United States v. Jimmie Lee Crews , 392 F. App'x 807 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16023 ELEVENTH CIRCUIT
AUGUST 17, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00462-CR-T-24-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMIE LEE CREWS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 17, 2010)
Before PRYOR, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Jimmie Lee Crews appeals from his conviction and 210-month sentence
imposed after a jury found him guilty of three counts of distributing a detectable
amount of cocaine base. He argues that his conviction should be reversed because
the district court erroneously denied his request for a mistrial based on a statement
made in the government’s closing argument. He also challenges his sentence,
arguing that the district court’s consideration of acquitted conduct violated his
Fifth and Sixth Amendment rights and that his sentence was erroneously enhanced
for obstruction of justice and possession of a firearm. After thorough review and
consideration of the parties’ briefs, we affirm.
I.
In the spring of 2008, the Polk County Florida Sheriff’s Office made a series
of undercover drug purchases from Jimmie Lee Crews. On April 24, 2008, an
undercover detective and a confidential informant met Crews at a home in Lake
Hamilton, Florida. The detective purchased $60 worth of crack cocaine from
Crews, who retrieved 0.52 grams of crack cocaine from his right shoe and handed
it to another individual to deliver to the detective. About a week later, on April 30,
2008, the detective again contacted Crews seeking to purchase crack cocaine. This
time, she met Crews at his apartment, where he was observed sitting at a table with
a scale and what appeared to be crack cocaine. Crews sold the detective 1.07
grams of crack cocaine for $100. And finally, on May 29, 2008, the detective
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called Crews to arrange a third purchase. This time she met Crews at a gas station,
where Crews exchanged 2.7 grams of crack cocaine for $200.
Law enforcement officers then executed a search warrant at Crews’s
apartment. At the time, Crews was observed walking outside the apartment and
was ordered to the ground. In complying, he dropped a set of keys, which were
used to open the back door to his apartment. In the process of executing the
warrant, officers detected a strong odor of marijuana coming from a vehicle parked
outside. Again using the keys obtained from Crews, they opened the trunk. Inside,
officers found bags containing 755.5 grams of marijuana, 189.0 grams of crack
cocaine, 1,614.2 grams of cocaine, digital scales, a cutting agent, and a license
plate registered to Crews. In the backyard, officers found a white sock containing
a loaded .38 caliber revolver stuffed in the crook of a tree and, a few feet away, a
cooler containing 12 rounds of ammunition similar to the rounds in the loaded gun.
In Crews’s kitchen, they found a holster fitting the gun retrieved outside and a lid
fitting the digital scale found in the trunk of the car.
Crews was charged in a six-count indictment. Based on the three sales to the
undercover detective, Counts One through Three charged Crews with distributing a
detectable amount of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C), and 18 U.S.C. § 2. The remaining three counts related to the drugs
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found in the trunk of the car outside Crews’s apartment and charged him with
possessing with intent to distribute at least 50 grams of cocaine base, 500 grams of
cocaine, and marijuana, all in violation of §§ 841(a)(1) and (b)(1).
Crews pleaded not guilty and trial was set for February 2009. On February
24, 2009, however, Crews filed a sealed motion for competency examination,
which a magistrate judge granted. He was then evaluated by a court-appointed
psychiatrist, Dr. Donald Taylor. In his report to the court, Dr. Taylor noted that it
was “possible that [Crews was] exaggerating his cognitive impairment in the hope
that it will diminish his level of criminal responsibility.” Nevertheless, Dr. Taylor
ultimately concluded that Crews was incompetent to stand trial because he was
impaired in “his ability to understand the nature and consequences of the charges
and proceedings against him and to consult with his attorney with a reasonable
degree of rational understanding.” Dr. Taylor also concluded, however, that Crews
was a candidate for further evaluation and that he could likely become competent
in one to three months with treatment.
After his first report, Dr. Taylor was provided several recorded telephone
calls Crews made from the county jail. Those recordings caused Dr. Taylor to
revisit his initial conclusions regarding Crews and he submitted an amended
evaluation to the court. In it, Dr. Taylor observed that Crews expressed intellectual
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functioning “in the low average to average range.” He also observed that Crews
referred to reading and writing letters, despite reporting at the previous
examination that he could not read. He observed that Crews “was aware of [his]
upcoming psychiatric evaluation” and that Crews “made statements indicating that
he wanted to ‘win the evaluation’” because that meant “‘[t]hey can’t say I knew
what I was doing, like I’m basically retarded,’” adding that “‘[t]he jury can’t do
nothing to you.’” He also observed that Crews said: “‘Once they put down that
you’re crazy they can’t never say you changed’” and that “‘[t]hey can’t hold me
accountable for nothing I did.’” From this, Dr. Taylor concluded that Crews
“feigned cognitive impairment and ignorance of his charges and the legal process”
at the time of his initial evaluation and that it was “probable that [Crews] is
competent to stand trial.” Noting Dr. Taylor’s conclusion that Crews had feigned
cognitive impairment in an effort to avoid trial, the magistrate judge agreed with
Dr. Taylor’s assessment and declared him competent to stand trial.1
Crews was then tried before a jury. The government presented its case and
Crews elected not to testify or put on any evidence in his defense. The district
court then instructed the jury prior to closing arguments and included the following
instruction regarding Crews’s decision not to testify or put on evidence:
1
At a status conference regarding Crews’s competency, Crews’s counsel stated that she
was “somewhat surprised by Dr. Taylor’s initial report, and obviously we now know why.”
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It will be your duty to decide whether the Government has proven
beyond a reasonable doubt the specific facts necessary to find the
defendant guilty of the crimes charged in the Indictment.
* * *
[E]very defendant is presumed by the law to be innocent. The law
does not require a defendant to prove innocence or to produce any
evidence at all; and if a defendant elects not to testify, you cannot
consider that in any way in your deliberations. The Government has
the burden of proving a defendant guilty beyond a reasonable doubt,
and if it fails to do so you must find the defendant not guilty.
The jury then heard closing arguments. In her closing, Crews’s lawyer
reiterated that the law did not require the defense to put on any evidence. She
concluded her argument by stating: “Now, I don't get to, uh, get back up here and
talk to you, but what I would like you to do is listen to [counsel for the
government], but I would like you to keep in mind, what would [I (Crews’s
lawyer)] say in rebuttal to that?” The government then gave its rebuttal argument.
It opened by stating: “Ladies and gentlemen, there is no question that Jimmie Lee
Crews was a distributer of drugs, specifically cocaine. There’s no rebuttal, uh, no
other evidence to suggest otherwise for the first three buys.”
Crews objected and moved for a mistrial, arguing that the government’s
statement that there was “no rebuttal” was an impermissible comment on his right
to remain silent and not to present evidence in his defense. The district court
observed that the government’s argument “could be construed [as referring] to
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what you [Crews’s lawyer] said in your closing argument.” The government
confirmed that was its intent, but acknowledged that it had been a “[b]ad choice of
words.” The district court denied the motion for mistrial. It granted Crews’s
request for a cautionary instruction, however, admonishing jurors that they should
“keep in mind the Government has the burden of proof in this case and the
defendant does not have any burden of proof.”2 The government reiterated this
point in its summation:
We have the burden of proof beyond a reasonable doubt. It never
leaves us. It is our burden. But we’re confident, ladies and
gentlemen, and hope you agree with us, that we have, in fact, met that
burden with compelling, solid, direct and circumstantial evidence.
After about an hour-and-a-half of deliberation, the jury found Crews guilty on
Counts One through Three (relating to the three hand-to-hand sales to the
undercover detective) but acquitted him on Counts Four through Six, which related
to the drugs found outside the apartment.
The United States Probation Office then prepared its presentence report
(“PSR”). Probation found Crews culpable for both the crack cocaine Crews sold to
the detective and for the drugs found outside. As a result, Probation determined
that Crews was culpable for a total of 288.195 grams of crack cocaine, 1,647.3
grams of powder cocaine, and 1,236.1 grams of marijuana. Probation also
2
Crews did not object to the adequacy of the cautionary instruction.
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determined that Crews was responsible for the gun found in the back yard, noting
that the holster found in Crews’s kitchen fit the gun and that the firearm was found
in close proximity to a large quantity of drugs hidden in the car outside. Based on
the drug quantities involved and, applying a two-level enhancement for possession
of a firearm, Probation determined that Crews’s base offense level was 34. With a
Criminal History Category of VI, Crews’s recommended guidelines range was 262
to 237 months.
At sentencing, Crews objected to the two-level enhancement for possession
of a firearm and to consideration of the drugs found outside Crews’s apartment
because he had been acquitted of charges relating to those drugs. Probation also
informed the court that the day before, outside of the time for filing objections to
the PSR, the government had objected to its failure to include an enhancement for
obstruction of justice based on Crews’s feigned mental incompetency. Because the
government’s objection was not timely, the district court offered to continue the
sentencing hearing so that Crews’s counsel could prepare to address the issue.
Although she objected to the government’s late objection, Crews’s counsel
declined the district court’s offer of a continuance and indicated that she was
prepared to address the issue.
After hearing from the parties, the district court sustained the government’s
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objection and applied a two-level enhancement for obstruction of justice under
U.S.S.G. § 3C1.1. Based on Dr. Taylor’s reports, the district court found that it
was “clear that Mr. Crews thought he was gaming the system,” that, although he
may have some mental issues, “he certainly had enough knowledge to know that he
was trying to game the system and get himself in a situation where the United
States could not prosecute this crime,” and that this resulted in several
continuances.
The district court overruled Crews’s objections to consideration of acquitted
conduct and the application of the firearm enhancement. Regarding the acquitted
conduct, the district court observed that “having listened to the evidence at trial,
[it] was very surprised at the not guilty verdict,” and found by a preponderance of
the evidence that Crews possessed the drugs discovered in the trunk of the car.
The district court likewise found Crews responsible for the gun found outside.
Noting its proximity to the drugs discovered outside the apartment and the
matching holster located in Crews’s kitchen, the district court found that it was not
unlikely that the firearm was related to the offense and therefore a two-level
enhancement under § 2D1.1(b)(1) was appropriate.
After resolving the objections to the PSR, Crews’s adjusted guidelines range
would have been 324 to 360 months. The district court, however, varied
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downward using a one-to-one ratio of crack to powder cocaine. This resulted in an
advisory guidelines range of 168 to 210 months in prison. Considering the § 3553
factors, the district court sentenced Crews at the top-end of the guidelines range.
According to the district court, it selected this sentence because Crews’s criminal
history was “just awful,” beginning at an early age, containing numerous similar
offenses, and reflecting a pattern that Crews resumes selling drugs as soon as he is
released from prison. This appeal followed.
II.
Crews argues that his conviction should be reversed because the district
court erroneously denied his motion for mistrial based on the government’s
statement in closing argument that there was no “rebuttal” to its case. According
to Crews, this statement shifted the burden of proving his innocence to him and
was an impermissible comment on his decision not to testify in his own defense.
Because the district court “is in the best position to evaluate the prejudicial
effect of a statement,” we review a district court’s decision to deny a motion for
mistrial for abuse of discretion. United States v. Newsome, 475 F.3d 1221, 1227
(11th Cir. 2007). “A mistrial should be granted if the defendant’s substantial rights
are prejudicially affected. This occurs when there is a reasonable probability that,
but for the remarks, the outcome of the trial would have been different.” Id.
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“As part of its obligation to prove guilt beyond a reasonable doubt, the
prosecution may not make comments that would shift the burden of proof to the
defendant.” United States v. Bernal-Benitez, 594 F.3d 1303, 1315 (11th Cir.
2010); see also United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992)
(“[P]rosecutors must refrain from making burden-shifting arguments which
suggest that the defendant has an obligation to produce any evidence or to prove
innocence.”). Likewise, the Fifth Amendment prohibits the government from
commenting directly or indirectly on a defendant’s failure to testify. Isaacs v.
Head, 300 F.3d 1232, 1270 (11th Cir. 2002). We have explained that
[a] prosecutor’s statement violates the defendant’s right to remain
silent if either (1) the statement was manifestly intended to be a
comment on the defendant's failure to testify; or (2) the statement was
of such a character that a jury would naturally and necessarily take it
to be a comment on the failure of the accused to testify. The question
is not whether the jury possibly or even probably would view the
remark in this manner, but whether the jury necessarily would have
done so. The defendant bears the burden of establishing the existence
of one of the two criteria. The comment must be examined in context,
in order to evaluate the prosecutor’s motive and to discern the impact
of the statement.
United States v. Knowles, 66 F.3d 1146, 1162-63 (11th Cir. 1995) (quotations and
footnotes omitted).
We readily conclude that the district court did not abuse its discretion in
denying Crews’s motion for a mistrial. As an initial matter, it is not clear that the
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government’s comment was improper. Crews’s counsel asked jurors in her closing
argument to consider what she would “say in rebuttal” to the government’s closing
argument. As the district court pointed out, the government’s statement could
reasonably be interpreted as a direct response to the argument by Crews’s counsel
that the jury should ask itself what she, as Crews’s lawyer, would say if given an
opportunity to rebut the government’s closing argument. Given that the
government confirmed that this was its intent and that this interpretation of the
government’s statement was reasonable in the context in which it was made, the
comment was not one that would necessarily be understood as a reference to the
defendant’s failure to testify. The prosecution’s comment therefore did not violate
Crews’s rights not to testify in his defense.3
Moreover, even if the comment were improper, we have repeatedly
explained that improper remarks by the prosecution may be cured by an instruction
from the district court. See, e.g., United States v. Lopez, 590 F.3d 1238, 1256
(11th Cir. 2009); Newsome, 475 F.3d at 1227. Immediately after the prosecutor’s
statement, the district court instructed the jury that the prosecution has the burden
3
We note that the jury acquitted Crews on three of the counts, a result that was
“surprising” to the district court in light of the substantial evidence of his guilt presented at trial.
We think it obvious that the jury considered the evidence before it and held the government to its
burden of proof. The impact of the statement, if there was any, was negligible and Crews cannot
establish that the result of his trial would have been different absent the comment by the
prosecution.
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of proof, a point the government reiterated at the conclusion of its closing
argument. The district court’s curative instruction was more than sufficient to
remedy the prosecutor’s statement. That being so, the district court did not err,
much less abuse its discretion, in denying Crews’s motion for mistrial.
III.
Crews raises three challenges to his sentence. First, he challenges the
district court’s consideration of acquitted conduct in calculating drug quantities for
purposes of sentencing. Second, he argues that the district court improperly
enhanced his sentence for obstruction of justice. And third, he complains that the
district court improperly enhanced his sentence for possessing the firearm found in
the tree outside his apartment. We address each of these challenges in turn.
A.
Crews argues that the district court improperly attributed the drugs found
outside his apartment to him, despite the fact that he was acquitted by the jury on
charges relating to those drugs. He argues that such consideration of acquitted
conduct at sentencing violates his Fifth and Sixth Amendment rights.
We acknowledge Crews’s impassioned plea regarding the consideration of
acquitted conduct at sentencing, and we recognize that reasonable minds can and
do differ as to the constitutionality of the practice. See, e.g., United States v. Faust,
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456 F.3d 1342, 1349–53 (11th Cir. 2006) (Barkett, J., specially concurring). As
Crews concedes, however, binding precedent in this Circuit allows district courts
to consider acquitted conduct in sentencing, so long as the government proves the
conduct in question by a preponderance of the evidence and the sentence imposed
does not exceed what is authorized by the jury’s verdict.4 See, e.g., United States
v. Culver, 598 F.3d 740, 752–53 (11th Cir. 2010); Faust, 456 F.3d at 1347–48;
United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005). These decisions
have not been overruled by an en banc decision of this Court or the Supreme Court
of the United States and we are not free to disregard them. See United States v.
Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (“We may disregard the holding of a
prior opinion only where that holding is overruled by the Court sitting en banc or
by the Supreme Court. To constitute an ‘overruling’ for the purposes of this prior
panel precedent rule, the Supreme Court decision must be clearly on point.”
(citation and quotations omitted)). The district court did not err in considering
conduct for which Crews was acquitted in determining his sentence.
B.
Crews contends that the district court erroneously applied a two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Crews raises two
4
Crews does not assert that the government failed to satisfy its burden of proof or that
the sentence imposed exceeds the sentence authorized by the jury’s verdict.
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arguments. First, he argues that the government’s objection was untimely.
Second, Crews claims that the enhancement was unwarranted on the facts of this
case because it improperly punishes him for exercising his right to an examination
when there were bona fide concerns about his competency.
We review a district court’s decision to consider untimely objections to the
PSR for abuse of discretion. See United States v. Edouard, 485 F.3d 1324, 1351
(11th Cir. 2007). We review a district court’s factual findings for clear error and
the application of an obstruction of justice enhancement based on those facts de
novo. United States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006).
The district court did not abuse its discretion in entertaining the
government’s untimely objection to the PSR’s failure to include an obstruction of
justice enhancement. The district court acknowledged that the objection was
untimely and repeatedly offered to continue the sentencing hearing to afford Crews
an opportunity to prepare to address this issue. Yet counsel for Crews declined
each of these offers, explaining that she was prepared to go ahead with sentencing,
and argued the point at length. On appeal, Crews does not claim that he suffered
any prejudice as a result of the untimely objection. On this record, we decline to
find the district court’s decision to entertain the government’s objection an abuse
of discretion.
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Nor did the district court err by applying a two-level enhancement for
obstruction of justice. Section 3C1.1 of the sentencing guidelines provides for a
two-level enhancement if “the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction,” and
“the obstructive conduct related to . . . the defendant's offense of conviction and
any relevant conduct.” U.S.S.G. § 3C1.1. The enhancement “is not intended to
punish a defendant for the exercise of a constitutional right.” Id. cmt. n.2.
When a bona fide doubt exists as to the defendant’s competence to stand
trial, the defendant has a constitutional right to seek a competency hearing. Zapata
v. Estelle, 588 F.2d 1017, 1020 (5th Cir. 1979).5 We have explained, however, that
a defendant “‘surely does not have the right to create a doubt as to his competency
or to increase the chances that he will be found incompetent by feigning mental
illness.’” United States v. Patti, 337 F.3d 1317, 1325 (11th Cir. 2003) (quoting
United States v. Greer, 158 F.3d 228, 237–38 (5th Cir. 1998)). Therefore, we have
found the enhancement appropriate where a defendant’s feigned mental illness
forced his trial to be postponed and caused the government to waste resources on a
5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) ( en banc ), we
adopted as binding precedent the decisions of the former Fifth Circuit rendered before the close
of business on September 30, 1981.
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competency examination, explaining that enhancing a defendant’s sentence in
these circumstances would not chill a defendant’s right to a competency hearing.
Id.
Here, the district court found that Crews feigned incompetency in an effort
to “game the system” and prevent his prosecution. This, the district court noted,
caused several continuances, thereby delaying his prosecution. It also resulted in a
waste of resources in that it caused Dr. Taylor to undertake a second analysis and
to submit an amended report to the court. Although we acknowledge that there
may have been legitimate concerns as to Crews’s competency, his decision to feign
incompetence in what his own words demonstrate was an effort to obstruct or
impede his prosecution supports an obstruction enhancement under § 3C1.1. The
district court properly enhanced his sentence.
C.
Finally, Crews challenges the district court’s two-level enhancement for
possession of a firearm under § 2D1.1(b)(1). “We review the district court’s
findings of fact [for a firearm enhancement] under U.S.S.G. § 2D1.1(b)(1) for clear
error, and the application of the Sentencing Guidelines to those facts de novo.”
United States v. Gallo, 195 F.3d 1278, 1280 (11th Cir.1999). Application Note 3
to § 2D1.1(b)(1) explains: “The enhancement for weapon possession reflects the
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increased danger of violence when drug traffickers possess weapons. The
adjustment should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1
cmt. n.3. “Once the government shows that a firearm was present, the evidentiary
burden shifts to the defendant to show that a connection between the firearm and
the offense is clearly improbable.” United States v. Pham, 463 F.3d 1239, 1245
(11th Cir. 2006) (quotation omitted).
In this case, the district court found that the gun was discovered in the
backyard of the apartment where Crews engaged in the hand-to-hand sale of crack
cocaine, that it was located in close proximity to the substantial quantity of drugs
secreted in the car outside, and that a matching holster was found in Crews’s
kitchen. In view of these findings, which were plainly supported by the record, the
district court’s determination that it “was not clearly improbable” that the weapon
was connected with the offense was not clearly erroneous. The district court
therefore correctly enhanced Crews’s sentence under § 2D1.1(b)(1).
AFFIRMED.
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