United States v. Abdullah ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5878
DENISE CORTTESSIA ABDULLAH, a/k/a
Denise Cortessia Roberson, a/k/a
Densie Cortessia McGlone,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge; Herbert N. Maletz,
Senior Judge, sitting by designation.
(CR-94-422-JFM)
Submitted: September 16, 1997
Decided: October 20, 1997
Before NIEMEYER and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Harold I. Glaser, John Deros, Baltimore, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Andrea L. Smith, Assis-
tant United States Attorney, Susan M. Ringler, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Denise Abdullah appeals the twenty-year sentence imposed pursu-
ant to her conviction of conspiracy to distribute heroin, 21 U.S.C.A.
§ 846 (West Supp. 1997). We affirm.
I
Abdullah is the wife of Mumin Sahib Abdullah. Sahib and "Big
Corey" Woodfolk headed a violent heroin distribution organization in
Baltimore known as Strong as Steel. Testimony at trial revealed that
Denise Abdullah was seen numerous times at various"stash houses"
controlled by the gang. Sometimes she accompanied her husband
when he delivered drugs or picked up the day's receipts from the
houses. On one occasion Abdullah herself delivered seventeen bun-
dles of heroin to a stash house.
Between 1991 and 1993, Sahib Abdullah had no legitimate source
of income; Denise Abdullah worked for Amtrak, netting less than
$60,000 during this period. The Abdullahs paid more than $80,000 on
various charge accounts that they maintained between 1991 and 1993.
In an effort to appear to have a respectable income source, they and
others opened a barber shop in 1992. An expert testified at trial that
the shop never operated at a profit and could not have generated the
$432,545 (including over $200,000 in cash) that was deposited into
Denise Abdullah's various bank accounts between 1991 and 1993.
At sentencing, the district court determined that Denise Abdullah
was responsible for more than one kilogram of heroin. The court's
conclusion was based on the weight of the heroin she delivered to the
stash house, plus the weight of the heroin represented by some drug
proceeds deposited to her accounts. Because she had a prior state fel-
ony conviction for a drug offense, Abdullah was subject to an
2
enhanced sentence under 21 U.S.C.A. § 841(b)(1)(A) (West 1994 &
Supp. 1997). The court imposed the mandatory minimum twenty-year
sentence.
II
Abdullah first challenges the amount of heroin for which she was
found responsible. For sentencing purposes, drug quantities attribut-
able to persons convicted of conspiracy to distribute illegal drugs are
determined by examining "the quantity of narcotics reasonably fore-
seeable to each coconspirator within the scope of[her] agreement."
United States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993). The United
States bears the burden of establishing by a preponderance of the evi-
dence the quantity of drugs attributable to a defendant. See United
States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990). Determinations
of reasonable foreseeability and quantity of drugs are reviewed for
clear error. United States v. Banks, 10 F.3d 1044, 1057 (4th Cir.
1993).
Abdullah plainly was a member of the conspiracy. She visited stash
houses with her husband while he engaged in Strong as Steel business
and once delivered heroin to one house. She enjoyed an extravagant
lifestyle and bank accounts primarily supported by profits generated
by Strong as Steel. It was entirely appropriate to hold her responsible
for the amount of heroin represented by most of the money deposited
to her various accounts.
The presentence report stated that one-tenth of a gram of heroin
sold in 1995 for $20. The cash deposits to Abdullah's various
accounts exceeded $200,000. This amount alone, which does not
begin to represent the extent of her involvement in the conspiracy,
represents one kilogram of heroin. The district court's finding her
responsible for that amount was not clearly erroneous.1
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1 Because Abdullah was subject to the minimum twenty-year sentence,
the district court's mention of money laundering at sentencing is irrele-
vant. Regardless of whether the drug quantities attributable to Abdullah
are based on her involvement in the conspiracy or what the district court
referred to as her money laundering activities and the one distribution,
she was responsible for more than one kilogram of heroin, and the man-
datory minimum sentence applied.
3
III
The district court enhanced Abdullah's sentence because she previ-
ously had been convicted in Maryland of the felony of maintaining a
common nuisance (i.e., a drug house). See Md. Code Ann. art. 27
§ 286(a)(5) (1996). Abdullah first contends that the district court erro-
neously enhanced the sentence because the jury's verdict could have
been based upon her maintaining the house as a "shooting gallery"
rather than a place where drugs were manufactured, stored, or distrib-
uted. However, either use of the house would constitute a felony drug
offense in Maryland. See Md. Code Ann. art. 27 § 286 (b)(2) (1996).
Under 21 U.S.C.A. § 841(b)(1)(A), any final, prior drug conviction
mandates the enhanced sentence.
Additionally, Abdullah complains that the district court failed to
comply with the notice requirement of 21 U.S.C.§ 851(b) (1994)
before using the state sentence to enhance her sentence. She maintains
that the court should have inquired specifically whether she had previ-
ously been convicted of the state charge. Also, she contends that the
district court should have informed her that, once her sentence was
imposed, she could not later collaterally attack the prior conviction.
In United States v. Campbell, 980 F.2d 245 (4th Cir. 1992), this
Court considered § 851(b)'s required colloquy. The colloquy "pro-
vides the defendant with a full and fair opportunity to establish that
he is not the previously convicted individual or that the conviction is
an inappropriate basis for enhancement under section 841." Id. at 252.
Although the required colloquy did not take place in Campbell, we
found that Campbell was otherwise afforded the substantive protec-
tions underlying § 851(b) and that the district court complied with the
statute. Id.
Like Campbell, Abdullah received ample opportunity to litigate
whether her Maryland conviction was a proper basis for enhancement.
In her response to the presentence report, Abdullah admitted that she
was the subject of the state conviction. At sentencing, there was argu-
ment on whether that conviction qualified under§ 841(b)(1)(A).
4
Therefore, although the precise colloquy contemplated by § 851(b)
did not occur,2 Abdullah suffered no prejudice.
IV
We accordingly affirm the sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the material before the court and argument would not aid the deci-
sional process.
AFFIRMED
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2 Under § 21 U.S.C. § 851(e), a defendant subject to an enhanced sen-
tence may not attack the validity of a predicate conviction which
occurred more than five years before the date of the information alleging
the prior conviction. Abdullah was convicted in Maryland on December
14, 1989. The information of prior conviction was filed on June 30,
1995, more than five years after the state conviction. Abdullah thus in
this case could not challenge the state conviction in connection with the
enhancement. The district court's failure to inform her that she could not
contest the state conviction once her federal sentence was imposed was
accordingly harmless.
5