United States v. Robinson

• Decision Date: 11 April 2000
• Docket Number: No. 99-3810,99-3810
• Citation: 217 F.3d 560
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. DORAN DEE ROBINSON, ALSO KNOWN AS DEE ROBINSON, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 560

217 F.3d 560 (8th Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. DORAN DEE ROBINSON, ALSO KNOWN AS DEE ROBINSON, APPELLANT.

No. 99-3810

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 11, 2000

Filed: July 5, 2000

Appeal from the United States District Court for the District of Nebraska. [Copyrighted Material Omitted] Before Bowman and Hansen, Circuit Judges, and Carman, ¹ Judge.

Bowman, Circuit Judge.

Doran Dee Robinson appeals his conviction and sentence for conspiracy to distribute and possess with intent to distribute methamphetamine in violation of 21 U.S.C. 841(a)(1) & 846 (1994). We affirm.

I.

We state the facts in the light most favorable to the jury's verdict. Robinson and Richard Housman were arrested in a reverse sting operation on December 15, 1997, in which Special Agent Dean Gibbs of the Drug Enforcement Agency attempted to sell them a pound of methamphetamine. The operation was orchestrated by Dave Mentzner, who, unknown to Robinson and Housman, was working as a confidential informant for the Nebraska State Patrol.

Mentzner first told Housman that Gibbs was coming to town with a pound of methamphetamine to sell. Housman then contacted several potential buyers, including Robinson, to inform them of the available methamphetamine. Approximately a week before the arrests, Robinson told Housman that he was interested in looking at the methamphetamine to purchase. Housman informed Robinson that Mentzner was asking $10,000 for the pound. Robinson replied that the price was "within range." A few days later, Robinson told Housman he wanted Housman to set up the meeting as soon as possible.

Housman set up the meeting for noon on December 15 at his house. Around 11:30 a.m. that day, Housman went to Robinson's house to let him know that the deal was set up. Robinson was not home at that time, and Housman returned to his house to let Mentzner and Gibbs know that Robinson was not available. They then agreed to meet again at 3:00 p.m. Housman returned to Robinson's house, where he found Robinson and informed him that the meeting was set up for 3:00 p.m. Housman also told Robinson that if Robinson bought the pound of methamphetamine, then he would want one ounce out of it as his cut. Robinson agreed to this arrangement.

Shortly before 3:00 p.m., Robinson and Housman went to Housman's house. Robinson informed Housman that he wanted to see and try the methamphetamine before he purchased it. Mentzner and Gibbs arrived in a van, and Mentzner told Housman and Robinson that he wanted to do the deal in the van. They all entered the van, where, after introductions were made, the following conversation was recorded by surveillance:

Robinson: Well if we can look at it or if we can try it or if we can do something, I'd like to

Gibbs: I'd like to see the money first.

Robinson: Well, I got the money.

Housman: Show um both.

Robinson: I can, I can show you the money all day long but that don't mean that I don't want to deal, you know, I just want to look at it.

Gibbs: Okay. There's ten there?

Robinson: Uh, I have over ten on me, but then again it doesn't seal a deal cuz like I said, I wanted to see (inaudible) anyway. But he said it's good shit, and I said if it's like that goddamn (inaudible) Mentzner: We had some stuff going around town here for a while that looked like some Nestle's Quik shit, it wasn't no good at all.

Robinson: My girlfriend told me, she says, well if Dave's got it, it's gotta be good shit, cuz he wouldn't be fucking around with, you know, no dope.

Gibbs: Well, let me get it.

Housman: I've been a nervous fuckin wreck for (inaudible) I swear to god.

Robinson: Hey you don't wanta get caught with this much (inaudible). Ask him, he'll tell you. It ruinned [sic] my motherfuckin life. (inaudible)

Gibbs: I put it down in the ground, so it could have a safe, keep this damn cooler open, we'll look at it. Got it in bags here and, here you go. (inaudible) You can cut into it if you want.

Robinson: What's this on the outside?

Gibbs: That's just mold and stuff.

Robinson: You cut into it, it's your bag.

Gibbs: You sure? Alright. (inaudible)

Gibbs: Yah, that's pretty good stuff. (inaudible)

Unknown: Good god almighty.

Trial Exhibit No. 2, Transcript of Conversation. At that point, the van was raided by the Nebraska State Patrol, and everyone was arrested.

During the course of the conversation, Robinson pulled a bundle of cash out of his jacket, and Gibbs removed the package of methamphetamine from a cooler in the back of the van. After Robinson indicated that he wanted to see or test the methamphetamine, Gibbs cut open the package with a knife provided by Housman. Before Robinson was able to test the methamphetamine, they all were arrested. A Jennings Bryco .38 automatic handgun and $11,066 in currency were found on Robinson at the time of the arrest.

Robinson and Housman were charged with conspiracy to distribute and possess with intent to distribute methamphetamine and possession with intent to distribute methamphetamine. In addition, Robinson was charged with two firearms offenses, and the United States sought to have the $11,066 in currency forfeited. Housman reached a plea agreement with the United States and testified at Robinson's trial. The United States dismissed one of the firearms charges before trial, and the District Court ² dismissed the other firearms charge and the possession with intent to distribute charge at the close of the prosecution's case.

Robinson chose to testify in his defense. In short, Robinson testified that he was unaware of the methamphetamine until the day of the attempted sale, that he had no intention of buying the methamphetamine, and that he only went to see the methamphetamine because Housman insisted. He also testifed that there was an innocent explanation for the large amount of money found on him at the time of arrest. The money was in three bundles: $3,300 for plane tickets for his children to fly from Alaska to visit him, $5,600 for attorney's fees resulting from state drug charges, and the remainder in a third bundle.

The jury convicted Robinson of conspiracy to distribute and possess with intent to distribute methamphetamine and found that $10,000 of the currency was subject to forfeiture. At sentencing, the District Court applied enhancements under the United States Sentencing Guidelines for obstruction of justice under 3C1.1 and for possession of a weapon during a drug trafficking offence under 2D1.1. Robinson was sentenced to 188 months imprisonment to run consecutively to a sentence he currently is serving for a state drug conviction.

II.

Robinson appeals his conviction and sentence. He argues that the evidence was insufficient to support the conviction for conspiracy to distribute and possess with intent to distribute methamphetamine and that the District Court erred in imposing the obstruction of justice enhancement, in imposing the weapon enhancement, and in imposing the consecutive sentence. We address these four arguments in turn.

A.

We review the sufficiency of the evidence de novo, examining the evidence in the light most favorable to the jury verdict and giving the verdict the benefit of all reasonable inferences. We reverse only if no reasonable jury could have found Robinson guilty beyond a reasonable doubt on each essential element of the charge. To support Robinson's conviction for conspiracy under 21 U.S.C. 846, there must be evidence that Robinson entered into an agreement with at least one other person and that the agreement had as its objective a violation of the law. See United States v. Maejia, 928 F.2d 810, 813 (8th Cir. 1991). Section 846 does not require proof of an overt act in furtherance of the conspiracy. See United States v. Covos, 872 F.2d 805, 809-10 (8th Cir.), cert. denied, 493 U.S. 840 (1989). In essence, there must be evidence that Robinson entered into an agreement with Housman and that the purpose of that agreement was to purchase and distribute the methamphetamine. The conspiracy may be proved through circumstantial evidence. See United States v. Gooden, 892 F.2d 725, 729 (8th Cir. 1989) ("The nature of the offense of conspiracy with its necessary aspect of secrecy often requires that the agreement be implied from the surrounding circumstances."), cert. denied, 496 U.S. 908 (1990).

Not only is there circumstantial evidence of the conspiracy in this case--namely, that Housman brought Robinson to meet the supposed methamphetamine dealers, that Robinson had the required amount of cash on him, and that Robinson asked to see the methamphetamine--but there also is direct evidence. Housman testified he contacted Robinson about the available methamphetamine, that Robinson was interested in it, and that the price generally was acceptable to Robinson. Furthermore, Housman testified that Robinson agreed to give him a cut of the methamphetamine if it was acceptable as sort of a finders fee. Robinson argues that, at most, the evidence only supports the conclusion that he agreed with Housman to look at the methamphetamine. While this may be true in a literal sense--that is, Robinson was careful not to commit to the purchase until after he had inspected the methamphetamine and the Nebraska State Patrol apparently precluded him from doing so--Robinson's argument misses the point. The jury was entitled to infer that Robinson agreed to look at the methamphetamine because his purpose was to purchase methamphetamine. That Robinson never agreed to purchase the methamphetamine from Gibbs is not dispositive. The agreement at issue in the conspiracy charge was not between Robinson and Gibbs or Mentzner, but between Robinson and Housman. And we believe the evidence was more than sufficient for a jury to reasonably infer that Robinson and Housman had an agreement and that the purpose of the agreement was to purchase and distribute methamphetamine. ³

B.

Robinson next argues that the...