United States v. Tremain Hamilton , 356 F. App'x 345 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-17026
DECEMBER 14, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-00061-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TREMAIN HAMILTON,
a.k.a. TUN,
a.k.a. TI,
RODRICK SLACK,
a.k.a. RAT,
Defendants-Appellants.
________________________
No. 08-17160
Non-Argument Calendar
________________________
D. C. Docket No. 08-00061-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADRIAN CAWTHON,
a.k.a. Rick,
a.k.a. Little Ricky,
a.k.a. Little Shitty,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(December 14, 2009)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Tremain Hamilton, Rodrick Slack, and Adrian Cawthon were found guilty
by a jury of conspiracy to distribute and to possess with intent to distribute at least
5 kilograms of cocaine and at least 50 grams of cocaine base (crack), in violation
of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(ii)–(iii). According to the evidence
presented at trial, for several years the defendants had operated a drug ring in and
around Milton, Florida, bringing in powder cocaine from out of state and
“cooking” it into crack for local distribution and sale. Of about twenty people
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originally indicted, only Hamilton, Slack, and Cawthon chose to go to trial; the rest
pleaded guilty and most of them testified for the government. Upon conviction
Hamilton received 420 months in prison; Slack got 444 months and a $1,770 fine;
Cawthon, with multiple prior felony drug convictions, got a mandatory life
sentence.
The three defendants raise four separate issues on appeal. Hamilton
challenges his sentence on two grounds: the amount of drugs used to calculate his
offense level under the guidelines, and the two-level enhancement he received for
using a minor. Slack appeals his fine as a violation of his Fifth Amendment right
against self-incrimination. Cawthon challenges the sufficiency of the evidence
supporting his conviction. We affirm Hamilton’s sentence, Slack’s fine, and
Cawthon’s conviction.
I. Amount of Drugs Attributed to Hamilton
Hamilton argues that he should only have been held responsible for 560
grams of crack cocaine, instead of the 4.5 kilograms that the district court
attributed to him at sentencing. Using the lower number would have reduced his
base offense level by four, potentially knocking between 10 and 15 years off the
35-year sentence he received. Hamilton says that the court should have adopted
the findings of the presentence investigation (PSI), which made a conservative
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estimate of 560 grams based on Steven Pinkney’s trial testimony that he had
bought crack in increments of 7 to 14 grams directly from Hamilton on at least a
weekly basis over a twenty-month period. Hamilton notes that no other witness
was able to tie him to a specific quantity of drugs.
The government argues that Hamilton, as a co-conspirator, should also be
held responsible for the much larger quantities of cocaine and crack attributed to
Cawthon and Slack. The district court agreed with the government and found
Hamilton responsible for “significantly beyond” 4.5 kilograms, the threshold for
the highest offense level, based both on his own activities and on his participation
in and knowledge of the conspiracy.
The district court’s determination of drug quantity for sentencing purposes is
reviewed for clear error. United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir.
2000). In order to calculate the base offense level, the court must determine the
quantity of illegal drugs properly attributable to the defendant. United States v.
Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996). If no drugs are seized, or if the
amount seized does not adequately reflect the scale of the offense, the court may
estimate a quantity from evidence of the “average frequency and amount” of the
defendant’s drug sales over time. Id.; see United States Sentencing Guidelines §
2D1.1 cmt. n.12 (Nov. 2009). The defendant’s sentence may be based on “fair,
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accurate, and conservative estimates” of drug quantity, but not on mere
speculation. United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998). It is
the government’s burden to establish the quantity of drugs by a preponderance of
the evidence. United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995).
However, the court may rely on undisputed statements in the PSI. United States v.
Hedges, 175 F.3d 1312, 1315 (11th Cir. 1999).
A member of a drug conspiracy is liable not only for his own acts, but also
for the acts of others “in furtherance of the activity that the defendant agreed to
undertake and that are reasonably foreseeable in connection with that activity.”
United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993). This rule applies
to drug quantity determinations. See U.S.S.G. § 1B1.3(a)(1)(B) & cmt. n.2 (“[T]he
defendant is accountable for all quantities of contraband with which he was
directly involved and . . . all reasonably foreseeable quantities of contraband that
were within the scope of the criminal activity that he jointly undertook.”). In such
cases, the court must make individualized findings as to each defendant’s scope of
involvement, and then determine the drug quantities “reasonably foreseeable” to
that defendant given his level of participation. Ismond, 993 F.3d at 1499. If the
court does not make individualized findings, the sentence may nevertheless be
upheld if the record supports the amount of drugs attributed to the defendant. Id.
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Ample evidence at trial showed that over the several years of its operation
the drug ring handled amounts of crack cocaine well in excess of the 4.5 kilogram
threshold. Christopher Watson testified that he accompanied Cawthon and Slack
on numerous out-of-state trips to buy powder cocaine for sale or conversion into
crack, that they would obtain three or four kilograms each time, and that Hamilton
was one of their regular distributors. Byron Washington testified that on a
“weekly” basis during late 2005 and 2006 he would supply Cawthon’s group with
quantities of cocaine ranging from quarter-kilograms to multiple kilograms. The
Probation Office estimated that the conspirators had collectively cooked and
distributed over 38 kilograms of crack.1 Hamilton did not object to this
calculation, so he is deemed to have admitted it for sentencing purposes. See
United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (“It is the law of this
circuit that a failure to object to allegations of fact in a PSI admits those facts for
sentencing purposes.”).
Five other longtime associates of Hamilton testified that he was heavily
involved in the drug business with Cawthon and Slack, and that the trio worked
together in processing and distributing crack. Three of those witnesses had
1
According to DEA statistics cited in Hamilton’s PSI, powder cocaine retains between
80% and 90% of its weight when “cooked” into crack, depending on the skill of the cook. The
Probation Office assumed that only half the powder purchased by Cawthon and Slack was
converted to crack, and used the more conservative 80% conversion ratio.
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purchased cocaine or crack directly from Hamilton. Katrisa Thomas, who lent her
own kitchen for the group’s “cooking” operations, testified at Hamilton’s
sentencing that he had been involved in the drug trade with Cawthon and Slack
since his school days, and that the three were “always together.” Based on this
evidence, the district court did not clearly err in finding that Hamilton could
reasonably have foreseen that the criminal enterprise he joined would be
responsible for more than 4.5 kilograms of crack cocaine.
II. Hamilton’s Enhancement for Using a Minor
Hamilton also argues that the district court erred when it applied a two-level
sentence enhancement for using a minor to commit the crime. The enhancement
was based on evidence that Hamilton had distributed drugs through a young
co–defendant, Jamel Shields, who turned 18 years old in February 2007 and thus
would have been underage during approximately the first three years of the
conspiracy charged in the indictment.2 Hamilton does not dispute the substance of
his association with Shields, only its timing. He asserts that because the record
does not show exactly when he began distributing crack through the younger man,
2
Shields continued to participate in the conspiracy for more than a year after he turned
18, and he was prosecuted as an adult. He pleaded guilty and was sentenced to 168 months in
prison. United States v. Shields, 329 Fed. Appx. 903 (11th Cir. 2009) (per curiam).
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there was no evidence to support a finding that he did so before February 2007
while Shields was still a minor.
We review for clear error a district court’s factual findings under the
sentencing guidelines. United States v. McClain, 252 F.3d 1279, 1284 (11th Cir.
2001). When a defendant challenges a factual basis of his sentence, the
government must establish the disputed fact by a preponderance of the evidence.
United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997).
The guidelines impose a two-level sentencing enhancement on a defendant
who used or attempted to use a person less than 18 years of age to commit the
offense. U.S.S.G. § 3B1.4; McClain, 252 F.3d at 1285. The phrase “used or
attempted to use” includes “directing, commanding, encouraging, intimidating,
counseling, training, procuring, recruiting, or soliciting.” U.S.S.G. § 3B1.4 cmt.
n.1. We have held that the § 3B1.4 enhancement only applies if the defendant took
some “affirmative step” to involve the minor in the commission of the crime.
United States v. Taber, 497 F.3d 1177, 1181 (11th Cir. 2007) (per curiam).
However, in a joint criminal enterprise, “any defendants who could have
reasonably foreseen the use of a minor . . . are culpable under the plain language of
[U.S.S.G.] sections 3B1.4 and 1B1.3(a)(1)(B).” McClain, 252 F.3d at 1288.
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Evidence from two witnesses established that Shields had been dealing
drugs for the conspirators as early as 2006, when he was still a minor. Avarah
Williams, who testified that Shields sold crack for the group, could only have
observed Shields’ involvement before his own arrest and incarceration in March
2006. Byron Washington likewise testified that before his own imprisonment in
November 2006, he had seen Shields accompanying Cawthon on trips to buy
cocaine from him. Taken together, this evidence supports the conclusion that the
members of the conspiracy used Shields to deal drugs while he was still a minor,
and that this use was foreseeable to Hamilton. The district court did not clearly err
in applying the sentence enhancement.
III. Slack’s Fine
Slack argues that the district court erred by imposing a fine to compensate
the government for some of its costs of prosecution. At sentencing, the
government complained that because Slack had refused to stipulate to lab reports
on the seized drugs, it had been forced to fly in a chemist and keep her on standby
as a potential witness for an entire day of the trial. At the government’s request,
the court fined Slack $1,770 to compensate for this expense. Slack argues that by
imposing the fine, the court unconstitutionally penalized him for exercising his
Fifth Amendment right against self-incrimination. He also argues that because the
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government did not actually need the witness and never called her to testify, it was
error for the court to use this expense as the basis for a fine.
Because Slack did not raise his constitutional argument before the district
court, we review that claim for plain error only. See United States v. Aguillard,
217 F.3d 1319, 1320 (11th Cir. 2000) (sentencing argument raised for first time on
appeal is reviewed for plain error). Plain error exists only where (1) there is an
error; (2) the error is plain or obvious; and (3) the error affects the defendant’s
substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770,
1776 (1993). We have held that “an error cannot meet the ‘plain’ requirement of
the plain error rule if it is not clear under current law.” United States v. Castro,
455 F.3d 1249, 1253 (11th Cir. 2006) (citations and quotation marks omitted).
“When the explicit language of a statute or rule does not specifically resolve an
issue, there can be no plain error where there is no precedent from the Supreme
Court or this Court directly resolving it.” Id. (quotation omitted).
In United States v. Palmer, 809 F.2d 1504, 1507–08 (11th Cir. 1987), we
rejected a defendant’s argument that a federal statute imposing costs of prosecution
on a convicted defendant unconstitutionally burdened his exercise of his right to a
jury trial. We noted that “not every burden on the exercise of a constitutional right,
and not every pressure or encouragement to waive such a right, is invalid.” Id. at
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1507 (quoting Corbitt v. New Jersey, 439 U.S. 212, 218, 99 S. Ct. 492, 497
(1978)). We held that recouping prosecution costs met “legitimate governmental
ends” of recovering government expenses and imposing additional punishment,
and that the statute “achieved these objectives without needlessly chilling the
exercise of constitutional rights.” Id. at 1507–08. In light of Palmer, and because
Slack has failed to present any binding precedent stating that a court may not
consider the costs of prosecution in determining an appropriate fine, we cannot
conclude that the district court plainly erred by imposing a fine to reimburse the
government for the travel expenses of its witness.
Slack also objects to the fine, as he did at sentencing, on the basis that the
government’s expenses were unnecessary because the witness never testified. The
government responded that it needed to have the witness available at trial, and it
incurred travel expenses regardless of whether she actually testified.
A district court’s determination of an appropriate fine is reviewed for clear
error. United States v. Lombardo, 35 F.3d 526, 527 (11th Cir. 1994) (per curiam).
The sentencing guidelines require the imposition of a fine in all cases, unless the
defendant establishes that he is currently unable to pay a fine and is not likely to
become able to pay one in the future. U.S.S.G. § 5E1.2(a). In determining the
amount of the fine, the sentencing court must consider the following factors: (1)
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the need to reflect the seriousness of the offense, promote respect for the law, and
provide just punishment and adequate deterrence; (2) the defendant’s ability to pay
in light of earning capacity and financial resources; (3) the burden on the defendant
and his dependents; (4) whether restitution is ordered; (5) collateral consequences
of conviction, including the defendant’s civil obligations; (6) previous fines for
similar offenses; (7) the government’s expected costs for imprisonment and
supervision; and (8) “any other pertinent equitable considerations.” U.S.S.G. §
5E1.2(d).
For Slack’s offense, the guidelines recommended a minimum fine of
$25,000, U.S.S.G. § 5E1.2(c), and the statute allowed a maximum fine of $4
million, 21 U.S.C. § 841(b)(1)(A). The district court adopted the PSI’s finding that
although Slack could not pay a fine in that range, he did have the ability to pay a
“modest” fine. Slack did not object to the PSI’s finding, so he has admitted it for
sentencing purposes. See Wade, 458 F.3d 1277. Because the $1,770 fine was well
below the recommended guidelines range and was not excessive in relation to
Slack’s ability to pay, the district court did not clearly err in determining it.
IV. Sufficiency of Evidence for Cawthon’s Conviction
Cawthon argues that the government failed to prove beyond a reasonable
doubt that he was involved in a conspiracy to distribute or possess with intent to
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distribute controlled substances. He contends that no direct evidence linked him to
the conspiracy, because the government never made a controlled buy directly from
him and never found any cocaine or crack in his possession. Cawthon also notes
that he was in custody for two thirds of the time frame specified in the indictment
for the conspiracy, and that the witnesses who testified to his own involvement did
not give exact dates. Furthermore, nearly all of the evidence against him came
from convicted felons testifying as part of plea deals and hoping to limit or reduce
their own sentences. For all of these reasons, he says, the evidence was
insufficient to prove his guilt.
We review a sufficiency challenge de novo, viewing the evidence in the light
most favorable to the government. United States v. Wright, 392 F.3d 1269, 1273
(11th Cir. 2004). We draw all reasonable inferences in the government’s favor,
and accept credibility choices made by the factfinder. Id. We must affirm a
conviction unless there is no reasonable construction of the evidence under which
the jury could have found the defendant guilty beyond a reasonable doubt. United
States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005).
An “unbroken stream of precedent” in this Circuit holds that “the
uncorroborated testimony of a co-conspirator or accomplice is sufficient to prove
guilt beyond a reasonable doubt.” Craig v. Singletary, 127 F.3d 1030, 1044–45
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(11th Cir. 1997) (citing cases). Determinations of the credibility of witnesses fall
within the exclusive province of the jury, and may not be revisited unless the
testimony is “incredible as a matter of law.” United States v. Calderon, 127 F.3d
1314, 1325 (11th Cir. 1997). For testimony to be incredible as a matter of law, it
must be “unbelievable on its face,” consisting of events that the witness could not
possibly have observed or that “could not have occurred under the laws of nature.”
Id. (internal quotation marks and citation omitted). Self-serving motives do not
make a witness’s testimony incredible. See id. A judgment of acquittal is not
required simply because the government’s case relies on “an array of scoundrels,
liars and brigands.” United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985)
(internal quotation marks and citation omitted).
To convict Cawthon under 21 U.S.C. § 841(a)(1), the government had to
prove beyond a reasonable doubt that he (1) knowingly (2) possessed cocaine and
crack (3) with the intent to distribute it. See United States v. Faust, 456 F.3d 1342,
1345 (11th Cir. 2006). To convict him of conspiracy under 21 U.S.C. § 846, the
government had to establish beyond a reasonable doubt that (1) an illegal
agreement existed; (2) Cawthon knew of it; and (3) Cawthon knowingly and
voluntarily participated in the agreement. See United States v. McDowell, 250
F.3d 1354, 1365 (11th Cir. 2001). Direct evidence is not required to prove
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participation in a conspiracy; a “common purpose and plan” may be inferred from
circumstances. Id. Knowing participation may be established through proof of
“acts committed by the defendant which furthered the purpose of the conspiracy.”
United States v. Bain, 736 F.2d 1480, 1485 (11th Cir. 1984).
Numerous witnesses testified to the purchase, processing, distribution, and
sale of multiple kilograms of cocaine and crack by Cawthon and his co-defendants.
Several of them directly observed Cawthon himself engaging in these activities.
Cawthon was out of jail for about a year and a half of the period charged in the
indictment for the conspiracy, and nothing suggests that the witnesses could not
have observed him during this time. The first thing the jury heard from each of
these witnesses was their admissions that they themselves had been convicted of
drug crimes and hoped that their testimony would earn them a reduced sentence.
Their testimony was not “incredible as a matter of law,” and the jury chose to
believe it. Furthermore, not all of the evidence against Cawthon came from
accomplices. A Texas police officer testified that during a traffic stop he had
found Cawthon, Slack, and Christopher Watson with a loaded gun and over
$62,000 in cash in their car, corroborating Watson’s testimony that they were on
their way to Dallas to buy a large quantity of cocaine. Given all of this evidence, a
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rational trier of fact could have found beyond a reasonable doubt that Cawthon
participated in the conspiracy for which he was convicted.
AFFIRMED.
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