U.S. v. Mergerson , 995 F.2d 1285 ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-1179
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JERRY WAYNE MERGERSON and
RICHARD UCHECHUKWU ANUNASO,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________________________________________________
(July 12, 1993)
Before KING, HIGGINBOTHAM and DEMOSS, Circuit Judges.
KING, Circuit Judge:
Jerry Wayne Mergerson ("Mergerson") and Richard Uchechukwu
Anunaso ("Anunaso") were convicted of various drug offenses in
connection with a heroin ring in which they were involved.
Mergerson was also convicted of being a felon in possession of a
firearm. Mergerson and Anunaso appeal their convictions and
corresponding sentences. We affirm both Anunaso's drug
convictions and sentences. We affirm Mergerson's convictions on
counts one through four of the indictment, but reverse his
conviction on count five. We likewise affirm Mergerson's
1
sentences for his convictions on counts two through four, but
vacate Mergerson's sentence for count one of the indictment. We
remand for resentencing.
I. PROCEDURAL AND FACTUAL BACKGROUND
A.
On October 8, 1991, a grand jury returned a five-count
indictment against Mergerson and Anunaso. Count one of the
indictment charged the defendants and Mergerson's girlfriend,
Sheila Guy, with conspiracy to traffick heroin in violation of 21
U.S.C. § 846. Counts two, three, and four each charged Mergerson
with unlawful distribution of heroin in violation of 21 U.S.C. §
841(a)(1). Pursuant to 18 U.S.C. § 2, Anunaso was charged under
counts two, three, and four with aiding and abetting Mergerson.
In count five of the indictment, Mergerson was additionally
charged with unlawful possession of a firearm by a felon in
violation of 18 U.S.C. § 922(g)(1). On October 11, 1991, the
Government filed a "penalty enhancement" information under 21
U.S.C. § 841(a)(1) with respect to Mergerson, alleging eight
prior felony drug convictions.
Mergerson and Anunaso were tried on December 4, 1991, and
both were found guilty of all charges against them. On January
3, 1992, pursuant to 21 U.S.C § 851(b), Mergerson was arraigned
regarding the "penalty enhancement" information. On January 17,
1993, at a hearing on the Government's "penalty enhancement"
information, certified copies of Mergerson's prior federal and
2
state convictions were introduced into evidence, and Mergerson
was identified as being the same person named in those documents.
The district court found, beyond a reasonable doubt, that the
allegations of prior convictions were true.
On February 21, 1992, Anunaso was sentenced to concurrent
250-month terms of imprisonment on counts one, three, and four of
the indictment and to a 240-month term on count two of the
indictment. Anunaso was also sentenced to concurrent five-year
terms of supervised release on each count. The court also
imposed a $200 special assessment. Mergerson was sentenced to
concurrent terms of life imprisonment on counts one, three, and
four and to concurrent thirty-year terms on counts two and five.1
The court imposed concurrent eight-year terms of supervised
release on counts two, three, and four, and a concurrent five-
year term of supervised release on count five.
B.
This case involved three distinct drug transactions that
occurred in late 1991. The first transaction took place on
August 19, 1991, when DEA Special Agent David Battiste met with
Mergerson in a parking lot in Fort Worth, Texas, for the purpose
of purchasing an ounce of heroin. At that meeting, Mergerson
1
Pursuant to 21 U.S.C. § 841(a)(1)(A), Mergerson was
sentenced to a mandatory life term without possibility of release
on count one of the indictment, which charged Mergerson with
conspiracy to possess more than a kilogram of heroin. The
remaining life sentences were not imposed without the possibility
of release.
3
told Battiste that he did not have the heroin, but would retrieve
it at another location. At that point, Mergerson and Battiste
got in Battiste's car and began driving to Anunaso's apartment
complex. While en route to Anunaso's apartment, Mergerson told
Battiste that his heroin business was thriving and that he had
"several girls" working for him. Mergerson then made a number of
phone calls on Battiste's mobile phone, one of which was later
identified as being made to Anunaso's mobile phone. During one
of the phone calls, Mergerson told the other party that he would
be over shortly and that he was bringing a friend.
Contemporaneously, a DEA agent conducting surveillance saw
Anunaso outside of his apartment building talking on a mobile
phone.
Upon reaching the apartment complex, Mergerson went into
Anunaso's building and returned within a few minutes accompanied
by Anunaso. Anunaso made eye contact with Battiste, who stood
next to Mergerson, and nodded. Mergerson then informed Battiste
that he had the heroin all along and directed Battiste to return
to Mergerson's car. When they returned to his car, Mergerson
delivered 24.9 grams of heroin to Battiste in exchange for
$5,500.
On September 5, 1992, Battiste again met with Mergerson at a
hotel. During this second transaction, which was videotaped,
Mergerson sold 100.2 grams of heroin to Battiste. Shortly
thereafter, DEA Special Agent Misha Harrington, acting
undercover, joined Mergerson and Battiste. Harrington entered
4
the room with two bundles of cash and asked Mergerson to count
it. During the same meeting, the undercover agents asked
Mergerson how much heroin he could supply at any one time.
Mergerson replied that "the sky was the limit." After some
discussion in which Mergerson offered to sell to them a kilogram
of heroin that afternoon, Battiste and Harrington told him that
they wished to purchase a kilogram later in the week. As the
three men left the hotel room, Mergerson introduced himself to
Harrington by his nickname "Big Merk." Later that day,
surveillance officers followed Mergerson to a business by the
name of "Communications on the Run," where Mergerson claimed to
be employed, and later to Anunaso's apartment.
At approximately 12:30 p.m. on September 11, 1991, Mergerson
negotiated with Battiste by telephone for the sale of one
kilogram of heroin to Battiste and Harrington for $170,000. The
drugs were to be delivered to the same hotel where the prior
transaction had occurred. At 1:00 p.m., Mergerson called
Battiste to tell him that he was only able to acquire 350 grams.
Surveillance personnel observed Mergerson arriving at Anunaso's
apartment complex in a automobile registered to Anunaso.
Mergerson left the apartment complex in the same vehicle and
drove it to the hotel. There Mergerson met with the two agents
and delivered to the agents 334.8 grams of heroin. At the outset
of the meeting, the agents questioned Mergerson about why he did
not bring an entire kilogram. Mergerson answered that he was not
the one in the trafficking operation who controlled the heroin.
5
He further stated that "we got a place where we keep it" and that
when he went to that location there was less than a kilogram
present. Mergerson assured them that he would be able to get the
rest of the heroin the next day or "Friday at the latest," but
could not do so immediately because "his man" was "out of town."
Mergerson was arrested shortly thereafter.
A search warrant was executed at Anunaso's apartment after
Mergerson was arrested. Police seized a number of items of
incriminating evidence, including: (i) a piece of paper
containing notations that were later identified as referring to
the heroin used in the transaction as well as heroin used in
other transactions, (ii) a small electronic business organizer
which contained the name "Merk" together with the address and
telephone number of "Communications on the Run" and Mergerson's
pager number, (iii) a notebook containing notes of what appeared
to be narcotics transactions, which included the name "Merk,"
(iv) a box containing several plastic baggies, and (v) a loaded
.25 caliber pistol. A search conducted at Mergerson's residence
on October 11, 1991, resulted in the seizure of an inoperable
nine millimeter pistol from beneath the mattress and box spring
in the master bedroom, a shoe box containing zip lock baggies,
and a 7.8 grams of cocaine. Anunaso was also arrested.
II. DISCUSSION
A. Sufficiency of the Evidence: the Drug Convictions
Mergerson and Anunaso both challenge the sufficiency of the
6
evidence supporting their convictions under the first count of
the indictment, which alleged a conspiracy to traffick in heroin
in violation of 21 U.S.C. § 846. Anunaso also challenges the
sufficiency of the evidence supporting his conviction under
counts two, three, and four that charged him with aiding and
abetting Mergerson's distributions of heroin. Mergerson does not
challenge the sufficiency of the evidence on the three
distribution counts.
The standard of review in assessing a challenge to the
sufficiency of the evidence in a criminal case is whether a
"reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt." United States v.
Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff'd on other
grounds, 462 U.S. 356 (1983). In evaluating the sufficiency of
the evidence, a court views all evidence and all reasonable
inferences drawn from it in the light most favorable to the
government. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Glasser v. United States, 315 U.S. 60, 80 (1942). This standard
applies whether the evidence is direct or circumstantial. See
United States v. Triplette, 922 F.2d 1174 (5th Cir), cert.
denied, 111 S. Ct. 2245 (1991).
i) The Conspiracy Count
In a conspiracy prosecution under 21 U.S.C. § 846, the
government must prove beyond a reasonable doubt not only the
existence of an agreement between two or more persons to violate
7
the narcotics laws, but also that each person knew of the
conspiracy, intended to join it, and actually participated in the
conspiracy. See United States v. Espinoza-Seaenz, 862 F.2d 526,
536 (5th Cir. 1988); United States v. Michelena-Orovio, 719 F.2d
738, 742 (5th Cir. 1983) (en banc), cert. denied, 465 U.S. 1104
(1984). A mere association with persons in the conspiracy or
presence at the scene of the crime is not enough. See United
States v. Davis, 666 F.2d 195, 201 (5th Cir. 1982).
Anunaso argues that the Government's evidence is
insufficient because it proves only a mere association between
Mergerson and Anunaso. In support of his contention, Anunaso
points out that the Government failed to find any direct
evidence, such as heroin, in the search of his apartment.
Moreover, he argues, at no time during any of the three drug
transactions was there direct evidence to link him to the
conspiracy. During the two videotaped transactions, Anunaso
points out, there was no direct mention of his participation
whatsoever. Nor did co-defendant Sheila Guy mention Anunaso's
involvement. Finally, Anunaso argues that the writings found by
the agents are insufficient because the police never took any
writing exemplars to prove that the writings were made by Anunaso
and further because there is nothing in the writings to link them
to any specific activity or incident.
In a similar vein, Mergerson argues that the evidence was
insufficient to show any conspiratorial agreement between
Mergerson and either Sheila Guy or Anunaso. With respect to Guy,
8
Mergerson contends that the evidence proves no more than that he
lived with her and that she drove him to the hotel on the day of
the third transaction, September 11, 1991. It is undisputed that
Guy remained in the car until Mergerson was arrested. Mergerson
argues that there is no evidence that she knew anything about the
transaction taking place in the hotel room, or of the previous
two transactions. With respect to Anunaso, Mergerson maintains
that the evidence shows only that the two men were acquainted.
Conceding that their associations were suspicious, Mergerson
argues that "suspicious circumstances . . . are not enough to
sustain a conviction for conspiracy . . . ." United States v.
Nusraty, 867 F.2d 759, 764 (2d Cir. 1989).
The Government argues that the evidence regarding each of
the three transactions establishes much more than a mere
association. During the first transaction, Mergerson told
Battiste that they would have to go retrieve the heroin, and in
so doing they drove directly to Anunaso's apartment. While
driving to Anunaso's apartment, Mergerson bragged to Battiste
that his drug business was going so well that he had several
females making deliveries for him. The Government also notes
that only after Anunaso looked Battiste over and nodded at
Mergerson did Mergerson consummate the heroin sale. During the
second delivery of heroin, Mergerson told the agents that "his
man" set the price of the heroin and that Mergerson did not
control the heroin supply. Immediately after the deal was made,
Mergerson met with Anunaso and drove to Anunaso's apartment.
9
During the third transaction, Mergerson told Battiste that he had
to go get the heroin, and ten minutes later agents spotted
Mergerson arriving at Anunaso's apartment. Mergerson drove to
the transaction in Anunaso's car. A digital electronic gram
scale was later discovered in that automobile. We also observe
that agents found documents at Anunaso's apartment which
contained notes of narcotics transactions which listed "Merk" as
a participant. Anunaso's electronic business organizer contained
the name "Merk" along with Mergerson's phone number and pager
number.
Although almost entirely circumstantial, the evidence of a
conspiratorial relationship between Mergerson and Anunaso was
extensive. Viewing that evidence and all reasonable inferences
drawn from it in a light most favorable to the government,
Glasser, 315 U.S. at 80, we believe that a rational jury could
have concluded beyond a reasonable doubt that Anunaso was
Mergerson's heroin supplier. As such, Anunaso and Mergerson not
only agreed to violate the narcotics laws, but also each actively
participated in the drug trafficking operation.2
2
Because we find the evidence is abundantly sufficient to
support the existence of a conspiracy between Mergerson and
Anunaso, we need not address the sufficiency of the evidence
linking the third co-defendant charged in the first count of the
indictment, Sheila Guy, with the conspiracy. Neither Mergerson
nor Anunaso have argued that there was a fatal variance between
count of the indictment and the proof at trial regarding the
evidence implicating Guy in the conspiracy. See United States v.
Hernandez, 962 F.2d 1152, 1159 (5th Cir. 1992). Even if they
had, we believe that any such variance did not affect the
substantial rights of either defendant and, thus, was not
reversible error. See id.
10
ii) Anunaso's Distribution Convictions
Anunaso further contends that the evidence is insufficient
to support his convictions under the aiding-and-abetting statute
for Mergerson's three separate distributions of heroin to the
undercover agents. To prove aiding and abetting in a criminal
venture, the prosecution must prove that the defendant: i)
associated with the criminal enterprise, ii) participated in the
venture, and iii) sought by action to make the venture succeed.
See United States v. Stone, 960 F.2d 426, 433 (5th Cir. 1992).
The above-mentioned evidence establishing the guilt of Anunaso on
the conspiracy count equally establishes his guilt on all three
of the substantive counts of distribution. Regarding each of the
three separate transactions between Mergerson and the undercover
agents, the Government presented sufficient evidence to prove all
three elements of Anunaso's aiding and abetting.
B. Did the district court employ the proper standard of proof in
finding that the conspiracy involved more than one kilogram of
heroin?
Pursuant to a federal statute, the district court's factual
finding that Mergerson had the quantity of heroin at issue in
this case -- more than one kilogram -- triggered a mandatory term
of life imprisonment without possibility of release in
Mergerson's case. See 21 U.S.C. § 841(a)(1)(A)(i) (possession of
one kilo or more of heroin and two or more prior convictions for
felony drug offense results in mandatory life sentence). Had the
district court found less than a kilogram but more than 100
11
grams, then Mergerson would have been eligible for a prison term
between thirty years and life. See 21 U.S.C. § 841(b)(1)(B)
(possession of between 100-999 grams of heroin and two or more
prior convictions results in sentencing range of 10 years to
life); U.S.S.G. § 4B1.1 & Sentencing Table (career offender
provision, requiring sentencing range of 360 months to life).
At the sentencing hearing, the district court made its
finding regarding the quantity of heroin under the preponderance-
of-the-evidence standard and, alternatively, under the clear-and-
convincing-evidence standard. Mergerson contends that the
district court should have instead employed the reasonable doubt
standard. It is well-established law in this circuit that, as a
general matter, the burden of proof at sentencing is by a
preponderance of the evidence. See United States v. Angulo, 927
F.2d 202, 205 (5th Cir. 1991) ("[T]he district court need only
determine its factual findings at sentencing by a `preponderance
of relevant and sufficiently reliable evidence.'") (citation
omitted); United States v. Kinder, 946 F.2d 362 (5th Cir. 1991),
cert. denied, 112 S. Ct. 2290 (1992). Mergerson argues, however,
that the due process clause requires an exception to the
traditional preponderance standard when a particular sentencing
fact found by the district court dramatically alters the
statutory maximum for the offense of conviction.3
3
In the case at bar, the district court did employ the
reasonable doubt standard in finding that Mergerson was a repeat
offender. That standard is required by the relevant statute, 21
U.S.C. § 851(c)(1). By introducing genuine copies of court
documents proving Mergerson's prior convictions and further
12
We recognize a growing number of cases decided by courts in
other circuits in which a higher standard of proof has been
suggested or required when a finding of a particular fact
relevant to sentencing dramatically alters the sentencing options
of the court to the disadvantage of the defendant. See, e.g.,
United States v. Kikumura, 918 F.2d 1084, 1101 (3rd Cir. 1990)
(requiring finding by clear-and-convincing-evidence standard);
United States v. Julian, 922 F.2d 563, 569 n.1 (10th Cir. 1990)
(in remanding to district court, suggesting same); United States
v. Restrepo, 946 F.2d 654, 661, n.12 (9th Cir. 1991) (en banc)
(citing Kikumura with approval); United States v. Townley, 929
F.2d 365, 370 (8th Cir. 1991) (same); see also Richard Husseini,
Comment, The Federal Sentencing Guidelines: Adopting Clear and
Convincing Evidence as the Burden of Proof, 57 U. CHI. L. REV.
1387 (1990); but see United States v. Masters, 978 F.2d 281, 287
(7th Cir. 1992). We also recognize dicta in the Supreme Court's
decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986), to the
same extent. See id. at 88 (suggesting that in cases where
certain sentencing fact is a "tail which wags the dog of the
substantive offense," reasonable doubt standard may be required);
see also Kinder v. United States, 112 S. Ct. 2290 (1992) (White,
J., dissenting from denial of certiorari) (arguing that Court
establishing that Mergerson was the individual named in those
documents, the Government proved the fact of Mergerson's prior
convictions beyond a reasonable doubt. Mergerson's argument on
appeal is not that the district erred regarding his prior
offender status; rather, it relates to the district court's
finding that Mergerson possessed more than a kilogram of heroin.
13
should grant certiorari to decide whether higher standard of
proof than mere preponderance standard should be applied in
Guidelines cases requiring dramatically higher sentence if
certain sentencing fact found).
In a recent Sentencing Guidelines case, we recognized the
Third Circuit's decision in Kikumura, supra, and commented on the
possibility of requiring a higher standard than the preponderance
standard in certain sentencing situations. However, we saw no
need to decide the issue because the defendant simply had argued
that a clear-and-convincing standard was all that was necessary
and the district court in that case had in fact employed such a
standard. See United States v. Billingsley, 978 F.2d 861, 866
(5th Cir. 1992). In the instant case, although the district
court applied both the preponderance standard and the clear and
convincing standard, we must address the merits of the issue
because the appellant has argued that the district court should
have applied the reasonable doubt standard.
We believe that, although there may be certain cases where a
sentencing fact is a "tail that wags the dog of the substantive
offense," McMillian, 477 U.S. at 88, and might arguably require a
finding beyond a reasonable doubt, id., this is not such a case.
Accordingly, the preponderance standard was sufficient. We
observe that Mergerson would have faced punishment as a career
offender under U.S.S.G § 4B1.1 regardless of whether the district
court had found that the offense involved more than a kilogram of
heroin. Mergerson does not contest the fact that the offense
14
involved at least 100 grams of heroin. Punishment for such an
offense by a recidivist such as Mergerson under 21 U.S.C §
841(b)(1)(B) includes a term of imprisonment of not less than ten
years nor more than life. U.S.S.G § 4B1.1 additionally requires
that, as a career offender, Mergerson's offense level be set at
37. When Mergerson's criminal history category of VI is factored
into the sentencing equation, the Guidelines require the
imposition of a sentence of between thirty years and life
imprisonment. See U.S.S.G., Sentencing Table. Therefore,
because the minimum mandatory penalty in this case would have
been thirty years in any event (with the maximum sentence of life
possible), the district court's finding that Mergerson possessed
over a kilogram of heroin did not have the dramatic effect upon
sentencing necessary to require the reasonable doubt standard to
be considered.
Mergerson alternatively argues that the reasonable doubt
standard should have been employed because a mandatory life
sentence without the possibility for release was automatic once
the district court found over a kilogram of heroin. This
argument, which assumes that such an extremely harsh punishment
requires a heightened standard of proof regarding dispositive
sentencing facts, implicates concerns traditionally raised in the
Eighth Amendment context. Outside the capital sentencing
context, such heightened protections during the sentencing phase
of a criminal trial are generally unnecessary simply because the
punishment is life imprisonment without the possibility for
15
release. Cf. Harmelin v. Michigan, 111 S. Ct. 2680, 2701-02
(1991) (mandatory sentence of life imprisonment without parole
for the crime of possession of more than 650 grams of cocaine was
not cruel and unusual in violation of the Eighth Amendment);
Rummel v. Estelle, 445 U.S. 263 (1980) (life sentence without
parole for three relatively minor non-violent felonies not Eighth
Amendment violation); see also Woodson v. North Carolina, 428
U.S. 280, 305 (1976) (joint opinion of Stewart, Powell & Stevens,
JJ.) (requiring heightened protections in capital sentencing
context, commenting that "[d]eath, in its finality, differs more
from life imprisonment than a 100-year prison term differs from
one of only a year or two"). Although numerous lower courts have
required that sentencing facts must be found beyond a reasonable
doubt in the capital sentencing context,4 such cases were based
on the uniqueness of the death penalty. See, e.g., People v.
Balderas, 711 P.2d 480, 516 n.32 (Cal. 1985). Although harsh, a
mandatory life sentence simply does not implicate the same Eighth
Amendment concerns. Cf. Harmelin, supra. We thus reject
Mergerson's argument that the reasonable doubt standard should
have been employed in view of the mandatory life imprisonment
that was triggered by the district court's finding of over a
4
See, e.g., People v. Heishman, 753 P.2d 629, 651-52 (Cal.
1988) (requiring unadjudicated extraneous offenses offered in
aggravation to be found beyond a reasonable doubt); State v.
Lafferty, 749 P.2d 1239, 1259 (Utah 1988) (same). This court has
never addressed that precise issue, although we have repeatedly
held that evidence of unadjudicated extraneous offenses is
admissible in the capital sentencing context. See, e.g.,
Williams v. Lynaugh, 814 F.2d 205, 207-08 (5th Cir. 1987).
16
kilogram of heroin.
C. Did the district court err in finding the applicable drug
quantities for sentencing purposes?
Both Anunaso and Mergerson challenge the correctness of the
district court's findings regarding the applicable drug
quantities for purposes of sentencing. A district court's
determination of the amount of drugs involved in an offense is
protected by the clearly erroneous standard of appellate review.
See United States v. Mir, 919 F.2d 940 (5th Cir. 1990); United
States v. Sarasti, 869 F.2d 805, 806 (5th Cir. 1989). As
discussed, in the instant case, the appropriate standard of proof
was the preponderance standard.
We initially observe that we must engage in two separate
sufficiency analyses regarding the district court's findings.
The first concerns the district court's quantity findings made
pursuant to the Sentencing Guidelines. The presentence
investigation report, which was adopted by the district court,
found that 1650 grams of heroin5 was involved in the conspiracy
for purposes of sentencing under the Guidelines. That finding
was based not only on the amounts of heroin actually proven to
have been possessed with the intent to distribute, but also those
amounts negotiated during the Government's undercover sting
operation. The second sufficiency analysis concerns the district
5
156 grams of the "heroin" was actually a Guidelines
conversion from 7.8 grams of cocaine base. Neither defendant has
objected to the conversion or its inclusion in the 1650-gram
total quantity.
17
court's quantity finding for purposes of sentencing Mergerson to
a mandatory life sentence under 21 U.S.C. § 841(a)(1)(A)(i).
Based on drug transaction notes found in Anunaso's residence, the
district court found that Mergerson actually possessed over 1000
grams of heroin with the intent to distribute. Because §
841(a)(1)(A)(i) requires that drug quantities actually be
possessed with the intent to distribute -- rather than merely
being negotiated -- the district court's findings for purposes of
Guidelines sentencing are in large part inapplicable to the
court's separate findings pursuant to § 841(a)(1)(A)(i).6
i. The district court's quantity findings for the Guidelines
sentences
The appellants' first objection to the 1650-gram is that it
allegedly includes both the 334.8 grams of heroin sold on
September 11, 1991, and the one kilogram of heroin that the
parties negotiated for prior to the September 11 sale. The
appellants contend that the 334.8-gram figure should be merged
6
The only overlap between the two findings were the amounts
of heroin listed in the PSI that were actually possessed by
Mergerson and Anunaso. Of the 1650 grams listed in the PSI only
a approximately 450 grams were actually possessed; the remainder
was the kilogram negotiated by Mergerson with the undercover
agents (but never delivered or possessed) and the 156 grams of
"heroin" converted from the 7.8 grams of cocaine base found in
Mergerson's apartment. Thus, considering only the amounts of
heroin listed in the PSI that were actually possessed, the
district court could not have sentenced Mergerson to a mandatory
life sentence under § 841(a)(1)(A). For purposes of Mergerson's
non-Guidelines sentencing on count one, the district court
separately found that over 1000 grams were actually possessed.
The latter finding was based on the drug transaction notes found
in Anunaso's apartment. See infra.
18
into the one kilogram figure so that the maximum amount that
could be found from the September 11 negotiations and transaction
is one kilogram. This argument ignores the fact that on
September 11, 1991, after he sold the heroin to Battiste,
Mergerson negotiated with the agents for an additional kilogram
to be delivered the following week. Mergerson told Harrington
and Battiste that the "sky was the limit" for him and that he
could get as much heroin as they wished.
The appellants next argue that the one-kilogram figure
should not be used in the Guidelines calculations at all because
Mergerson's statements about being able to provide a kilogram
were mere "puffing" and that in fact he could not actually
produce that quantity of drugs. Anunaso relies on U.S.S.G. §
2D1.4 commentary which provides:
In an offense involving negotiation to
traffic in a controlled substance, the weight
under negotiation in an uncompleted
distribution shall be used to calculate the
applicable amount. However, where the court
finds that the defendant did not intend to
produce and was not reasonably capable of
producing the negotiated amount, the court
shall exclude from the guideline calculation
the amount that it finds the defendant did
not intend to produce and was not reasonably
capable of producing. (emphasis added).
See also United States v. Garcia, 889 F.2d 1454, 1456-57 (5th Cir
1989), cert. denied, 494 U.S. 1088 (1990). Mergerson's prior
deliveries and promises for future deliveries, when taken in
conjunction with the narcotics transaction notes found at
Anunaso's apartment, are evidence from which a fact-finder could
reasonably determine that Mergerson had both the intent and
19
ability to produce the negotiated amount.7 Thus, the district
court's finding regarding the applicable drug quantity for
sentencing purposes was not clearly erroneous.
ii. The district court's quantity finding for purposes of
Mergerson's mandatory life sentence on count one
In order to sentence Mergerson to a mandatory life term of
imprisonment under 21 U.S.C. §§ 841(a)(1)(A)(i) & 846, the
district court had to find by a preponderance of the evidence
that Mergerson actually possessed or conspired with Anunaso to
actually possess over a kilogram of heroin during the conspiracy
alleged in count one of the Government's indictment.8 Mere proof
of the amounts "negotiated" with the undercover agents --
including the kilogram of heroin discussed immediately, supra --
would not count toward the quantity of heroin applicable to the
conspiracy count.9
7
Simply because Mergerson was unable to produce the full
kilogram on September 11, 1991, does not mean that he was not
ultimately capable of producing it.
8
During the sentencing hearing, the district court appeared
to say that only amounts actually possessed with the intent to
distribute -- as opposed to amounts that were part of a
conspiracy to possess with the intent to distribute, but never
actually possessed -- could be considered in sentencing under §
841(b)(1)(a). This is also the position taken by Mergerson on
appeal. We disagree. A mandatory life sentence is permissible
so long as there is even a conspiracy to possess with the intent
to distribute (assuming that all other statutory requirements are
met). See United States v. McGlory, 968 F.2d 309, 346 & n.25 (3d
Cir. 1992); United States v. Frazier, 936 F.2d 262, 266 (6th Cir.
1991).
9
It is axiomatic that a criminal cannot conspire with
undercover law enforcement officials. See United States v.
Enstam, 622 F.2d 857, 867 (5th Cir. 1980); see also United States
v. Kelly, 888 F.2d 732, 740 (11th Cir. 1989). Thus, the one
20
It is essentially undisputed that Mergerson actually
possessed approximately 450 grams of heroin, the quantity
actually distributed to the agents. The only other evidence
offered by the Government to support its allegation that
Mergerson conspired to possess over a kilogram of heroin with the
intent to distribute was a small, undated piece of paper with
handwritten notes that, the Government argues, refer to narcotics
transactions. That piece of paper was seized during a search of
Anunaso's apartment. In addition to a substantial amount of
indecipherable writings and a telephone number, the paper
contains the name "MERK" and a series of numbers written as
follows:
825368
1360
MERK 8 -- 500 -- 860
|
500 -- 360
The Government interprets this series of notations to
represent various agreements between Mergerson and Anunaso to
possess heroin for the purpose of distributing it. In
particular, the Government contends that the 360 "corresponds" to
the 350 grams of heroin that Mergerson stated was available for
kilogram of heroin that Mergerson negotiated with the undercover
agents cannot be considered to be a part of the conspiracy
alleged in count one of the indictment.
21
delivery on September 11, 1991.10 The Government hypothesizes
that the 1360 represents the total amount of heroin distributed
by Mergerson during the conspiracy and that the two 500's were
distributed by Mergerson to unidentified parties other than the
undercover agents. For purposes of sentencing Mergerson under §
841(a)(1)(A)(i), the district court accepted the Government's
theory and found that 1360 grams were actually possessed by
Mergerson with the intent to distribute.
We believe that the district court clearly erred in
accepting the Government's interpretation of the piece of paper
for purposes of sentencing Mergerson to a mandatory term of life
imprisonment. To begin with, we believe that the piece of paper,
besides the reference to Mergerson's nickname "Merk," is of
extremely slight probative value regarding proof of the quantity
of heroin used in the conspiracy alleged in count one of the
indictment. The writings on the paper do not in any way refer to
heroin. It is undisputed that Mergerson also dealt in at least
one other drug, i.e., cocaine. Furthermore, there is no proof
that the numbers are references to grams. The numbers could just
as easily refer to dollar amounts. Nor is there any mention of
dates of the alleged transactions. Count one of the indictment
specifically limits the charged conspiracy to the period from
August 18, 1991, to September 11, 1991.
In sum, we hold that the district court clearly erred in
finding that Mergerson possessed over a kilogram of heroin with
10
In fact, Mergerson only delivered 334.8 grams of heroin.
22
the intent to distribute. We further believe that the district
court would have likewise erred in finding that Mergerson
conspired to possess over a kilogram of heroin with the intent to
distribute. Therefore, we vacate Mergerson's mandatory life
sentence imposed for his conviction on count one and remand for
resentencing.
D. Did the district court err in its determination of the
respective roles of each defendant in the offenses?
The district court determined, based upon the information in
the presentence investigation report (PSI), that each defendant
was "an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive," see
U.S.S.G. § 3B1.1(a), and assessed a four-level increase in the
offense level pursuant to that provision of the Guidelines.
Mergerson and Anunaso argue that the four-level increases in
their respective sentences were erroneous. We have repeatedly
held that "[a] reviewing court will disturb a district court's
factual finding regarding sentencing factors only if those
findings are clearly erroneous." United States v. Whitlow, 979
F.2d 1008, 1011 (5th Cir. 1992); United States v. Franco-Torres,
869 F.2d 797, 800 (5th Cir. 1989). A factual finding is not
clearly erroneous so long as it is plausible in light of the
record read as a whole. See United States v. Fields, 906 F.2d
139, 142 (5th Cir.), cert. denied, 111 S. Ct. 200 (1990); Whitlow,
979 F.2d at 1011. Both Anunaso and Mergerson assert that the
district court's failure to specify the "five or more
23
participants" involved in the criminal activity was error which
justifies vacating the sentence and remanding for resentencing.
The appellants rely on United States v. Schweihs, 971 F.2d 1302
(7th Cir. 1992). In Schweihs, the Seventh Circuit held, in
construing U.S.S.G. § 3B1.1(a), that the district court must
identify the five (or more) participants and determine whether
the defendant exhibited leadership or control over all five (or
more) of them. Id. at 1318.
The Government argues that we need not reach the appellants'
argument here because the four-level increase was justified on
the independent ground that the criminal activity was "otherwise
extensive," U.S.S.G. § 3B1.1(a), even if the district court erred
by not specifically finding the existence of five (or more)
individuals over whom the two defendants had control.11 We agree
that there is ample evidence that Mergerson and Anunaso's drug
11
The Government also contends that the district court had
before it ample evidence -- including the drug transaction notes
and recordings of messages left by Mergerson and others on
Anunaso's telephone answering system regarding various drug
transactions -- that supported the district court's finding that
there were five or more participants. We note that, although the
appellants' specific reliance on the Seventh Circuit's opinion in
Schweihs appears to be foreclosed by this court's decision in
United States v. Barbontin, 907 F.2d 1494, 1497-98 (5th Cir.
1990) ("the identities of the transactional participants need not
be expressly proved"), Barbontin requires that the district court
may only consider unidentified participants when there is proof
that they were "involved in the precise transaction underlying
the conviction." Id. (emphasis in original). The district court
never made such a specific finding in the instant case. However,
because we affirm the district court's alternative finding that
the conspiracy was "otherwise extensive," we need not require
resentencing pursuant to § 3B1.1(a).
24
trafficking activities were "otherwise extensive."12 Mergerson
admitted to controlling the activities of "several girls" who
distributed heroin for him. Anunaso served as the source of
heroin to Mergerson and others, including "Spencer" and "Beneda."
The amount and street value of the heroin negotiated in the
instant case was also extremely large. Moreover, there was
undisputed evidence that this case involved the distribution of
high-purity heroin.13 Based on the totality of the evidence, we
uphold the district court's § 3B1.1(a) increase in both
appellants' cases.
E. Was the evidence sufficient to support Mergerson's conviction
on the firearm count?
Mergerson was convicted of count five of the indictment,
12
In making its findings during sentencing, the district
court specifically stated, "I now find and conclude that [the co-
defendants'] activity involved five or more participants and, as
well, as a separate finding, that it was otherwise extensive as
to each one."
13
Such evidence is another basis on which to find
"otherwise extensive" criminal activity. As the Sentencing
Commission has stated:
The purity of the controlled substance,
particularly in the case of heroin, may be
relevant to the sentencing process because it
is probative of the defendant's role or
position in the chain of distribution. Since
controlled substances are often diluted and
combined with other substances as they pass
down the chain of distribution, the fact that
a defendant is in possession of unusually
pure narcotics may indicate a prominent role
in the criminal enterprise and proximity to
the source of the drugs.
U.S.S.G. § 2D1.1, Application Note 9 (emphasis added).
25
which charged him with being a felon in possession of a firearm.
See 18 U.S.C. § 922(g)(1). On appeal, Mergerson claims that the
evidence was insufficient to prove one of the elements of § 922
-- namely, that he was in possession of the firearm. The
weapon, a handgun, was found between the mattress and boxsprings
of the bed in a bedroom in the residence in which Mergerson
occupied. Mergerson stipulated that he had lived at the
residence with his girlfriend and co-defendant, Sheila Guy, for
approximately a month before his arrest.14 The evidence is
essentially undisputed that Mergerson and Guy were cohabiting in
the apartment and shared the bedroom in which the gun was
found.15 Also introduced at trial was a pawnshop receipt showing
that the weapon was purchased by Guy well before the time that
Mergerson moved into the residence.
It is well-established that possession may be actual or
constructive. See United States v. Smith, 930 F.2d 1081, 1085
(5th Cir. 1991); United States v. Posner, 868 F.2d 720, 723 (5th
14
Outside of the presence of the jury, the defense
proffered testimony from Mergerson's trial attorney, who claimed
that Guy had told him the day before that she was the lessee of
the apartment and had lived there before Mergerson moved in. Guy
also allegedly stated that she not only owned the weapon, but
also that Mergerson had no knowledge of it. The district court
refused to admit that testimony. However, because Mergerson's
trial attorney's testimony was not admitted into the evidence
before the jury, we cannot consider it for purposes of our
sufficiency review. See Holloway v. McElroy, 632 F.2d 605, 609
n.6 (5th Cir. 1981) ("We consider only his testimony before the
jury, of course, in reviewing the sufficiency of the evidence.");
cf. Crutchfield v. State, 812 S.W.2d 459 (Ark. 1991).
15
There were only two bedrooms in the residence. The one
in which the gun was found contained adult male and female
clothing; the other bedroom contained children's clothing.
26
Cir. 1989). This is clearly a case in which the Government has
attempted to prove constructive possession. "`Constructive
possession' has been defined as ownership, dominion, or control
over the contraband itself or dominion or control over the
premises in which the contraband is concealed." Smith, 930 F.2d
at 1085. In the instant case, the Government argues that the
fact that Mergerson was living in the bedroom in which the weapon
was found is enough to establish constructive possession. We
disagree. Instead, we believe that mere control or dominion over
the place in which contraband or an illegal item is found by
itself is not enough to establish constructive possession when
there is joint occupancy of a place.
Numerous other courts have addressed this precise question
and held that "[w]here . . . a residence is jointly occupied, the
mere fact that contraband is discovered at the residence will
not, without more, provide evidence sufficient to support a
conviction based upon constructive possession against any of the
occupants." United States v. Reese, 775 F.2d 1066, 1073 (9th
Cir. 1985) (citations omitted); accord United States v. Ford, ___
F.2d ___, ___, 1993 U.S. App. LEXIS 12086 at *9 (D.C. Cir. May
25, 1993) ("[I]n cases in which contraband or firearms are
discovered in a place occupied by more than one person, the
Government must establish `the likelihood that in some
discernible fashion the accused had a voice vis-a-vis' the items
in question.") (citations omitted); United States v. Bonham, 477
F.2d 1137, 1138-39 (3d Cir. 1973) (en banc) (co-defendant did not
27
have constructive possession over heroin hidden in bedroom shared
with half-brother when Government's only evidence linking him to
heroin was joint occupancy of room). Although we do not adopt
the "affirmative link" test adopted by some of these courts, see,
e.g., Reese, 775 F.2d at 1073 (requiring there to be some
"affirmative link" between defendant and contraband or weapon in
order to establish constructive possession),16 we do believe that
something else (e.g., some circumstantial indicium of possession)
is required besides mere joint occupancy before constructive
possession is established.
In our previous joint occupancy cases, this court has
adopted a "commonsense, fact-specific approach" to determining
whether constructive possession was established. Smith, 930 F.2d
at 1086. We have found constructive possession in such cases
only when there was some evidence supporting at least a plausible
inference that the defendant had knowledge of and access to the
weapon or contraband. See, e.g., United States v. McKnight, 953
F.2d 898, 902 (5th Cir. 1992) (weapon was found in plain view);
Smith, 930 F.2d at 1086 (same). In the instant case, the weapon
was not in plain view17 and there were no other circumstantial
indicia that established that Mergerson even knew of the weapon.
16
We have previously refused to adopt the "affirmative
link" test. See United States v. Smith, 930 F.2d 1081, 1086 (5th
Cir. 1991).
17
Although we have previously held that constructive
possession was established by evidence that a weapon was found,
as in the instant case, between the mattress and boxsprings of a
bed, see United States v. Munoz-Romo, 947 F.2d 170, 177 (5th Cir.
1990), that case was not a joint occupancy case.
28
Indeed, there was evidence to the contrary -- namely, the
pawnshop receipt that showed that Sheila Guy was the owner of the
weapon.
Thus, we hold that the evidence supporting Mergerson's
conviction on the fifth count of the indictment is
constitutionally insufficient. The Government may not retry
Mergerson on that count. See Burks v. United States, 437 U.S. 1
(1978).18
F. Did the district court err in finding that Anunaso and
Mergerson possessed a firearm during the commission of a drug
offense for purposes of U.S.S.G. § 2D1.1(b)(1)?
The district court applied U.S.S.G. § 2D1.1(b)(1) and
assessed a two-level increase for Anunaso's possession of a
firearm during the commission of the drug offenses. The
government must prove possession by a preponderance of the
evidence before the court can apply the two-level increase under
§ 2D1.1(b)(1). See United States v. Aguilera-Zapata, 901 F.2d
1209, 1215 (5th Cir. 1990).
The Government may prove that the defendant personally
possessed the weapon by showing that a temporal and spatial
relationship existed between the weapon, the drug trafficking
activity, and the defendant. See United States v. Hooten, 942
18
Because we have found that the conviction on count five
must be reversed on insufficiency grounds, there is no need to
reach Mergerson's claim that his conviction on count five should
also be reversed in view of the district court's exclusion of
Mergerson's trial counsel's testimony about statements allegedly
made by Sheila Guy.
29
F.2d 878 (5th Cir. 1991); United States v. Suarez, 911 F.2d 1016,
1018 (5th Cir. 1990). Generally the Government must provide
evidence that the weapon was found in the same location where
drugs or drug paraphernalia are stored or where part of the
transaction occurred. United States v. Blankenship, 923 F.2d
1110, 1115 (5th Cir.), cert. denied, 111 S.Ct 2262 (1991);
Hooten, 942 F.2d at 882; United States v. Otero, 868 F.2d 1412,
1414 (5th Cir. 1989).
The DEA agents found a gun during their search of Anunaso's
residence. The fact that Mergerson left Anunaso's apartment
shortly before he delivered the 334.8 grams of heroin, taken
together with the fact that the officers discovered, on the same
day, Anunaso's loaded gun at the apartment creates a spatial and
temporal connection between the weapon and the offense. We do
not believe that the district court's finding was clearly
erroneous.
With respect to the two-level increase assessed to
Mergerson's offense level, the district court found that the
increase was proper in view of either the weapon found within
Mergerson's residence or the weapon found in Anunaso's apartment.
Because we have previously found that there was insufficient
evidence to establish that Mergerson had constructive possession
of the firearm found in his residence, we will only review the
district court's application of § 2D1.1(b)(1) regarding Anunaso's
gun. This court has previously held that one co-conspirator may
ordinarily be assessed a § 2D1.1(b)(a) increase in view of
30
another co-conspirator's possession of a firearm during the drug
conspiracy so long as the use of the weapon was reasonably
foreseeable. See United States v. Aguilera-Zapata, 901 F.2d
1209, 1215-16 (5th Cir. 1990). Ordinarily, one co-conspirator's
use of a firearm will be foreseeable because firearms are "tools
of the trade" in drug conspiracies. Id. At the sentencing
hearing, the district court specifically found that Anunaso's use
of the weapon was reasonably foreseeable by Mergerson. We do not
believe that the district court's finding was clearly erroneous.
Thus, we affirm the district court's decision to assess §
2D1.1(b)(1) increases in sentencing both Mergerson and Anunaso.
III. CONCLUSION
For the foregoing reasons, we AFFIRM all of Anunaso's
convictions and corresponding sentences. We AFFIRM Mergerson's
convictions on counts one through four of the indictment but
REVERSE his conviction on count five of the indictment on the
ground that the evidence was constitutionally insufficient. We
further AFFIRM Mergerson's sentences on counts two through four,
but VACATE Mergerson's sentence for his conviction on count one.
We REMAND to the district court for resentencing on count one.
31