United States v. Burnett

• Decision Date: 08 July 2016
• Docket Number: No. 13-3075,C/w 13-3078,C/w 13-3076,13-3075
• Citation: 827 F.3d 1108
• Parties: United States of America, Appellee v. Gerry Duane Burnett, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

827 F.3d 1108

United States of America, Appellee
v.
Gerry Duane Burnett, Appellant.

No. 13-3075
C/w 13-3076
C/w 13-3078

United States Court of Appeals, District of Columbia Circuit.

Argued May 3, 2016
Decided July 8, 2016

Howard B. Katzoff, appointed by the court, argued the cause for appellant Jesse McLester Young, Jr. Vincent Jankoski, appointed by the court, argued the cause for appellant Thaxton Young, Jr. Mary E. Davis, appointed by the court, argued the cause for appellant Gerry Duane Burnett. With them on the briefs was Christopher M. Davis, Washington, DC.

Finnuala K. Tessier, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief was Elizabeth Trosman, Assistant U.S. Attorney. Elizabeth H. Danello, Assistant U.S. Attorney, entered an appearance.

Before: Kavanaugh, Srinivasa n, and Pilla rd, Circuit Judges.

Kavanaugh, Circuit Judge:

Eugene McDuffie, Thaxton Young, Jesse Young, and Gerry Burnett conspired to distribute heroin in Washington, D.C. (Thaxton Young and Jesse Young are cousins. For ease of reading, we will refer to the two Youngs by their first names.) Beginning about May 2011 and continuing through January 2012, McDuffie and Thaxton made frequent trips from Washington, D.C., to New York City and other locations along the I-95 corridor. They took those trips to obtain significant quantities of heroin from Thaxton's cousin, Jesse, who lived in New York. McDuffie and Burnett would then resell the heroin in the Washington, D.C., area.

The Government obtained a federal grand jury indictment against Thaxton, Jesse, and Burnett. (McDuffie separately pled guilty and ultimately testified against the three defendants in this case.) The indictment against the three defendants charged them with one count of conspiracy to distribute and possess with intent to distribute a kilogram or more of heroin in violation of 21 U.S.C. §§ 846 and 841. The indictment also charged Burnett alone with one count of possession with intent to distribute heroin and one count of possession with intent to distribute marijuana.

Following a three-week jury trial, Thaxton, Jesse, and Burnett were convicted of one count of a lesser-included conspiracy offense: conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin. A jury also found Burnett guilty of the heroin possession and marijuana possession counts.

The court sentenced Thaxton, Jesse, and Burnett to terms of imprisonment as follows: 11 years and three months for Thaxton; 11 years and three months for Jesse; and 12 years and seven months for Burnett.

On appeal, Thaxton, Jesse, and Burnett challenge their convictions on a variety of grounds. Jesse and Burnett also contest the District Court's calculation of their sentences. We affirm the judgments of conviction and sentence in all respects, except that we vacate Burnett's sentence and remand for the District Court to resentence Burnett.

I

We begin with a brief factual background of this case. Because we are reviewing a guilty verdict, we recount the

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evidence in the light most favorable to the Government.

McDuffie and Thaxton lived in the Washington, D.C., area. In the spring of 2011, McDuffie and Thaxton agreed to sell heroin. They planned to purchase the heroin from Thaxton's cousin, Jesse, who lived in New York City. Beginning in May 2011, McDuffie and Thaxton took the first of several trips to New York City to obtain heroin from Jesse.

In August 2011, the Government began investigating McDuffie, Thaxton, Jesse, and Burnett, after a confidential source notified the Government that McDuffie was trafficking in drugs. Shortly after opening its investigation, the Government obtained warrants to track McDuffie's car and cell phone, as well as Thaxton's car. GPS data, which was later corroborated by eyewitness testimony, phone records, text messages, and rental car records, revealed a pattern: About once a month, McDuffie, Thaxton, or both, would travel—often by rental car—from Washington, D.C., to New York City or some other location along the I-95 corridor. There, they would meet briefly with Thaxton's cousin Jesse to obtain heroin. McDuffie and Thaxton would then bring the heroin back to Washington, D.C., where McDuffie would sell it. McDuffie sold some of the heroin to Burnett, who in turn would re-sell some of it.

Within a few days of such trips in October, November, and December, 2011, McDuffie told a confidential informant for the Government that he was able to sell heroin. McDuffie made three controlled sales to the informant. Recordings from those controlled sales revealed that McDuffie had been storing heroin at Burnett's home in Washington. Phone records and GPS data also revealed that following the controlled sales, McDuffie arranged to meet Thaxton in order to share the proceeds.

On January 18, 2012, McDuffie spoke to the confidential informant to arrange another sale of heroin. On January 20, Thaxton rented a car. On the following day, January 21, McDuffie and Thaxton drove the rental car to Philadelphia to meet Jesse. Federal agents personally observed McDuffie and Thaxton in Philadelphia. The agents saw the two men spend only a short time in Philadelphia before returning to their rental car and heading back down I-95 toward Washington. Concluding that McDuffie and Thaxton had likely obtained drugs from Jesse and that the rental car they were driving would contain those drugs, the federal agents asked the Maryland State Police to stop and search the rental car. Maryland State Police did so, and during the search they found about 62 grams of heroin in the car. The Maryland State Police arrested McDuffie and Thaxton.

Shortly thereafter, the Federal Government obtained search warrants to search the homes of Thaxton and Burnett. At Thaxton's home, agents recovered two digital scales and more than $1,000 in cash. At Burnett's home, agents recovered heroin, marijuana, drug paraphernalia, and more than $6,000 in cash.

The Government obtained a three-count federal grand jury indictment against Thaxton, Jesse, and Burnett.¹ All three defendants were charged with one count of conspiring to distribute and possess with intent to distribute a kilogram or more of heroin in violation of 21 U.S.C. §§ 846 and 841. In light of the heroin and marijuana found at his home, the indictment also

827 F.3d 1114

charged Burnett alone with one count of possession with intent to distribute heroin and one count of possession with intent to distribute marijuana.

A jury found all three defendants guilty of the lesser-included offense of conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. §§ 846 and 841. The jury also convicted Burnett of the separate heroin and marijuana possession counts. The District Court then sentenced the defendants to the following terms of imprisonment: 11 years and three months for Thaxton; 11 years and three months for Jesse; and 12 years and seven months for Burnett.

The defendants have appealed on a variety of grounds.

II

Thaxton raises a Fourth Amendment challenge to the officers' stop and search of his rental car on I-95 on January 21, 2012, as McDuffie and Thaxton returned from their Philadelphia meeting with Jesse. Thaxton argues that the officers lacked probable cause to stop and search the car. He claims that evidence recovered during the search therefore should have been excluded from his trial. The District Court denied his motion to suppress. Our review is de novo. United States v. Holmes , 505 F.3d 1288, 1292 (D.C. Cir. 2007).

The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.

Under Supreme Court precedent, when “a car is readily mobile and probable cause exists to believe it contains contraband,” the Fourth Amendment permits police to stop the car and search it without a warrant. Pennsylvania v. Labron , 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam).

Probable cause is an objective standard “to be met by applying a totality-of-the-circumstances analysis.” United States v. Vinton , 594 F.3d 14, 21 (D.C. Cir. 2010) ; see also Illinois v. Gates , 462 U.S. 213, 230–32, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause is more than bare suspicion but is less than beyond a reasonable doubt and, indeed, is less than a preponderance of the evidence. See Florida v. Harris , ––– U.S. ––––, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61 (2013) (“Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence have no place in the [probable-cause] decision. All we have required is the kind of ‘fair probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.’ ”) (internal citation, alteration, and quotation marks omitted); see also United States v. Cardoza , 713 F.3d 656, 660 (D.C. Cir. 2013) (Probable cause “does not require certainty, or proof beyond a...