United States v. Bolden , 23 F. App'x 900 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 21 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6434
(D.C. No. 99-CR-59-A)
ALBERT EARL BOLDEN, JR., (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY , ANDERSON , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Albert Earl Bolden, Jr. was indicted and convicted on eight
counts, including one count of conspiracy to distribute cocaine base (crack
cocaine), 21 U.S.C. § 846, one count of maintaining a place for the purpose of
distributing crack cocaine, 21 U.S.C. § 856(a)(1), four counts of distributing
crack cocaine, 21 U.S.C. § 841(a)(1), one count of being a felon in possession of
a firearm, 18 U.S.C. § 922(g)(1), and one count of aiding and abetting the
distribution of crack cocaine, 18 U.S.C. § 841(a)(1), 18 U.S.C. § 2. He was
sentenced to 360 months in prison to be followed by six years of supervised
release. On appeal, defendant complains that there was insufficient evidence to
support his conviction, and that the district court erred in its drug quantity
calculation and in its finding of obstruction of justice in determining his sentence
under the United States Sentencing Guidelines. We have jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
I. Background
In 1996, the FBI began a long-term investigation of crack cocaine sales
in the Elk City and Clinton, Oklahoma, areas. By August of 1998, the FBI
began to focus the investigation on two individuals thought to be dealing in
crack cocaine–the defendant and Gary Bolden, defendant’s brother. Based on
information acquired by several crack cocaine users, the FBI and local authorities
executed a search warrant at defendant’s residence. Neither defendant nor his
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wife were in the residence, but the police found crack cocaine, a .380 automatic
pistol and ammunition, and what they thought to be a drug ledger, containing
the names of known and suspected crack cocaine users linked to varying
amounts of money.
At that time, the police already had obtained evidence from a controlled
buy of crack cocaine from defendant on August 31, 1998, but to develop
the strength of its case, the FBI decided to set up more controlled buys
from defendant and his brother. The FBI ultimately convinced defendant’s
brother-in-law to make two controlled buys, which were done in January and
February of 1999.
Based on evidence obtained against him, defendant’s brother Gary also
agreed to participate as an informant for the FBI, making controlled buys from
other suspected dealers in the area. When asked to make a controlled buy from
defendant, Gary Bolden initially agreed but ultimately told his brother about the
undercover operation against him. This led to the end of the investigation as well
as to several arrests.
At trial, the government put on numerous witnesses, including crack
cocaine users who bought routinely from defendant, as well as those who bought
crack cocaine while being monitored. At the end of the government’s case,
defendant made a motion for judgment of acquittal, which was denied. Both
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defendant and his wife took the stand, where they denied knowing several of the
witnesses and denied knowledge of any criminal wrongdoing whatsoever. The
jury returned guilty verdicts on all counts.
At three separate sentencing hearings, defendant lodged a number of
objections to the pre-sentence report. Following those hearings, the government
urged the court to attribute 840.0679 grams of crack cocaine to defendant for
purposes of the drug quantity computation under the Sentencing Guidelines.
In his sentencing memorandum, defendant argued that, based on the evidence at
trial, the amount of crack cocaine attributed to him should instead be 385.1631
grams. 1 The district court agreed with defendant and adopted a drug quantity
calculation of 380.88 grams, dropping defendant’s base offense level from
36 to 34. The district court then increased defendant’s base offense by two levels
each for obstruction of justice and possession of a firearm. Defendant now
appeals, arguing his guilty verdict is not supported by sufficient evidence and
that the district court erred in overruling his objections concerning the court’s
drug computation and its obstruction of justice sentence enhancement.
1
In the alternative, the defendant argued that no amounts of crack cocaine
should be attributed to him based on Apprendi v. New Jersey, 530 U.S. 466(2000). That argument has been dropped in this appeal.
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II. Sufficiency of the Evidence
We review de novo the district court’s ruling on a motion for judgment of
acquittal and the sufficiency of the evidence to support the judgment. United
States v. McKissick , 204 F.3d 1282, 1289 (10th Cir. 2000). We inquire “‘only
whether taking the evidence – both direct and circumstantial, together with the
reasonable inferences to be drawn therefrom – in the light most favorable to the
government, a reasonable jury could find the defendant guilty beyond a
reasonable doubt.’” Id. (quoting United States v. Hanzlicek , 187 F.3d 1228, 1239
(10th Cir. 1999)). The scope of our review is limited; we “‘may neither weigh
conflicting evidence nor consider the credibility of witnesses.’” Id. (quoting
United States v. Pappert , 112 F.3d 1073, 1077 (10th Cir. 1997)). “Defendants
challenging a conviction on sufficiency of the evidence grounds face a difficult
standard of review as we reverse only if no rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States v.
Spring , 80 F.3d 1450, 1459 (10th Cir. 1996) (further quotations and internal
citation omitted).
In addition to the physical evidence of crack cocaine and paraphernalia
produced from the search of defendant’s residence, the government also produced
taped audio evidence of three controlled buys of crack cocaine from defendant, all
witnessed under standard procedures by law enforcement authorities who testified
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as to their roles in the undercover work. The government also produced fourteen
other witnesses, all of whom testified as to either buying crack or helping
defendant sell crack cocaine, often on numerous occasions, either in the street or
in his place of residence. Likewise, the government produced a firearm found
during the search of defendant’s chest of drawers. Although defendant denied
any knowledge of the weapon, one witness testified that he traded a .380 handgun,
which he specifically identified as the handgun in evidence, to defendant for
crack cocaine. Another witness testified she had seen defendant with a pistol on
numerous occasions, and that she had personally traded other guns to defendant
for crack cocaine.
As to the conspiracy charge, defendant argues that there was insufficient
evidence of any agreement between himself and others to distribute crack cocaine.
However, several witnesses, including defendant’s brother, testified that on many
occasions defendant would give the drug to them with the express or implied
understanding that it be further distributed. Usually, according to these
witnesses, this was done in exchange for cash or crack itself.
Given their personal circumstances, these witnesses and their testimony
could certainly be eyed with some degree of caution by the jury. And, indeed, the
record reflects defense counsel spent a great deal of time on cross-examination,
as he does on appeal, pointing out their defects in character and possible bias.
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Nevertheless, as we have frequently stated, credibility determinations in these
cases are not the province of this court, but rather are “the exclusive task of the
fact trier.” United States v. Youngpeter , 986 F.2d 349, 352-53 (10th Cir. 1993).
We therefore conclude, after a thorough review of the record, that the evidence
was sufficient for any rational trier of fact to find the defendant guilty beyond
a reasonable doubt on each of the eight counts.
III. Sentencing
Defendant first argues that the district court erred when it calculated
amounts of crack cocaine attributable to him for purposes of sentencing. This
argument is without merit. After a lengthy discussion at the June 1, 2000
sentencing hearing regarding evidence of drug amounts, defense counsel was
directed to prepare a sentencing memorandum demonstrating drug amounts
properly attributable to defendant based on the testimony at trial. In that
memorandum, defendant vehemently argued against being placed at a base
offense level of 36, founded on the drug quantity calculation urged by the
government of 840.0679 grams of crack cocaine. Instead, defendant argued that
his offense level should be 34, based on the attribution to him of 385.1631 grams
of crack cocaine. This concession was tied to specific witness testimony,
including that of defendant’s brother, Gary, and was based on substantial
evidence in the record.
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The district court subsequently directed the probation officer to amend the
pre-sentence report to reflect a quantity of crack cocaine based on the court’s own
findings of fact, including what defendant himself believed to be the proper
amount. Indeed, the district court ultimately attributed an amount of cocaine
slightly less than the defendant argued was properly tied to himself. To argue
now, as defendant does on appeal, that the amount he attributed to himself and
urged upon the district court is inaccurate and leads to reversible error is
disingenuous. See United States v. Johnson , 183 F.3d 1175, 1178-79 n.2
(10th Cir. 1999) (party may not induce action by a court and later seek reversal
saying the requested action was error). Therefore, we find no error in the district
court’s calculation of the amount of crack cocaine attributable to defendant.
Next, defendant argues the district court erred in enhancing his sentence by
two base levels for obstruction of justice pursuant to United States Sentencing
Guidelines Manual § 3C1.1. Defendant cites a number of cases, essentially
arguing that the district court failed to follow the proper procedure in applying
that section.
In sentencing appeals, “[w]e review the district court’s factual findings
under the clearly erroneous standard and review its applications of the Sentencing
Guidelines de novo.” United States v. Roberts , 185 F.3d 1125, 1144 (10th Cir.
1999). “In order to apply the § 3C1.1 enhancement, it is well settled that
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a sentencing court must make a specific finding – that is, one which is
independent of the jury verdict – that the defendant has perjured [himself].”
United States v. Massey , 48 F.3d 1560, 1573 (10th Cir. 1995) (citing United
States v. Dunnigan , 507 U.S. 87, 95 (1993)). While it is a requirement in this
circuit that the perjurious statement be specifically identified or described,
see id. at 1573-74, the Supreme Court in Dunnigan instructs us that a district
court’s determination of enhancement is sufficient if “the court makes a finding
of an obstruction of, or impediment to, justice that encompasses all of the factual
predicates for a finding of perjury.” Dunnigan , 507 U.S. at 95. Thus, we have
stated that “once the perjurious testimony is identified, Dunnigan then permits
fairly conclusory findings that such testimony was false, material, and given with
intent to commit perjury and we are able to meaningfully review those findings
against the record.” Massey , 48 F.3d at 1574.
In this case the district court stated:
Counsel also objected to the two-level enhancement for obstruction
of justice. . . . Testimony on a material matter which is known to be
false and is not the result of some kind of mistake, bad memory, slip
of the lip, or inadvertence is the kind of perjury that will cause an
adjustment under the guidelines. The Court found that is what
happened in this case and overruled the objection. The Court noted
Mr. Bolden’s testimony denying any drug transactions is perjurious
under that test. The Court in applying knowledge of the ways of the
world and the application of common sense looked at the testimony
denying knowledge that the weapon in this case was in the underwear
drawer; that his wife put it there; or that Mr. Bolden was unaware the
gun was there. The Court found the testimony too preposterous for
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belief at least by a preponderance of the evidence. The Court found
the same for the ammunition hanging in the bedroom.
Aplt. App., at 109-10. These findings satisfy us that the district court applied the
Sentencing Guidelines appropriately under the legal standards of this circuit.
Given the ample evidence we have read in the record against defendant, all of
which was denied under oath, we conclude that the district court’s findings of
obstruction of justice were not clearly erroneous.
The judgment of the United States District Court for the Western District
of Oklahoma is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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