United States v. Perry Shippy , 471 F. App'x 172 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4802
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PERRY ROGER SHIPPY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:09-cr-00023-LHT-DLH-10)
Argued: March 21, 2012 Decided: April 24, 2012
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Wilkinson and Senior Judge Hamilton joined.
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Charles Wyatt McKeller,
Brevard, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DAVIS, Circuit Judge:
Appellant Perry Roger Shippy was convicted on indictment
counts charging conspiracy with intent to distribute fifty grams
or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)
and 846, and use of a communication facility in connection with
that offense, in violation of 21 U.S.C. § 843(b). On appeal,
Shippy argues that the district court erred in denying his
motion for judgment of acquittal as to both offenses, and in
imposing a mandatory minimum ten-year sentence based on a drug
quantity that was not specifically found by the jury.1 Having
fully considered Shippy’s contentions, we affirm.
I.
A.
In 2008 and 2009, Shippy came to the attention of law
enforcement as a result of an ongoing investigation into the
drug trafficking activities of his “distant cousin” and co-
defendant, Kenneth Lee Foster.2 In September 2008, Drug
1
Shippy also contends that he should have been sentenced
under the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124
Stat. 2372. Shippy concedes, however, that he makes this
argument only to preserve it, as it is foreclosed by our
decision in United States v. Bullard, 645 F.3d 237 (4th Cir.
2011), cert. denied, 132 S. Ct. 356 (2011), by which this panel
is bound. United States v. Rivers, 595 F.3d 558, 564 n.3 (4th
Cir. 2010). Accordingly, we do not further address this issue.
2
We affirmed Foster’s conviction in United States v.
Fountain, 416 F. App’x 304 (4th Cir. 2011) (unpublished).
2
Enforcement Agency (DEA) agents and local Asheville police
targeted Foster for surveillance after Bridget Lee was charged
with drug trafficking and identified him as one of her sources.
The agents initially confirmed Lee’s information by having her
make monitored calls to Foster’s cell phone. Persuaded that her
identification of Foster was accurate, the agents then had Lee
undertake two controlled buys of crack cocaine from him, on
September 9 and September 11. The buys were monitored by audio
and (unbeknownst to Lee) video surveillance, and resulted in
Lee’s purchase of about 91 grams of crack on each occasion.
With this and other evidence of Foster’s drug trafficking,
agents obtained a warrant authorizing a wiretap to intercept
communications to and from Foster’s cell phones. In addition to
monitoring Foster’s calls, agents installed a video surveillance
camera up the street from Foster’s residence where he carried on
his drug trafficking activities. The position of the camera was
such that agents could observe only the area in front of the
main building entryway; the door to Foster’s unit, or that of
any other resident of the building, was not in view.
Agents observed Foster’s building and monitored his phone
calls for approximately four months total, from October 24,
2008, through February 24, 2009. During this time, they observed
a pattern of behavior by visitors to Foster’s home: a phone call
to Foster before an arrival, often a second phone call when the
3
visitor was a few minutes away or had arrived at the residence,
and finally a brief, five to ten minute interaction with Foster
either in the apartment or from the visitor’s vehicle parked
outside the building. As agents observed this conduct, they
endeavored to identify the visitors, i.e., Foster’s suspected
customers, by running DMV registration records for their cars.
Agents also endeavored to corroborate their belief that Foster’s
visitors were purchasing crack cocaine from him by undertaking
traffic stops after the visitors left his residence. Three such
stops effected for this purpose in fact yielded significant
seizures of crack cocaine.
On December 8, 2008, agents first observed the man later
identified as Shippy.3 At 2:52 p.m., Foster made an outgoing call
to phone number (828) 398-. Foster referred to Shippy as “Pete,”
and stated that he “got a hold of a little something.” Shippy
asked, “What are we talking about . . . on a Q.”4 Supp. J.A. 1.
Foster answered, “Five for you but five on the thing but you
3
Shippy testified in his own defense and generally denied
that it was he who was observed on December 8 (or that he was
involved in the drug trafficking conspiracy at all) but of
course the jury was entitled to discredit that testimony, as
indeed it did.
4
DEA Agent Daniel Guzzo, a member of the coordinated team
investigating Foster, testified that a “Q” indicated a quarter
ounce (approximately 7 grams) of crack cocaine.
4
know a tray [sic] on the Q for you five on the half so . . . .”5
Id. Foster then noted, as phonetically translated by the
monitoring agents, “It post to be [pretty] nice they say but it
ain’t much I just going to be honest.” Id. Shippy responded,
“let me call you back in a just a few minutes so I can get some
funds together.” Id. at 2.
About an hour later, at 3:49 p.m., Shippy called Foster
from the same phone used in the above conversation, saying he
was heading to the residence and would see Foster in ten
minutes. At 4:01 p.m., 12 minutes later, a Nissan Altima arrived
at Foster’s building and Shippy exited. Agents ran the plates of
the Altima and discovered that it was registered to Jessica
Goodien, at an address in a nearby town. Later investigation
revealed that Goodien was Shippy’s live-in girlfriend. Shippy
left Foster’s apartment at 4:32 p.m. Foster later called to
“verify the quality of the crack cocaine.” J.A. 350.
Several weeks later, agents eventually confirmed (to their
satisfaction) that it was indeed Shippy they had observed on
December 8 when they observed a car arriving at Foster’s
5
From the testimony of DEA agents and Bridget Lee (who
described herself as “not a virgin to crack cocaine,” J.A. 180),
the jury was entitled to find that Foster was offering to sell a
quarter ounce of crack (“a Q”) for $300 (“a tray”), or a half
ounce (“a half”; approximately 14 grams) for $500 (“five”). This
would roughly track the unit cost of crack from the controlled
buys and other transactions discussed in the record.
5
residence after phone calls from the same number that had
communicated with Foster on December 8. That car, a late model
Mercedes, was registered to Shippy himself. Having determined
that Shippy was the person associated with the number, that
phone line was ascribed by agents to Shippy for the remainder of
the investigation.6
On December 27, agents monitored and recorded another
series of calls between Foster and Shippy. During the first
call, at 3:41 p.m., Shippy stated to Foster, “You said you was
going to get half the whole thing.” J.A. 804. Foster replied,
“Uh hun[.] Yea you got to check that chicken out too man it
cooks pretty good.” Id. Trial testimony explained that “chicken”
was code for cocaine. Id. at 254. Foster also instructed Shippy,
“Stay by your phone I am going to hit you back.” Id. at 804. A
few minutes later, at 4:03 p.m., Shippy called Foster back,
“checking with ya to see if I could get any kind of help.”
Foster replied that they should “meet in the home front.” Id. at
805.
Video surveillance of Foster’s building showed that at 4:34
p.m., the Mercedes registered to Shippy arrived at the
6
Agent Guzzo testified at trial that while investigators
sometimes identified Foster’s contacts by researching the
registered user of particular phone numbers, the number ascribed
to Shippy was never researched because correlation of phone
calls and visits by Shippy adequately established his identity.
6
residence. While the record does not indicate how long Shippy’s
car was present, phone records indicate that at 8:08 p.m.,
Foster called Shippy’s phone, asking, “How did you like those
shoes[?]” Id. at 806. Shippy replied, “I ain’t slowed down since
I left you[. I]t is all well.” Id.
Two days later, on December 29, 2008, agents again
monitored calls between Foster and Shippy. At 5:23 p.m., Shippy
told Foster that he was “2 minutes away.” Id. at 807. Video
surveillance indicates that at 5:38 p.m., Shippy arrived in his
girlfriend’s Altima, entered Foster’s building, and departed
soon after. On December 31, Shippy called Foster at 11:58 a.m.
Foster told Shippy, “I’m getting you ready now . . . it’s going
to take a minute . . . . But I’m doing it now.” Id. at 808.
Shippy answered, “I’ll just hover over here for a minute then,”
and Foster ended with, “Ok I’ll just give you a yell.” Id. At
12:46 p.m., Foster called Shippy, asking, “where you at?” Id. at
809. Shippy answered that he was right around the corner and
Foster said, “Alright come on up man.” Id. Surveillance images
showed Shippy arrive in the Altima ten minutes later, at 12:56
p.m.
Days later, on January 3, 2009, Shippy and Foster
apparently talked again, with Foster saying, “I want you to
eat,” and Shippy replying, “That’s what I wanted to do is eat.”
Id. at 375. About ten minutes later, at approximately 12:29
7
p.m., Foster called Shippy, asking, “where you at?” Id. at 810.
Shippy replied, “Right down the street, I’ll be there in a
second.” Id. A minute or two later, Shippy was observed exiting
the Altima and walking towards Foster’s building. On January 8,
Shippy was observed outside Foster’s building, in his Mercedes.
Shippy’s communications with Foster were recorded, and his
presence at the residence was captured on camera soon after
those conversations, on five more days in January. Of particular
note, on January 25 at around 4:00 p.m., Shippy called Foster
after a couple of earlier conversations arranging his visit. At
the start of this conversation, the following exchange occurred:
Foster: Yo
Shippy: Yeah, I just wanted old boy to know how strict
the thing was between me and you
Foster: Oh I felt it, I felt it
Shippy: Oh you know those customers they will wait
till the last minute when they get to your
door and everything’s backwards
Foster: Yeah yeah why you think I went that route
though?
Shippy: Yeah
Foster: When you said no, I’m down, and I said yeah ok
I got ya
Shippy: Yeah
Foster: I appreciate that hey man do me a favor and go
ahead and get that out there right quick to
somebody and give me a test run back on that
as soon ASAP.
8
Shippy: Ok but I believe it’s gonna be alright but
I’ll go do that now
Id. at 818. Two days later, on January 27, Shippy stated to
Foster during a phone call at 12:18 p.m., “I just wanted to
remind you about the 14 I’m out here.”7 Id. at 820. A
surveillance image was taken of Shippy outside Foster’s building
simultaneously at 12:18 p.m. Shippy departed just minutes later,
at approximately 12:20 or 12:21 p.m. This was the last
interaction between Foster and Shippy presented to the jury.
B.
As a result of the investigation detailed above, on April
7, 2009, Shippy was indicted in the District Court for the
Western District of North Carolina on two counts: (1) conspiracy
to possess with intent to distribute fifty or more grams of
cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1);
and (2) use of a communication facility in causing and
facilitating that conspiracy, in violation of 21 U.S.C. §
843(b). A few months prior, Foster and 14 others had been
indicted on the same two charges for conduct during the same
period of time.
7
Bridget Lee testified that when she said “four and a half”
during her conversations with Foster, she was referring to four
and a half ounces of crack cocaine. J.A. 111. Thus, the jury was
entitled to infer, as the Government urged, that “14” refers to
14 grams, or one half ounce, of crack cocaine.
9
After his arrest, Shippy promptly filed a number of pro se
motions including “motions to compel, to appeal the ‘bond
hearing,’ for dismissal, and to suppress,” despite the fact that
he was represented by counsel. Id. at 16. The motions were all
“summarily denied” on the ground that Shippy must communicate to
the court through his attorney. Id. at 20. Notwithstanding the
admonishment, Shippy again submitted a pro se motion on May 18,
2009, requesting a separate trial from the nine co-defendants
listed on his indictment on the ground that he had “very little
to no acquaintance, relations, or affiliation” with them. Id. at
22. Again the motion was summarily denied.
The next month, the Government moved for a joint trial of
Shippy and the remaining defendants in the earlier Foster
indictment. Shippy’s counsel did not object to a joint trial and
the motion was granted. A joint trial then proceeded for Shippy,
Foster, and Yvonne Marie Fountain, Foster’s girlfriend. See
supra n.2.
At trial, the vast majority of the evidence addressed the
conduct of Foster and Fountain, whose conduct was inarguably the
subject of greater and stronger direct evidence than that of
Shippy. See, e.g., J.A. 322-25 (testimony that a half kilo of
powder cocaine and cash were seized in Foster’s apartment); 492-
94 (testimony that crack cocaine and “around $21,000” in cash
were seized in Fountain’s home). In fact, as Shippy points out,
10
“Agent Daniel Guzzo was the only government witness to mention
Mr. Shippy.” Supp. Appellant’s Br. 6. Guzzo testified that
agents identified Shippy as the user of the (838) 398— phone
number by correlating his arrival in the Altima registered to
his girlfriend and his own Mercedes to calls made from that
number. He further testified, as mentioned above, that
conversations between Shippy and Foster included use of code
words for the sale of crack cocaine.
Under questioning, Agent Guzzo conceded that video
surveillance did not actually indicate which apartment Shippy
entered during any of his visits to Foster’s building, and the
phone number ascribed to Shippy had not been researched as to
its registered user nor did it match the cell phone seized from
Shippy at the time of his arrest. Moreover, Shippy’s home did
not contain any drugs or large amounts of cash at the time it
was searched, and no one involved in the investigation “was
familiar with Mr. Shippy.” J.A. 457.
Shippy elected to testify in his own defense. He averred
that he was not the person whose voice was recorded from the
(838) 398- number. In addition, he explained his presence at
Foster’s building as visits to see Foster socially and invite
him to church events, and to see a Ms. Lytle, a first-floor
resident of Foster’s building, whose kitchen he hoped to
renovate through his home maintenance business. Shippy claimed
11
that he was drug- and alcohol-free (after a prior period of
substance abuse) and had never purchased drugs from Foster who
“had never even come around me with such,” knowing that Shippy
was a recovering addict. Id. at 737. When asked on cross-
examination whether his arrival at Foster’s building only
minutes after a caller from the (838) 398- number indicated he
was right around the corner and would be coming by was “just
coincidence,” Shippy replied, “I don’t know ma’am. I have no
idea.” Id. at 745.
During deliberations, the jury requested the date and time
of audio recordings between Foster and the phone number ascribed
to Shippy, and indicated they were attempting to correlate this
information with the dates for the video images of his presence
at Foster’s building. After a total period of approximately four
hours, the jury returned guilty verdicts for Shippy, Foster, and
Fountain as to the conspiracy offense. Shippy and Foster were
also found guilty of the use of a communication facility
offense. On the verdict sheet, as to the conspiracy count, the
jury made the following specific findings as to Shippy:
As to the charge of conspiracy to possess, with the
intent to distribute, cocaine [base] contained in
Count One of the Bill of Indictment . . .
Guilty
1. Do you unanimously find beyond a reasonable doubt
that the Defendant . . . was personally involved with
12
the possession with intent to distribute of 50 grams
[sic] or more of cocaine base?
No
2. Do you unanimously find beyond a reasonable doubt
that the other members of the conspiracy were involved
with the possession with intent to distribute cocaine
base and that this involvement was either known to the
Defendant or reasonably foreseeable to him and was in
the furtherance of the conspiracy?
Yes.
Id. at 822-23. The final section of the verdict sheet directed
the jury to indicate the amount of cocaine base attributable to
each defendant, from among six choices: less than 50 grams; 50 -
149 grams; 150 - 499 grams; 500 grams – 1.49 kilos; 1.5 kilos –
4.49 kilos; or 4.5 kilos or more. As to Shippy, the jury
indicated the lowest listed amount, “less than 50 grams cocaine
base.” Id. Thus, the jury essentially convicted Shippy of a
lesser included offense as to count one, namely, conspiracy to
distribute cocaine base in an amount less than fifty grams.
C.
In advance of sentencing, a probation officer prepared a
pre-sentence report (PSR). In response to the draft PSR, Shippy
made nine objections, including the following:
[The PSR] should be amended to read that the Defendant
was responsible for at most one-half ounce of crack
cocaine based on the evidence adduced at trial which
equates to 14 grams or at least between 5 and 20 grams
of cocaine base. The proposed amendment would support
a change to the Guideline calculations to make the
Base Offense Level 24.
13
Id. at 874. The final PSR included revisions to address these
objections, ultimately concluding:
[T]he jury determined the defendant is accountable for
less than 50 grams of cocaine base. The investigation
determined the defendant and Kenneth Foster had
telephone conversations consisting of the defendant’s
desire to purchase unknown amounts of crack cocaine.
As such, case agents place the defendant’s
responsibility in the range of at least 5 grams but
less than 20 grams of crack cocaine.
Id. at 853. The Base Offense Level was therefore computed, in
the absence of any applicable adjustments, at 24 for both
counts. Review of Shippy’s criminal history yielded 12 criminal
history points for a criminal history category of V. These
calculations resulted in a guideline term of imprisonment of 92-
115 months.
The PSR further noted, however, that the statutes
applicable at the time provided a mandatory minimum sentence of
ten years imprisonment and eight years of supervised release for
a defendant, like Shippy, who has a prior conviction for a
felony drug offense.8 For the communication facility offense, the
PSR noted a maximum sentence of eight years.
8
The Government had filed an information under 21 U.S.C. §
851 of its intent to seek the enhanced penalty in 21 U.S.C. §
841(b)(1)(B) against Shippy, based on his prior state conviction
for a felony drug offense. As discussed in more detail below,
the mandatory minimum applied to an offense involving 5 or more
grams of cocaine at the time of Shippy’s sentence. In 2010, the
provision was revised and the ten year mandatory minimum
(Continued)
14
At his sentencing hearing, Shippy raised only one
additional substantive objection to the PSR, specifically that
the imposition of an enhanced mandatory minimum sentence of ten
years, under 21 U.S.C. § 841(b), reflected the 100-to-1 cocaine
base/powder cocaine disparity and should be varied downward in
light of that unfairness.9 The Government replied, “[T]he fact is
this is a statutory mandatory minimum. The Court couldn’t vary
from if it chose to. So the statutory – that’s the law right
now, so until it’s changed otherwise, it’s 120 months.” Id. at
829.
The district court found that the statutory minimum was
applicable, as asserted by the probation officer and the
Government, and therefore sentenced Shippy to 120 months’
imprisonment and eight years of supervised release for the
conspiracy charge, and 96 months, to be served concurrently, for
the communication facility charge. Id. at 833. Shippy has timely
appealed.
currently applies to an offense involving 28 or more grams of
crack cocaine. 21 U.S.C. § 841(b)(1)(B)(iii).
9
In making this argument, Shippy’s counsel at one point
inaccurately stated, “[T]he jury determined that he had
possession or responsibility for more than 5 grams of crack
cocaine.” J.A. 828. In fact, the jury’s only finding regarding
quantity was that less than 50 grams of crack cocaine were
attributable to Shippy. Id. at 823.
15
II.
Shippy first argues that the district court erred in
denying his Rule 29 motion for judgment of acquittal for both
charged offenses. Our review of the denial of a motion for
judgment of acquittal is de novo, under longstanding principles,
as we summarized in United States v. Green, 599 F.3d 360, 367
(4th Cir. 2010) (internal quotation marks and citations
omitted):
We review the sufficiency of the evidence to support a
conviction by determining whether there is substantial
evidence in the record, when viewed in the light most
favorable to the government, to support the
conviction. “Substantial evidence” is evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt. Further, a reviewing
court may not assess the credibility of witnesses, but
rather must assume that the jury resolved all
contradictions in testimony in favor of the
Government.
To obtain a conviction for conspiracy to possess with the
intent to distribute cocaine base, the Government must prove the
following essential elements: (1) an agreement between two or
more persons to possess with the intent to distribute cocaine
base; (2) the defendant’s knowledge of the conspiracy; and (3)
the defendant’s knowing and voluntary participation in the
conspiracy. United States v. Yearwood, 518 F.3d 220, 225-26 (4th
Cir. 2008). Once the Government proves the existence of a
conspiracy, the evidence need only establish a “slight
16
connection” between the defendant and the conspiracy to support
the conviction. Green, 599 F.3d at 367. Additionally, a
defendant may be convicted of conspiracy without knowing all of
its details and even if he plays only a minor role, as long as
he enters the conspiracy understanding that it is unlawful and
willfully joins in the plan at least once. Id. at 367-68; United
States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc).
A.
Shippy argues that the Government failed to produce
sufficient evidence of his participation in a conspiracy
because, “[a]lthough a conspiratorial agreement need not be
proved by direct evidence, there was not even substantial
inferential or circumstantial evidence against Mr. Shippy.”
Supp. Appellant’s Br. 11. Shippy emphasizes that he was unknown
to any of the informant co-conspirators who testified at his
trial, he did not have drugs or cash in his home at the time he
was arrested, he was not shown to own or have used the phone
number ascribed to him, and none of the conversations he
allegedly had with Foster involved any quantity of cocaine in
any event. Id. at 14. Shippy makes an alternative argument to
the effect that at most, the evidence showed that he was merely
a buyer of cocaine base for his own personal use and not a
knowing member of a distribution conspiracy.
17
The Government responds by essentially arguing that
Foster’s conduct was robustly proven to comprise drug
trafficking and that Shippy’s calls and visits to Foster’s home
matched the pattern of Foster’s known customers.
Under Burgos, a conspiracy may be adequately proven even
where it has an “elusive quality,” and the defendant has “little
or no knowledge of the entire breadth of the criminal
enterprise.” 94 F.3d at 858. “Circumstantial evidence tending to
prove a conspiracy may consist of a defendant’s ‘relationship
with other members of the conspiracy, the length of this
association, [the defendant’s] attitude [and] conduct, and the
nature of the conspiracy.’” Id. (citing United States v.
Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984)).
We have no hesitation in concluding that the mosaic of
evidence described above was sufficient to permit the jury to
find beyond a reasonable doubt that Shippy was a knowing member
of the Foster drug trafficking conspiracy. The phone calls
attributed to Shippy unmistakably suggest drug trafficking
transactions to the degree that their content is unusually
opaque and seems to involve code words that are consistent with
testimony from known buyers. See, e.g., Supp. J.A. 1 (mention of
a “Q”); id. at 357 (Agent Guzzo’s testimony that a “Q” indicated
a quarter ounce of crack). Shippy’s relatively frequent, brief
visits to Foster’s building during the surveillance period also
18
match the pattern of known buyers observed by investigators.
While Shippy did attest to visiting another resident who lived
in a unit in Foster’s building, the duration of some of his
stops was so short that when coupled with the coded language, it
reasonably supports the inferences drawn by the jury that the
visits involved momentary drug transactions. See, e.g., id. at
384-86, 820 (testimony that Shippy was parked at Foster’s
building, after calling to “remind [him] about the 14,” for two
to three minutes). Whether the evidence demonstrated that Shippy
was carrying on his own entrepreneurial drug sales business with
Foster as his supplier, on the one hand, or was a mere innocent
in the wrong place at the wrong time on the wrong cell phone, on
the other hand, were quintessentially jury questions.
Shippy calls our attention to United States v. Hickman, 626
F.3d 756 (4th Cir. 2010), as an example of a case where direct
evidence of a defendant’s participation in a drug trafficking
conspiracy supported denial of a motion for acquittal. Indeed,
Hickman involved a defendant whose purchase of drugs had been
arranged by fairly explicit phone calls monitored by law
enforcement, and who in fact was found to have a quantity of
heroin in his car when he was eventually stopped and searched.
Id. at 761. Shippy, in contrast, was never observed with any
19
drugs, nor were drugs or cash found in his home.10 But these
obvious differences between the two cases provide no support to
Shippy. The absence of any evidence of seizures of drugs, cash
or paraphernalia from Shippy or Shippy’s residence does not
defeat the Government’s case as a matter of law.
The evidence adduced at trial was essentially that Shippy’s
conduct of contacting and visiting Foster matched the stark
patterns of known customers. Furthermore, corroborating the
inference of a drug purchase purpose for his visits most
strongly are three particular phone calls in which Foster and
Shippy discussed drugs with relative specificity. On December 8,
Shippy discussed purchasing a “Q” (i.e., quarter ounce, or 7
grams, of crack cocaine) from Foster. On December 27, Foster
told Shippy, “you got to check that chicken out too man it cooks
pretty good.” J.A. 804. From this evidence, and testimony from
Agent Guzzo that “Q” and “chicken” both refer to crack, the jury
could reasonably infer that Shippy was involved in a conspiracy
to possess and distribute cocaine base. Approximately one month
later, on January 25, 2009, Shippy also referred to “those
10
We note that Foster was arrested approximately two months
before Shippy, who admitted he knew that Foster had been taken
into custody (although he testified to believing that tax
evasion might have been the cause). There was clearly an
opportunity for Shippy to remove drugs or cash from his
residence if he suspected police might investigate him as an
associate of Foster.
20
customers,” id. at 818, a reference that any reasonable juror
could conclude was an allusion to Shippy’s customers, not to
Shippy himself as a mere customer of Foster.
To summarize, the Government produced evidence at trial
that established Shippy’s movements matched those of Foster’s
crack cocaine buyers, and his conversations indicated discussion
of crack cocaine quantities and arguably his own buyers. While
Shippy denied that he was a participant in those calls, and he
offered the jury innocent explanations for his intermittent
presence at and around the Foster residence, the jury made those
relevant findings against him, as it was authorized to do.11 In
light of the substantial evidence presented at trial, even if
much of it was circumstantial, and deferring as we must to the
jury’s role in judging the weight and credibility of the
testimony, Shippy has not satisfied his burden to make out a
case of evidentiary insufficiency. United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007) (“A defendant challenging the
sufficiency of the evidence faces a heavy burden.”).
B.
11
In addition to its assessment of Shippy’s demeanor on the
stand, the jury also had the benefit of comparing Shippy’s voice
in the recordings to what they heard when he testified.
Tellingly, the jury’s request during deliberations for dates and
times of the recordings, to compare with images of his arrival
at Foster’s building, suggests the jurors’ care and attention to
their responsibilities.
21
Shippy also argues that he is entitled to a judgment of
acquittal as to his conviction for use of a communication
facility in committing, causing, or facilitating commission of a
felony under federal drug trafficking law. 21 U.S.C. § 843(b).
To obtain a conviction for a violation of § 843(b), the
Government must prove that the defendant: (1) used a
communication facility (in this case, a telephone); (2) to
commit, cause, or facilitate the commission of a drug offense;
and (3) did so knowingly and intentionally. Id.
Shippy asserts that the Government failed to provide
sufficient evidence that he did anything more, if he did
anything unlawful at all, than purchase an unspecified amount of
crack cocaine for personal use, which is not a felony, Supp.
Appellant’s Br. 18-19, and which, if true, would not support
conviction on the § 843(b) count. See Abuelhawa v. United
States, ––– U.S. ––––, 129 S. Ct. 2102, 2107 (2009) (holding
that a buyer who uses a telephone to make a misdemeanor drug
purchase does not “facilitate” felony drug distribution because
the term “facilitate” is limited to someone other than a
principal or necessary actor). But Shippy’s reliance on
Abuelhawa is misplaced.
In essence, Shippy argues before us that even if the
Government can show that he purchased crack cocaine from Foster
(ironically, a proposition Shippy vigorously disputed in his own
22
testimony at trial), the evidence failed to prove he was
involved in the distribution of those drugs to anyone else and
in so doing used a telephone. We reject Shippy’s contention.
Taken in the light most favorable to the Government, and
accepting the jury’s factual findings (i.e., that Shippy and
Foster were in fact discussing crack cocaine during their
conversations), the evidence indicates the following specific
purchase amounts:
Date Coded quantity Decoded quantity
December 8, 2008 “a Q” or “a half” ¼ ounce (7 g.)
or
½ ounce (14 g.)
December 27, 2008 “half the whole” ½ ounce (14 g.)
January 27, 2009 “the 14” ½ ounce (14 g.)
Together with the circumstances already described, these
quantities could reasonably be inferred to indicate an intent to
distribute, even if at a relatively small scale.12 It will be
recalled also that Shippy made mention of “those customers.” See
supra pp. 20-21.
In sum, for the same reasons we conclude the Government
adduced evidence sufficient to show Shippy’s knowing
participation in the overall conspiracy, we are satisfied that
the jury did not act irrationally in finding that Shippy
12
Testifying co-conspirator Lee, for example, made weekly
purchases of 128 grams (4.5 ounces) of crack from Foster. Co-
conspirator Renison testified to purchasing 20-60 grams, two or
three times a week.
23
intended to distribute some if not all of the narcotics he
purchased from Foster, and that he used the telephone in the
course of his participation in the conspiracy. The amounts
discussed above are not so small as to preclude, as a matter of
law, a finding of intent to distribute, and circumstantial
evidence concerning Shippy’s use of a telephone to arrange drug
transactions was rationally interpreted by the jury against him.
Accordingly, the district court did not err in denying the
motion for judgment of acquittal as to the communication count.
C.
Shippy next argues that the district court erred in
imposing an enhanced mandatory minimum sentence of ten years’
imprisonment. Under 21 U.S.C. §§ 841(a) and 846, the sentences
for participants in drug conspiracies are set forth in § 841(b),
which “creates a three-part graduated penalty scheme for drug
distribution offenses, premised on the type and quantity of the
drugs involved.” United States v. Brooks, 524 F.3d 549, 557 (4th
Cir. 2008). We held in Brooks that “‘specific threshold drug
quantities must be treated as elements of aggravated drug
trafficking offenses, rather than as mere sentencing factors.’”
Id. (quoting United States v. Promise, 255 F.3d 150, 156 (4th
Cir. 2001) (en banc)).
Under the version of § 841(b) that was in effect both at
the time Shippy committed the conspiracy offense and at
24
sentencing, the threshold quantity of cocaine base required for
a sentence under § 841(b)(1)(B), the section at issue here, was
five grams or more.13 For the statutory minimums of § 841(b) to
apply, the particular threshold drug amount must either be
admitted or found by a jury, beyond a reasonable doubt, to be
reasonably foreseeable to the defendant. Id. at 558.
As previously mentioned, the verdict sheet directed the
jury to indicate the amount of cocaine base attributable to each
defendant from among six choices: less than 50 grams, 50 - 149
grams, 150 - 499 grams, 500 grams – 1.49 kilos, 1.5 kilos – 4.49
kilos, or 4.5 kilos or more. As to Shippy, the jury found the
smallest listed amount, “less than 50 grams of cocaine base.”
Without question, the jury was not offered the opportunity
specifically to find that the amount attributable to Shippy was
“less than five grams.”
Thus, as the Government readily concedes, the district
court erred, United States v. Collins, 415 F.3d 304 (4th Cir.
13
Under that version of § 841(b)(1)(B), defendants
committing covered offenses involving five grams or more of
cocaine base “shall be sentenced to a term of imprisonment which
may not be less than [five] and not more than [forty] years.” 21
U.S.C. § 841(b)(1)(B). If the defendant commits such an offense
after a prior conviction for a felony drug offense has become
final, then the defendant “shall be sentenced to a term of
imprisonment which may not be less than [ten] years and not more
than life imprisonment.” Id. Shippy’s prior conviction thus
rendered him subject to a ten-year minimum mandatory sentence
for any drug amount equal to or more than five grams.
25
2005), and, although Shippy failed to object or to bring the
requirements of Brooks to the attention of the district court,
the error is plain under the applicable standard of review. See
United States v. Olano, 507 U.S. 725, 732 (1993) (successful
plain error review requires a showing that: (1) there was error;
(2) the error was plain; and (3) the error affected defendant’s
substantial rights); Foster, 507 F.3d at 251 (“In this case, the
jury never determined the individualized quantity of crack
attributable to each defendant for the penalty purposes of §
841(b) . . . . Because the jury was not properly instructed
under Collins, the defendants’ jury did not properly determine
the statutory threshold quantity of crack attributable to each
of them. Accordingly, the first two prongs of Olano (error and
plainness) are satisfied.”).
The issue presented is whether the Collins error affected
Shippy’s substantial rights and, if so, whether we should
exercise our discretion to correct the error in that it
“seriously affects the fairness, integrity or public reputation
of judicial proceedings.” United States v. Lynn, 592 F.3d 572,
577 (4th Cir. 2010) (internal quotation marks omitted). We are
satisfied that the district court’s error did not affect
Shippy’s substantial rights.
For reasons similar to those material here, we declined to
notice a Collins error in United States v. Jeffers, 570 F.3d 55726
(4th Cir. 2009). There, we concluded that although the Collins
error affected the defendant’s substantial rights, i.e., he
received a sentence 24 months greater than the otherwise
applicable maximum sentence, we determined that a failure to
correct the error would not affect “the fairness, integrity or
public reputation of judicial proceedings.” Id. at 570. This
conclusion was based on our assessment that “overwhelming
evidence” supported the imposition of the higher sentence. Id.Although in this case the evidence of Shippy’s involvement
with more than five grams of crack cocaine is not properly
described as “overwhelming,” it is, nonetheless, considerably
compelling. Indeed, we have no hesitation in concluding that
there is no reasonable likelihood that the jury would have found
a drug quantity of less than five grams.
The conversations between Shippy and Foster that the jury
determined to be drug-related referenced, as noted above, at
least three transactions that likely involved 7-14 grams of
crack each. Supp. J.A. 1 (referencing a “Q” and “a half”); J.A.
804 (“half of the whole”); id. at 820 (“the 14”). To the degree
that the jury found Shippy guilty of conspiracy, it is logically
necessary to conclude that the jury credited the testimony of
Agent Guzzo that the language used during the phone calls was
code, and that this code indicated drug quantities. The record
plainly indicates that the attributable quantity the district
27
court reached was consistent with (and even potentially more
conservative than) the most likely conclusions of the jury.
Notably, at sentencing Shippy conceded that the proper
quantity of crack attributable to him under the prosecution’s
evidence was 5-20 grams, and he requested application of the
guideline range for that very amount. Supp. Appellant’s Br. 24;
J.A. 874 (objection to the draft PSR noting “the Defendant was
responsible for at most one-half ounce of crack cocaine based on
the evidence adduced at trial which equates to 14 grams
therefore Mr. Shippy should be responsible for no more than 14
grams or at last between 5 and 20 grams of cocaine base”); id.
at 829 (requesting the “actual guideline amount” of
imprisonment). This concession was fully justified by the
evidence.
III.
For the reasons set forth herein, the judgment is
AFFIRMED
28