United States v. Thomas
| Decision Date | 09 July 2013 |
| Docket Number | No. 11-CR-2046-LRR,11-CR-2046-LRR |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DION THOMAS, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
I. INTRODUCTION........................................2
II. RELEVANT PROCEDURAL HISTORY.........................2
III. RELEVANT FACTUAL BACKGROUND........................4
IV. SENTENCING FRAMEWORK...............................6
V. EVIDENTIARY RULES ...................................8
VI. ANALYSIS............................................8
A. Section 851 Predicate Offense...........................9
B. Guidelines Calculation ............................... 12
VII. CONCLUSION ........................................ 31
I. INTRODUCTION
The matter before the court is the sentencing of Defendant Dion Thomas.
II. RELEVANT PROCEDURAL HISTORY
On December 8, 2011, a grand jury returned a six-count Indictment (docket no. 7) against Defendant and five other individuals. Count 1 of the Indictment charged Defendant with conspiring to distribute and possess with the intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin after having been previously convicted of a felony drug crime. Such offense is a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846 and 851. Count 3 of the Indictment charged Defendant with distributing .54 grams of a mixture or substance containing a detectable amount of heroin after having been previously convicted of a felony drug crime. Such offense is a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851. The Indictment also contained a forfeiture allegation. On May 18, 2012, the government filed an Information (docket no. 91) pursuant to 21 U.S.C. § 851, notifying the court and Defendant of the government's intent to seek enhanced penalties against Defendant based on his August 25, 2009 conviction for possession with intent to deliver a controlled substance in the Circuit Court of Cook County, Illinois.
Defendant elected to proceed to trial and, on August 27, 2012, a jury trial on Counts 1 and 3 of the Indictment commenced. See August 27, 2012 Minute Entry (docket no. 170). On August 28, 2012, at the close of all of the evidence, Defendant moved for a judgment of acquittal on Counts 1 and 3, which the court denied. See August 28, 2012 Minute Entry (docket no. 173). The case was submitted to the jury and, on August 29, 2012, the jury returned guilty verdicts on Counts 1 and 3. See Jury Verdicts (docket no. 180). The jury specifically found that Defendant conspired to distribute and possess withthe intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin. See id. at 2-3.
On September 12, 2012, Defendant filed a "Motion for a New Trial" (docket no. 186), which the court denied on November 8, 2012. November 8, 2012 Order (docket no. 216) at 9. Meanwhile, the United States Probation Office conducted a presentence investigation. On January 4, 2013, the Presentence Investigation Report ("PSIR") (docket no. 258) was filed. The court ordered briefing on the contested issues. See February 27, 2013 Order (docket no. 287).1 On March 11, 2013, the government filed an Amended Information (docket no. 290), which "correct[ed] the name of [D]efendant's crime of conviction from 'possession with intent to deliver a controlled substance' to 'possession of a controlled substance.'" Amended Information at 2 n.1. That same date, the government filed its Sentencing Memorandum (docket no. 291) and Defendant filed his Sentencing Memorandum (docket no. 292).
On March 25, 2013, the court held a sentencing hearing. See March 25, 2013 Minute Entry (docket no. 294). At the sentencing hearing, Defendant offered evidence, which the court received, and the parties argued their positions. The court indicated that it would receive further briefing, issue a written order addressing the contested issues and then reconvene the hearing to impose judgment. On March 29, 2013, the government filedits Supplemental Sentencing Memorandum (docket no. 296). That same date, Defendant filed his Supplemental Sentencing Memorandum (docket no. 297).
III. RELEVANT FACTUAL BACKGROUND
The trial evidence establishes that Defendant lived in Chicago, Illinois, and made frequent trips to Waterloo, Iowa, between approximately 2009 and 2011. In Waterloo, Defendant spent considerable time with his mother's sister, Katina McKenzie-Jackson, and his mother's brother, Essex McKenzie. According to the testimony of cooperating witnesses, Defendant's travel to and from Chicago was for the purpose of transporting heroin and crack cocaine to Waterloo for distribution to a variety of individuals, including Katina McKenzie-Jackson, Essex McKenzie, Arthur Scott (street name "Donta") and others.
Defendant came to the attention of law enforcement as a result of a wiretap on Arthur Scott's phone. During conversations, voice messages and text messages that spanned December 15, 2010, to January 13, 2011, Defendant and Arthur Scott discussed their drug transactions and the money Arthur Scott owed to Defendant from prior drug deals. During their conversations, Defendant and Arthur Scott did not use the word "heroin" but, instead, used code words and phrases. Some of these conversations were recorded while Defendant was incarcerated at the Linn County Correctional Center on unrelated charges. Defendant told Arthur Scott that he was locked up and instructed Arthur Scott to get a money order and give it to Defendant's "Auntie." During another recorded conversation, Defendant told Arthur Scott that his girlfriend, Anita, would be contacting Arthur Scott to give him the address to which he was to send a money order. During that same conversation from the Linn County Correctional Center, Defendant told Arthur Scott to go to Defendant's "Auntie's" house, go to the washroom and then call Defendant. Defendant said he would tell Arthur Scott where the "stuff" was in the washroom. Defendant told Arthur Scott to get in and out of his "Auntie's" house before she discovered"what's goin' on." In a follow-up phone call, Arthur Scott expressed concern that Defendant's "Auntie" had or would find the "stuff." During Katina McKenzie-Jackson's testimony, she confirmed that Defendant had left heroin in her bathroom closet. During Arthur Scott's testimony, he explained the meanings of the words and phrases used during the recorded conversations.
Katina McKenzie-Jackson and Essex McKenzie lived in apartments on Sherwood Court, across the parking lot from one another. Some of the drug transactions took place in that parking lot, including Lucious Simmons's controlled buy of .54 grams of heroin from Defendant on June 23, 2011. Although law enforcement agents watched the controlled buy from a distance and monitored the transaction through a microphone, the recording device worn by Lucious Simmons was apparently inadvertently turned off during the buy and thus no audio of it was preserved.
Other cooperating individuals, including Katina McKenzie-Jackson and Essex McKenzie, testified to the drug transactions that they engaged in on behalf of or with Defendant. Essex McKenzie knew of Defendant's girlfriend, Anita, who lived in Chicago. Darryl Williams, Arthur Scott's "right-hand man" in the heroin trade, testified that Defendant supplied heroin to Arthur Scott. Lewis Bolden testified that he bought heroin from Katina McKenzie-Jackson, which Katina McKenzie-Jackson stated she had received from Defendant. VonVetta Sawyers testified that he bought heroin from Arthur Scott when Arthur Scott had heroin. At times, VonVetta Sawyers had to wait for the heroin to be delivered to Arthur Scott by or from Defendant. Jamar Jones testified that he bought crack cocaine from Essex McKenzie, which Essex McKenzie stated he had obtained from Defendant. After Defendant and Essex McKenzie had a falling out, Jamar Jones continued to buy crack cocaine either directly from Defendant or through Katina McKenzie-Jackson.
While being detained on the instant federal charges, Defendant confided to Christopher Grover, another federal inmate, that he was being held as a result of acontrolled buy during which he sold an informant .54 grams of heroin. Defendant told Christopher Grover that the audio recorder was not working during the buy. Defendant also stated that he brought 30 to 40 grams of heroin to Waterloo from Chicago to sell and that his aunt and uncle were selling the heroin for him. Defendant told Christopher Grover that, although the agents had monitored his phone calls from the Linn County Correctional Center, the word "heroin" was never spoken during the conversations and, thus, that was going to be his defense.
Defendant cross-examined all of the government's witnesses and elected to present evidence. Katina McKenzie-Jackson's husband, Kevin Jackson, testified that he did not know his wife was involved in heroin distribution, although he thought she might be using drugs. Kevin Jackson denied that their apartment on Sherwood Court was used to store or sell drugs. Debra McKenzie, Defendant's mother, acknowledged that Defendant had a girlfriend named...
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