines for sentencing.
The sale of cocaine base which led to the convictions and these appeals occurred in Springfield, Missouri between January 1989 and June 1990. The original indictment charged Charles H. Bowers, James B. Simmons, Craig L. Bowers (a cousin of the co-defendant) and Phillip W. McCall with conspiracy to distribute and possess more than fifty grams of cocaine base (Count I). Count II of the indictment charged Charles Bowers and Phillip McCall with possession with intent to distribute more than five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B). Phillip McCall pleaded guilty to possession with intent to distribute and agreed to testify at trial. The jury acquitted Craig L. Bowers on the conspiracy count, the only charge against him.
On September 29, 1989, Springfield police officers arrested Phillip McCall at Silver Springs Park after observing drug-related activity. The police seized approximately five and one-half grams 2 of cocaine base from McCall during the arrest. McCall testified at trial that Charles Bowers drove him to the park, gave crack to him and to Craig Bowers, and asked them to sell it. The September 1989 incident served as the basis of the distribution charge against McCall and Charles Bowers in Count II of the indictment.
On October 9, 1989, Springfield Police Officer Dan Schrader and confidential informant Grenda Pierce purchased a forty dollar rock of crack cocaine from Simmons and Charles Bowers in Silver Springs Park. After Bowers approached the car and asked them what they needed, Simmons gave Pierce two coin baggies containing a total of .18 grams 3 of cocaine base. This undercover purchase served as the basis of the distribution charge against Simmons and Charles Bowers in Count III of the indictment.
Kevin Crenshaw, a special agent with the Bureau of Alcohol, Tobacco and Firearms, made an undercover purchase from Simmons and Charles Bowers on November 1, 1989. Crenshaw purchased 2.35 grams 4 of cocaine base in a parking lot at Southwest Missouri State University. This sale provided the basis for the distribution on university property charge in Count IV of the indictment.
Crenshaw next purchased 29.6 grams 5 of cocaine base from Charles Bowers on November 14, 1989. The sale took place in the kitchen of Bowers's apartment. This transaction served as the basis of the distribution charge against Charles Bowers in Count V of the indictment.
On December 11, 1989, the Springfield police arrested Charles Bowers after pursuing his car into an alley. After searching the alley, the police recovered a packet of suspected drugs, which, upon chemical analysis, contained 1.79 grams 6 of cocaine base. This incident provided the basis for the possession charge against Charles Bowers in Count VI of the indictment.
On May 13, 1990, a Missouri state trooper in Butler County stopped a rental car which matched a description he received in a drug courier profile. After procuring the consent of passengers Craig, Robbie and Charles Bowers, Corporal Steven J. Hinesley searched the trunk. Wrapped in coffee grounds and an Orlando newspaper dated the previous day, he found six small plastic baggies containing an unidentified quantity of cocaine base. 7
These facts provide an overview of the offenses charged. We will elaborate on the specific circumstances of the case as necessary to discuss the arguments raised on appeal.
We consider and reject the constitutional challenges to the Sentencing Guidelines without lengthy discussion.
One gram of cocaine base carries the same penalty as 100 grams of cocaine powder for the purpose of determining an individual's base offense level under the Sentencing Guidelines. See U.S.S.G. § 2D1.1(c). Bowers asserts that ninety-seven percent of the defendants prosecuted for crack offenses in the Western District of Missouri between 1988 and 1989 were black. On the basis of this statistical evidence, Bowers contends that the 100:1 ratio for cocaine base discriminates on the basis of race in violation of the due process clause, the equal protection clause and the eighth amendment. Citing the same statistical evidence, Simmons frames his objection to the 100:1 ratio as a violation of the equal protection clause.
This court has already rejected the arguments Bowers and Simmons raise here, and we are bound by precedent to follow suit. See, e.g., United States v. House, 939 F.2d 659, 664 (8th Cir.1991) (); United States v. Winfrey, 900 F.2d 1225, 1227 (8th Cir.1990) (); United States v. Buckner, 894 F.2d 975, 980 (8th Cir.1989) (). Many of our sister circuits have similarly disposed of the constitutional arguments appellants raise. See, e.g., United States v. Thomas, 932 F.2d 1085 (5th Cir.) (enhanced penalty for cocaine base does not violate due process), cert. denied, --- U.S. ----, 112 S.Ct. 264, 116 L.Ed.2d 217 (1991); United States v. Turner, 928 F.2d 956 (10th Cir.) (same), cert. denied, --- U.S. ----, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991); United States v. Avant, 907 F.2d 623 (6th Cir.1990) (); United States v. Cyrus, 890 F.2d 1245 (D.C.Cir.1989) (same); United States v. Solomon, 848 F.2d 156 (11th Cir.1988) (per curiam) (same). Accordingly, we reject Bowers's constitutional challenges to the 100:1 ratio for cocaine base in the Sentencing Guidelines.
Were we writing from a clean slate, however, we might accept as valid appellants' contentions relating to the disproportionate penalty. The Minnesota Supreme Court recently rejected a similar requirement under state guidelines as contrary to the equal protection guarantees in the Minnesota Constitution. See State v. Russell, 477 N.W.2d 886 (Minn.1991). But see United States v. Watson, 953 F.2d 895, 898 n. 5 (5th Cir.1992) (...
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