United States v. Allen

• Decision Date: 26 April 2013
• Docket Number: No. 12–4168.,12–4168.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Raymond Dangelo ALLEN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

716 F.3d 98

UNITED STATES of America, Plaintiff–Appellee,

v.Raymond Dangelo ALLEN, Defendant–Appellant.

No. 12–4168.

United States Court of Appeals,Fourth Circuit.

Argued: March 22, 2013.

Decided: April 26, 2013.

ARGUED:Aaron Edmund Michel, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF:Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, Richard Lee Edwards, Assistant United States Attorney, Office of the United States Attorney, Asheville, North Carolina, for Appellee.

Before KING, GREGORY, and KEENAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge KING and Judge KEENAN joined.

OPINION

GREGORY, Circuit Judge:

In June 2010, law enforcement uncovered an extensive crack cocaine distribution network operating in Buncombe and McDowell counties, North Carolina. For his part in the enterprise, Raymond Allen was convicted by a federal jury in the Western District of North Carolina of conspiring to possess fifty grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. As a result, Allen was sentenced to ten years' imprisonment, the mandatory minimum sentence in effect at the time he allegedly committed the offense. Allen now challenges his conviction, arguing there was insufficient evidence to support his knowledge of the drug ring. Further, he charges that the district court erred in denying his pretrial motions, and thus his conviction should be vacated. Finally, Allen argues the district court erred in imposing the ten-year mandatory minimum sentence given that Congress passed the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat. 2372, prior to his sentencing. For the reasons that follow, we affirm Allen's conviction but vacate his sentence and remand to the district court for resentencing.

I.

On October 5, 2010, Raymond Allen was one of eleven defendants named in a fifteen-count indictment. Five additional co-conspirators were also named in the indictment. Allen was charged with one count of conspiring to possess fifty grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment was the result of an extensive investigation that took place between January and June of 2010. Prior to the start of trial, Allen made two pretrial motions relevant to this appeal. First, Allen moved to see his codefendants' Presentence Reports (PSR) and sealed sentencing memoranda. The district court denied the motion in a written order. Second, Allen moved to call a criminal defense expert to help explain the potential significance of all of the indicted codefendants reaching plea agreements with the government. The court orally denied the motion.

A.

Trial was held from June 27 to June 29, 2011. The evidence adduced revealed a multi-tiered crack cocaine distribution ring operating in Western North Carolina. As proof of the extensive operation, the government called twenty-seven witnesses, including thirteen law enforcement officers, three confidential informants, three codefendants, and five separately identified co-conspirators. The government also introduced recordings of telephone calls, photographs, and videotapes.

The mountainous evidence showed that the drug network operated in the following manner. The bottom link of the drug distribution chain consisted of approximately ten street-level dealers. The street dealers sold $5 and $20 crack rocks in low-income neighborhoods. These street dealers would buy the crack cocaine from three suppliers higher up in the distribution chain. The second-rung suppliers would in turn buy crack cocaine from Chrissawn Folston. Finally, Folston would buy his supply of crack cocaine from Willie Chappell, who supplied the drug to him in bulk. The government further claimed that when Chappell was unable to supply crack cocaine, Folston turned to Allen as the back-up supplier.

Allen does not dispute that the evidence introduced at trial sufficiently detailed this operating scheme. He admits that the drug network was “substantial and involved most of the ten codefendants, five named co-conspirators, and other named conspirators.” Appellant's Br. 37. Allen does dispute, however, the government's assertion at trial that when Chappell was unable to supply crack cocaine to Folston, Folston would turn to him as a back-up supplier. This brings us to the events that provided the basis for Allen's arrest.

B.

On May 17, 2010, Folston tried to purchase crack cocaine from Chappell, but Chappell was unable to deliver. Folston, therefore, called Allen and placed an order for two ounces of the drug. Allen quoted Folston a price of $950 an ounce and told him to meet him at his mother's house in Asheville, North Carolina. Folston's girlfriend, Robin Anderson, drove him to Allen's mother's house. Folston successfully purchased the crack cocaine from Allen.

When Folston got home, he weighed his purchase and realized he only received one-and-a-half ounces of crack cocaine insteadof the two ounces for which he paid. He called Allen to complain, at which point Allen told him that the next time Folston needed a supply he would reconcile the discrepancy. Placated, Folston went about selling the crack cocaine to the second-rung suppliers, who in turn sold the drug to the street dealers for distribution.

The next day, May 18, Folston again called Allen, requesting another two ounces of crack cocaine, but in order to make up for the day before, Folston told Allen that he was only going to pay for an ounce and a half. Allen agreed and told Folston to again meet him at his mother's house. Robin Anderson drove Folston to Asheville for a second time. Although Allen was not there when Folston arrived, Folston eventually purchased the crack cocaine from Allen at a nearby apartment complex.

As it turns out, Folston's girlfriend, Robin Anderson, was a government informant. The police, therefore, had placed a GPS tracking device on her vehicle and were able to physically follow her. They therefore observed Folston buying and selling crack on multiple occasions, including the two transactions between him and Allen. Thus, all of the above events were testified to by Anderson, law enforcement officials who conducted surveillance, and Folston himself. As such, Allen does not attempt to allege that there was insufficient evidence to prove the two buy-sell transactions between him and Folston.

The government also introduced testimony that while Allen was detained awaiting trial, he had a conversation with a street dealer named Wilkerson, who lamented to Allen that they would all “be partying” if the other street dealers had “kept their mouths shut and hadn't told on everyone and got all this stuff started.” Allen supposedly replied to this by saying: “You got that right. She the one that got me, too. Set me up.” For clarity, Wilkerson asked: “Who? Robin [Anderson]?” Allen replied: “You got that right.” The government asserted that this conversation was relevant as it showed that Allen was aware of the drug distribution network.

C.

At the close of the government's case-in-chief, Allen moved for judgment of acquittal. The court and the government engaged in a discussion concerning the evidence presented to the jury, particularly the evidence linking Allen to the conspiracy. Allen alleged that while the government may have proven that he was involved in two buy-sell transactions, it did not prove beyond a reasonable doubt that he participated in or had any knowledge of the overarching conspiracy. The district court considered the argument and denied the motion. Allen put on no evidence and renewed the motion at the end of trial, which the district court again denied. The jury found Allen guilty. Ten days later, Allen filed a renewed motion for judgment of acquittal. The court denied the motion, issuing a written memorandum and order. See United States v. Allen, No. 1:10–cr–66–1, 2011 WL 3421394 (W.D.N.C. Aug. 3, 2011).

Allen timely appealed, arguing: (1) there was insufficient evidence for a jury to find him guilty of conspiracy to distribute; (2) the district court erred by denying him access to his codefendants' PSRs and by refusing his expert testimony; and (3) the district court erred in sentencing him in accordance with the statutory mandatory minimum given that the threshold amount of crack cocaine necessary for the mandatory minimum was raised by the Fair Sentencing Act prior to his sentencing.

II.

We review the district court's denial of a motion for judgment of acquittal de novo. United States v. Lentz, 383 F.3d 191, 199 (4th Cir.2004). Given that Allen is challenging the sufficiency of the evidence presented to the jury, we view the evidence presented at trial in the light most favorable to the government and will sustain the verdict if we find that any rational factfinder could find the elements of the crime beyond a reasonable doubt. See United States v. Burgos, 94 F.3d 849, 854 (4th Cir.1996) (en banc).

To be found guilty of conspiracy to distribute crack cocaine, the government must prove: (1) an agreement to possess crack cocaine with intent to distribute between two or more persons; (2) the defendant knew of the conspiracy; and (3) the defendant knowingly and voluntarily became a part of the conspiracy. See United States v. Strickland, 245 F.3d 368, 384–85 (4th Cir.2001). A conspiracy may “be proved wholly by circumstantial evidence.” Burgos, 94 F.3d at 858. And, “one may be a member of a conspiracy without knowing its full scope, or all its members, and without taking part in the full range of its activities or over the whole period of its existence.” United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.1993); see also United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.1992) (“[A] defendant need not...