United States v. Henry, Jamar ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2036
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMAR HENRY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02-CR-30056—Richard Mills, Judge.
____________
ARGUED APRIL 4, 2005—DECIDED MAY 26,2005
____________
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Jamar Henry challenges his con-
viction and sentence for possessing with the intent to dis-
tribute 5 or more grams of crack. See 21 U.S.C. § 841(a)(1),
(b)(1)(B). He argues that the government offered insufficient
evidence that he intended to distribute 5 or more grams and
that the court impermissibly placed the burden on him
regarding the drug amount. Henry also argues that his
sentencing ran afoul of United States v. Booker, 125 S. Ct.
738 (2005). We affirm the conviction but direct a limited
remand under United States v. Paladino, 401 F.3d 471 (7th
Cir. 2005), on the sentencing issue.
2 No. 04-2036
Henry was charged with two counts of possessing 5 or
more grams of crack with the intent to distribute it. He opted
for a bench trial at which he stipulated to many of the facts
necessary for conviction. For the first count Henry stipu-
lated that in October 2001 he was found possessing 5.3
grams of crack. He stipulated that he intended to distribute
4.2 grams of it, but argued and presented some evidence
that the remaining 1.1 gram was for personal use. The
district court ultimately concluded that there was insuffi-
cient evidence that Henry had intended to distribute at least
5 grams as charged, and, based on an erroneous belief that
Henry could not be convicted of possessing with the intent
to distribute less than 5 grams, acquitted Henry of the first
count.
For the second count, which led to the conviction at issue
here, Henry stipulated to the following facts. In May 2002
a police officer spotted Henry leaving his girlfriend,
Michelle Granderson’s, house and arrested him pursuant to
a warrant. The officer found Henry in possession of
10.9 grams of crack. When officers conducted a search of
Granderson’s house, they found .4 grams of crack in a pair
of pants with Henry’s identification, 2.8 grams in a men’s
shirt, a digital scale, a spoon with cocaine residue, $800 in
cash, and a bag containing 87.1 grams of powder cocaine.
Henry admitted to possessing the 10.9 grams of crack on
him, but he denied that he intended to distribute any of it.
He explained that he did not live at Granderson’s house but
that he was responsible for the powder cocaine officers
found there. He said that he bought 2 ounces (56 grams) a
couple days before his arrest and two ounces a week earlier,
then cooked some of it into crack and sold small quantities
to five individuals. The main issues in dispute for the
second count, then, were whether Henry intended to
distribute any of the crack that he possessed and, if so,
whether he intended to distribute 5 grams.
No. 04-2036 3
At trial the government argued that the court could infer
Henry’s intent to distribute at least 5 grams of crack based
on the total amount that he possessed, the fact that there
was a digital scale and potential drug money in
Granderson’s house, and the fact that Henry admitted that
he had already cooked and sold some of the powder cocaine
five times in the week or so before his arrest. Henry did not
testify, but his counsel argued that a toxicology report and
affidavits from his girlfriend and cousin (submitted as part
of an earlier suppression hearing but considered by both
parties and the judge to be part of the trial evidence) proved
that Henry used crack and that the amount found on him
was not inconsistent with personal use. His attorney also
submitted affidavits to prove that Henry did not live at the
residence where the additional crack, scale, or powder
cocaine was found.
The court found Henry guilty. It found that Henry pos-
sessed at least 11.4 grams of crack, 10.9 found on him and
.4 found in the pair of his pants in the house. (The court’s
math was slightly off—10.9 plus .4 equals 11.3, though
neither party has noticed this on appeal). The court noted
that the presence of $800 cash in the house, the digital
scale, and the 87.1 grams of powder cocaine indicated that
Henry “was selling a good deal more crack than he con-
sumed.” The court also said, “The evidence of the Defendant’s
personal drug use is far too scant for the Court to find that
he intended to consume more than 6.4 grams of crack.” The
court sentenced Henry as a career offender to serve 262
months of imprisonment and 8 years of supervised release
and to pay a $100 assessment.
On appeal Henry first insists that the government pre-
sented “absolutely no evidence” to support the court’s con-
clusion that he intended to distribute five or more grams of
crack. When faced with challenges to the sufficiency of the
evidence, we review the evidence in the light most favorable
to the government and uphold the conviction if any rational
4 No. 04-2036
trier of fact could have found the defendant guilty beyond
a reasonable doubt. United States v. Richardson, 208 F.3d
626, 631 (7th Cir. 2000).
In order to prove that Henry intended to distribute some
crack, the government relied on the amount Henry pos-
sessed as well as other factors. The government candidly
admitted, however, that the amount alone was probably not
dispositive of Henry’s intent to distribute because the case
law in this area does not draw a clear line between a user
amount and a dealer amount and because the government
was not offering expert testimony on the issue. The govern-
ment pointed out that in United States v. Billops, 43 F.3d
281, 285 n.4 (7th Cir. 1994), there had been expert tes-
timony that anything over 10 grams suggested an intent to
distribute. Other cases have said that far lesser amounts
suggest an intent to distribute. See United States v. Lamar,
75 F.3d 964, 973 (4th Cir. 1996) (one dose of crack is ap-
proximately 1/10 of a gram, so anyone carrying 5 grams, or
50 street doses, should be considered a dealer); United States
v. Haney, 23 F.3d 1413, 1418 (8th Cir. 1994) (6.57 grams is
a dealer amount). But the information from other cases
carries minimal persuasive value because there was no
expert testimony in this case about what amount of crack is
a dose, how many doses users usually carry, and how much
Henry himself was likely to be using. See United States v.
Kimmons, 917 F.2d 1011, 1016 (7th Cir. 1990) (expert
testified that depending on the individual even 30 grams
could be consistent with personal use).
In addition to the amount Henry possessed, the govern-
ment pointed out that Henry had admitted to cooking some
of the powder cocaine and selling it before he had been
caught and admitted to selling 4.2 grams of crack seven
months earlier, and there was a scale and possibly drug
money in the house that Henry was exiting when he was
arrested. Furthermore, Henry claimed responsibility for the
additional 87.1 grams of powder cocaine sitting in the house
No. 04-2036 5
ready to be cooked into more crack. The court concluded
from this evidence that Henry intended to sell crack, and we
think a rational factfinder could infer Henry’s intent from
the evidence presented. See Billops, 43 F.3d at 286 (evidence
supported intent to distribute when defendant possessed
10.4 grams of crack, previous drug sales had occurred at his
house, he possessed drug money, and he admitted to being
a drug dealer).
On the issue of the amount that Henry intended to dis-
tribute, we first want to clear up some confusion that the
parties have expressed over whether drug quantity is an
element of the offense. Drug quantity is not an element of
the offense. Edwards v. United States, 523 U.S. 511, 513-14
(1998). Proof of drug quantity affects the statutory maximum
penalty, but that does not make it a necessary element of
an offense that must be charged and proved in every case.
See United States v. Macedo, 371 F.3d 957, 964 (7th Cir.
2004); United States v. Jones, 308 F.3d 726, 741 (7th Cir.
2002); United States v. Smith, 308 F.3d 726, 740-41 (7th
Cir. 2002); United States v. Bjorkman, 270 F.3d 482, 491
(7th Cir. 2001). Henry’s conviction in this case could be
sustained as long as the government proved that he pos-
sessed with the intent to distribute some amount of crack.
See 21 U.S.C. § 841(a)(1). And the sentence Henry received,
262 months, is under the statutory maximum for that lesser
offense, see 21 U.S.C. § 841 (b)(1)(C) (30 year maximum for
possession with intent to distribute if current offense
occurred after a prior conviction for felony drug offense), so
the government’s proof of drug quantity in this case was
ultimately irrelevant to Henry’s conviction and the sentence
he received.
Although drug quantity is not relevant to uphold Henry’s
conviction, it does impact the statutory sentencing range. If
the government successfully proves that a defendant
intends to distribute at least 5 grams of crack, that proof
triggers a mandatory minimum penalty of 10 years, see 21
6 No. 04-2036
U.S.C. § 841(b)(1)(B). In the event that a resentencing
becomes necessary, the court would not be able to give a
sentence below 10 years. In this case, the court relied on the
amount of cash, the scale, and the inventory of 87.1 grams
of powder cocaine waiting to be cooked into crack to con-
clude that Henry was “selling a good deal more crack than
he consumed.” Also Henry had admitted to making five
sales in the week preceding his arrest. Although the
evidence is not overwhelming, we think it was sufficient to
allow a rational trier of fact to conclude that Henry was
selling more crack than he was consuming. And if Henry
intended to sell more than he intended to use of 11.3 grams
of crack, that necessarily implies that he intended to sell
more than 5 grams.
In a related argument, Henry also contends that the court
impermissibly shifted the burden to him on the issue of
drug quantity. He asserts that the court required him to
prove the amount he intended to use instead of requiring
the government to prove the amount he intended to distri-
bute. He points out the court’s comment that Henry’s evi-
dence of “personal drug use is far too scant” for the court to
conclude that he was using as much as he suggested.
Rather than suggesting that the court shifted the burden to
Henry, we think this comment reveals that the court
credited Henry’s defense as much as he could back it up
with proof. The court could have concluded based just on
the government’s evidence that Henry intended to sell every
bit of the 11.3 grams of crack in his possession in May.
Instead, based on Henry’s defense, the court decided that at
least some portion of the crack was for personal use. The
court simply concluded in the end that the evidence did not
support that Henry was using as much crack as he sug-
gested. We disagree with Henry that the court placed the
ultimate burden of proof on him on the issue of amount.
Henry also argues that his sentencing ran contrary to the
Booker decision. The district court treated the guidelines as
No. 04-2036 7
mandatory, which is error under Booker. Henry did not
make this argument in the district court, so we review his
argument here for plain error. Because the district court
sentenced Henry at the lowest end of the guideline range
and did not suggest whether the sentence would have been
lower under a discretionary regime, we must direct a
limited remand under the procedure outlined in Paladino.
We note, though, that the district court’s discretion to
impose a lower sentence will be constrained by a 10 year
mandatory-minimum. See 21 U.S.C. § 841(b)(1)(B).
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-26-05