USA v. Cecil

• Decision Date: 10 August 2010
• Docket Number: No. 08-5080.,08-5080.
• Citation: 615 F.3d 678
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest B. CECIL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

615 F.3d 678

UNITED STATES of America, Plaintiff-Appellee,

v.Ernest B. CECIL, Defendant-Appellant.

No. 08-5080.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 12, 2010.

Decided and Filed: Aug. 10, 2010.

Rehearing and Rehearing En Banc Denied Oct. 5, 2010.

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ARGUED: Kathleen G. Morris, Law Offices, Nashville, Tennessee, for Appellant. Tritia Lindsay Yuen, Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Kathleen G. Morris, Law Offices, Nashville, Tennessee, for Appellant. Teresa A. Wallbaum, Department of Justice, Washington, D.C. for Appellee.

Before: MARTIN, BOGGS, and WHITE, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

Ernest Cecil, formerly an officer of the Metropolitan Nashville Police Department (“MNPD”), was convicted of one count of conspiracy to distribute, and to possess with intent to distribute, cocaine, in violation of 21 U.S.C. § 846; one count of aiding and abetting another to possess with intent to distribute 500 grams or more of cocaine, in violation of 18 U.S.C. § 2; one count of interference with commerce by robbery, in violation of 18 U.S.C. § 1951; and one count of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). As a result, he was sentenced to 144 months of imprisonment. He now appeals his convictions and his sentence.

With respect to his convictions, Cecil makes three general arguments. First, he argues that his convictions should be reversed because the district court erred in denying his Batson challenge to the government's peremptory strike of an African-American prospective juror. Second, he argues that the district court abused its discretion with respect to a number of evidentiary rulings. And, finally, he argues that the evidence was insufficient to convict him of any of the crimes with which he was charged.

As regards his sentence, he argues that, because the district court expressed a desire to sentence him below the mandatory minimum, his sentence was unreasonable. He also implies that 18 U.S.C. § 3553(a) may provide a vehicle for circumventing mandatory minimum sentences. Finally, he contends that congressionally imposed sentencing floors violate the separation-of-powers doctrine by encroaching on judicial discretion to fashion fundamentally just punishments.

For the following reasons, we affirm Cecil's convictions and sentence.

I. FACTUAL BACKGROUND

A. Procedural History

On December 21, 2006, a grand jury sitting in the Middle District of Tennessee returned a four-count indictment, charging Cecil with conspiracy to distribute and to possess with intent to distribute 5 kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count One); possession with intent to distribute of 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a) (Count Two); interference with commerce and aiding and abetting interference with commerce by participating in a cocaine-related robbery, in violation of 18 U.S.C. § § 1951 and 2 (Count Three); and using and carrying a firearm during and in relation to a crime of violence and a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Four). On September 26, 2007, following a five-day trial, Cecil was convicted of Counts Three and Four. He was also convicted of lesser included offenses on Counts One and Two.

Cecil was sentenced on January 4, 2008. At sentencing, the district court indicated that, despite its desire to go lower, its “hands [we]re tied by Congress” and it consequently “sentence[d] Mr. Cecil to the mandatory minimum on Counts One through Three, 60 months to run concurrent with each other, and to the minimum mandatory [sic] of 84 months consecutive on Count Four.”

B. The Testimony at Trial

At trial, the government introduced the testimony of, among others, Corey Cecil (hereinafter “Corey”), a convicted drug dealer and the defendant's nephew, and Newman Hawkins, Corey's friend and one of his drug suppliers. The following narrative is culled from their testimony.

In Spring 2003, shortly after he was released from prison, Corey approached Cecil, then an officer of the MNPD, with a plan. The plan was to steal “large quantities of cocaine” from one of Corey's drug suppliers. Cecil, who had once arrested Corey for dealing drugs, consented to the plan, stating, “[I]f you can pull it off, I'll assist you.” At the time, Cecil was apparently in need of “some extra money.”

Corey's plan was simple. Corey and his supplier would take separate cars to the point of exchange, whereupon Cecil, acting as a police officer, would intervene and detain the supplier. This would give Corey an opportunity to drive off with the cocaine. In order to make the intervention look real, Cecil was to “[u]se his police tactics, put his lights on, pull [the supplier over], that type of stuff [police] do when [people] get pulled over.” Once Cecil released the supplier, Corey would contact the supplier and indicate that, shortly after driving off, he too had been stopped by the police. See ibid. He would also state that the drugs had been seized. That way, Corey could keep the drugs, sell them, and give Cecil a cut, all without paying the initial cost. Basically, the idea was to make the whole scenario look like “[a] drug bust went bad.”

In April 2003, Corey was presented with an opportunity to implement the plan. Corey's friend Newman Hawkins told him that he could obtain “large quantities of cocaine.” ¹ Sensing his chance, Corey subsequently called Cecil and “let [him] know he ha[d] to be ready.” Corey also told Cecil that he wanted “a friend [ i.e., another officer] with him so it would look more realistic.”

On April 30, 2003, Corey waited at his mother's house for Hawkins to arrive with the cocaine. Hawkins, who had been fronted 3.5 kilograms of cocaine by a man named Miguel Hernandez, showed up in a blue Yukon SUV. He found Corey outside the house, waiting in his sedan.

Emerging from the car, Corey approached the Yukon, prompting Hawkins to gesture to some cocaine in the vehicle. Corey then took the cocaine and placed it in his trunk, telling Hawkins that he would have to go someplace to get the money. Corey suggested that Hawkins follow him, but Hawkins explained that he was supposed to pick up his girlfriend at work.

The men therefore decided that Corey would follow Hawkins, after which they would drive, independently, to the location of the money, a place called Vine Hill.

At that point, Corey and Hawkins set out in separate cars. Prior to their departure, Corey had called Cecil, who had parked nearby so as to follow the pair to the payment location. Thus, when Corey and Hawkins left, Cecil, who was accompanied by a partner, was able to fall in behind them. Once Hawkins arrived at his girlfriend's workplace, Cecil threw on his sirens. Corey immediately peeled off, leaving the scene. Hawkins, however, had no time to escape, and Cecil pulled in behind him.

Drawing their guns, Cecil and his partner, a fellow officer whom he had recruited per Corey's request, emerged from their vehicle. They told Hawkins to “cut [his] truck off, stick [his] hand out the window and open the door from the outside and get on the ground.” The officers then handcuffed Hawkins and transported him and his vehicle to another location. Following a brief search of Hawkins's vehicle, the officers released him. When they did, Cecil gave Hawkins his business card and said, “[I]f [you're not] selling drugs don't start; if you're selling drugs, stop, sir.”

After absconding with the cocaine, Corey eventually sold it for approximately $70,000. Of this amount, he gave his uncle only $10,000, deceiving Cecil into believing that Hawkins had only come through with one kilogram of cocaine.

II. CECIL'S BATSON CHALLENGE

Cecil's first contention is that the district court erred in rejecting his Batson challenge to the government's peremptory strike of prospective juror Sherilynn Carter, an African-American. ² He argues that the district court misapplied the controlling legal standard when ruling on his challenge by (1) denying the challenge before undertaking the third step of the tripartite Batson analysis and (2) failing to engage in a side-by-side comparison of Carter with jurors of different races whom the government did not exclude. He also argues that, if such a comparison is made, it is evident that the government's proffered race-neutral justification for excluding Carter was simply a pretext for racial discrimination.

“We review a district court's determination of a Batson challenge with ‘great deference,’ under a clearly erroneous standard.” United States v. Copeland, 321 F.3d 582, 599 (6th Cir.2003) (quoting United States v. Buchanan, 213 F.3d 302, 308-09 (6th Cir.2000)); see Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (“On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.”). However, when ruling on alleged mistakes of law, the applicable standard of review is essentially de novo. See United States v. Kimbrel, 532 F.3d 461, 465-66 (6th Cir.2008) (“Because this argument concerns an alleged mistake of law, it makes no difference whether we review this Batson challenge for clear error ... or review it de novo. In either event, a mistake of law generally satisfies clear-error, de-novo or for that matter abuse-of-discretion review.”).

“The Equal Protection Clause prohibits a party from using peremptory challenges to exclude members of the venire on account of their race.”

United States v. Jackson, 347 F.3d 598, 604 (6th Cir.2003) (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). “In order to establish an equal protection violation under Batson, the complaining party must first make a prima facie showing that the peremptory challenge...