U.S. v. Simpson

Decision Date29 September 2000
Docket NumberNo. 98-6749,Docket No. 96-00195-CR-N-1,98-6749
Parties(11th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, Cross-Appellant, v. DARRELL SIMPSON, Defendant-Appellant, Cross-Appellee. D. C.
CourtU.S. Court of Appeals — Eleventh Circuit

[Copyrighted Material Omitted] Appeals from the United States District Court for the Middle District of Alabama

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

MARCUS, Circuit Judge:

Darrell Simpson appeals his 352-month sentence resulting from his conviction on charges of conspiracy to possess with intent to distribute cocaine base, two counts of distribution of cocaine base, and two counts of carrying a firearm during a drug-trafficking crime. The Government cross- appeals arguing that the district court abused its discretion in giving Simpson a 240-month downward departure from the mandatory minimum sentencing regime embodied in 21 U.S.C. 841, 851 and 18 U.S.C. 924(c)(1) on the grounds that the mandatory minimum overrepresented the gravity of Simpson's offenses. Because we find that the district court plainly erred in determining the drug quantity attributable to Simpson and abused its discretion in departing downward from the mandated sentence, we vacate the district court's sentence and remand for re-sentencing.

I.

The facts and procedural history are straightforward. On October 22, 1996, a federal grand jury charged Simpson with unlawful distribution of a controlled substance in violation of 21 U.S.C. 841(a)(1) and with the use and carrying of a firearm during and in relation to a drug-trafficking crime in violation of 18 U.S.C. 924(c)(1). On January 2, 1997, a superseding indictment expanded the charges against Simpson alleging the following drug and firearm counts: Count I - conspiracy to possess with intent to distribute cocaine base from May 15, 1996 through November 15, 1996, in violation of 21 U.S.C. 841(a)(1) & 846; Count II - unlawful distribution of a controlled substance and aiding and abetting on May 17, 1996, in violation of 21 U.S.C. 841(a)(1); Count III - unlawful distribution of a controlled substance and aiding and abetting on May 23, 1996, in violation of 21 U.S.C. 841(a)(1); Count IV - use and carrying of a firearm during and in relation to a drug trafficking crime on May 23, 1996, in violation of 18 U.S.C. 924(c)(1); Count V - unlawful distribution of a controlled substance on June 12, 1996, in violation of 21 U.S.C. 841(a)(1); and, finally, Count VI - use and carrying of a firearm during and in relation to a drug trafficking crime on June 12, 1996, in violation of 18 U.S.C. 924(c)(1). The superseding indictment also named co-defendant Elmore Murphy in Counts I, II, III, and IV. Murphy entered into a plea bargain with the government and was sentenced to 51 months in prison. He subsequently testified against Simpson.

At Simpson's trial in July 1998, Murphy testified that he entered into an agreement with Simpson in late 1995 when Simpson first propositioned Murphy to sell cocaine for him and then showed Murphy how to cut up the crack cocaine for re-sale. Murphy said that beginning in late 1995 he obtained one gram of crack from Simpson every week for two to three months (for approximately 12 grams). Later he received two to three grams of crack from Simpson for approximately a two month period (for approximately 16 grams), and then at some point began receiving "quarter ounces" (5-6 grams) of cocaine from Simpson.1 Notably, Murphy did not remember the duration or frequency with which he received the quarter ounces, however the Presentence Investigation Report ("PSI") calculated the quarter ounce distributions to total 144 grams.

Confidential informant Willie Aaron also testified at trial to two controlled buys from Simpson. First, Aaron said that on June 12, 1996, Simpson weighed about 40 grams of crack on a scale from which he purchased approximately 25 grams, and, again, on May 23, 1996, Simpson and Murphy sold him 16 grams of crack. Finally, Emmitt Knight testified that in 1992, some four years before the conspiracy at issue, Simpson sold him approximately one-half ounce of crack every three days for six months, amounting to a total of approximately 600 grams.

On July 9, 1998, the jury convicted Simpson on Counts I, III, IV, V, and VI of the superseding indictment. Prior to Simpson's trial, the Government had filed a Notice of Information under 21 U.S.C. 851 stating that Simpson had been convicted in 1996 of a prior felony drug offense. See R1-130. At no time has Simpson challenged the validity of this 851 Notice of Information. At the sentencing hearing, the district court adopted the calculation in the Presentence Investigation Report and specifically attributed 857.7 grams of crack cocaine to Simpson based upon the aggregation of 45.7 grams2 from two the controlled buys by Aaron, 172 grams from the distributions to Murphy, 40 grams from distributions to Edward Hardy,3 and 600 grams from the sales to Knight. The PSI concluded that Simpson's guideline range on the drug counts was 292 to 365 months, a consecutive 60 months on the first firearm offense, and still another consecutive 240 months on the second firearm offense. Simpson's minimum sentence was calculated at 592 months. The district court agreed with the calculations of the PSI but concluded that a 592 month sentence was "disproportionate to the gravity of defendant's offenses" and reduced the sentence by 240 months, thereby sentencing Simpson to a total of 352 months in prison.

On appeal, Simpson argues that the district court erred in denying his motion for judgment of acquittal, erred in its jury charge on the two 924(c)(1) firearm counts, and erred at sentencing in calculating the amount of crack cocaine attributable to him. In its cross-appeal, the Government also challenges the sentence arguing that the district court abused its discretion in departing downward from the applicable mandatory minimum sentence for the drug and firearms offenses.

II.

We review a challenge to the sufficiency of the evidence de novo. See United States v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000); United States v. Mattos, 74 F.3d 1197, 1199 (11th Cir. 1996). In reviewing a district court's denial of a motion for judgment of acquittal on the grounds of insufficient evidence, we must decide whether the evidence, examined in the light most favorable to the government, was sufficient to support the jury's conclusion that the defendant was guilty beyond a reasonable doubt. See United States v. Toler, 144 F.3d 1423, 1428 (11th Cir. 1998).

We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party. See Palmer v. Bd. of Regents of the Univ. Sys. of Ga., 208 F.3d 969, 973 (11th Cir. 2000); United States v. Chandler, 996 F.2d 1073, 1085 (11th Cir. 1993).

We review a district court's determination of the quantity of drugs used to establish a base offense level for sentencing purposes under the clearly erroneous standard. See United States v. Jackson, 115 F.3d 843, 845 (11th Cir. 1997); United States v. Mertilus, 111 F.3d 870, 873 (11th Cir. 1997). However, we consider sentence objections raised for the first time on appeal under the plain error doctrine to avoid manifest injustice. See United States v. Chisholm, 73 F.3d 304, 307 (11th Cir. 1996); United States v. Newsome, 998 F.2d 1571, 1579 (11th Cir. 1993).

Finally, we review a district court's decision to depart downward from the applicable sentencing guidelines range for abuse of discretion. See Koon v. United States, 518 U.S. 81, 98-100, 116 S.Ct. 2035, 2046-48, 135 L.Ed.2d 392 (1996); United States v. Pickering, 178 F.3d 1168, 1171 (11th Cir.), cert. denied, --- U.S. ---, 120 S.Ct. 433, 145 L.Ed.2d 339 (1999).

A.

First, Simpson argues that the district court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to support a guilty verdict on the conspiracy charge. Simpson claims that the evidence presented at trial, even when viewed in the light most favorable to the Government, was insufficient to establish the requisite elements of either a drug conspiracy or Simpson's complicity in it. We are not persuaded.

In order to prove a conspiracy to distribute cocaine, the Government must establish beyond a reasonable doubt: 1) the existence of an agreement among two or more persons; 2) that the defendant knew of the general purpose of the agreement; and 3) that the defendant knowingly and voluntarily participated in the agreement. See United States v. Adkinson, 158 F.3d 1147, 1153 (11th Cir. 1998); United Toler, 144 F.3d at 1425-26 (citing United States v. High, 117 F.3d 464, 468 (11th Cir. 1997)); United States v. Calderon, 127 F.3d 1314, 1326 (11th Cir. 1997).

Simpson claims that confidential informant Willie Aaron testified only that Simpson was present during a drug transaction he conducted with Murphy on May 23, 1996 and that he bought drugs from Simpson, individually, on June 12, 1996. Simpson argues that Aaron's testimony is insufficient to establish an illegal agreement between Simpson and Murphy to sell drugs. Moreover, Simpson says that co-defendant Murphy's testimony regarding a conspiracy between them to sell drugs was not corroborated by the Government's videotapes of the May 23, 1996 and June 12, 1996 transactions, and he points out that Murphy specifically testified that he sold drugs independently of Simpson. Finally, Simpson observes that both Aaron and Murphy received considerable downward departures in their sentences in return for their testimony against him.

The Government responds that the evidence it presented at trial was sufficient to establish beyond a reasonable doubt that Simpson and Murphy were engaged in a conspiracy to distribute cocaine between May 15, 1996 and November 15, 1996. We agree. Murphy's trial testimony clearly established an...

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