U.S.A. v. Strayhorn

• Decision Date: 09 March 2001
• Docket Number: No. 99-5203,99-5203
• Citation: 250 F.3d 462
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Shannon Strayhorn, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 462

250 F.3d 462 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Shannon Strayhorn, Defendant-Appellant.

No. 99-5203

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 9, 2001

Decided and Filed: May 22, 2001

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 98-00003, William O. Bertelsman, District Judge.

Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, Fred A. Stine V, ASSISTANT UNITED STATES ATTORNEY, Covington, Kentucky, for Appellee.

Deanna L. Dennison, Renee L. Alsip, Covington, Kentucky, Shannon Strayhorn, Federal Correctional Institute, Beaver, WV, for Appellant.

Before: SILER, MOORE, and CLAY, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Shannon Strayhorn, the defendant-appellant in this case, appeals his mandatory minimum sentence of 120 months' imprisonment and 8 years' supervised release for his role in a marijuana distribution conspiracy. Specifically, Strayhorn challenges the district court's finding of the amount of drugs attributable to him for sentencing purposes. According to Strayhorn, the Supreme Court's decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), renders unconstitutional a district court's determination of drug quantity by a preponderance of the evidence when that finding serves to increase the default statutory penalty to which the defendant is exposed. Based on our circuit's recent case law, we must agree. We therefore VACATE Strayhorn's sentence and REMAND to the district court for resentencing in accordance with this opinion.

I. BACKGROUND

As part of an undercover operation into drug activity in the Northern Kentucky and Greater Cincinnati, Ohio area conducted by the Drug Enforcement Administration ("DEA"), federal agents recorded several conversations between Alfred Phillips ("Phillips") and another individual. As a result of these conversations, DEA agents were alerted to Phillips's attempt to purchase $30,000 worth of marijuana from a Mexican supplier at a local restaurant in Covington, Kentucky. On December 30, 1997, a DEA agent posing as the Mexican supplier staged a controlled sale of marijuana to Phillips. Phillips was subsequently arrested attempting to purchase 38 pounds of marijuana from the DEA agent; two pounds of marijuana were also recovered from Phillips's car.

Subsequent to his arrest, Phillips agreed to cooperate with the DEA agents in their investigation of other individuals involved in the marijuana trade in Greater Cincinnati. Pursuant to this agreement, Phillips advised the agents that Shannon Strayhorn had loaned him $18,000 toward the foiled marijuana purchase on December 30 and that he had regularly been purchasing marijuana from Strayhorn for the past several months. Phillips began recording his conversations with Strayhorn for the DEA agents. From the information gleaned from these recordings, federal agents executed a search at Strayhorn's residence on January 17, 1998, where they recovered 48 pounds of marijuana, $3,000 in cash, and a handgun.

Strayhorn, Phillips, and others were indicted on two counts of drug charges in the Eastern District of Kentucky on January 14, 1998. In count one, the government charged Strayhorn and co-defendants with conspiracy to possess with intent to distribute and conspiracy to distribute "a measurable quantity of marijuana" between December 1997 and January 1998, in violation of 21 U.S.C. §§841(a)(1) and 846. Joint Appendix ("J.A.") at 26. Count two charged that on December 30, 1997, Strayhorn and co-defendants, aided and abetted by each other, attempted to possess with intent to distribute fifty pounds of marijuana, in violation of 21 U.S.C. §§841(a)(1) and 846 and 18 U.S.C. §2.

Strayhorn initially entered a plea of not guilty on February26, 1998. On April 16, 1998, Strayhorn filed a motion for rearraignment; on June 3, 1998, his retained counsel filed a motion to withdraw. Both motions were subsequently granted. On September 28, 1998, Strayhorn again sought rearraignment to enter a guilty plea. Pursuant to an oral plea agreement acknowledged on the record, Strayhorn ultimately pleaded guilty, on October 19, 1998, to count one of the indictment. As part of the oral plea agreement, Strayhorn explicitly reserved the right to challenge the amount of drugs attributable to him as relevant conduct under United States Sentencing Guidelines ("U.S.S.G.") §1B1.3, and the government agreed to dismiss count two as to him at sentencing.

At the plea hearing before the magistrate judge, Strayhorn specifically and repeatedly expressed reservations about the amount of marijuana that would be attributed to him by the district court during the sentencing phase. While acknowledging his guilt for the amount of marijuana seized from his home and from co-defendant Phillips, he explicitly denied responsibility for any additional marijuana for which the government sought to hold him responsible. In fact, he informed the magistrate judge that he disagreed with the stipulated factual basis accompanying his plea: although the factual basis stated that the government could prove at trial that Strayhorn would have attempted to purchase 75 additional pounds of marijuana the day after the government arrested Phillips, Strayhorn denied this fact. J.A. at 170-71 (Plea Hr'g). Strayhorn also asked the magistrate judge for a definition of relevant conduct, but the judge declined to define the term for him. J.A. at 175.

On October 21, 1998, Strayhorn sent a letter to the court, construed as a motion to withdraw his guilty plea, in which he requested appointment of new counsel. In the letter, Strayhorn reiterated his willingness to accept responsibility for 88 pounds of marijuana, but he stated that he was unwilling to plead guilty until other matters in his case were addressed. J.A. at 70. The court reviewed Strayhorn's request and denied it, although the court did order the government to meet with him and exchange documentation relating to his relevant conduct. J.A. at 181 (Presentence Report).

The United States Probation Office prepared a presentence report shortly after Strayhorn entered his plea. The probation officer calculated Strayhorn's base offense level under U.S.S.G. §2D1.1 by determining Strayhorn's "relevant conduct" pursuant to §1B1.3. Under §1B1.3, the defendant's base offense level is determined by assessing the "relevant conduct" in which the defendant engaged, including "the specific acts and omissions for which the defendant is to be held accountable" as well as conduct which was not part of the offense of conviction. See U.S.S.G. §1B1.3 comment. (n.1, 3). The probation officer attributed to Strayhorn 188 kilograms, or 414 pounds, of marijuana. There is no indication in the presentence report how the probation officer arrived at the 188 kilogram figure. This drug quantity yielded a base offense level of 26 under §2D1.1(c)(7), which was then reduced by a three-point downward adjustment for acceptance of responsibility, producing a total offense level of 23. Strayhorn's criminal history category was determined to be level III, which included a prior felony drug offense. A total offense level of 23 and criminal history category III yielded a sentencing range under the Guidelines of between 57 and 71 months. Because, however, the statutory minimum sentence for conspiracy to possess 188 kilograms of marijuana for a defendant with a prior felony drug conviction is a mandatory minimum of ten years' imprisonment pursuant to 21 U.S.C. §841(b)(1)(B)(vii), the probation officer noted that Strayhorn must, pursuant to U.S.S.G. §5G1.1(b), be sentenced to the statutory mandatory minimum. Thereafter, Strayhorn filed an objection to the presentence report's use of 188 kilograms in determining his base offense level. J.A. at 195.

The district court conducted a sentencing hearing on February 8, 1999. When the district court ascertained Strayhorn's intention to plead guilty, Strayhorn again reiterated that he wished to plead guilty only to the amount of marijuana seized from Phillips, 40 pounds, and the amount seized from Strayhorn's home, 48 pounds. J.A. at 91, 94 (Sentencing Hr'g). The government explained that it believed it could show that Strayhorn's relevant conduct involved a conspiracy to sell, over a several-month period, approximately 375 pounds of marijuana in addition to the 88 pounds for which Strayhorn conceded responsibility. J.A. at 95. The government then offered Phillips as its principal witness to establish the amount of marijuana involved in the conspiracy.

Phillips testified that Strayhorn approached him in May 1997 to strike up a business relationship. According to Phillips, he purchased varying amounts of marijuana from Strayhorn, ranging from ten to sixty pounds a month, from May through December of 1997. The court noted that Phillips had testified that he purchased or was "fronted" approximately 260 pounds of marijuana from Strayhorn, in addition to the 88 pounds which were actually seized. J.A. at 105. Strayhorn then testified and disputed Phillips's characterization of their relationship; according to Strayhorn, Phillips was his supplier of small quantities of marijuana for approximately six months in 1997. Strayhorn denied selling marijuana to Phillips, although he admitted lending him $18,000 for the purchase of marijuana on the day Phillips was arrested.

At the end of the hearing, the district court stated that it credited Phillips's testimony over Strayhorn's: "[T]he testimony of Mr. Phillips was clear and concise, straightforward, went down the line, gave clear and concise numbers, whereas I find the testimony of the defendant to be highly evasive and not worthy of belief ...." J.A. at 143. The district court then adopted the factual findings and Guidelines calculation in the presentence report and sentenced Strayhorn to 120 months' imprisonment and eight years of...