United States v. Garner , 273 F. App'x 487 ( 2008 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 08a0186n.06
Filed: April 9, 2008
Nos. 06-3778 and 06-3780
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff- Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
DAVID GARNER AND JAMES CARR, ) OHIO
)
Defendants- Appellants. )
)
)
)
Before: SILER, CLAY, and COOK, Circuit Judges.
SILER, Circuit Judge. In 2005, Defendants David Garner and James Carr (collectively, the
“Defendants”), along with multiple co-defendants, were indicted on charges of conspiracy to
distribute crack cocaine. Garner and Carr were also indicted on other substantive counts of
distribution of crack cocaine. The Defendants were convicted on all counts. The Defendants now
appeal their convictions for the conspiracy counts, arguing that there was insufficient evidence to
support the convictions. Garner additionally appeals his sentence, arguing that his conviction in the
present case should run concurrently, not consecutively, to a previously imposed, and then un-served,
sentence.
For the following reasons, we AFFIRM.
Nos. 06-3778 and 06-3780
United States v. Garner & Carr
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background
In 2003, the Cleveland Police Department, the Cuyahoga Metropolitan Housing Authority,
and the Federal Bureau of Investigation began a long-term joint investigation to target drug
trafficking in the Morris Black Estates (“Morris Black”), a housing development in Cleveland, Ohio.
While law enforcement relied on street sources, citizens, and victims of crime to aid their
investigation, they also employed Charles Vaughn as a confidential informant to make controlled
purchases of drugs. During the same time frame as the joint investigation, but outside of Morris
Black, the Drug Enforcement Agency arrested Deonta Robinson, James Johnson, and Jermaine
Green, who agreed to cooperate with the investigation.
Robinson and Johnson told law enforcement officers that twice a month the men jointly
purchased half kilograms of powder cocaine. After purchase, Robinson cooked the powder cocaine
into crack cocaine and then sold the crack cocaine in varying quantities. Through the cooperation
of Robinson, Johnson, and Green, officers identified two buyers and sellers of crack cocaine as the
Defendants.
II. Indictment and Trial
Garner and Carr were indicted for conspiracy to distribute narcotics and for distribution of
various amounts of crack cocaine between August 2003 and December 2004. Fourteen other
individuals, including Robinson, Johnson, and Green, were also indicted. All but three of the
charged defendants pled guilty to the crimes as charged in the indictment.
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United States v. Garner & Carr
At trial, the Government elicited testimony from various co-defendants, experts in narcotics,
law enforcement officers, and Vaughn.
Sylvester Hudson was a co-defendant who testified that he bought drugs from Garner
occasionally and sold drugs at a house in Morris Black, identified only in the trial testimony as
“Lisa’s House” (the “House”). Hudson also middled, a term that means Hudson served as a
middleman between Garner and buyers, and witnessed these transactions, in exchange for which
Garner paid Hudson with drugs. Hudson also purchased drugs from Garner. Hudson testified that
both he and Carr used and sold drugs at the House. Hudson told the jury that he and Carr used drugs
together and provided drugs to each other. In the fall of 2003 and into 2004, Hudson and Carr used
and shared drugs every day. During this time, Hudson also saw Carr sell drugs, making sales daily
either in the House or on the street. Carr also middled drugs, for which he received either drugs or
cash as payment. Carr middled for co-defendants Kevin Taylor, Wayne Johnson, Garner and
Hudson.
Robinson testified that between August 2003 and December 2004, he sold drugs to Garner:
two or three times in 2003, and two or three times in 2004. However, Robinson admitted that the
quantities Garner purchased were what Robinson would consider personal use quantities (i.e., not
large enough to distribute). Robinson testified that these sales took place in Morris Black. Robinson
did testify that Carr middled for him “a couple of times” between August 2003 and December 2004.
Robinson would also pay Carr with drugs for delivering messages for Robinson. Robinson sold Carr
crack cocaine and witnessed Carr sell crack cocaine to co-defendant Hudson.
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United States v. Garner & Carr
Green testified that he and Garner were friends, and Green sold Garner drugs once or twice
between August 2003 and October 2004. Green sold Garner “eightballs” and “quarters,” which are
6.5 to seven grams, and 200 grams, respectively. Green witnessed Garner sell drugs daily to people
on the street in Morris Black. Green sold drugs to Carr three to four times per week. Carr also
middled for Green “for months,” bringing him either money or customers. Carr’s deals were
conducted throughout Morris Black.
Maurice Merritt testified that although he knew both of the Defendants, he did not see Garner
engage in drug sales. Merritt did, however, testify to supplying Carr with crack cocaine “every other
day,” or two to three times per week. Carr also middled for Merritt, bringing him money and
customers in exchange for drugs.
Detective Maurice Kennedy witnessed Garner make hand-to-hand transactions (money in
exchange for suspected crack cocaine) five to six times. Kennedy also saw Garner use middlemen
to run drugs and money and witnessed Carr make hand-to-hand transactions in Morris Black.
Kennedy described seeing Carr exchange money for suspected crack cocaine.
Van Evans testified that he saw Carr buy drugs from co-conspirators David Sergeant, Wayne
Johnson, Merritt, and Garner. Evans also testified that between August 2003 and February 2005,
he sold Garner crack cocaine once or twice a month, in quantities of either seven or fourteen grams.
These drug sales took place in Morris Black. Evans also saw Garner selling drugs around Morris
Black and giving drugs to Carr.
Vaughn testified that an as undercover informant he purchased drugs from Garner on two
occasions. He further testified that he purchased drugs from an individual for whom Carr middled.
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Nos. 06-3778 and 06-3780
United States v. Garner & Carr
Vaughn also witnessed Carr pool drugs with two unindicted individuals in order to create a quantity
sufficient to sell to Vaughn.
III. Conviction and Sentencing
Garner, Carr, and their co-defendant Kevin Taylor were convicted of conspiracy to distribute
narcotics, as well as the substantive counts of distribution of crack cocaine. Following the trial, the
district court sentenced both Garner and Carr to prison terms of 240 months.
In January 2006, in an unrelated case, another district judge for the Northern District of Ohio
sentenced Garner to seventy-two months of incarceration for aiding and abetting a car jacking, and
brandishing a firearm during a crime of violence. In sentencing in this case in May 2006, the district
court ordered that Garner serve his seventy-two and 240 month sentences consecutively.
STANDARDS OF REVIEW
When a defendant challenges the sufficiency of the evidence to support his conviction, we
ask whether, after reviewing the evidence in the light most favorable to the Government, any rational
jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 433 U.S. 307, 318-19 (1979). In reviewing the evidence, we not only review it in the light
most favorable to the Government, but we also give the Government “the benefit of all reasonable
inferences from the testimony.” United States v. Carver, 470 F.3d 220, 232 (6th Cir. 2006) (quoting
United States v. Abate, 438 F.3d 554, 589 (6th Cir. 2006)) (internal quotations omitted).
We review a sentence imposed by a district court for reasonableness. United States v.
Jackson, 408 F.3d 301, 304 (6th Cir. 2005) (citing United States v. Booker, 125 S. Ct. 738, 765
(2005). Both the district court and this court are guided by the sentencing factors as set forth in 18
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United States v. Garner & Carr
U.S.C. § 3553(a). Id. Further, when reviewing sentencing decisions, we review the district court’s
factual findings for clear error, and its conclusions of law de novo. United States v. Hazelwood, 398
F.3d 792, 795 (6th Cir. 2005).
DISCUSSION
I. The Government presented sufficient evidence to support the jury’s determination that the
Defendants conspired to distribute crack cocaine.
The elements of a drug conspiracy, as codified in 21 U.S.C. § 846, are an agreement to
violate drug laws and that each conspirator was aware of, intended to join, and participated in that
agreement. United States v. Forrest, 17 F.3d 916, 918 (6th Cir. 1994) (quoting United States v.
Pearce, 912 F.2d 159, 161 (6th Cir. 1990)). Once the prosecution establishes a drug-related
conspiracy, the evidence connecting the defendant to that conspiracy need only be slight, and a
conspiracy can be inferred from circumstantial evidence. United States v. Martinez, 430 F.3d 317,
330 (6th Cir. 2005).
In establishing a drug related conspiracy, evidence of a mere buyer-seller relationship will
not alone serve as proof of a conspiracy. Id. However, evidence of “repeat purchases provides
evidence of more than a mere buyer-seller relationship,” and that, along with the quantity of drugs
sold, can support an inference of conspiracy. Id. (citing United States v. Brown, 332 F.3d 363, 373
(6th Cir. 2003)).
Here, there is sufficient evidence to establish a drug-related conspiracy under § 846. The
Government established a conspiracy to buy and sell drugs that moved from Robinson and Johnson
as suppliers, down through lower-level dealers and middlemen. Two of those lower-level dealers
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United States v. Garner & Carr
and middlemen were the Defendants. Ample evidence showed that both men repeatedly bought
drugs from, sold drugs to, and middled drugs for various co-conspirators. As the evidence
connecting the Defendants to the conspiracy need only be slight, a rational jury had sufficient
evidence with which to convict the Defendants. There was not a mere buyer-seller relationship here.
The witnesses testified to multiple drug transactions, some of which occurred on a daily, weekly, or
monthly basis. From this evidence, a rational jury could find guilt.
II. The district court properly sentenced Garner to consecutive, not concurrent, sentences.
Section 924(c) of Title 18 U.S.C. requires that a court sentence a defendant who brandished
a firearm in the commission of a crime to a term of imprisonment of not less than seven years. The
statute also provides that “no term of imprisonment imposed on a person under this subsection shall
run concurrently with any other term of imprisonment imposed on the person, including any term
of imprisonment imposed for the crime of violence or drug trafficking which the firearm was used,
carried, or possessed.” 18 U.S.C. § 924(c).
Garner, while citing to no authority, argues that the district court improperly relied on the
language of § 924(c) when sentencing him. He argues that because the car jacking was an unrelated
crime, not committed in furtherance of the conspiracy, the court was not bound to require the
sentences to run consecutively. Without any authority contrary to the district court’s decision, we
find that the district court correctly required Garner to serve the sentences consecutively.
AFFIRMED.
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