United States v. Martin Perkins ( 1996 )

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No. 95-3880
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United States of America, *
*
Plaintiff-Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Martin Perkins, *
*
Defendant-Appellant. *
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Submitted: March 12, 1996
Filed: August 23, 1996
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Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.
Martin Perkins was charged by grand jury indictment with one count
of possession of cocaine base with intent to distribute in violation of 21
U.S.C. § 841(a)(1), and using and carrying a firearm during and in relation
to a drug trafficking offense in violation of 18 U.S.C. § 924(c). His
first trial ended in a hung jury. At his second trial, the jury found him
guilty of the possession with intent to distribute charge but could not
reach a verdict on the firearms charge. The district court1 sentenced
Perkins to 135 months' confinement on the drug conviction, and the
government elected to dismiss the firearms charge with prejudice. Perkins
appeals both his conviction and sentence. We affirm.
1
The Honorable Charles R. Wolle, Chief Judge, United States
District Court for the Southern District of Iowa.
I.
When viewed in the light most favorable to the verdict, the evidence
at trial established that on the evening of December 4, 1994, a woman who
identified herself as Keisha Bateman telephoned the Burlington, Iowa,
police department to report that she was involved in a domestic dispute
with the defendant at his apartment and that he had pointed a gun at her
and assaulted her. She also told the police that the defendant was cutting
up a quantity of crack cocaine and that he had a large stack of cash beside
him as he did so.
Later that evening, police officers obtained and executed a state
court search warrant for Perkins' apartment. Officers observed Perkins
entering the living room from the bedroom. There were no other persons in
the apartment, Perkins told the officers he was the only person living
there, and there was but a single bed. Perkins was arrested on an
outstanding Illinois warrant. A pager device, which Perkins said he wore
because his sick grandmother often paged him, was taken from his person
when it beeped. Stored in its memory and displayed on its readout were
several telephone numbers, one of which was followed by the numbers 911.
Testimony indicated those three numbers were a code used by crack addicts
to indicate to a supplier that the addict needed drugs as soon as possible.
In the bedroom, officers seized $5,723 in cash found in two socks in a
footlocker; several pieces of crack individually wrapped in torn off
corners of plastic sandwich bags, which were found in two sandwich bags
within a plastic shopping bag located between the footlocker and the wall;
and two razor blades in the pocket of a pair of pants. Officers found
several plastic bags with the corners cut out in the kitchen and a razor
blade with crack residue in the kitchen garbage. Also seized were various
bills and letters addressed to the residence in the names of Martin
Perkins, Clint Coleman, and Edward Perkins. A leather wallet with
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two photo identification cards of the defendant (one of them a Michigan
driver's license) was found in the same footlocker in the bedroom which
held the cash, and a fully loaded Colt Delta Elite 10 mm pistol was found
in a shoe in the closet of the bedroom. A quantity of ammunition for the
weapon was also located and seized. While the search was being conducted,
two men, one who identified himself as Edward Perkins and who said he lived
there, and the other who would not identify himself, came to the door and
wanted to enter. Entry was denied.
Keisha Bateman turned out to be Kela Cooper who had used a false name
when making the call to the police department. She testified about the
events which preceded her telephone call to the police including her
observations of the defendant cutting up crack cocaine in his living room
with a substantial amount of cash at hand.
II.
Perkins appeals his conviction, contending that there is insufficient
evidence to support the jury's verdict, that the government knowingly
presented perjured testimony, that the district court erred in admitting
evidence of his prior conviction for possession of crack cocaine, and that
he received ineffective assistance of counsel at trial in violation of his
Sixth Amendment right. He appeals his sentence, challenging the enhanced
statutory penalties for crack cocaine and the district court's
determination of the quantity of drugs for which he should be held
accountable.
A.
The defendant's claim that the government knowingly presented false
testimony at the defendant's second trial, if true, would violate the Due
Process Clause. United States v. Bagley, 473 U.S.
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667, 678 (1985); Napue v. Illinois, 360 U.S. 264, 269 (1959); United States
v. Martin, 59 F.3d 767, 770-71 (8th Cir. 1995).
The allegedly false testimony in this case involves the location
where the defendant's Michigan driver's license was found during the
search. At the defendant's first trial, Deputy Sheriff Salsberry
identified a photograph as being taken during the search and as depicting
a pair of white jeans with two razor blades and a photo ID laying on top
of them. He testified that the razor blades and the ID had been found in
the pockets of the jeans and placed on top of the jeans for photographing,
that the ID was not the Michigan driver's license found in the wallet in
the footlocker, and that neither the jeans nor the ID depicted in the photo
had been seized. From his testimony, a fact finder could have concluded
that three IDs of the defendant were found during the search, two
(including the Michigan driver's license) in the wallet in the footlocker
and one in the pocket of the jeans, but only the two in the wallet were
seized. Defense counsel, working from an enlargement of the same
photograph, clearly demonstrated in the cross-examination of the deputy
that the photo ID depicted in the photograph on top of the jeans was in
fact the same Michigan driver's license that the deputy's testimony
indicated had been found in the defendant's wallet in the footlocker. The
prosecutor so stipulated. The jury was unable to reach a verdict on the
drug count.
At the second trial, Deputy Salsberry testified that from his
recollection alone, he was unable to recall what type of ID he had found
in the jeans but he was sure that it was not seized. He further testified
that he "now knows" that the ID in the photograph is in fact the Michigan
driver's license he found in the defendant's wallet and that he does not
know how it came to be photographed with the jeans. The photograph was
admitted with a stipulation by the parties that "[t]he government agrees
that the
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pants were not in the position originally located. The government further
agrees that the Michigan driver's license photographed with the pants was
not found in those pants. It was originally found in the wallet." (Tr.
of second trial at 72.)
All of this conflicting evidence and the inferences to be drawn from
it, was put before the second jury, and nothing was withheld from it
concerning the Michigan driver's license. The same conflicting and
impeaching evidence was before the jury as it determined the credibility
of Deputy Salsberry and the weight to give to his other testimony. The
second jury convicted the defendant on the drug charge.
To prove prosecutorial use of false testimony that violates due
process, Perkins must show: (1) use of perjured testimony (2) that the
prosecution knew or should have known was perjured, and (3) "a `reasonable
likelihood' that the perjured testimony could have affected the jury's
judgment." Martin, 59 F.3d at 770 (quoting United States v. Nelson, 970
F.2d 439, 443 (8th Cir.), cert. denied, 506 U.S. 903 (1992)). Our review
of the facts convinces us that there was no attempt by the government to
mislead the second jury through the use of false or perjured testimony.
The government held nothing back and laid all of the evidence about the
Michigan driver's license before the second jury, including Deputy
Salsberry's prior conflicting testimony. The officer's testimony at both
trials was that the Michigan driver's license was found in the wallet in
the footlocker and that a third ID was found in the pants but not seized.
It is his testimony at the first trial that the ID in the photograph was
the one taken from the pants and that it was not the Michigan driver's
license found in the footlocker which was directly impeached and disproved
by the enlarged photograph. The government candidly informed the second
jury that the Michigan license shown in the photograph was not found in the
pants. The government did not advance at the second
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trial the impeached testimony given by the officer at the first trial that
the ID card in the photograph was not the Michigan ID. Moreover, the
officer's testimony at the second trial about the Michigan driver's license
was consistent with the officer's contemporaneous written report and the
search warrant inventory. While the officer's impeached first trial
testimony would also tend to impeach his other testimony that the Michigan
driver's license was initially found in the footlocker, we are unable to
say on this record that his testimony at both trials about finding the
Michigan ID in the wallet in the footlocker was in fact perjured, and that
the government knew or should have known it. Indeed, at the second trial
the stipulation between the parties included the sentence: "It was
originally found in the wallet." No objection was made to that part of the
stipulation by the defendant, and the stipulation was specifically agreed
to in front of the jury.
The jury was fully informed about the discrepancies, contradictions,
and inconsistencies in the officer's testimony and was free to determine
whether the officer's testimony about where he found the Michigan ID was
in fact true. While the inconsistency in the officer's testimony was
serious and constituted excellent impeachment material for the defense, we
are not convinced that the government was precluded from presenting his
testimony as it did during the second trial. We agree with the district
court's conclusion that no due process violation occurred. While no party
is permitted to put on testimony that it knows or should know to be untrue,
it is not improper to put on a witness whose testimony may be impeached.
Truth determination is still the traditional jury function. As the
experienced district court judge said, "what we have is a classic case of
questions for the jury concerning credibility of witnesses." (Tr. of
second trial at 12.)
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B.
In a ruling on a motion in limine before the first trial, the
district court granted the government's request pursuant to Federal Rule
of Evidence 404(b) to introduce evidence that the defendant had possessed
crack cocaine on June 2, 1994, about six months before his arrest on the
charges in the indictment. The district court indicated that because of
the way defense counsel had conducted voir dire, the evidence of the
defendant's prior possession of crack cocaine would be admissible "to show
knowledge of what crack cocaine is and knowledge that it is unlawful to
have crack cocaine in one's possession." The district court further stated
that the government had the burden of proving that the defendant knew he
was in possession of a controlled substance and that the defendant knew it
was unlawful to have crack cocaine. (Tr. of first trial at 11-13.) The
district court further indicated that before the testimony about the prior
possession would be received, the government would be required to state the
purpose for which it was offered to the jury, and "the court will instruct
the jury that it is received only for a limited purpose." (Id. at 12.)
When the evidence about the prior possession was offered at the first
trial, the defendant's Rule 404(b) objection was overruled, and the court
specifically instructed the jury concerning the limited purposes for which
they could use the evidence. (Id. at 120.) The instruction was not
reiterated in the court's final instructions to the first jury because the
defense specifically agreed that it not be given. (Id. at 211-12.) The
first trial ended in a hung jury.
Before the start of the second trial, the court indicated that the
limine ruling was the same. At the second trial, and over a specific Rule
404(b) objection, the government presented testimony from a police officer
that on June 2, 1994, the defendant had been found in possession of eleven
rocks of crack cocaine and that he
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had been charged with possession of cocaine with intent to deliver as a
result of that incident. (Tr. of second trial at 203.) The parties
stipulated that the defendant pled guilty to simple possession as a result
of the June 2, 1994, incident. (Id. at 299-300.) The second jury
convicted the defendant of the possession of cocaine with intent to
distribute charge. Perkins contends that the district court erred by
admitting the evidence of his other crime and by failing to give the jury
an instruction limiting the purposes for which the evidence could properly
be considered.
In this circuit, "the trial court has broad discretion under [Rule
404(b)], and will be reversed only when the evidence `clearly has no
bearing upon any of the issues involved.'" United States v. DeLuna, 763
F.2d 897, 913 (8th Cir.) (quoting United States v. Wagoner, 713 F.2d 1371,
1375 (8th Cir. 1983); internal citation omitted), cert. denied, 474 U.S.
980 (1985). Rule 404(b) clearly states that evidence of other acts or
wrongs "is not admissible to prove the character of a person in order to
show action in conformity therewith." Fed. R. Evid. 404(b). Such evidence
is admissible for the limited and specific purposes listed in the Rule.
In order to be admissible for any one of the specific purposes set forth
in Rule 404(b) (i.e., motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake), the evidence of the prior
wrong must be "(1) relevant to a material issue raised at trial, (2)
similar in kind and close in time to the crime charged, (3) supported by
sufficient evidence to support a finding by a jury that the defendant
committed the other act, and (4) not the cause of prejudice that
substantially outweighs its probative value." United States v. Rogers, No.
95-3660, 1996 WL 416721, at *2 (8th Cir. July 26, 1996). In this circuit,
"Rule 404(b) is a rule of inclusion, prohibiting only that evidence that
tends solely to prove the defendant's criminal disposition." United States
v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995).
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Our cases hold that generally the court should give the jury a
limiting instruction informing them of the narrow purpose(s) for which the
evidence was admitted. United States v. Williams, 994 F.2d 1287, 1290 (8th
Cir. 1993); United States v. Marion, 977 F.2d 1284, 1288 (8th Cir. 1992);
Llach v. United States, 739 F.2d 1322, 1327 (8th Cir. 1984); United States
v. Miller, 725 F.2d 462, 466 (8th Cir. 1984). "Such an instruction
diminishes the danger of any unfair prejudice arising from the admission
of other acts." United States v. Mays, 822 F.2d 793, 797 (8th Cir. 1987).
As indicated above, when the district court decided the motion in
limine before the first trial, it said the prior act was admissible "to
show knowledge of what crack cocaine is and knowledge that it is unlawful
to have crack cocaine in one's possession." Defendant makes much of the
fact that the government has no burden of proving that the defendant knew
that it is unlawful to possess crack cocaine, and argues that the court
erred in admitting the prior act for that purpose. While the defendant is
correct in asserting that the government had no burden to prove that he
actually knew it was unlawful to possess crack cocaine, the court admitted
the prior act for other reasons as well. The court correctly admitted the
prior act as tending to show the defendant knew he was in possession of a
controlled substance. The court's marshaling instruction required the jury
to find "[t]hat defendant Martin Perkins knew he was in possession of a
controlled substance." (Instr. No. 12.) Knowledge acquired by the
defendant as a result of the previous offense (i.e., what the controlled
substance crack cocaine is) was probative of his knowing possession of
crack cocaine at the time charged in the Indictment. Additionally, the
prior offense was admissible to show intent. The defendant was charged
with possession of cocaine with the intent to distribute. Consequently,
the government had to prove that he had the intent to distribute.
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Both knowledge and intent are specific purposes for which prior acts
can be admitted under Rule 404(b). Hence, evidence concerning the June 2,
1994, possession conviction was relevant to issues raised at trial (i.e.,
the defendant's knowing possession of a controlled substance and his intent
at the time of the present offense). It was similar in kind and within six
months' time of the charged conduct. See United States v. Wiley, 29 F.3d
345, 351 (8th Cir.) (evidence of prior possession of cocaine base less than
20 months earlier admissible in prosecution for possession of cocaine base
with intent to distribute), cert. denied, 115 S. Ct. 522 (1994); United
States v. Sykes, 977 F.2d 1242, 1246 (8th Cir. 1992) (evidence of
possession of controlled substance (PCP) in California admissible in
prosecution in Minnesota for conspiracy to distribute PCP); United States
v. Wint, 974 F.2d 961, 967 (8th Cir. 1992) ("evidence of an offense
committed within the previous five years is reasonably close in time"),
cert. denied, 506 U.S. 1062 (1993). The defendant stipulated to the prior
guilty plea so there certainly was sufficient evidence to permit the jury
to find that the defendant committed the prior bad act.
Balancing the probative value of the prior conviction against any
prejudicial impact it may have is within the broad discretion of the
district court. Here, the court minimized any such prejudice by carefully
instructing the jury about when in their deliberations they could consider
the prior act, if at all, and the limited purposes for which it could be
considered. Contrary to the impressions left with the court by the
briefs and at oral argument that no limiting instruction of any kind with
respect to the Rule 404(b) evidence had ever been given to the second jury,
the district court did in fact give the jury a limiting instruction
concerning the purposes for which the jury could consider the
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evidence of the defendant's prior possession.2 Instruction No. 10A, "Prior
Similar Acts," was given to the jury by the court before final arguments
at the specific request of the defendant's trial counsel. (Tr. of second
trial at 250.) It told the jury that they could not use the prior act as
proof that the defendant did the acts charged in the indictment. It also
told them that the prior act could only be considered by them after they
had determined from the other evidence in the case beyond a reasonable
doubt that the defendant did the act or acts alleged in the count under
consideration, and then they could only consider it in determining "the
2
Neither the defendant's appellate counsel nor the attorney
for the government who argued before us was counsel at trial.
The appellant's brief contained the following statements:
Although the district court had
stated it would give a limiting
instruction and have the government
inform the jury what purpose the
prior conviction was being presented
for, it failed to do either. (TT2 p.
198). The court's failure to give a
limiting instruction improperly
prejudiced the jury requiring that
Defendant receive a new trial.
(Appellant's Br. at 21.)
At no place in the appellant's brief is mention made that
the district court included a Rule 404(b) limiting instruction in
its formal final written instructions to the jury. At no place
in the government's brief (which was authored by the government's
trial counsel) are we informed that such a limiting instruction
was in fact given. The instructions given by the district court
were not contained in the clerk's record on appeal, and neither
side filed an appendix. The tape recording of the oral argument
demonstrates that the questions asked of counsel by the court all
assumed that no limiting instruction of any kind was ever given
to the jury, and that neither advocate told us a limiting
instruction was in fact given. After reading the entire
transcript, however, we believed the district court had given a
limiting instruction. (See Tr. of second trial at 250, 301,
304.) On our own motion, we obtained the district court's
instructions from the district court and found that a limiting
instruction had in fact been given to the jury.
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state of mind or intent with which the defendant actually did the act or
acts charged in the counts of the
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Indictment." (Instr. No. 10A.) We do not believe the district court
abused its broad discretion by admitting the very recent prior bad act for
the limited purposes it explained to the jury. See United States v.
Escobar, 50 F.3d 1414, 1421-22 (8th Cir. 1995); United States v. Gustafson,
728 F.2d 1078, 1084 (8th Cir.), cert. denied, 469 U.S. 979 (1984).
The defendant seems to argue that the district court should have, sua
sponte, given the jury a limiting instruction at the point in the trial
when the Rule 404(b) evidence was admitted, and that it was prejudicial
error not to do so. (Appellant's Br. at 22.) We have never required a
district court to do so. In fact, we have never found it to be plain error
when a court does not give a limiting instruction of any kind sua sponte
with respect to Rule 404(b) type evidence. United States v. McGuire, 45
F.3d 1177, 1188 (8th Cir.) ("The trial court need not issue a prior crimes
limiting instruction sua sponte."), cert. denied, 115 S. Ct. 2558 (1995);
Williams, 994 F.2d at 1290; United States v. Milham, 590 F.2d 717, 722 (8th
Cir. 1979); United States v. Conley, 523 F.2d 650, 654 n.7 (8th Cir. 1975)
("In the absence of a specific defense request, however, no limiting
instruction is required where the evidence was relevant to an issue in the
case." (citations omitted)). In this case, the court gave a limiting
instruction after the defense counsel requested it. The defendant
complains that the district court did not follow exactly the procedure that
it indicated it would when ruling on the motion in limine before the first
trial. We see no prejudice to the defendant in this respect. When the
district court did not give a limiting instruction at the precise time the
defendant may have expected it, counsel could surely have asked for one or
reminded the district judge of what he said he would do. What is
significant is that the jury was, in fact, properly instructed about the
limitations imposed on the evidence of the defendant's prior act. Exactly
when to so instruct is surely a matter within the district court's broad
discretion, and
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we respectfully decline to micro-manage how that discretion should be
exercised.
C.
The appellant contends that the evidence considered by the jury was
insufficient to support his conviction for possessing cocaine with the
intent to distribute it. "The standard of review of an appeal concerning
sufficiency of the evidence is very strict, and the verdict of the jury
should not be overturned lightly." United States v. Burks, 934 F.2d 148,
151 (8th Cir. 1991). In assessing this argument, we are required to view
the evidence in the light most favorable to the verdict and to give the
government all reasonable inferences to be drawn therefrom. United States
v. Suppenbach, 1 F.3d 679, 681-82 (8th Cir. 1993).
In order to prove the possession of cocaine with the intent to
distribute charge against the defendant, the government had to prove that
he knowingly possessed cocaine with the intent to distribute. United
States v. Matra, 841 F.2d 837, 840 (8th Cir. 1988). Possession may be
either actual or constructive. United States v. Townley, 942 F.2d 1324,
1325 (8th Cir. 1991). "The jury's verdict must be upheld if there is an
interpretation of the evidence that would allow a reasonable-minded jury
to conclude guilt beyond a reasonable doubt." United States v. Erdman, 953
F.2d 387, 389 (8th Cir.), cert. denied, 505 U.S. 1211 (1992).
The defendant argues that the discrepancies in and impeachment of
Deputy Salsberry's testimony, coupled with the alleged incredibility of
Kela Cooper's testimony, together with the mishandling of the Michigan
driver's license at the scene of the crime, all add up to an insufficiency
of the evidence. Kela Cooper, who testified that she was the person who
called the police and gave them a false name and false social security
number, testified that she observed the defendant in the living room of the
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apartment cutting up crack cocaine for sale and that he had what she
estimated to be $1,000 in cash in front of him as he did so. Kela Cooper
is herself a convicted cocaine dealer and burglar who had been romantically
spurned by the defendant, and who had expressed a desire to get revenge on
him for his involvement with another woman. All of the reasons Kela Cooper
had for not telling the truth and for "setting up" the defendant were laid
in front of the jury. Whether or not her testimony was credible was an
issue for the jury to decide. Rogers, 1996 WL 416721, at *2 (citing United
States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996)); United States v.
Hudson, 717 F.2d 1211, 1213 (8th Cir. 1983) ("It is for the jury, not a
reviewing court, to evaluate the credibility of witnesses and to weigh
their testimony."). Her testimony was corroborated by the incriminating
items (cash, plastic bags, crack, loaded weapon, razorblade with cocaine
residue, pager with 911 coding) found by the officers during the search at
a time when the defendant was physically in the apartment and when both
direct and circumstantial evidence (including a listing of the apartment
as his address in the local telephone book) showed he resided there. After
a careful reading of the transcript, we conclude that the evidence is more
than sufficient to support the jury's verdict that the defendant knowingly
possessed cocaine with the intent to distribute it under either a
constructive or actual possession theory.
D.
At oral argument the appellant conceded that his claim of ineffective
assistance of counsel should be made in a later proceeding pursuant to 28
U.S.C. § 2255. We agree the claim is premature. See United States v.
Thomas, 992 F.2d 201, 204 (8th
Cir. 1993).
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E.
Perkins attacks 21 U.S.C. § 841(a) as being void for vagueness
because it fails to distinguish between cocaine and cocaine base. This
argument is foreclosed by this court's decisions in United States v. House,
939 F.2d 659, 664 (8th Cir. 1991), and United States v. Jackson, 64 F.3d
1213, 1219 (8th Cir. 1995), cert. denied, 116 S. Ct. 966 (1996). His
argument that the rule of lenity should apply to equalize the penalties
imposed for cocaine and cocaine base is likewise foreclosed by Jackson.
See 64 F.3d at 1219-20. We reject his request that this panel "review and
reverse its prior decision in United States v. Jackson. . ." (Appellant's
Br. at 6.) The suggestion for rehearing by the court en banc was denied
in Jackson, see 64 F.3d at 1213, and one panel of the court cannot reverse
another panel. Brown v. First Nat'l Bank in Lenox, 844 F.2d 580, 582 (8th
Cir. 1988).
F.
Finally, the appellant asserts that the district court committed
error when it converted one-third of the $5,723 in cash seized from the two
socks ($4,000 in mostly $20 bills in one sock, and $1,723 in the second
sock) in the footlocker into a quantity of cocaine for sentencing
determination purposes. We review the sentencing judge's drug quantity
determination for clear error. United States v. Newton, 31 F.3d 611, 614
(8th Cir. 1994). The presentence investigation report (PSIR) attributed
the 32.05 grams of cocaine base seized at the apartment to the defendant.
In addition, relying on information provided by the Burlington, Iowa,
police department that crack cocaine was sold in that community for about
$1,400 per ounce, the PSIR converted all of the $5,723 seized into its
crack cocaine equivalent of 115.89 grams ($1,400 per ounce = $49.25 per
gram. $5,723 divided by $49.25 = 115.89 grams of cocaine base.). Adding
this calculated equivalent quantity and the
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actual quantity seized together gave a total quantity for sentencing
guideline purposes of 147.94 grams, which resulted in a recommended offense
level of 32. See United States Sentencing Commission, Guidelines Manual,
§ 2D1.1(c)(4) (Nov. 1994) (50-150 grams of cocaine base = level 32). The
defendant objected to using the cash seized from the footlocker to
determine the quantity of cocaine base he should be held accountable for,
arguing that the evidence linking the money to him rested on the impeached
testimony of Deputy Salsberry that he found the defendant's wallet in the
same footlocker. The district court, after hearing argument from both
sides, concluded that the government had not proved that all of the 115.89
grams calculated from the $5,723 were attributable to the defendant. The
district court reasoned that because the money and the crack were "in the
same vicinity, I find that at least a third of the money can reasonably be
attributed to crack cocaine." (Sent. Tr. at 10-11.) The court reasoned
further that a third of the money represented approximately 40 grams of
cocaine base which, when added to the 32.05 grams seized, totaled at least
72 grams attributable to the defendant. Seventy-two grams falls within the
offense level 32 range for 50-150 grams of cocaine base. The defendant's
criminal history score was 3, placing him in Criminal History Category II,
resulting in a guideline range of 135-168 months of confinement. The court
imposed a sentence of 135 months' confinement, no fine, 5 years of
supervised release, and a $50 special assessment.
Defendant contends that the district court's use of one-third of the
money as representing crack cocaine proceeds was error. We have said that
we will reverse a determination of drug quantity only if the entire record
definitely and firmly convinces us that a mistake has been made. United
States v. Simmons, 964 F.2d 763, 773 (8th Cir.), cert. denied, 506 U.S.
1011 (1992). Here the PSIR disclosed that Perkins was unemployed and had
been so for a year before his arrest. He claimed he had no assets. The
PSIR revealed
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some $2,400 in debt. His adjusted gross income for 1991 was $1,559, for
1992 was $2,209, and for 1993 was $2,767. The seized cocaine base was
located between the footlocker containing the cash and the wall. The
defendant was observed with a sizable amount of cash (estimated at $1,000)
at the time he was cutting up crack cocaine just a few hours before his
arrest.
Here, the district court approximated the quantity of cocaine
attributable to the defendant pursuant to application note 12 to USSG
§ 2D1.1 ("where . . . the amount seized does not reflect the scale of the
offense, the court shall approximate the quantity of the controlled
substance. In making this determination, the court may consider . . . the
price generally obtained for the controlled substance . . ."). Given the
defendant's lack of employment for the year before the offense and his
minimal income in the three years before that, and the fact he was observed
with both cash and crack shortly before the search, we cannot say that the
district court was clearly erroneous when it held that only one-third of
the seized cash would be converted to its cocaine equivalency. Some line
drawing is necessary when approximations are made. Even if only 20 percent
of the money was drug proceeds, it would still result in an additional 23
grams which, when added to the 32.05 grams actually seized, would still put
the defendant at a base offense level of 32. We believe the district
court's conservative approach was correct, and its quantity determination
is affirmed.
III.
Accordingly, for the reasons stated, the judgment of the district
court is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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