United States v. Berry

Decision Date24 October 2022
Docket Number21-13352
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID LEE BERRY, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit



David Berry appeals his convictions and 210-month sentence for conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A) (b)(1)(B), and (b)(1)(C), and the unlawful use of a communications facility, in violation of 21 U.S.C. § 843(b). He argues that (1) venue in the Northern District of Alabama was improper, and his counsel's failure to challenge venue constituted ineffective assistance of counsel; (2) there was insufficient evidence to support his conspiracy conviction; (3) the district court abused its discretion in admitting hearsay testimony; and (4) the district court erred in finding that he was ineligible for safety-valve relief at sentencing. After review, we affirm.

I. Background

Berry and 25 co-conspirators were indicted in the Northern District of Alabama on one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A), (b)(1)(B), and (b)(1)(C) ("Count One"). Berry was also indicted on one count of the unlawful use of a communication facility in furtherance of the conspiracy offense, in violation of 21 U.S.C. § 843(b) ("Count Eleven").

At trial, the government presented testimony from multiple witnesses, including some of Berry's co-conspirators. As part of an investigation into an influx of methamphetamine in Alabama, law enforcement obtained wiretaps on several phones including two of co-conspirator Eric Sanders's phones. Co-conspirator Anthony Skelton, who pleaded guilty to conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, testified that he had known Berry for many years, and he saw Berry deliver methamphetamine to a mutual friend's house. Skelton also obtained methamphetamine from Berry regularly. Berry obtained his methamphetamine from Sanders. Berry gave Skelton a prepaid cell phone with Sanders's contact information programmed into it, so that Skelton could "get meth" from Sanders. Skelton also saw Sanders deliver methamphetamine to Berry's house on at least two occasions, and Berry sold Skelton some of the methamphetamine for anywhere between $350 to $600 an ounce.

A recording of a phone call between Skelton and Sanders was played for the jury. Skelton testified that in the call, he asked Sanders how much a pound of methamphetamine would cost, and Sanders stated it would be $5,000. Skelton and another coconspirator, Roger Lay, had a buyer who had agreed to pay $6,200 for the methamphetamine, netting a total $1,200 profit, which they planned to split between the two of them. They met Sanders and purchased the pound of methamphetamine, but they were stopped and arrested by law enforcement after the sale.

Sanders, who also pleaded guilty to conspiracy to distribute and to possess with intent to distribute 50 grams or more of methamphetamine, testified as follows. Since 2017, Sanders has made his living selling methamphetamine, and he kept the drugs at his house in Town Creek, Alabama. Sanders sold Berry methamphetamine "a bunch of times." Sanders would drive from Alabama to a market in Tennessee near Berry's home to make the exchange-later, they began meeting at Berry's home. He sold Berry two to four ounces of methamphetamine about twice a week. Sometimes, Sanders would also "front" Berry methamphetamine if Berry did not have the money to pay for the drugs at the time of delivery.

The government then presented several recorded phone calls between Berry and Sanders. In one phone call, Berry asked Sanders for two ounces of methamphetamine. On the call, Berry stated that his sales had slowed down and people were "undercutting him" and selling methamphetamine for less. Two other calls in which Berry asked Sanders for four and then three ounces of methamphetamine, respectively, were played for the jury. Sanders confirmed that Berry introduced Skelton to him so that Skelton could buy methamphetamine from Sanders.

When Sanders learned that Skelton and Lay had been arrested after he sold them a pound of methamphetamine in February 2019, he called Berry. Berry advised Sanders to not sell any more methamphetamine to Skelton. A few days later, Berry sent a text message to Sanders asking for a half pound of marijuana and four ounces of meth. Sanders called Berry in response to the text, and they arranged for Sanders to drop off the drugs in the back of an old abandoned house in Tennessee near where Berry lived. Berry expressed concern that the police might be watching him. In a phone call on the day that Sanders was to deliver the drugs to the house, Berry explained that he did not have the money for the marijuana and he had left Sanders money for the methamphetamine only. Sanders agreed to leave the marijuana because of his relationship with Berry, and Berry assured Sanders that he would send Sanders money for the marijuana.

Sanders continued to sell approximately two to four ounces of methamphetamine a week to Berry until Sanders's arrest in October 2019. Sanders confirmed that one person could not have personally consumed the amount of methamphetamine he sold to Berry on a regular basis, and he noted that Berry talked about his customers during their calls and introduced Sanders to other customers.

Finally, Captain Timothy Beckham with the Wayne County, Tennessee, Sheriff's Office testified. In February 2019, Beckham and other officers conducted surveillance on an old house where a suspected delivery of drugs was to be made. He observed Berry arrive at the house and pick up the drugs. The officers left after they observed Berry pick up the drugs. On their route back to the office, they observed Berry in a bank parking lot pulled up next to another truck which had its hood open. The other truck belonged to Kyle Haggard. Beckham pulled into the lot and Haggard indicated that he was having car trouble, but it was fixed now. Beckham then left, but, shortly thereafter, Haggard called one of the officers in Beckham's car. The call was audible over the car's Bluetooth device. Beckham testified that Haggard said: "that's not what it looked like."[1]

Following Beckham's testimony, the government rested, as did Berry. Berry did not move for a judgment of acquittal. The jury found Berry guilty as charged. Berry then moved for a new trial and a post-verdict judgment of acquittal, arguing that the jury's verdict was against the great weight of the evidence and that the district court committed reversible error in admitting the hearsay testimony of Haggard. The district court denied his motion.

Prior to sentencing, the United States Probation Office prepared a presentence investigation report (PSI), in which it determined that Berry did not satisfy the safety-valve provision of U.S.S.G. § 5C1.2(a)[2] because, although he had made two proffers to the government, he had not truthfully provided all information and evidence that he had related to the unlawful use of a communications facility count. Berry filed a motion for safetyvalve relief under 18 U.S.C. § 3553(f), asserting in relevant part that he satisfied all of the criteria and that he had "told all he knows about the crime through two proffers."

At sentencing, the district court adopted the PSI and determined that Berry's advisory guidelines range was 188 to 235 months' imprisonment. Berry renewed his request for safety-valve relief under § 3553(f). Counsel also read a statement that Berry had prepared in which he stated that he was a "drug user and an addict" and that the "only reason [he] got caught up in this trade was [his] personal need for drugs." He emphasized that he had no criminal history and had been a "law-abiding citizen" for most of his life. He stated that he was "full of regret" and apologized to his family for his actions.

The government opposed Berry's safety-valve request, arguing that:

[Berry] certainly did not tell us everything he knew about the crimes in this case. [He] [d]idn't ever mention anything about the events on Count Eleven, which he was convicted of.
If you will recall, that involved the phone call where he asked Eric Sanders to come to his house and go across the street to the little abandoned house from their property and put the methamphetamine inside the house.
And there was some discussion about his customer had not left the money for the marijuana, and so did Eric Sanders want to bring the marijuana, or, you know, did he not want to travel back to Hunstville with it in there, because it's dangerous to drive with it in the car. And Eric said, no, I will go ahead and bring it to you. And [Berry] said, Well, I will make sure you . . . get paid for it. [He] [n]ever told us anything about that in the proffers.

The government also emphasized that, even in his statement to the court, Berry failed to be truthful about his conduct and denied being a dealer. The government requested a within-guidelines sentence.

The district court then sentenced Berry to total term of 210 months' imprisonment, implicitly denying his request for safety valve relief. The district court emphasized that "the evidence at trial was overwhelming that [Berry was] a drug dealer," and that a 210-month sentence was appropriate in light of the § 3553(a) sentencing factors. This appeal followed.

II. Discussion
A. Whether...

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