United States v. Coleman ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-50355
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LENARD COLEMAN,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-99-CR-549-1-H)
_________________________________________________________________
February 12, 2001
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Convicted for possession with intent to distribute, Lenard
Coleman contests the district court’s denying his motion for
judgment of acquittal. We AFFIRM the conviction, but VACATE
Coleman’s sentence and REMAND because, as raised by the Government,
the sentence is erroneous under the Supreme Court’s recent decision
in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
*
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this opinion should not be published and is not precedent except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.
I.
In March 1999, Coleman hired Roy Lafayette (Coleman had known
him several years) to accompany Coleman as he drove the tractor
trailer he owned from Mississippi to Phoenix, Arizona. After
making the delivery in Phoenix, they picked up a load of cottonseed
in Eloy, Arizona. The worker who loaded the cottonseed testified
he did not load anything on the truck but cottonseed. Lafayette
testified he thought Coleman was running short on money at the
time.
On 29 March, Coleman and Lafayette stopped at a truck stop in
Vinton, New Mexico; Coleman told Lafayette he was going to “holler
at his [(Coleman’s)] cousin”. Coleman did not invite Lafayette to
accompany him. Coleman departed in his tractor trailer, leaving
Lafayette at the truck stop for 45 minutes to an hour.
Shortly thereafter, when they stopped at a motel, Coleman gave
Lafayette money and told him that, while Lafayette was registering,
he (Coleman) was going to “holler” at his cousin again. But, once
again, he did not ask Lafayette to accompany him. Lafayette
checked into the motel at 11:45 p.m. Because he fell asleep at the
motel, Lafayette was unsure if, while Coleman was absent, he had
the tractor trailer with him. Coleman did not return until around
3:00 a.m.
Before leaving the motel later that morning (30 March 1999),
Coleman checked the truck. Aside from getting something to eat, if
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he and Lafayette stopped between the motel and the Sierra Blanca
checkpoint (Texas), it was only for a few minutes.
When Coleman drove the truck into that checkpoint, Lafayette
was asleep. (Lafayette testified he (Lafayette) had smoked “a
couple of joints of marijuana”.) While a Border Patrol Agent was
talking with Coleman, the Agent’s drug canine alerted to Coleman’s
trailer. Once inside it, the canine alerted to nine cardboard
boxes loaded between pallets of cottonseed.
When Border Patrol Agents opened the boxes, they found
numerous bundles of marijuana wrapped in black material. The nine
boxes contained approximately 1,300 pounds of marijuana
(approximately 590 kilograms), with an approximate $1.2 million
street value. The bundles had been sprayed with foam to mask the
marijuana odor. Coleman appeared surprised when the Agents found
the marijuana.
Lafayette was called as a witness by the Government. Coleman
did not testify; nor did he put on any evidence. At the close of
the evidence, Coleman moved for a judgment of acquittal under
Federal Rule of Criminal Procedure 29. See FED. R. CRIM. P. 29
(judgment of acquittal if evidence insufficient to sustain
conviction). The motion was denied.
The jury found Coleman guilty of possession with the intent to
distribute marijuana. The district court sentenced him, inter
alia, to 78 months’ imprisonment.
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II.
Coleman challenges the denial of a judgment of acquittal. The
Government points out the Apprendi error in Coleman’s sentence.
A.
Denial of a judgment of acquittal motion is reviewed de novo.
E.g., United States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999).
For a timely motion for judgment of acquittal, as in this case, our
standard for reviewing the judgment is more than well-established.
In evaluating the sufficiency of the evidence
we must affirm the verdict if a reasonable
trier of fact could conclude from the evidence
that the elements of the offense were
established beyond a reasonable doubt, viewing
the evidence in the light most favorable to
the verdict and drawing all reasonable
inferences from the evidence to support the
verdict.
Id. (internal quotation marks omitted). “All credibility
determinations and reasonable inferences are to be resolved in
favor of the verdict.... [I]t is not necessary that the evidence
exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” United
States v. Willey, 57 F.3d 1374, 1380 (5th Cir.) (emphasis added;
internal quotation marks and citations omitted), cert. denied, 516
U.S. 1029 (1995).
“A conviction for the offense of possession of marijuana with
intent to distribute requires proof that the defendant (1)
knowingly (2) possessed marijuana (3) with intent to distribute
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it.” United States v. Meshack, 225 F.3d 556, 568 (5th Cir. 2000)
(emphasis added), cert. denied, 2001 WL 13025 (8 Jan. 2001).
According to Coleman, the evidence of his knowledge was
insufficient.
The knowledge element in a possession
case can rarely be established by direct
evidence. Knowledge can be inferred from
control of the vehicle in some cases; however,
when the drugs are hidden, control over the
vehicle alone is not sufficient to prove
knowledge. This is so because it is at least
a fair assumption that a third party might
have concealed the controlled substances in
the vehicle with the intent to use the
unwitting defendant as the carrier in a
smuggling enterprise. Thus, it is the general
rule in this circuit that where the case
involves a hidden compartment, control must be
supplemented by other circumstantial evidence
that is suspicious in nature or demonstrates
guilty knowledge.
United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999)
(emphasis added; internal quotation marks and citations omitted).
Of course, the same test applies to items concealed in a trailer,
as in the case at hand, as to those in a hidden compartment because
neither are “clearly visible or readily accessible”. See United
States v. Pennington, 20 F.3d 593, 598 (5th Cir. 1994) (“[W]hether
the marijuana was ‘hidden’ in the trailer [will determine if] the
government [must] produce[] further evidence of knowledge.... [T]he
control of the vehicle will suffice to prove knowledge only where
the drugs are clearly visible or readily accessible”. (emphasis
added)).
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It is not disputed that Coleman owned the tractor trailer and
was driving it on entering the checkpoint. Coleman asserts the
Government failed to supplement its evidence concerning his
control with enough additional circumstantial evidence to establish
guilty knowledge. He maintains the Government presented: little
evidence he had time to load the marijuana; no evidence he was
nervous when the drugs were discovered; and no evidence he and
Lafayette gave conflicting statements.
Concerning the latter, an Agent testified: in his post-arrest
statement, Coleman told the Agent he had no knowledge of the
marijuana; and he was driving from Eloy, Arizona, to Orangeburg,
South Carolina, with a load of cottonseed. These statements are
not inconsistent with Lafayette’s testimony. Coleman asserts his
post-arrest statement was plausible.
As stated in United States v. Del Aguila-Reyes: “It was a
reasonable inference that [the defendant] would not have been
entrusted with ... this valuable cargo ... if he were ... ignorant
of all details surrounding his responsibility and the importance of
the cargo in his care.” 722 F.2d 155, 157 (5th Cir. 1983)
(emphasis added). Needless to say, Coleman’s claim of ignorance is
somewhat implausible and “suspicious in nature”. See Ramos-Garcia,
184 F.3d at 465. It is highly unlikely that, without his
knowledge, he would have been entrusted with drugs worth over $1
million. On the other hand, Del Aguila-Reyes cautioned: “Even this
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reasonable inference, however, if there were nothing more, might
well not support a finding of guilty knowledge”. Del Aguila-Reyes,
722 F.2d at 157 (emphasis added). “But [, as in Del Aguila-Reyes,]
this is not all.” Id. (emphasis added).
There is ample evidence that Coleman had time to load the
marijuana, given the testimony he left Lafayette for at least 45
minutes at the truck stop and for approximately three hours at the
motel. Furthermore, because Coleman did not ask Lafayette to
accompany him either time he “hollered at his cousin”, a reasonable
juror could infer that Coleman did not want Lafayette to know what
he was doing.
Coleman contests the Government’s failure to fingerprint the
boxes or weigh the truck. Because of the adhesive foam in which
the marijuana was packed, however, the boxes were destroyed simply
by opening and repackaging them. And, the Sierra Blanca checkpoint
has no weighing facilities.
Resolving all reasonable inferences in favor of the verdict,
Coleman’s control of the tractor trailer was supplemented by
circumstantial evidence that was extremely suspicious in nature.
The district court did not err in denying a judgment of acquittal.
B.
In its appellate brief, the Government, to its credit, notes
Coleman’s 78-month sentence is erroneous under Apprendi. Coleman
not only failed to raise this issue in his appellate brief, but
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also failed to file a reply brief. See, e.g., United States v.
Salazar-Flores, No. 99-50956, 2001 WL 25691 (5th Cir. 25 Jan. 2001)
(direct appeal; parties filed supplemental briefs addressing
Apprendi’s impact).
Generally, “we review only those issues presented to us; we do
not craft new issues or otherwise search for them in the record”.
United States v. Brace, 145 F.3d 247, 255 (5th Cir.) (en banc)
(emphasis added), cert. denied, 525 U.S. 973 (1998). However,
[w]here plain error is apparent, the issue may
be raised sua sponte by this court even though
it is not assigned or specified. As the
Supreme Court has recognized, [i]n exceptional
circumstances, especially in criminal cases,
appellate courts, in the public interest, may,
of their own motion, notice errors to which no
exception has been taken, if the errors are
obvious, or if they otherwise seriously affect
the fairness, integrity or public reputation
of judicial proceedings.... Fairness as well
as judicial economy dictate that we address
now this issue that would doubtless otherwise
be raised in a subsequent habeas proceeding.
United States v. Pineda-Ortuno, 952 F.2d 98, 105 (5th Cir.)
(emphasis added; internal indentation and citations omitted), cert.
denied, 504 U.S. 928 (1992).
Despite Coleman’s failure to raise the issue, for several
reasons we conclude it would “seriously affect the fairness,
integrity or public reputation of judicial proceedings” were we to
ignore the error: first, the Government concedes the sentence was
erroneous under Apprendi; and second, our court has found an
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Apprendi violation to be “plain error”, Meshack, 225 F.3d at 575-78(applying plain error review). Thus, plain error is both
“apparent” and “obvious”. Furthermore, judicial economy encourages
consideration, for were we to exercise our discretion to find the
issue forfeited, Coleman almost without doubt would raise it and/or
a related issue (such as ineffective assistance of counsel) in a 28
U.S.C. § 2255 proceeding.
Apprendi provides: “Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt”. Apprendi, 120 S. Ct. at 2362-63(emphasis added). In applying this principle, our court recently
concluded: “[I]f the government seeks enhanced penalties based on
the amount of drugs..., the quantity must be stated in the
indictment and submitted to a jury for a finding of proof beyond a
reasonable doubt”. United States v. Doggett, 230 F.3d 160, 165
(5th Cir. 2000), petition for cert. filed, __ U.S.L.W. __ (U.S. 4
Jan. 2001) (No. 00-7819). Coleman’s indictment did not state the
quantity of drugs involved, although the Government gave notice of
its intent to seek enhanced penalties for a quantity of 100
kilograms or more of marijuana.
“In the case of less than 50 kilograms of marijuana
[approximately 110 pounds], ... such person shall ... be sentenced
to a term of imprisonment of not more than [60 months] ....” 28
9
U.S.C. § 841(b)(1)(D) (emphasis added). In sentencing Coleman, the
district court apparently applied Sentencing Guideline §
2D1.1(a)(3) and (c), under which the base offense level for drug-
trafficking may be determined by the quantity of drugs involved.
See U.S.S.G. § 2D1.1(a)(3), (c). (The drug quantity is considered
“relevant conduct” as defined in § 1B1.3. See § 2D1.1, cmt. 12.)
Under Sentencing Guideline § 2D1.1(c), a defendant receives a base
offense level of 28 if the quantity of marijuana was at least 400,
but less than 700, kilograms (approximately 880 to 1540 pounds).
Applying the Guidelines in this manner led the district court to
sentence Coleman to 78 months, based on a fact that was not proven
beyond a reasonable doubt to the jury. The sentence exceeds the
aforementioned statutory maximum by 18 months.
The Government asserts: even if the sentence is plain error,
it need not be corrected because the amount of drugs involved is
not in dispute. In support, it claims Coleman stipulated at trial
to the quantity. Of course, “once a stipulation is entered, even
in a criminal case, the government is relieved of its burden to
prove the fact which has been stipulated by the parties”. United
States v. Branch, 46 F.3d 440, 442 (5th Cir. 1995).
The Government has misread the stipulation. The stipulation
states simply, inter alia, that, if the Drug Enforcement
Administration’s chemist were present, “he would testify that the
substance seized ... is, in fact, MARIJUANA, and weighs
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approximately one thousand three hundred and one pounds”. Based on
our reading of this stipulated fact, Coleman stipulated merely that
the chemist would so testify, not to the truth of that testimony.
Accordingly, we vacate Coleman’s sentence and remand this case
to the district court. “Upon remand, the district court could
allow retrial ... or it could resentence [Coleman] at the lowest
statutory drug amount.” Meshack, 225 F.3d at 578, n.20; see United
States v. McWaine, No. 99-60265, 2001 WL 30615, *4 (5th Cir. 12
Jan. 2001) (vacating sentence and remanding for proceedings
consistent with Meshack).
III.
For the foregoing reasons, the district court did not err in
denying a judgment of acquittal; therefore, the conviction is
AFFIRMED. However, in the light of Apprendi, the sentence was in
error; accordingly, the sentence is VACATED and this case REMANDED
to the district court for further proceedings consistent with this
opinion.
AFFIRMED IN PART; VACATED IN PART; REMANDED
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