United States v. Boykin

• Decision Date: 18 May 2015
• Docket Number: No. 13–10248.,13–10248.
• Citation: 785 F.3d 1352
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Anthony BOYKIN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

785 F.3d 1352

UNITED STATES of America, Plaintiff–Appellee

v.Anthony BOYKIN, Defendant–Appellant.

No. 13–10248.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 17, 2014.

Filed May 18, 2015.

Joseph J. Wiseman (argued), Wiseman Law Group, P.C., Davis, CA, for Defendant–Appellant.

Benjamin B. Wagner, United States Attorney, Camil A. Skipper, Appellate Chief, Heiko P. Coppola (argued), Assistant United States Attorney, Sacramento, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of California, William B. Shubb, Senior District Judge, Presiding. D.C. No. 2:07–cr–00141–WBS–1.

Before: MICHAEL DALY HAWKINS and JOHNNIE B. RAWLINSON, Circuit Judges, and BARBARA M.G. LYNN, District Judge.^*

OPINION

LYNN, District Judge:

This appeal arises from a series of controlled drug purchases conducted over a period of nearly seven months during 2006 and 2007.

At trial, the defendant, Anthony Boykin (“Boykin”), was convicted on five counts of distribution of methamphetamine, one count of distribution of cocaine, and one count of conspiracy to distribute. His appeal challenges the sufficiency of the evidence on Count Six, one of the counts for distribution of methamphetamine. He also challenges his sentence, arguing that the district court erred in (1) not departing downward for sentencing manipulation; (2) not finding his criminal history to be overstated; and (3) not sustaining objections to certain sentencing enhancements.

The Court finds the evidence was sufficient to convict Boykin on Count Six. While the Court finds deeply troubling the conduct of the involved law enforcement agencies, the improprieties do not warrant reversal due to sentencing manipulation. Finally, the Court finds it was not an abuse of discretion for the district court to find the defendant's criminal history to be accurately stated, nor for it to apply the enhancements challenged. Therefore, we affirm the district court's rulings on each of the grounds raised on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Controlled Purchases

Boykin and his brother, Patrick, sold methamphetamine and cocaine to three different confidential sources from August 29, 2006 to March 26, 2007. These controlled purchases usually took place at 251 Wilbur Avenue, or at a nearby store, Wilbur Market.¹ The investigation of the Boykins was conducted by a Narcotics Enforcement Team, NET–5, which was composed of local and state law enforcement representatives and supervised by the California Department of Justice, Bureau of Narcotic Enforcement. NET–5 also worked with federal law enforcement agencies, including the FBI.

On August 29, 2006, the government directed a confidential source, Rachel Rios, to call Boykin to purchase two ounces of methamphetamine. Boykin instructed Rios to go to an apartment complex, where she met with an unidentified female while he watched the transaction from a second-story window. The government later deactivated Rios as a source when it discovered that she was still selling methamphetamine, and as a result, the government recruited a new confidential source, Crystal Housley.²

Housley participated in two controlled purchases involving Boykin, on September 13, 2006, and September 28, 2006. In the first purchase, Housley called Boykin and asked to purchase cocaine. He directed her to meet with Patrick, who completed the transaction. In the second purchase, Housley called Boykin and asked to buy methamphetamine. Boykin met her at Wilbur Market and completed the transaction.

On or about October 27, 2006, Housley was arrested on federal fraud charges. However, she was not deactivated as a source until December 23, 2006, after she pled guilty to fraud. Housley had been handled by Detective Thomas Oakes, a narcotics detective with the Yuba County Sheriff's Department and a member of NET–5, with whom she had a close relationship. At Boykin's trial, Detective Oakes testified that upon learning of Housley's pending federal fraud charges, he immediately delivered her to federal agents, deactivated her as an informant, and paid no further monies to her after she was arrested. This testimony was inaccurate, and ultimately led to a stipulation that, in fact, Housley continued to work as an informant for almost two months after her arrest, and she was paid during that time period.

Detective Oakes' brother, Jonathan “Johnny” Oakes, was a friend or associate of the Boykins. Johnny was known to “hang out and be in contact” with them, and Detective Oakes testified that Johnny and Boykin played pool together.³ Despite the conflict arising from the relationship of Johnny to the Boykins, Detective Oakes continued to participate in the investigation, although the extent of his participation was disputed.⁴

After Housley was deactivated, the government recruited a third confidential source, Robert Walton, who conducted controlled purchases from the Boykins on February 3, 2007, February 9, 2007, March 16, 2007, and March 26, 2007. Boykin often facilitated the transaction over the phone, or he directly passed the drugs to Patrick, who delivered them to Walton.

On appeal, Boykin challenges the sufficiency of the evidence only for the drug transaction of February 9, 2007. Patrick arranged for that transaction to take place at 251 Wilbur Avenue. Both brothers were outside the residence when Walton arrived. Walton left with Patrick to pick up a scale and met an unidentified Hispanic male at Wilbur Market to obtain the drugs, after which they returned to 251 Wilbur Avenue. Walton remained in Patrick's truck while Patrick went in the house. Boykin had also left 251 Wilbur Avenue, but he returned after Patrick and Walton did. An unidentified white male also entered the residence while Walton sat in Patrick's truck. Officers conducting surveillance testified that Patrick made several trips in and out of 251 Wilbur Avenue before completing the transaction with Walton. The government also introduced evidence that several phone calls were made between Patrick and Boykin during the relevant time period. The evidence showed that Patrick began arranging for the drug transaction at 11:58 a.m., and it took place at 2:11 p.m. Meanwhile, Boykin called Patrick at 12:35 p.m., and Patrick called Boykin at 1:51 p.m. and 3:04 p.m.

On March 29, 2007, law enforcement officials executed search warrants at 251 Wilbur Avenue, Patrick's residence, and Boykin's residence. At Boykin's residence, agents seized $27,000 in cash, scales with drug residue, and cellular telephones used during the controlled purchases. At 251 Wilbur Avenue, agents found a small amount of methamphetamine with packaging material, two scales, and several guns, including a sawed-off shotgun with Boykin's fingerprints.

II. Proceedings in the District Court

Boykin and Patrick were charged by indictment with one count of conspiracy to distribute and possess with intent to distribute methamphetamine and cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) ; six counts of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) ; and one count of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1). Patrick pled guilty to the conspiracy count, but Boykin proceeded to a jury trial. On March 4, 2011, the jury returned its verdict, finding Boykin guilty of the conspiracy count and six counts of distribution, and acquitting him of one count of distribution of methamphetamine.

The Presentence Report (PSR) recommended a base offense level of 34, plus a two-level increase under United States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(1) for possession of a firearm, resulting in an Adjusted Offense Level of 36. The PSR recommended 262 months of incarceration, which was at the low end of the advisory guideline range, after taking into account Boykin's criminal history level of IV.

The district court gave Boykin a two-level reduction for acceptance of responsibility, which placed the Adjusted Offense Level at 34. Finding that Boykin's criminal history was accurately stated in the PSR, the court concluded that the guideline range was 210 to 262 months, and sentenced Boykin to 210 months to avoid any sentencing disparity with Patrick, who also received a sentence of 210 months.

Boykin filed a timely notice of appeal, challenging the sufficiency of the evidence on Count Six and arguing that the district court erred by not granting a downward departure for sentencing manipulation, and by not finding his criminal history to be overstated. After initial briefing was complete, Boykin filed a pro se supplemental brief, arguing the district court committed plain error by applying a two-level enhancement for possession of a firearm, and by failing to conduct an individualized analysis of his participation in the conspiracy. On September 24, 2014, Boykin's counsel sent a letter to the Court, requesting remand in light of Amendment 782 to the U.S. Sentencing Guidelines.

ANALYSIS

I. Sufficiency of the Evidence

The court reviews de novo a challenge to the sufficiency of the evidence. United States v. Antonakeas, 255 F.3d 714, 723 (9th Cir.2001). “Viewing the evidence in the light most favorable to the government, [the Court] must determine whether any rational jury could have found [the defendant] guilty of each element of the crime beyond a reasonable doubt.”United States v. Esquivel–Ortega, 484 F.3d 1221, 1224 (9th Cir.2007) (citation omitted). The trier of fact has the responsibility “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

A conviction for possession with intent to distribute may be based on one of three legal theories: (1) co-conspirator liability; (2) aiding and abetting; and (3) exercising dominion and control over the contraband. United States v. Sanchez–Mata, 925 F.2d 1166, 1168 (9th Cir.1991) (citations omitted)...