United States v. Edward Harrison , 439 F. App'x 378 ( 2011 )

Case: 10-50711 Document: 00511587989 Page: 1 Date Filed: 08/30/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 30, 2011
No. 10-50711 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EDWARD ANDREW HARRISON
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:10-CR-128-1
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Edward Andrew Harrison (“Harrison”) appeals the 71-month sentence he
received following his guilty-plea conviction for possessing with the intent to
distribute more than five grams of cocaine base. Because we find that the
district court’s cash-to-drugs conversion was wholly supported by the record, and
because we find no error in his sentencing, we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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FACTS
On April 22, 2010, Harrison pleaded guilty to possessing with intent to
distribute more than five grams of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). The Austin Police Department (“APD”) had become
aware that Harrison was possibly involved in criminal activity in early February
2010 through a tip from a confidential informant that Harrison was dealing
cocaine base out of his residence. Surveillance teams observed Harrison engage
in multiple drug transactions. Detectives also completed a controlled purchase,
buying 0.80 grams of cocaine base from Harrison. On February 18, 2010, an
entry team searched the house that Harrison inhabited pursuant to a “No Knock
Clause” warrant. Harrison was apprehended, and detectives found $1,146 in
cash, primarily in $20 bills, in his jacket pockets and in the front pockets of his
pants. Harrison informed detectives that the money was his life savings and
gifts from various people, and admitted that he did not work. Inside the house
was approximately 2.4 grams of cocaine base in a battery powered four wheeler;
approximately 9.06 grams of cocaine base and approximately 2.8 grams of
marijuana on the kitchen table; and approximately 9.36 grams of powder cocaine
in a kitchen cabinet.
In the presentence report (“PSR”) the probation officer determined that the
$1,146 seized from Harrison constituted the proceeds of illegal drug sales.1 The
probation officer relied on a case agent’s statement that a rock of cocaine base
(0.2 grams) generally sold for $20 to conclude that the seized currency was the
equivalent of 11.46 grams of cocaine base.2 This sum in addition to the cocaine
1
The PSR noted that the state court had issued an Original Notice of Seizure and
Intended Forfeiture order wherein an APD detective asserted that all of the money seized from
Harrison was the proceeds of illegal drug sales.
2
When an amount of drugs seized “does not reflect the scale of the offense, the
[sentencing] court shall approximate the quantity of the controlled substance.” U.S.S.G.
§ 2D1.1 cmt. n. 12.
2
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base found in Harrison’s apartment totaled 21.32 grams of cocaine base.3
Pursuant to U.S.S.G. § 2D1.1, Harrison’s base offense level was 26, and
pursuant to § 3E1.1, it was reduced by three levels due to his acceptance of
responsibility. Harrison’s total offense level was 23, and his criminal history
score was IV, subjecting him to a guidelines range of 70 to 87 months of
imprisonment.
Harrison objected to the PSR’s drug quantity calculation on the grounds
that (1) some of the drugs could have belonged to the other people who had been
at his residence during the execution of the search warrant, (2) the cash-to-
drugs conversion rate was incorrect, and (3) it was not reasonable to convert all
of the money to cocaine base because powder cocaine was also found at the
residence and there was no indication of cocaine base being manufactured.
Harrison also asked the court to “consider a variance on the basis of the
crack/powder sentencing disparity.” The probation officer recommended that the
objection be overruled. At the sentencing hearing, Harrison challenged the drug
quantity calculation based on the recently discovered fact that the State had
agreed to return to him $400 of the cash seized at the time of his arrest, as
evidenced by a proposed but unsigned and unfiled consent judgment.4 The
district court overruled Harrison’s objection, finding that the government had
proved by a preponderance of the evidence in the record that the money seized
was proceeds from sale of cocaine base. The district court considered the
18 U.S.C. § 3553(a) factors and concluded that a within-guidelines sentence
properly addressed them. In fact, considering the § 3553(a) factors, the district
court stated that it would have imposed the same sentence even if it had
3
The PSR offense level calculation did not include the 9.36 grams of powder cocaine or
2.8 grams of marijuana seized from the apartment.
4
At the sentencing hearing, defense counsel represented that the assistant district
attorney had agreed to the judgment, though she had not signed it.
3
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sustained Harrison’s objections. It sentenced Harrison to 71 months of
imprisonment, followed by a four-year term of supervised release. Harrison now
appeals the sentence.
DETERMINATION OF AMOUNT OF COCAINE BASE
On appeal Harrison argues that the district court clearly erred by
including in its cash-to-drugs conversion for sentencing purposes the $400 the
State allegedly agreed to return to him.
The quantity of drugs the district court attributes to the defendant to
establish the base offense level is a factual determination that this court reviews
for clear error. See United States v. Johnston, 127 F.3d 380, 403 (5th Cir. 1997).
“A factual finding is not clearly erroneous if it is plausible in light of the record
as a whole.” United States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998). The
district court need only determine the quantity of drugs attributable to a
defendant by “a preponderance of the relevant and sufficiently reliable
evidence.” United States v. Betancourt, 422 F.3d 240, 247 (5th Cir. 2005)
(internal quotation marks and citation omitted). Extrapolation of the quantity
of drugs is permissible from “any information that has sufficient indicia of
reliability to support its probable accuracy.’’ United States v. Valdez, 453 F.3d
252, 267 (5th Cir. 2006) (internal quotation marks and citations omitted). A PSR
is generally considered sufficiently reliable to support a drug quantity
determination. See Betancourt, 422 F.3d at 246. “The defendant bears the
burden of showing that the information in the PSR relied on by the district court
is materially untrue.” Alford, 142 F.3d at 832 (internal quotation marks and
citations omitted).
The district court’s determination that the facts in Harrison’s PSR
provided sufficient proof that all of the money seized from Harrison at the time
of his arrest constituted illegal drug proceeds was not clearly erroneous. The
record as a whole amply supports the district court’s determination that the
4
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$400 was illegal drug proceeds. The PSR states that Harrison’s criminal history
included drug convictions for possessing/selling crack cocaine; that he was a
known cocaine base dealer; that while under surveillance he engaged in
numerous drug transactions, including a controlled purchase by undercover
detectives; that the money was predominantly in $20 denominations, $20 being
indicative of a sale of a single rock of cocaine base; that the search of Harrison’s
residence uncovered more evidence of his drug dealing; and that Harrison
admitted at the time of his arrest that he was unemployed. The district court
was free to discredit Harrison’s self-serving statement to the officer at the time
of his arrest that the money found on him was savings and gifts from friends.
It was reasonable for the district court to conclude that the unemployed
Harrison’s sole source of revenue came from the sale of illegal drugs.
The rebuttal evidence presented by Harrison–the proposed consent
judgment ordering the State’s return of $400 of the seized money–does not
undermine the facts in the PSR showing that all of the seized cash was illegal
drug proceeds. Assuming arguendo that the consent judgment will be entered,
it does not provide evidence of the rationale for the return of the $400 and is
devoid of any findings regarding the nature of the $400.5 It was thus not clearly
erroneous for the district court to find that this unsigned proposed judgment fell
short of meeting Harrison’s burden of showing that the information in the PSR
relied on by the district court was materially untrue. The district court’s finding
that the $400 represented illegal drug proceeds is supported by the record as a
5
At the sentencing hearing, the district court observed that the proposed consent
judgment provided “no guidance from the state court as to whether the $400 was being
returned because it was determined that it was not the proceeds of drug activity.” Moreover,
at the sentencing hearing, Harrison did not argue that the state court’s judgment had any
dispositive significance. Indeed, Harrison’s counsel acknowledged that the state court civil
forfeiture proceeding did not control the federal district court’s independent determination of
whether the cash represented drug proceeds, instead urging that “it has been of some
persuasive merit to the probation office in past cases.”
5
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whole and was thus not clearly erroneous. See Betancourt, 422 F.3d at 246(affirming cash-to-drugs conversion based on extrapolation from frequency and
amounts of illegal drug delivery to one customer); United States v. Momah, 330
Fed. App’x 470, 472 (5th Cir. 2009), cert. denied, 130 S. Ct. 525 (2009) (affirming
cash-to-drugs conversion because “district court’s factual findings regarding drug
quantity were plausible in light of the record as a whole”).
SUBSTANTIVE REASONABLENESS OF SENTENCE
Harrison additionally contends that the within-guidelines sentence
imposed was unreasonable because it was greater than necessary to satisfy the
§ 3553(a) factors. Specifically, Harrison urges that the district court failed to
give proper consideration to the need for the sentence imposed to reflect the
seriousness of the offense and provide just punishment, as per § 3553(a)(2)(A),
or to the need for the sentence to reflect Harrison’s personal history and
characteristics, as per § 3553(a)(1).
Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors of 18 U.S.C.
§ 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Generally, this court reviews a post-Booker sentence for reasonableness under
an abuse of discretion standard. See Gall v. United States, 552 U.S. 38, 51
(2007). Because Harrison is not entitled to relief even if his sentence is reviewed
under the abuse of discretion standard, we need not address whether plain error
review might apply.6 See United States v. Rodriguez, 523 F.3d 519, 525, 526 n.1
(5th Cir. 2008) (declining to determine standard of review). “When the district
court imposes a sentence within a properly calculated guidelines range and gives
6
Although Harrison raised his argument that the PSR-recommended sentence over-
penalized his cocaine base offense at the sentencing hearing, he did not object to the sentence
after the district court imposed it, and does not argue that we should review for abuse of
discretion.
6
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proper weight to the Guidelines and the 18 U.S.C. § 3553(a) factors, [this court]
will give great deference to that sentence and will infer that the judge has
considered all the factors for a fair sentence set forth in the Guidelines in light
of the sentencing considerations set out in § 3553(a).” United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (internal quotation marks
and citation omitted).
The record shows that the district court made an individualized sentencing
decision based on the facts of the case and in light of the factors listed in
§ 3553(a). See Gall, 552 U.S. at 49-50. Harrison has not shown that the district
court improperly accounted for any factor or that its balancing of these factors
“represents a clear error of judgment.” United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010).
Harrison urges that by ignoring the fact that his guideline sentence would
have been less severe had his offense involved powder cocaine instead of cocaine
base, the district court failed to give proper consideration to the need for the
sentence to reflect the seriousness of the offense, as required by § 3553(a)(2)(A).
See Kimbrough v. United States, 552 U.S. 85, 108-10 (2007) (holding district
court may disagree, as a matter of policy, with the crack/powder sentencing ratio
in the guidelines). But, post-Kimbrough, this court has held that it will continue
to apply the appellate presumption of reasonableness to within-guidelines
sentences, even when the particular guideline referenced lacks an empirical
basis. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009), cert.
denied, 130 S. Ct. 378 (2009) (courts are not required to conduct “a piece-by-piece
analysis of the empirical grounding behind each part of the sentencing
guidelines”). Moreover, the district court specifically stated that it had
considered the crack/powder sentencing disparity in selecting Harrison’s
sentence.
7
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Harrison additionally asserts that the district court failed to consider
letters which were submitted to the district court, as well as the fact that he was
deeply affected by his brother’s death as a teenager, as required by § 3553(a)(1).
But, the district court specifically stated that it had considered the testimony
and letters concerning his personal character and circumstances. Harrison has
thus failed to rebut the presumption of reasonableness that this court applies to
his sentence. See Campos-Maldonado, 531 F.3d at 338.
CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
8