USA. v. Webb

• Decision Date: 27 July 2001
• Docket Number: No. 99-3114,99-3114
• Citation: 255 F.3d 890
• Parties: (D.C.Cir. 2001) United States of America, Appellee v. Dennis L. Webb, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 890

255 F.3d 890 (D.C.Cir. 2001)

United States of America, Appellee v. Dennis L. Webb, Appellant

No. 99-3114

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 9, 2001

Decided July 27, 2001

Appeal from the United States District Court for the District of Columbia (No. 98cr00260-01) Peter S. Spivack, appointed by the court, argued the cause for appellant. With him on the briefs was Christopher T. Handman.

Mary B. McCord, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney at the time the brief was filed, John R. Fisher and Roy W. McLeese, III, Assistant U.S. Attorneys.

Before: Ginsburg, Chief Judge, and Sentelle and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

This case presents questions arising from the Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), including the impact of Apprendi on the interpretation of the career offender provision of the United States Sentencing Guidelines, U.S.S.G. 4B1.1. Dennis Webb appeals from his conviction on three counts of distributing and one count of possessing with intent to distribute cocaine base, in violation of 21 U.S.C. 841. Webb contends that because a judge, rather than a jury, determined facts concerning drug quantity and prior criminal convictions, his sentence was imposed in violation of both the Constitution and the Sentencing Guidelines. For the reasons discussed below, we reject those challenges. We also reject Webb's subsidiary claims that the trial court erred in failing to credit him with accepting responsibility for his offenses, in admitting evidence of Webb's prior drug transactions, and in denying his motion to suppress evidence obtained during a search of his apartment.

I

In the spring of 1998, the government began investigating Webb for his suspected involvement in dealing cocaine base ("crack" cocaine) in Washington, D.C., and for his ties to a New York drug supplier. The government recruited Danon Johnson, a convicted drug dealer with whom Webb previously had done business, to arrange several controlled purchases from Webb. Webb sold Johnson cocaine base on May 14, 18, and 28, 1998. Each of these transactions was preceded by negotiations that were recorded on audiotape. The first two transactions took place in Johnson's apartment; the third transpired in a government car and was recorded on video and audiotape. Government laboratory reports showed that the quantity of cocaine base purchased on these occasions was 22.5, 34.7, and 53.5 grams, respectively. Following the sales, on July 28, 1998, a federal grand jury handed down a sealed indictment charging Webb with three counts of distributing cocaine base.

The government's investigation into Webb resumed on September 3, 1998, when investigators asked Johnson to attempt another purchase from Webb. Johnson contacted Webb, but Webb told Johnson that he did not have any crack for sale. Soon thereafter, the government obtained a search warrant for Webb's apartment, seeking documents related to Webb's drug business. The search warrant was executed on September 15, 1998, and investigators found 6.52 grams of crack, $15,114 in cash, drug packaging supplies, and a piece of paper with the name and pager number of the New York supplier sought by the government.

On December 3, 1998, a four-count superseding indictment was filed against Webb. The indictment charged him with one count of distribution for each of the three May drug purchases: Counts One and Two each charged Webb with distributing 5 grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(iii), and Count Three charged him with distributing 50 grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)(iii). A fourth count, relating to the drugs seized from his apartment, charged Webb with possessing with intent to distribute a detectable amount of cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C).

Webb's case went to trial on April 27, 1999. Webb filed pretrial motions to bar the government from introducing evidence of his past drug transactions with Johnson, and to suppress evidence collected from the search of his apartment. The district court denied both motions. At trial, the government's evidence included the testimony of Johnson, as well as that of investigators who surveilled the transactions between the two men and who participated in the search. A government chemist testified and introduced lab reports that specified the weight of the cocaine base recovered from each transaction and the search. Webb neither testified nor presented witnesses in his defense.

Consistent with then-prevailing precedent in this circuit, the trial court did not instruct the jury that it must find the drug quantities recited in the indictment; instead, it instructed that "the government need not prove that the defendant distributed any particular numerical amount of cocaine, but it must prove beyond a reasonable doubt that the defendant distributed a detectable or measurable amount of cocaine." 4/29/99 Tr. at 48. Similarly, the jury verdict form did not specify quantities for any of the charges. See App. 202. On May 4, 1999, the jury convicted Webb on all counts.

Based upon the presentence report ("PSR"), the district court found that Webb had two prior felony drug convictions, that he was on parole for one at the time of the offenses charged in the indictment, that the quantities of cocaine base involved in the indictment's four counts were as specified above, and that the total quantity was 116.82 grams.¹ This would ordinarily have given Webb a criminal history category of IV and an offense level of 32, which would have fixed his sentencing range at 168 to 210 months. See U.S.S.G. 2D1.1(c)(4); id. 4A1.1(a), (d); id. ch. 5, Pt. A. However, because of his two prior narcotics convictions, Webb qualified as a career offender. See U.S.S.G. 4B1.1.² Under the career offender guideline, Webb received a criminal history category of VI and an offense level of 37. PSR p 18. These figures exposed Webb to a sentencing range of 30 years to life. See U.S.S.G. ch. 5, pt. A. On August 13, 1999, the court sentenced Webb to 30 years' imprisonment and 10 years of supervised release.

II

Webb's principal challenge to his sentence is that it is contrary to the rule announced in Apprendi, that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. Specifically, Webb first contends that, because the jury merely found him responsible for a detectable amount of cocaine base and made no findings concerning his prior convictions, his 30-year sentence exceeds the 20-year maximum constitutionally authorized by the jury's findings. See 21 U.S.C. 841(b)(1)(C). Second, Webb contends that even if his sentence of 30 years did not exceed the lawful maximum, the district court committed error by sentencing him, under the career offender provision of the Sentencing Guidelines, U.S.S.G. 4B1.1, to a sentence greater than that justified by the jury's determination alone. We consider these contentions in Parts B through D below. We begin with an explication of the relevant statutory provisions, and with a discussion of the case law leading to, and following from, the Supreme Court's opinion in Apprendi.

A

Section 841(a) of Title 21 of the United States Code makes it "unlawful for any person knowingly or intentionally" to distribute or possess with intent to distribute a controlled substance. Section 841(b) specifies sentences for "any person who violates subsection (a)." For violations involving cocaine base, 841(b) establishes three categories of penalties, depending upon the amount of the drug involved: 841(b)(1)(A) sets a maximum sentence of life in prison for violations involving 50 grams or more; 841(b)(1)(B) sets a maximum sentence of 40 years for violations involving 5 grams or more (or life, if the defendant has a prior felony drug conviction); and 841(b)(1)(C) sets a maximum sentence of 20 years for any other amount (or 30 years, if the defendant has a prior felony drug conviction).³

Until 2000, well-established precedent in this circuit held that drug quantity was a sentencing factor to be determined by the trial court by a preponderance of the evidence, and not an element of the 841 offense to be determined by a jury beyond a reasonable doubt. See, e.g., United States v. Williams, 194 F.3d 100, 102 (D.C. Cir. 1999); United States v. Lam Kwong-Wah, 966 F.2d 682, 685 (D.C. Cir. 1992); United States v. Patrick, 959 F.2d 991, 995-96 n.5 (D.C. Cir. 1992). That precedent was consistent with the rule in the other circuits. See Lam Kwong-Wah, 966 F.2d at 685 (collecting cases). The fact of a defendant's prior conviction was also treated as a sentencing factor and, in Almendarez-Torres v. United States, the Supreme Court confirmed that prior conviction could constitutionally be determined by a judge rather than a jury. 523 U.S. 224, 226-27 (1998). In accord with this precedent, standard practice in the district court was for the judge at sentencing, rather than the jury at trial, to make the necessary findings about drug quantity and prior conviction. This was the procedure the district court followed in Webb's case.

In Jones v. United States, 526 U.S. 227 (1999), the Supreme Court considered the statute that makes carjacking a federal crime, 18 U.S.C. 2119. That statute has a tripartite structure, with a base penalty of imprisonment for a maximum of 15 years, and greater penalties dependent upon whether the offense involved the injury or death of a victim. The Court suggested that it could well be unconstitutional for Congress to remove those latter determinations from a jury's consideration, pursuant to the principle that ...