United States v. Nicholson

• Decision Date: 13 September 2000
• Docket Number: 99-4194EA,99-3128E,Nos. 99-2206E,99-3674E,99-3803E,99-3358E,s. 99-2206E
• Citation: 231 F.3d 445
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. DEBRA NICHOLSON, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. RODNEY DEWAYNE FLOYD, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. DONALD R. MILLER, ALSO KNOWN AS DONNIE MILLER, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. FRANKIE WEBB, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. MARCUS DESHUN SANDERS, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. MAURICE JEROME MCDONALD, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. JAMO JENKINS, ALSO KNOWN AS JAYMO JENKINS, APPELLANT. , and 00-1135EA Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 445

231 F.3d 445 (8th Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. DEBRA NICHOLSON, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. RODNEY DEWAYNE FLOYD, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. DONALD R. MILLER, ALSO KNOWN AS DONNIE MILLER, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. FRANKIE WEBB, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. MARCUS DESHUN SANDERS, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. MAURICE JEROME MCDONALD, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. JAMO JENKINS, ALSO KNOWN AS JAYMO JENKINS, APPELLANT.

Nos. 99-2206EA, 99-3128EA, 99-3358EA, 99-3674EA, 99-3803EA, 99-4194EA, and 00-1135EA

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 13, 2000

Filed: November 1, 2000

Rehearing Denied in No. 99-3128 Nov. 29, 2000

Rehearing Denied in No. 99-3358 Nov. 30, 2000

On Appeal from the United States District Court for the Eastern District of Arkansas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Richard S. Arnold, Lay, and Fagg, Circuit Judges.

Richard S. Arnold, Circuit Judge.

The following defendants were convicted of the following offenses for their involvement in an Arkansas drug conspiracy: Debra Nicholson, of conspiracy to launder money in violation of 18 U.S.C. 1956; Rodney Dewayne Floyd, of conspiracy to distribute controlled substances, 21 U.S.C. 846, and of unlawful use of a telephone to facilitate a drug transaction, 21 U.S.C. 843(b); Donald R. Miller, of aiding and abetting the distribution of cocaine base, 21 U.S.C. 841; Frankie Webb, of possessing cocaine base with the intent to distribute, 21 U.S.C. 841, and of possessing a firearm during a drug offense, 18 U.S.C. 924(c)(1); Maurice Jerome McDonald, of conspiracy to distribute controlled substances, 21 U.S.C. 846, of two counts of distributing cocaine base, 21 U.S.C. 841, and of being a felon in possession of a firearm, 18 U.S.C. 922(g)(1), 924(a)(2); Jamo Jenkins, of conspiracy to distribute controlled substances, 21 U.S.C. 846, and of possessing cocaine base with the intent to distribute, 21 U.S.C. 841; and Marcus Sanders, of conspiracy to distribute controlled substances, 21 U.S.C. 846.

On appeal, these seven defendants raise various issues. Ms. Nicholson claims that the District Court erred in not accepting the government's recommendation of probation. Mr. Floyd argues that the evidence against him did not warrant a conspiracy conviction, disputes his classification as a career offender, and appeals from the denial of a motion to exclude evidence. Mr. McDonald and Mr. Jenkins, among other things, challenge their sentences under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Mr. Miller raises a sufficiency-of-the-evidence argument and appeals from the denial of a sentence reduction. Mr. Sanders questions the calculation of his criminal history score, and Mr. Webb attacks the sentencing disparity between offenses involving crack and those involving powder cocaine. We hold that Apprendi requires the resentencing of defendants McDonald (except for the life sentence for crack distribution) and Jenkins. In all other respects, we affirm the judgments of the District Court.

I.

Defendant Debra Nicholson appeals from the District Court's denial of a motion for reconsideration of her sentence. She contends that she should have been given probation, as her lawyer requested and the government recommended, instead of fifteen months' imprisonment followed by three years of supervised release. We affirm.

On the basis of the facts stated in her presentence report, adopted in full by the Court below and not challenged on appeal, Ms. Nicholson was liable under the Sentencing Guidelines to be imprisoned for anywhere from three years and one month to three years and ten months. In accordance with Ms. Nicholson's Plea Agreement, however, and in exchange for her service as a government witness, the United States filed a motion under U.S.S.G. 5K1.1 recommending probation.

At Ms. Nicholson's sentencing hearing, her attorney requested that she receive probation rather than imprisonment because of her status as a single mother. The District Judge first noted that Ms. Nicholson had twice previously received probation. He then asked Ms. Nicholson's pretrial officer, Mr. McAuley, how she had performed in pretrial and presentencing release:

MR. MCAULEY: Judge, she has been supervised in California, and simply put, she's done horrible.

THE COURT: Like how? Don't make broad, conclusory statements. Does she - has she ever missed any of her appointments?

MR. MCAULEY: She's missed numerous appointments.

THE COURT: What do you call "numerous"?

MR. MCAULEY: She's missed at least 16 appointments.

THE COURT: What?

MR. MCAULEY: Yes, Your Honor.

THE COURT: You've got to be kidding me. Sixteen? I don't think I've ever had anybody that missed 16.

MR. MCAULEY: According to the probation officer up there in California, they have not had anyone else that has been that noncompliant under their supervision.

Sentencing Tr. at 13. A chronological record of Ms. Nicholson's interactions with the United States Pretrial Services Office for the Central District of California was admitted without objection.

The Court then turned to the government's request for a downward departure from the sentencing range based on Ms. Nicholson's assistance to the prosecution. After determining the extent of that assistance, the Court had the following exchange with Mr. Harris, the Assistant United States Attorney:

THE COURT: What sort of a downward departure do you request?

MR. HARRIS: Judge, in the plea agreement we signed, I agreed if she provided substantial assistance and I filed a motion, I would ask the Court for probation, and I'm going to stick by my agreement.

THE COURT: What does the knowledge of her pretrial conduct, what effect does that have?

MR. HARRIS: If I didn't have this plea agreement, I wouldn't make the recommendation of probation.

THE COURT: Thank you.

Sentencing Tr. at 16.

Ms. Nicholson claims that the conversation just quoted amounts to a breach of her plea agreement under United States v. Mitchell, 136 F.3d 1192, 1994 (8th Cir. 1998). In Mitchell, the government undercut its own motion for downward departure by suggesting at the sentencing hearing that the defendant had already been rewarded at the indictment phase and by introducing damaging statements from the victims of the defendant's crime. At Ms. Nicholson's hearing, by contrast, Mr. Harris merely gave a candid response to a question from the Court. This was not improper. We have said that the government, after making a motion for downward departure pursuant to a plea agreement, may "advise the sentencing court if there are unrelated factors . . . that in the government's view should preclude or severely restrict any downward departure relief." United States v. Anzalone, 148 F.3d 940, 942 (8th Cir. 1998). Here, Mr. Harris did not go even that far.

Ms. Nicholson points out that at the time of her plea agreement, she had already missed eleven Pretrial Services appointments. She argues that the United States Attorney's failure to raise the issue at that time led her to believe that those absences would not affect the sentence she would receive. She does not, however, direct us to any evidence that the United States Attorney (as opposed to the Pretrial Services Office) actually knew of her delinquency when the plea agreement was struck. We find no such evidence in the record. Moreover, the Court was authorized to find that Ms. Nicholson missed five drug screens even after the date of her plea agreement.

Ms. Nicholson asserts, however, that the District Court actually considered the missed appointments that occurred before the plea bargain. Even if she is right, we see no error. We know of no law that says a court must ignore relevant evidence at a sentencing hearing simply because that evidence may relate to conduct that preceded a defendant's plea agreement. Whether to approve or reject a plea agreement is a matter confided to the sound discretion of the trial court, United States v. Petty, 600 F.2d 713, 714 (8th Cir. 1979) (per curiam), and the defendant here can point to no abuse of discretion. Ms. Nicholson actually received a downward departure of more than 50 per cent. off the bottom end of her sentencing range in spite of conduct on pretrial release that the District Court described as "awfully near contemptuous." Courts are not required to ignore such conduct at sentencing. Ms. Nicholson's sentence is affirmed.

II.

Mr. Floyd raises several arguments on appeal. First, he claims that he was entitled to a directed verdict of acquittal on the conspiracy charge. This argument is without merit. There was testimony that Mr. Floyd bought a kilogram of cocaine from co-conspirator Ricky Rogers for $25,000, Tr. 770-71, that he repeatedly bought nine- ounce quantities of crack from co-conspirator Clinton Lewis at about $700 per ounce, Tr. 439-40, 431, and that people who buy crack in that quantity are typically reselling it, Tr. 431. Moreover, the government introduced tapes of two telephone conversations in which Mr. Floyd discussed drug transactions with members of the conspiracy. Ex. 24-27, 24-51; Tr. 1357, 1406-07. This evidence, if the jury believed it, would support a conviction for conspiracy to distribute controlled substances.

Second, Mr. Floyd contends that the District Court erred in classing him as a career offender under U.S.S.G. 4B1.1. He argues that one of the two prior felony convictions on which that categorization was based occurred during the course of the present conspiracy and therefore should not count toward career-offender status. We find no error. Mr. Floyd was convicted of the relevant state offense in February, 1997. Neither side has presented any evidence that he was involved in the present conspiracy earlier than August, 1997. The...