U.S. v. Stephens

• Decision Date: 25 November 2008
• Docket Number: No. 07-1907.,07-1907.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Amon L. STEPHENS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

549 F.3d 459

UNITED STATES of America, Plaintiff-Appellee, v. Amon L. STEPHENS, Defendant-Appellant.

No. 07-1907.

United States Court of Appeals, Sixth Circuit.

Argued: October 29, 2008.

Decided and Filed: November 25, 2008.

ARGUED: Stevens J. Jacobs, Jacobs Law Office, Bay City, Michigan, for Appellant. Patricia G. Gaedeke, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Stevens J. Jacobs, Jacobs Law Office, Bay City, Michigan, for Appellant. Patricia G. Gaedeke, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: MARTIN and GILMAN, Circuit Judges; DOWD, District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

Damon L. Stephens was convicted by a jury of two drug-related crimes committed two months apart. The district court sentenced Stephens as a career offender to 270 months of imprisonment. He now challenges both his convictions and his sentence. For the reasons set forth below, we AFFIRM Stephens's conviction, but VACATE his sentence and REMAND the case for resentencing consistent with this opinion.

I. BACKGROUND

On April 18, 2006, Stephens received a telephone call from Edward Sumbera, a drug user with whom he had previously dealt. Sumbera requested that Stephens meet with him the following day to sell him an eighth of an ounce of powder cocaine. Stephens agreed. The two met as arranged in a McDonald's parking lot in Saginaw, Michigan. With their vehicles parked beside each other, Stephens approached Sumbera's passenger-side window. According to the government, Stephens then passed a package containing 2.46 grams of powder cocaine to Sumbera, who gave him $130 in cash. Sumbera, who had arranged the sale in cooperation with the police in order to avoid prosecution for driving after his license had been suspended, proceeded to turn the drugs over to the officers who had observed the meeting between Stephens and Sumbera.

In an unrelated incident on June 8, 2006, drug enforcement officers executing a search warrant encountered Stephens standing on a wheelchair ramp leading to the door of the Saginaw house they intended to search. The officers ordered him to put his hands in the air. Rather than complying, Stephens reached into the front of his pants, removed a white packet, and dropped it onto the ground nearby. One of the officers ran over to collect the packet, which was later determined to contain 3.01 grams of crack cocaine.

As a result of these two incidents, Stephens was indicted under 21 U.S.C. § 841(a)(1) on one count of distributing less than 500 grams of powder cocaine and on one count of possessing less than 5 grams of crack cocaine with the intent to distribute the drug. The government filed a notice of its intent to introduce evidence at trial of Stephens's 2003 conviction for the distribution of less than 50 grams of powder cocaine. This evidence, according to the government, was admissible pursuant to Rule 404(b) of the Federal Rules of Evidence because it showed that Stephens had "the opportunity to commit the present offenses," "the intent to commit the present offense," "made a plan to commit the present offenses," and "had the knowledge required to commit the present offenses."

The district court agreed in part with the government's argument. At the conclusion of a hearing on Stephens's motion in limine to exclude the 2003 conviction, the district court decided to admit the evidence for two limited purposes: (1) to show "a plan of drug trafficking" regarding the powder-cocaine-distribution charge, and (2) to show an intent to distribute the crack cocaine involved in the second charge rather than to simply possess it for personal use. The court noted that the evidence of the 2003 conviction would be especially relevant to "establish commercial intent" relating to the second charge because the jury would be asked to draw inferences from circumstantial evidence on that element. When instructing the jury, however, the court abandoned its conclusions from the hearing on the defense's motion in limine. The court instead told the jurors that the 2003 conviction could be considered "as it relates to the government's claim on the defendant's intent, opportunity, and knowledge."

Sumbera, the individual who had cooperated with the police by arranging the powder-cocaine purchase in the McDonald's parking lot, testified at Stephens's trial. He described the April 2006 sale and, in addition, said that he had bought powder cocaine from Stephens on several prior occasions. The police officers who observed Sumbera's meeting with Stephens also testified, as did the officers who observed Stephens removing the packet of crack cocaine from his pants in June 2006. After being instructed by the court, the jury found Stephens guilty of the first charge—the distribution of less than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Regarding the second charge—the possession of crack cocaine with intent to distribute the drug—the jury found that Stephens had possessed the crack cocaine but did not find that he had intended to sell it. Stephens was thus found guilty of the lesser offense of simple possession of crack cocaine in violation of 21 U.S.C. § 844(a).

Based on the applicable offense level and the criminal history category for the two convictions considered in isolation, the Presentence Report (PSR) filed by the Probation Office indicated that the appropriate range under the Sentencing Guidelines was 37 to 46 months of imprisonment. Stephens, however, was classified as a career offender pursuant to U.S.S.G. § 4B1.1 because his criminal history included two prior felony convictions for controlled-substance offenses—convictions in both 1993 and 2003 for the delivery of less than 50 grams of cocaine. Under the career-offender provisions, Stephens's offense level increased substantially, with the final Guidelines range in the PSR rising to 262 to 327 months' imprisonment. The district court ultimately sentenced Stephens to 270 months of imprisonment for the powder-cocaine-distribution conviction and 36 months of concurrent imprisonment for the crack-cocaine-possession conviction.

II. ANALYSIS

Stephens challenges the admission of his 2003 conviction for possession of cocaine with the intent to distribute the drug, as well as the admission of Sumbera's testimony about prior cocaine transactions between the two men. In addition, Stephens challenges the reasonableness of his 270-month sentence.

A. Rule 404(b) evidence

1. Standard of review

The government may not introduce evidence of prior crimes committed by a defendant in order to show an increased likelihood that the defendant committed the crime for which he is on trial. Fed. R.Evid. 404(b). Evidence of past crimes is admissible, however, for other purposes. Rule 404(b) provides a long list of permissible purposes for "other crimes" evidence, including "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id.

A district court must make three findings before admitting evidence under Rule 404(b). United States v. Bell, 516 F.3d 432, 440 (6th Cir.2008). It must first find that the prior bad act occurred, a finding that will not be set aside on appeal unless the finding is clearly erroneous. Id. The government must provide sufficient evidence of the prior bad act so that "the jury can reasonably conclude that the act occurred and that the defendant was the actor." Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Next, the district court must determine that the evidence is probative of one of the permissible Rule 404(b) purposes. Bell, 516 F.3d at 440. We apply the de novo standard of review to that finding on appeal. Id. Finally, the district court must determine that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice to the defendant. Fed.R.Evid. 403; Bell, 516 F.3d at 440. We apply the abuse-of-discretion standard of review to that determination. Bell, 516 F.3d at 440.

2. Admission of Stephens's 2003 drug conviction

Stephens's 2003 conviction for the distribution of powder cocaine was admitted into evidence following prior notice by the prosecution, a defense motion in limine, and a Rule 404(b) hearing prior to jury selection. The district court determined that the conviction was admissible to show "a plan of drug trafficking," and noted that the evidence would be especially probative of Stephens's alleged intent to distribute the crack cocaine that he removed from his pants in the June 2006 incident. Despite this conclusion, the district court told the jury through written and verbal instructions that they could consider the evidence of the 2003 conviction "as it relates to the government's claim on the defendant's intent, opportunity, and knowledge," but not "for any other purpose." (Emphasis added.)

Stephens now asserts that because his 2003 conviction was completely unrelated to the present case, the conviction was not admissible for any proper Rule 404(b) purpose. He is likely correct. The district court specifically identified the element of intent to distribute the crack cocaine that he possessed in June 2006 as a proper Rule 404(b) purpose. But this court has recently held that prior drug-distribution convictions may not be used to demonstrate the intent to distribute drugs in unrelated cases. United States v. Bell, 516 F.3d 432, 444 (6th Cir.2008) ("The only way to reach the conclusion that the person currently has the intent to possess and distribute based solely on evidence of unrelated prior convictions for drug distribution is by employing the very kind of reasoning—i.e. once a drug dealer, always a drug dealer—which 404(b) excludes." (citing Old Chief v. United States, 519 U.S. 172, 180-81, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (emphasis in original))).

The government, like the district court, focuses its admissibility...