United States v. Hickson , 184 F. App'x 178 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-12-2006
USA v. Hickson
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2625
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"USA v. Hickson" (2006). 2006 Decisions. Paper 919.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2625
UNITED STATES OF AMERICA
v.
ANDRE T. HICKSON,
Appellant
Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal Action No. 04-cr-00024)
District Judge: Honorable Sue L. Robinson
Submitted Under Third Circuit LAR 34.1(a)
June 7, 2006
Before: AMBRO, FUENTES and GREENBERG, Circuit Judges
(Opinion filed June 12, 2006 )
OPINION
AMBRO, Circuit Judge
Andre Hickson (“Hickson”) was found guilty by a jury of possession with intent to
distribute more than 50 grams of a substance containing a detectable amount of cocaine
base in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). He was sentenced to 120 months
imprisonment. Hickson appeals, arguing that the Government failed to prove beyond a
reasonable doubt that the “cocaine base” seized from him was “crack cocaine.” For the
reasons that follow, we affirm.1
I.
As we write for the parties, only a brief summary of pertinent facts and procedural
history is necessary. At trial, the Government put forward several witnesses who testified
regarding the nature of the controlled substance that Hickson was alleged to have
possessed with the intent to distribute. The Government first called Delaware State
Police Detective Daniel Meadows. Detective Meadows told the jury that, during the
execution of a search warrant on Hickson’s car, he found several bags of a “white,
chunky, rock-like substance” in the car’s glove compartment and he “immediately
recognized . . . from past training experience that this was crack cocaine.”
Jennifer King, a Drug Enforcement Agency forensic chemist who had conducted a
laboratory analysis on the controlled substance recovered from Hickson’s automobile,
also took the stand. King had analyzed 340 drug exhibits during her career and had
testified previously in federal court as an expert in forensic chemistry. It was her expert
opinion that the substance at issue was 68.7 grams of “cocaine base.”
1
The United States District Court for the District of Delaware had subject matter
jurisdiction over this case pursuant to 18 U.S.C. § 3231. Hickson filed a timely appeal
and we have jurisdiction under 28 U.S.C. § 1291.
2
Delaware State Police Detective Donald Pope, a seventeen-year veteran police
officer assigned to a drug unit, also testified. Detective Pope was admitted by the District
Court as an expert regarding, inter alia, the distribution, use, packaging and street value
of crack cocaine. At trial, he was shown the controlled substance recovered from
Hickson’s automobile and stated that, based on his training and experience, the substance
was crack cocaine. He also explained that crack cocaine is a form of cocaine base.
As stated above, the jury found Hickson guilty of possession with intent to
distribute more than 50 grams of a substance containing a detectible amount of cocaine
base. By statute, the minimum term of imprisonment for that offense is 120 months while
the maximum term of imprisonment is life. 21 U.S.C. § (b)(1)(A).
At sentencing, the District Court found that the facts asserted in the presentence
report (“PSR”) were consistent with the evidence at trial, including the fact that Hickson
had possessed with intent to distribute more than 50 grams of crack cocaine. The Court
nonetheless rejected the 188 to 235 Sentencing Guidelines range set out in the PSR and
sentenced Hickson to the mandatory minimum sentence prescribed by statute: 120 months
imprisonment. This appeal followed.
II.
Hickson’s sole contention on appeal is that he is entitled to resentencing because
the Government did not establish by proof beyond a reasonable doubt that the controlled
substance he possessed was “crack cocaine.” The District Court’s determination that a
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controlled substance is crack cocaine is a finding of fact generally reviewed for clear
error. United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997); see also United States v.
Brigman, 350 F.3d 310, 313 (3d Cir. 2003) (noting that the District Court’s factual
findings during sentencing cannot be disturbed “unless this Court is left with a definite
and firm conviction that a mistake has been made”) (citations and quotation marks
omitted). Because Hickson did not raise an objection in the District Court, however, we
review his claim for plain error. Johnson v. United States, 520 U.S. 461, 465 (1997).
It is undisputed that the Government charged, and the jury found beyond a
reasonable doubt, that Hickson “possessed with intent to distribute over 50 grams of a
controlled substance containing a detectable amount of ‘cocaine base.’” Hickson does
not argue that the Government failed to put forward sufficient evidence at trial to support
the jury’s finding that the substance he possessed was “cocaine base.” Thus, regardless
whether the Government introduced sufficient proof to establish that the substance in
question was crack cocaine, any resulting error had no effect on Hickson’s sentence and
certainly cannot amount to plain error. See United States v. Barbosa, 271 F.3d 438, 467
(3d Cir. 2001) (holding that, for purposes of applying the mandatory maximum and
minimum sentences under 21 U.S.C. § 841(b), the jury need only find that the defendant
possessed with intent to distribute more than 50 grams of a substance containing any form
of “cocaine base”—not the specific “crack cocaine” form of cocaine base).
Moreover, it was not error for the District Court to find that the substance Hickson
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possessed was crack cocaine. It is well settled that a sentencing court may determine the
drug identity involved in a violation of 21 U.S.C. § 841 by using a preponderance of the
evidence standard “[s]o long as the resulting, and possibly enhanced, sentence is below
the statutory maximum authorized by the jury’s factual findings.” Id. at 457 (citing
Apprendi v. New Jersey, 530 U.S. 466 (2000)). Because the statutory maximum sentence
authorized by the jury’s findings in this case was life imprisonment, 21 U.S.C. §
841(b)(1)(A), the District Court could have lawfully imposed a sentence within the
Guidelines range so long as it found by a preponderance of the evidence—not beyond a
reasonable doubt—that the controlled substance was crack cocaine.
Here the facts introduced at trial were more than sufficient to meet that evidentiary
threshold. As explained above, King, a DEA chemist, testified that her expert analysis
had confirmed that the substance at issue was cocaine base. Moreover, Detective
Meadows, who had extensive experience in cases involving crack cocaine, testified that
the “white, chunky rock-like substance” was crack. Finally, Detective Pope, a veteran of
“hundreds” of investigations involving crack, testified, based on the visual appearance of
the drug and his investigatory experience, that the substance was crack. This cumulative
evidence supports a finding by a preponderance of the evidence that the drugs in
questions were crack cocaine. See, e.g., United States v. Brigman, 350 F.3d 310, 314 (3d
Cir. 2003) (holding that District Court’s conclusion that drugs were crack not erroneous
where DEA chemist testified that drugs were cocaine base based on their appearance and
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his investigatory experience); United States v. Waters, 313 F.3d 151, 156 (3d Cir. 2002)
(same where experience officer testified, inter alia, that “rock form” of substance helped
him conclude that substance was intended to be smoked and was crack); United States v.
Dent, 149 F.3d 180, 190 (3d Cir. 1998) (same where chemist identified substance as
cocaine base and veteran officer stated that crack was often packaged in the manner in
which the drugs were found). Accordingly, the District Court did not err in its conclusion
to that effect.
*****
For the foregoing reasons, we affirm the judgment of the District Court.
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