United States v. Ingram , 96 F. App'x 946 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 21, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 01-21041
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WORRELL INGRAM, also known as Indian;
ANTHONY ROBINSON, also known as Tony
Marcel Robinson,
Defendants - Appellants.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-286-2
_________________________________________________________________
Before JOLLY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
In September 2000, a grand jury returned a six-count
indictment against Worrell Ingram and Anthony Robinson (the
“Defendants”), and a third defendant. Robinson and Ingram were
both charged in Count 1 with conspiracy to possess with intent to
distribute 1,000 kilograms or more of marijuana beginning in 1998;
in Count 2 with aiding and abetting the possession with intent to
distribute 1,000 kilograms or more of marijuana on or about March
1999; in Count 3 with aiding and abetting the possession with
*
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this opinion should not be published and is not precedent except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.
intent to distribute 100 kilograms or more of marijuana on or about
April 8, 1999; and in Count 6 with money laundering beginning in
May 1998. In addition, Robinson was charged in Count 4 with aiding
and abetting possession with intent to distribute 1,000 kilograms
or more of marijuana in May 1999; and in Count 5 with aiding and
abetting the possession with intent to distribute 100 kilograms or
more of marijuana in November 1999.
At trial, government witnesses testified that Robinson had
been under surveillance since 1998. The government presented
evidence of a conspiracy to transport drugs from Texas to
Philadelphia, and of Robinson and Ingram’s involvement in that
conspiracy, which was the basis of Count 1. It also presented
evidence of three specific incidents in which marijuana was
transported from Texas to Philadelphia in March, April and May
1999. These incidents are the basis for Counts 2, 3 and 4,
respectively.
A jury convicted Ingram of Counts 1, 3, and 6, and Robinson of
Counts 1, 3, 4, and 6; it found both not guilty of Count 2, and
Count 5 was dismissed on the government’s motion at trial. Ingram
was given concurrent sentences of 85 months each on Counts 1, 3,
and 6, to be followed by three years of supervised release.1
1
Ingram’s Presentence Investigation Report (“PSR”) assigned
to him a base offense level of 32 under U.S.S.G. §
2D1.1(a)(3)(c)(4), based on the finding that he was accountable for
1,183.4 kilograms of marijuana. There were no recommended
enhancements to his base level. Ingram fell into Criminal History
Category I, which made his guideline range 121-151 months. The
2
Robinson was sentenced to 235 months on each of the four counts of
conviction, with the sentences to run concurrently.2 The
Defendants have appealed several issues individually and in common,
which we take up in order.
Ingram argues that the evidence was insufficient to support
his conviction in the Count 1 conspiracy. Yet the government
presented strong evidence that a conspiracy existed and that Ingram
was a part of it -- including large amounts of cash, the pistol and
the telephone records, Ingram’s receipt of $45,000 for driving from
Houston to Philadelphia, and his help unloading and reloading the
vans and trucks, as well as his efforts to secure a “cover load” to
hide the marijuana he was transporting. A rational trier of fact
could thus have easily found that Ingram was guilty of
participating in a conspiracy to distribute drugs.
district court found that Ingram was not accountable for the
activities charged in Count 2, however, and reduced his total
offense level to 28, based on possession of 680 kilograms of
marijuana. This adjusted offense level resulted in a guideline
range of 78-97 months.
2
Robinson’s PSR found that he was accountable for 5,267.51
kilograms of marijuana and therefore should be assigned a base
level of 34. He received a 4-level increase because of his
leadership role in the conspiracy, under U.S.S.G. § 3B1.1(a), and
a 2-level increase for obstruction of justice, under U.S.S.G. §
3C1.1. Robinson’s sentencing level of 40, and his Criminal History
Category I, determined that his sentencing guideline range was from
292 to 365 months. The district court, however, found that
Robinson was only accountable for 1,865.22 kilograms of marijuana,
which reduced his total offense level to 38. This adjusted offense
level resulted in a guideline range of 235 to 293 months.
3
Ingram also argues that he should have been given a mitigating
role adjustment to his sentence because he was a minimal or minor
participant in the criminal conspiracy. Yet Ingram’s transport of
marijuana and his efforts to hide his activities indicate an
awareness of what he was doing, and his fully supported conviction
for money laundering (involving large sums) demonstrates a
significant level of participation in the conspiracy. Ingram
failed to demonstrate how he was a minimally culpable member of the
conspiracy, and consequently the district court did not err in
refusing the adjustment.
Robinson argues that the evidence obtained when stopping his
car, including the large amount of cash and the incriminating
statements he made, should have been suppressed. Yet Robinson was
validly stopped for violating a traffic law and voluntarily gave
consent to the search of his car. Moreover, the district court
suppressed the statements he made to the FBI agent who interviewed
him during the stop. Accordingly, we find no error of the district
court in its ruling.3
Robinson next argues that his base sentencing level should not
have had a leadership role adjustment. Yet the government
presented strong evidence that fully supports a conclusion that
3
In his reply brief, Robinson questions for the first time the
scope of his detention. The government moved to strike this
argument, in that issues not raised in an appellant’s original
brief are considered waived. Smith v. Cockrell, 311 F.3d 661, 679
n.12 (5th Cir. 2002). We carried this motion with the appeal. The
motion is GRANTED.
4
Robinson organized shipments of marijuana and directed the actions
of other conspiracy members. As such, the district court did not
err in applying this base level enhancement.
Robinson also argues that his base sentencing level should not
have been adjusted for obstruction of justice. Yet the government
presented evidence at his bail hearing that Robinson misled the
court as to his source of income. The district court therefore did
not clearly err in finding obstruction of justice.
Both Defendants argue that the district court miscalculated
the quantity of drugs for which they were accountable. Yet there
is sufficient evidence to find Ingram responsible for at least 680
kilograms of marijuana and Robinson for at least 1,865.22 kilograms
of marijuana -- indeed, both these figures are lower than the PSRs’
findings. The district court did not clearly err in its
calculations.
Finally, both Defendants argue that the Sentencing Guidelines
violate the Fifth and Sixth Amendments because they put into the
hands of a judge determinations that should be made by a jury. The
jurisprudence of the Supreme Court and of this Court have rejected
the Defendants’ argument. See Apprendi v. New Jersey, 530 U.S.
466, 490 (2000); United States v. Moreno, 289 F.3d 371, 372-73 (5th
Cir. 2002). Accordingly, the district court did not
unconstitutionally enhance the Defendants’ sentences.
5
In sum, we have carefully considered this appeal in the light
of the briefs, oral arguments, and the relevant parts of the
record. Having done so, we can find no reversible error. In
addition, we GRANT the government’s motion to strike the first
issue in Robinson’s reply brief.
AFFIRMED; MOTION GRANTED.
6