United States v. Colbert

• Decision Date: 08 July 2016
• Docket Number: No. 15-1374,15-1374
• Citation: 828 F.3d 718
• Parties: United States of America, Plaintiff–Appellee v. Demetrius Colbert, also known as D-Coop, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

828 F.3d 718

United States of America, Plaintiff–Appellee

v.Demetrius Colbert, also known as D-Coop, Defendant–Appellant.

No. 15-1374

United States Court of Appeals, Eighth Circuit.

Submitted: January 14, 2016

Filed: July 8, 2016

Counsel who presented argument on behalf of the appellant was R. Brannon Sloan, Jr., of Little Rock, AR.

Counsel who presented argument on behalf of the appellee was Cameron C. McCree, AUSA, of Little Rock, AR. The following attorney appeared on the appellee brief; Julie Peters, AUSA, of Little Rock, AR.

Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.

WOLLMAN, Circuit Judge.

Demetrius Colbert appeals from his conviction on several drug-trafficking and firearm-related charges and from the sentence imposed by the district court.¹ We affirm.²

I.

Colbert's conviction was one of many resulting from Operation Delta Blues, a multi-year, multi-agency drug-trafficking and public-corruption investigation conducted by the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration, the Internal Revenue Service, the Bureau of Alcohol Tobacco and Firearms, and the criminal-investigation division of the Arkansas State Police. The investigation resulted in more than seventy arrests, which included those of officers in the Helena-West Helena Police Departments and the Phillips County Sheriff's Office.

In early 2011, court-ordered wiretaps on phones used by Sedrick Trice and Leon Edwards, along with information provided by a confidential witness revealed that Colbert was a large-scale cocaine distributer in Marianna and Helena-West Helena, Arkansas. Based on that information, on April 12, 2011, the FBI obtained a court order granting a wiretap for a thirty-day period on a cell phone that the FBI believed was primarily used by Colbert. The FBI obtained court authorization for a thirty-day extension of the wiretap beginning on May 12, 2011. The wiretap ended on June 10th or 11th, by which time the FBI had intercepted more than 7,000 calls made or received by Colbert's cell phone, approximately 710 of which the FBI determined were related to criminal activity.

A grand jury returned a seventeen-count indictment charging Colbert and seven others on October 4, 2011. An arrest warrant was issued for Colbert the following day. The government obtained a search warrant on October 6, 2011, for Colbert's home located on Hillcrest Street in Marianna, Arkansas (the Hillcrest Street house). The search warrant permitted law enforcement officers to search the residence for evidence of money laundering and to execute the search warrant at any time of the day or night.

The FBI's Special Weapons and Tactics (SWAT) team executed the warrant at 4:00 a.m. on October 11, 2011. Colbert was in the house at the time, along with his long-time girlfriend Catina Davis and their two children. The twelve-member SWAT team arrived at the Hillcrest Street house in two SUVs and was accompanied by a state trooper. Upon arriving at the house, the state trooper illuminated his squad car's blue overhead lights, which he directed at the front of the house in order to alert anyone inside to the FBI's presence. Two SWAT-team members acted as “breachers,” who were responsible for positioning themselves outside the front door on the left- and right-hand sides, announcing the FBI's presence, and, if necessary, forcing the door open with a hand-held battering ram. After the team was positioned, FBI Agent Wendell Cosenza, the breacher positioned to the right of the door, knocked loudly on the front door with his extendable baton and announced, “FBI, warrant, come to the door.” He repeated the knock-and-announce sequence two more times, pausing briefly each time, with the entire process taking less than one minute. The team leader then instructed the other breacher to “hit it” and breach the front door with the battering ram.

Immediately before the battering ram struck the front door, a shot was fired from within the house, followed by at least seven more shots in rapid succession after the door was breached. After the front door was forced open, an agent threw a flashbang grenade into the house, the team leader issued a “cover up” command, and the team retreated to covered positions. During the shooting, two FBI agents returned fire into the house. One agent fired three shots through the front window of the house into the living room, toward where the first shots originated, and moments later another agent fired two shots through a bedroom window, located to the left of the front door, after the agent observed a gun in the window. One of the bullets fired from inside the house struck Agent Cosenza in the leg. After the FBI agents took cover, they ordered those in the house to surrender. Approximately one or two minutes later, Davis surrendered to the FBI's custody, followed by Colbert approximately one or two minutes after Davis's surrender. Team members then secured the house and brought Colbert's children out of the house.

During the subsequent search of the house, FBI agents recovered $423,313 in cash hidden throughout the house (including $139,673 found in two bags that were located in the trunk of Colbert's 1971 Oldsmobile Cutlass), a .40 caliber handgun with an empty magazine from the top of the vanity in the master bathroom, empty plastic bags containing cocaine residue from the toilet in the master bathroom, digital scales containing cocaine residue from the master bathroom and the garage, several pieces of diamond jewelry worth approximately $26,000, and two of Colbert's five cars.

In a superseding indictment, a grand jury charged Colbert with one count of conspiracy to distribute or possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and two counts of use of a communications facility in furtherance of a drug-trafficking crime, in violation of 21 U.S.C. § 843(b) (collectively the conspiracy charges). It further charged Colbert with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), with assaulting a federal officer with a dangerous or deadly weapon, in violation of 18 U.S.C. § 111(b), and with possession and discharge of a firearm in connection with a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (collectively the firearm-related charges).

Colbert filed pretrial motions to suppress evidence from the wiretaps and the search and to sever the trial. Colbert objected to the wiretap evidence on the ground that the government had not met its burden under 18 U.S.C. § 2518(1)(c) to show that a wiretap was necessary. Colbert objected to the search warrant on the ground that the affidavit did not establish a nexus between the Hillcrest Street house and money-laundering evidence. In support of his motion to sever, Colbert argued that the firearm-related offenses were unrelated to the drug-trafficking-related offenses.

The government filed a pretrial motion to suppress testimony from Marcus Thompson, one of Colbert's co-conspirators. Thompson was arrested on the same day as Colbert by an FBI hostage rescue team (HRT) executing a no-knock warrant. When the HRT ignited an explosive breaching device attached to Thompson's front door, Thompson fired several rounds. Thompson would have testified that he believed someone was breaking into his home to steal his drugs and money. Colbert argued that this testimony would demonstrate that he reasonably believed that he was acting in self defense when he fired his gun at the SWAT team. The government objected to the testimony, arguing that it was irrelevant because of the different tactics used by the two teams.

The district court denied Colbert's motions and granted the government's. The case proceeded to a five-day jury trial. Before the case was submitted to the jury, Colbert moved for a judgment of acquittal on each of the counts except the felon-in-possession count, on which he conceded his guilt. As relevant here, Colbert argued that he was entitled to a judgment of acquittal on the counts of assaulting a federal officer, and of brandishing and discharging a firearm in furtherance of a federal drug-trafficking offense, because he had acted in self defense. The court denied Colbert's motion, Colbert presented no evidence, and the jury found him guilty of all of the charged offenses.

Colbert's presentence investigation report (PSR) calculated the drug quantity that Colbert was responsible for to be 200 kilograms of cocaine and 21 kilograms of crack cocaine. That drug quantity was based on testimony from Alvin Long, Marcus Thompson, and Leon Edwards, as well as on the intercepted telephone conversations that were played at trial. Based on that drug quantity, the PSR calculated Colbert's base offense level to be 38 for the conspiracy, communications-facility, and felon-in-possession offenses. The PSR applied a 2-level enhancement based on Colbert's pattern of criminal conduct, which was Colbert's sole source of income, and a 4-level enhancement based on Colbert's leadership role in the organization, resulting in an adjusted offense level of 44. The PSR calculated Colbert's offense level to be 27 for his assault offense, but that conviction did not affect his total offense level due to the multiple-count adjustment. Because Colbert's combined offense level was greater than the highest level permitted by the U.S. Sentencing Guidelines (U.S.S.G. or Guidelines), the resulting total offense level was 43. Based on an offense level of 43 and a criminal history category of III, the Guidelines' advisory sentence was life imprisonment. For the offense of brandishing or discharging a firearm in furtherance of a drug-trafficking crime, the Guidelines recommended the mandatory minimum sentence of ten years' imprisonment, to be served consecutively to the sentence for the other offenses. The resulting advisory Guidelines sentence was life imprisonment, with a 10-year consecutive sentence to...