United States v. Curtis Edmonds ( 2012 )

Certiorari granted, October 1, 2012
Vacated by Supreme Court, October 1, 2012
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 10-4895
CURTIS LAKOY EDMONDS, a/k/a
Rude Boy,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(5:08-cr-00368-F-1)
Argued: January 27, 2012
Decided: May 8, 2012
Before NIEMEYER and KEENAN, Circuit Judges, and
J. Michelle CHILDS, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Keenan and Judge Childs joined.
2 UNITED STATES v. EDMONDS
COUNSEL
ARGUED: Michael W. Patrick, LAW OFFICE OF
MICHAEL W. PATRICK, Chapel Hill, North Carolina, for
Appellant. Yvonne Victoria Watford-McKinney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Caro-
lina, for Appellee. ON BRIEF: George E. B. Holding, United
States Attorney, Jennifer P. May-Parker, Felice McConnell
Corpening, Assistant United States Attorneys, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Caro-
lina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
A jury convicted Curtis Edmonds on one count charging
him with conspiracy to traffic in more than 50 grams of crack
cocaine, in violation of 21 U.S.C. § 846, and on three counts
charging him with distributing crack cocaine, in violation of
§ 841(a)(1). The district court sentenced Edmonds to life
imprisonment.
Challenging his conviction, Edmonds contends that while
the evidence may have supported a finding of his involvement
in simple buyer-seller drug transactions, it did not support a
finding that he participated in any conspiracy. And challeng-
ing his sentence, he contends that (1) the district court failed
adequately to consider the sentencing factors contained in 18
U.S.C. § 3553(a), and (2) the court improperly enhanced his
sentence under 21 U.S.C. § 841(b)(1)(A) and U.S.S.G.
§ 4B1.1(a), based on his two prior North Carolina drug-
trafficking convictions and our decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc) (construing
North Carolina’s sentencing scheme for purposes of applying
federal sentencing enhancements).
UNITED STATES v. EDMONDS 3
Finding his arguments unpersuasive, we affirm.
I
After Justin Atkinson was arrested in November 2007 by
Oxford, North Carolina police for possession with intent to
distribute crack cocaine, Atkinson agreed to serve as a confi-
dential informant for the police by engaging in controlled
drug purchases from his suppliers. Atkinson provided Detec-
tive Kevin Dickerson with the identities of his suppliers and
the types, quantities, and prices of drugs that he typically
could purchase from each. One of the suppliers whom Atkin-
son identified was Curtis Edmonds, and under the supervision
of Officer Dickerson, Atkinson entered into three controlled
purchases of crack cocaine from Edmonds, each of which was
recorded.
The first transaction took place on February 4, 2008. After
Atkinson arranged to purchase 14 grams (one-half ounce) of
crack cocaine from Edmonds for $450, Atkinson consum-
mated the sale with money supplied by Officer Dickerson.
During the transaction, Edmonds referred to Atkinson by his
nickname, "Baby J," and confided that he had recently been
in possession of four ounces, from which "Crowell bought
a[n] ounce and a half" and "Jo-Jo came [and] got a half
ounce." He also told Atkinson that he was "trying to get back
to 425" as the price for 14 grams of crack and that "if [he] can
get to a . . . big eight [one-eighth of a kilogram], [he is] gonna
stop cooking it like that." At trial, Officer Dickerson
explained that "cooking" referred to the conversion of cocaine
powder into crack cocaine.
The second controlled purchase took place two days later,
on February 6, 2008. After briefly haggling over the price,
Edmonds and Atkinson completed the transaction with the
same quantity and price as were involved in the transaction on
February 4 — 14 grams of crack cocaine for $450. When
Atkinson told Edmonds, "I don’t want no bullshit[,] it better
4 UNITED STATES v. EDMONDS
be 14," Edmonds replied assuringly, "You know me." Right
after the deal, Edmonds called Atkinson back and said, "I got
another one you can get on face." At trial, Atkinson explained
that "on face" referred to a consignment arrangement in which
Atkinson would receive the drugs immediately and pay for
them later. Atkinson testified that he had entered into similar
consignment arrangements with Edmonds prior to the con-
trolled purchases.
The third and final controlled purchase took place two
weeks later, on February 23, 2008, when Atkinson bought a
full ounce of crack cocaine for $1,000. During this transac-
tion, Atkinson mentioned a person he knew who was willing
to pay "terrible money" for cocaine, but Edmonds declined to
meet the person, saying that he "ain’t fixing to sell to him."
At trial, Officer Dickerson explained that it was common for
drug distributors to be cautious about entering into new rela-
tionships with unfamiliar people.
Officer Dickerson arrested Edmonds on June 26, 2008, and
at the police station, after Officer Dickerson played a record-
ing of his transactions with Atkinson, Edmonds agreed to talk
about his drug dealing. He disclosed that he had started deal-
ing with Atkinson in December 2007 and that he had sold
Atkinson two ounces of crack on two occasions; one ounce of
crack on two occasions; one-half ounce of crack on more than
five occasions; and one-quarter ounce of crack on more than
five occasions. Edmonds also described drug transactions
with individuals other than Atkinson. After telling officers
that he had begun selling cocaine at the age of 17 (16 years
earlier), he explained more particularly that after he left prison
in April 2007, he resumed dealing in drugs, beginning with
$40 and gradually working his way into more money. He
stated that from "Boss Man" he had purchased one-quarter
ounce of crack on one occasion; one-half ounce on one occa-
sion; one ounce on more than five occasions; one ounce plus
21 grams on more than five occasions; and two ounces (which
were "cooked back" into four ounces) on one occasion. He
UNITED STATES v. EDMONDS 5
stated that from "Matt" he had purchased two ounces of pow-
der cocaine on two occasions and that on each occasion he
cooked the two ounces of powder into three ounces of crack.
He stated that from Corey Bullock he had purchased one
ounce of powder cocaine and from Marquis McCaven, "a
gram or two at a time," but "no more than [3.5 grams]."
Finally, Edmonds stated that he recalled selling "a gram or
more" to Ricardo Smith on more than five occasions.
At trial, witnesses corroborated several aspects of
Edmonds’ confession. Atkinson testified not only to the con-
trolled purchases but also to purchasing one-half ounce and
full ounce amounts of crack cocaine from Edmonds prior to
the controlled purchases. Indeed, Atkinson testified that
Edmonds taught him how to cook powder cocaine into crack
cocaine. Atkinson also stated that he, too, had engaged in
drug transactions with Marquis McCaven, lending support to
Edmonds’ claim to have purchased drugs periodically from
McCaven. Also at trial, Edmonds’ former girlfriend, Aisha
Christian, testified that based on her conversations with
Edmonds, she knew that "he was making his money from sell-
ing drugs."
A jury convicted Edmonds of one count of conspiracy to
distribute and to possess with intent to distribute over 50
grams of crack cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), and three counts for distributing over five grams of
crack cocaine on the dates of the controlled purchases, in vio-
lation of § 841(a)(1).
The district court sentenced Edmonds to a mandatory life
sentence for the conspiracy conviction and 360 months’
imprisonment for each of the distribution counts, with all sen-
tences to be served concurrently.
This appeal followed.
6 UNITED STATES v. EDMONDS
II
Count 1 of the indictment, on which the jury convicted
Edmonds of conspiracy, charged that beginning in or about
January 2007 and continuing until on or about June 26, 2008,
Edmonds conspired with other unnamed persons "to distribute
and to possess with intent to distribute more than 50 grams of
cocaine base (crack)," in violation of 21 U.S.C. §§ 846 and
841(a)(1). Edmonds contends that the evidence before the
jury was insufficient to convict him of this count. He argues
first that the controlled drug transactions between him and
Atkinson could not establish a conspiracy because Atkinson,
as a government agent, lacked a genuine conspiratorial intent.
And as to the evidence of prior, noncontrolled transactions
with Atkinson, i.e., before Atkinson acted as a government
agent, he argues that the evidence supported only casual
buyer-seller transactions, not a conspiracy. Finally, he con-
tends that the government was not entitled to rely on his con-
fession because it was uncorroborated and therefore could
not, under Wong Sun v. United States, 371 U.S. 471 (1963),
and United States v. Stephens, 482 F.3d 669 (4th Cir. 2007),
be used to satisfy the government’s burden of proof.
The government argues that the evidence of the relationship
between Edmonds and Atkinson before Atkinson became a
government agent supported the conspiracy conviction. It also
relies on Edmonds’ confession, focusing mostly on the por-
tions of his confession regarding his prior drug dealings with
Atkinson before Atkinson functioned as a cooperating gov-
ernment agent.
Of course, in evaluating the sufficiency of the evidence, we
take the evidence in the light most favorable to the govern-
ment and determine whether any rational trier of fact could
conclude that it supported a finding of guilt beyond a reason-
able doubt, in this case Edmonds’ guilt of conspiracy. See
United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en
banc).
UNITED STATES v. EDMONDS 7
"Conspiracy is an inchoate offense, the essence of which is
an agreement to commit an unlawful act." United States v.
Shabani, 513 U.S. 10, 16 (1994) (quoting Ianelli v. United
States, 420 U.S. 770, 777 (1975)). Thus, the crime of conspir-
acy "may exist and be punished whether or not the substantive
crime ensues." United States v. Jimenez Recio, 537 U.S. 270,
274 (2003) (quoting Salinas v. United States, 522 U.S. 52, 65
(1997)). Section 846 of Title 21, the crime of which Edmonds
was convicted, provides that any person who "conspires to
commit any offense defined in this subchapter [21 U.S.C.
§§ 801-904 (addressing controlled substances)] shall be sub-
ject to the same penalties as those prescribed for the offense"
that was the object of the conspiracy. As a crime distinct from
the object of the offense, conspiracy is proved by demonstrat-
ing an agreement or understanding by two or more persons to
commit the object offense.
Thus, if the object of the offense is the distribution through
a sale of cocaine, as prohibited in 21 U.S.C. § 841(a), a con-
spiracy to commit the distribution offense must involve an
agreement separate from the immediate distribution conduct
that is the object of the conspiracy. See, e.g., Jimenez Recio,
537 U.S. at 274 (noting that conspiracy and the object of a
conspiracy are "distinct evil[s]" (internal quotation marks
omitted)); United States v. Hackley, 662 F.3d 671, 679 (4th
Cir. 2011) (holding that proof of a simple buyer-seller rela-
tionship is insufficient to prove a drug distribution conspir-
acy). In this way, "distribution" under § 841 and "conspiracy"
under § 846 are distinct crimes. Therefore, when a person
sells cocaine to another, he "distributes" the cocaine, in viola-
tion of § 841(a). If, however, the transaction includes, in addi-
tion to the bare agreement inherent in the sale, an agreement
that the buyer will resell the cocaine in the marketplace, the
two participants to the distribution transaction have also "con-
spired" to the redistribution of the cocaine, a separate offense,
and therefore can be found guilty not only of the distribution
offense, in violation of § 841(a), but also of a conspiracy
offense, in violation of § 846.
8 UNITED STATES v. EDMONDS
To prove conspiracy, the government need not prove an
explicit agreement. It may rely upon indirect evidence from
which the conspiracy agreement may be inferred. Thus, we
have concluded that the amount of cocaine involved in the
distribution transaction, if sufficiently great, may indicate that
the parties have engaged in the distribution transaction with
an implicit agreement of further redistribution. See United
States v. Yearwood, 518 F.3d 220, 226 (4th Cir. 2008). We
have also concluded that the regularity of individual distribu-
tion transactions may indicate the existence of a conspiracy to
traffic in cocaine generally and apart from any single transac-
tion. See United States v. Reid, 523 F.3d 310, 317 (4th Cir.
2008). Similarly, a transaction involving a consignment
arrangement or the "fronting" of drugs indicates conspiracy to
engage in drug trafficking beyond the immediate distribution
transaction, as the consignment implies a credit agreement
that looks to further transactions to secure income to complete
the original transaction. See United States v. Hicks, 368 F.3d
801, 805 (7th Cir. 2004). Indeed, any agreement made in
addition to or beyond the bare buy-sell transaction may be
taken to infer a joint enterprise between the parties beyond the
simple distribution transaction and thereby support a finding
of conspiracy. For instance, such agreements might include an
agreement that the parties will become regular participants in
such transactions; that future transactions will involve particu-
lar prices or quantities; or that the parties will assist each
other in drug distribution activities involving customers, sup-
pliers, territories, or the preparation of drugs for distribution.
In short, the mere evidence of a simple buy-sell transaction
is sufficient to prove a distribution violation under § 841, but
not conspiracy under § 846, because the buy-sell agreement,
while illegal in itself, is not an agreement to commit an
offense; it is the offense of distribution itself. See Hackley,
662 F.3d at 679 (noting that "evidence of a buyer-seller rela-
tionship, standing alone, is insufficient to support a conspir-
acy conviction"). But evidence of any understanding reached
as part of the buy-sell transaction that either party will engage
UNITED STATES v. EDMONDS 9
in or assist in further distribution is sufficient to prove both
a distribution violation and a conspiracy violation. See United
States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993); United
States v. Lechuga, 994 F.2d 346, 349-50 (7th Cir. 1993) (en
banc).
The crime of conspiracy, however, requires a genuine
agreement between two or more persons to commit a crime,
and an agreement between a defendant and a government
agent, who does not agree to commit another crime but is
engaging the defendant only to establish evidence of a crime,
does not provide evidence of a genuine agreement. See United
States v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995) ("[A] defen-
dant cannot be convicted for conspiring with a government
agent"). Thus, any agreement between the defendant and a
government agent cannot form the basis of a conspiracy viola-
tion.
In this case, therefore, whatever "agreement" Edmonds and
Atkinson might have reached during the controlled purchases
does not constitute evidence of conspiracy. But this does not
mean that statements made or acts done by Edmonds during
the controlled transactions could not be used as evidence of
a conspiracy between Edmonds and Atkinson before he was
a government agent and between Edmonds and others at any
time.
In his pretrial confession, given after being arrested,
Edmonds described his dealings and relationship with Atkin-
son before Atkinson made controlled purchases as a govern-
ment agent, which indicated a joint enterprise between the
two and which were corroborated by trial testimony.
Edmonds confessed that, beginning in late 2007, he had sold
Atkinson two ounces of crack cocaine on two occasions; one
ounce on two occasions; one-half ounce on more than five
occasions; and one-quarter ounce on more than five occa-
sions, for a total of over ten ounces of crack (or almost 300
grams). And at trial, Atkinson corroborated these ongoing
10 UNITED STATES v. EDMONDS
transactions, testifying that he purchased half-ounce and full-
ounce amounts of crack cocaine from Edmonds prior to the
controlled purchases. This course of dealing indicated more
than isolated transactions. And the broader arrangement was
confirmed by Atkinson’s testimony that Edmonds facilitated
their course of dealing by teaching Atkinson how to cook
powder cocaine into crack cocaine. Edmonds’ former girl-
friend, Aisha Christian, also confirmed Edmonds’ pre-
controlled-purchase conduct, testifying at trial that she knew
that Edmonds was "making his money from selling drugs."
Edmonds’ statements made during the controlled purchases
also indicated a prior conspiratorial relationship between him
and Atkinson. During the February 6 controlled purchase,
when Atkinson expressed concern about whether Edmonds
was giving him the 14 grams of crack he had paid for,
Edmonds reassured him, "You know me," again implying an
ongoing course of dealing. And immediately after that trans-
action, Edmonds called Atkinson to say, "I got another one
you can get on face," which, as Atkinson explained at trial,
referred to a consignment arrangement in which Atkinson
would receive the drugs immediately and pay for them later.
Indeed, Atkinson testified at trial that he had entered into sim-
ilar consignment arrangements with Edmonds prior to the
controlled purchases. And during the February 4 controlled
purchase, Edmonds told Atkinson that he was "trying to get
back to 425" (the price for a half-ounce) and that "if [he] can
get to a . . . big eight [one-eighth of a kilogram], [he is] gonna
stop cooking it like that [converting cocaine powder to crack
cocaine]." During all of the controlled transactions, Edmonds
demonstrated a trust in Atkinson as a person with whom he
had dealt regularly in the past by revealing his other drug
transactions and rejecting Atkinson’s offer to be introduced to
a stranger who would pay "terrible money" for drugs.
In sum, there was ample evidence that, not only did
Edmonds know that Atkinson intended to redistribute the
drugs he purchased, but Edmonds was part of an ongoing
UNITED STATES v. EDMONDS 11
agreement under which he would regularly act as a supplier
for Atkinson’s distribution operation. In light of this evidence,
we readily conclude that a rational jury could find Edmonds
guilty of participating in a conspiracy between him and Atkin-
son during the period that Atkinson was not making con-
trolled purchases for the government.
III
In challenging his sentence of 360 months’ imprisonment
on each of the three distribution counts, Edmonds contends
that the district court inadequately considered the sentencing
factors contained in 18 U.S.C. § 3553(a). The record, how-
ever, belies his claim.
After calculating the appropriate sentencing range under
the Sentencing Guidelines, the district court considered
Edmonds’ childhood background, his health problems, his
responsibility to support his two children, his extensive crimi-
nal history, his unresponsiveness to "the leniency offered by
the state court system," and his "lack of significant employ-
ment," which was "indicative of being supported by criminal
means." Weighing these considerations and recognizing that
Edmonds already faced life imprisonment on the conspiracy
count, the court opted for a sentence of 360 months’ impris-
onment on each distribution count, which was "at the low end
of the [Guidelines] range," and imposed those sentences to
run concurrently. We cannot conclude that this record sup-
ports Edmonds’ claim that the court did not adequately con-
sider the § 3553(a) factors in reaching its sentencing decision.
Edmonds also contends that his sentence was improperly
enhanced under 21 U.S.C. § 841(b)(1)(A), which provides for
a mandatory life sentence for violations of § 841(a) when the
defendant has "two or more prior convictions for a felony
drug offense," and under U.S.S.G. § 4B1.1(a), which similarly
enhances the sentencing range of a defendant who has "two
prior felony convictions of . . . a controlled substance
12 UNITED STATES v. EDMONDS
offense." With respect to both the statute and the Guidelines,
a qualifying prior felony offense must be punishable by
imprisonment for a term exceeding one year. See 28 U.S.C.
§ 802(44); U.S.S.G. § 4B1.2(b). Edmonds concedes that one
of his prior convictions, for which he received a sentence of
11-14 months, was punishable by imprisonment for more than
one year. But he contends that the North Carolina drug traf-
ficking conviction for which he received a sentence of 9-11
months did not qualify as a predicate offense, citing our deci-
sion in United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc). What Edmonds fails to recognize, however,
is that the qualification of a prior conviction does not depend
on the sentence he actually received but on the maximum sen-
tence that he could have received for his conviction.
With respect to both convictions, Edmonds had, under
North Carolina law, a prior record level of IV, and the offense
class for both offenses was determined to be Class H. Under
the North Carolina sentencing scheme, this record level and
class, without any showing of an aggravating factor, subjected
Edmonds to a presumptive minimum sentencing range of 9-11
months, see N.C. Gen. Stat. § 15A-1340.17(c) (2000), and a
maximum sentencing range of 11-14 months, see id. § 15A-
1340.17(d). See Simmons, 649 F.3d at 240. Because 14
months is the maximum that Edmonds presumptively could
have received, we conclude that both of Edmonds’ convic-
tions were offenses that were "punishable by imprisonment
for more than one year" and therefore qualifying felony drug
offenses under 21 U.S.C. § 841(b)(1)(A) and U.S.S.G.
§ 4B1.1(a).
For the reasons given, Edmonds’ convictions and sentence
are
AFFIRMED.