United States v. Deshonte Dickson ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2002
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Deshonte Antwon Dickson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Western
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Submitted: February 14, 2023
Filed: June 15, 2023
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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LOKEN, Circuit Judge
A March 2017 Superseding Indictment charged Deshonte Antwon Dickson,
Vernon Curry, and David Taylor with conspiracy to distribute and possess with intent
to distribute heroin and 500 grams or more of methamphetamine from the summer of
2016 to the date of the indictment. See 21 U.S.C. §§ 841(a)(1), 841(b)(1), 846; 18
U.S.C. § 2. Zachariah Boelter was charged with being a member of the conspiracy
but for a reasonably foreseeable amount of only 50 grams or more of
methamphetamine.
Before Dickson’s trial, Curry pleaded guilty to a different conspiracy charge;
Boelter and Taylor pleaded guilty to participating in this conspiracy. After a three-
day trial, the jury convicted Dickson of conspiracy to distribute heroin and between
50 and 500 grams of methamphetamine. Boelter testified for the government. Curry
testified for the defense. Taylor did not testify. At sentencing, the district court,
varying upward from the advisory guidelines sentencing range, imposed a sentence
of 120 months imprisonment plus four years of supervised release. Dickson appeals.
He argues the evidence was insufficient to sustain the conspiracy conviction. We
conclude there was sufficient evidence to support the jury verdict. Dickson also
argues the district court committed procedural sentencing error when it adopted the
Presentence Investigation Report (“PSR”) and without adequate notice varied upward
for reasons that contradicted the PSR’s fact findings. We agree with this contention.
Accordingly, we affirm Dickson’s conviction and remand for resentencing.
I. Sufficiency of the Evidence
We review a challenge to the sufficiency of the evidence de novo, viewing the
evidence in the light most favorable to the jury’s verdict and reversing only if no
reasonable jury could have found Dickson guilty beyond a reasonable doubt. United
States v. Peeler, 779 F.3d 773, 774 (8th Cir. 2015). To establish that Dickson
conspired to distribute heroin and methamphetamine, the government must prove
beyond a reasonable doubt: (1) there was a conspiracy -- an agreement -- to distribute
the drugs; (2) Dickson knew of the conspiracy; and (3) Dickson intentionally joined
the conspiracy. United States v. Slagg, 651 F.3d 832, 840 (8th Cir. 2011); see 21
U.S.C. §§ 841(a)(1), 846.
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Dickson does not dispute there was evidence of a conspiracy between co-
defendants Curry, Taylor, and Boelter to distribute drugs. “At issue, therefore, is
whether there was sufficient evidence that [Dickson] knew of the conspiracy and
knowingly became a member of the conspiracy.” United States v. Huggans, 650 F.3d
1210, 1222 (8th Cir. 2011). Agreement to join a conspiracy may be inferred from the
facts and circumstances of the case and may be based on “a loosely knit, non-
hierarchical collection of persons who engaged in a series of transactions involving
distribution-quantities of drugs in and around a particular city over a course of time.”
United States v. Hamilton, 929 F.3d 943, 946 (8th Cir. 2019) (cleaned up). “One
conspiracy may exist despite the involvement of multiple groups and the performance
of separate acts.” Slagg, 651 F.3d at 842 (cleaned up).
Inspector Thomas Irvin of the United States Postal Service (“USPS”) testified
that in mid-August 2016, Detective David Stewart of the North Dakota Metro Area
Narcotics Task Force alerted Irvin that packages of methamphetamine and heroin
were being mailed to Zachariah Boelter in Bismarck. On August 24, Irvin learned
that a fictitious person in Bakersfield, California had mailed Boelter a Priority Mail
package. Irvin and Stewart intercepted the package in North Dakota. A warrant
search uncovered 310.04 grams of methamphetamine and 72.98 grams of heroin in
vacuum-sealed Ziploc bags. Officers completed a controlled delivery of the package
to Boelter on August 26. Irvin admitted that surveillance videos showed Dickson did
not mail the intercepted package to Boelter.
Irvin learned from a thorough review of USPS records that fictitious persons
in Bakersfield or nearby Indio had sent Boelter nine packages from February to
August 2016 (“the Boelter packages”). One was part of a two-package transaction
on June 8; the other package was sent to David Hollingshead in Bismarck (“the
Hollingshead package”). A common IP address was used to track the Boelter
packages, the Hollingshead package, seven packages sent from “Montero Court” in
Bakersfield to Dickinson, North Dakota, and 12 other packages sent from Bakersfield
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to Dickinson. Dickson was a Bakersfield resident with ties to North Dakota. Irvin
learned that Dickson’s California and North Dakota driving records listed his
addresses as “Montaro Court” in Bakersfield and “C Street” in Dickinson. On cross
exam, Irvin admitted he could not identify the sender of the “Montero Court”
packages and could not link the common IP address to a specific subscriber.
Boelter, appearing as a cooperating witness, testified that in early 2016 he
frequently bought personal amounts of heroin from Vernon Curry when Curry --
known to Boelter as “Mac” -- traveled to Bismarck from California. In late February
or early March 2016, Mac “fronted” Boelter about one ounce of heroin, a larger
quantity. Boelter paid Mac’s girlfriend $5,000 for the heroin when she came to his
house to collect after Curry was arrested for another drug conspiracy. Later that day,
Boelter met Taylor and his girlfriend, Mac’s sister, April Day. Taylor and Day
fronted Boelter 40 grams of heroin that Mac had left in a Bismarck storage unit.
In the ensuing months, Taylor traveled to North Dakota several times to front
Boelter heroin and collect distribution proceeds. Eventually, Taylor started sending
Boelter heroin and methamphetamine in the mail. Boelter testified he received “five,
maybe six” packages from Taylor in total, including the August 2016 intercepted
package. After Boelter sold the fronted drugs, Taylor would come to North Dakota
in a rental car to collect the proceeds. On September 8, officers arrested Taylor in
Bismarck after Boelter met Taylor in his rental vehicle to pay for the drugs in the
intercepted package. A search of Taylor’s rental vehicle uncovered an Avis rental
agreement listing Dickson as the customer and Taylor as an additional driver.
Investigation revealed that Dickson rented vehicles four times in 2016 for
long-distance trips between Bakersfield and Bismarck for Dickson, Taylor, or both,
with Taylor listed as an additional driver on three rental agreements. On cross-exam,
Boelter testified that he did not know Dickson and Taylor never mentioned Dickson.
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David Hollingshead pleaded guilty to a different conspiracy and, like Boelter,
testified for the government as a cooperating witness. Hollingshead testified that he
sold large quantities of methamphetamine in the Bismarck area between May 2015
and January 2016. He began purchasing methamphetamine from Vernon Curry, who
Hollingshead knew as “Mac,” in 2014 and 2015 when Hollingshead’s main supplier
was unavailable. In mid-2015, Mac introduced Hollingshead to Dickson as a
substitute supplier. Dickson, known to Hollingshead as “Cuzo,” fronted
Hollingshead two ounces of methamphetamine for resale at a parking lot in Bismarck,
returned to California, and mailed Hollingshead about four ounces of
methamphetamine.
On cross exam, Hollingshead acknowledged that he only identified Dickson
as “Cuzo” after Detective Stewart showed Hollingshead a photo of Dickson. In a
February 2019 hearing in the other conspiracy case, Hollingshead had testified that
his alternate supplier “goes by the alias of Cuzo and Mac.” Curry testified for the
defense that he went by “Mac” and “Cuzo” -- he was the “only Cuzo.” Curry
asserted that Dickson, a “close family friend,” never participated in Curry’s drug
dealing. He denied introducing Dickson to Hollingshead or anyone else in the drug
dealing business. He knew that his sister and Taylor, her boyfriend, sold drugs in
North Dakota but “has no information” that Dickson was involved.
In October 2015, Hollingshead testified that Cuzo (Dickson) returned to
Bismarck and fronted “a couple ounces of methamphetamine, a couple hundred
hydrocodone pills, and about an ounce of heroin.” Shortly after this exchange,
Hollingshead “cut ties” with Curry when his associate invaded Hollingshead’s home.
Dickson continued mailing Hollingshead drugs, sending several packages from
California between January and November 2016. Consistent with the mailing records
evidence, Hollingshead testified that one package containing several ounces of
methamphetamine was sent to his duplex in Bismarck on June 8, 2016 (the
“Hollingshead package”). In September or October 2016, Dickson mailed
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Hollingshead another package containing approximately 67 grams of
methamphetamine and seven grams of heroin to a different address in Bismarck.
Detective Stewart testified that records from a hotel in Bismarck revealed that
Dickson and Taylor stayed there at the same time June 10 to 13, 2016, and again from
July 19 to 20, 2016, consistent with two of Dickson’s long-distance vehicle rental
agreements. On cross exam, Stewart admitted that Taylor never identified Dickson
as being involved in his drug distribution activities and that another person who
received drug packages from “Cuzo” did not identify Dickson as Cuzo.
At the close of the evidence, the district court denied Dickson’s oral motion for
a judgment of acquittal. See Fed. R. Crim. P. 29. The jury acquitted Dickson of
conspiracy to distribute 500 or more grams of methamphetamine but found him guilty
of conspiracy to distribute heroin and between 50 and 500 grams of
methamphetamine. The district court denied Dickson’s post-verdict Criminal Rule
29 motion for an acquittal.
On appeal, Dickson argues there is insufficient evidence to sustain his
conspiracy conviction because the only evidence of his involvement in any narcotics
transactions came from Hollingshead’s unreliable testimony. “We have repeatedly
upheld jury verdicts based solely on the testimony of conspirators and cooperating
witnesses, noting that it is within the province of the jury to make credibility
assessments and resolve conflicting testimony.” United States v. Buckley, 525 F.3d
629, 632 (8th Cir. 2008) (citations omitted). Defense counsel thoroughly cross
examined Hollingshead, highlighting inconsistencies in his past statements to law
enforcement. The jury was in the best position to assess the credibility of
Hollingshead and the other witnesses. We will not disturb the jury’s credibility
findings on appeal. United States v. Mayfield, 909 F.3d 956, 963 (8th Cir. 2018).
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Dickson also argues that, even if believed, Hollingshead’s testimony proves
only that he occasionally purchased methamphetamine and heroin from Dickson
when his main supplier was unavailable, and this proves only a buyer-seller
relationship that does not tie either party to a conspiracy. See United States v.
Prieskorn, 658 F.2d 631, 636 (8th Cir. 1981). Buyer-seller relationships “involve
only evidence of a single transient sales agreement and small amounts of drugs
consistent with personal use.” Huggans, 650 F.3d at 1222 (cleaned up). This is a
“narrow category” of cases. Peeler, 779 F.3d at 776. Hollingshead’s testimony, if
credited, establishes much more than “a single transient sales agreement” between
Hollingshead and Dickson. Hollingshead testified that Dickson repeatedly fronted
Hollingshead large quantities of methamphetamine for resale. Hollingshead’s
frequent purchases of resale quantities from Dickson, in-person and through the mail,
is sufficient to support a conspiracy conviction. See, e.g., Slagg, 651 F.3d at 842.
The trial evidence also revealed that Dickson’s drug deals with Hollingshead
were connected to a larger drug conspiracy involving Dickson, Boelter, Curry, and
Taylor. Curry introduced Dickson to Hollingshead, and the same IP address was used
to track the June 8 Hollingshead package, the Boelter packages, and various other
packages sent from fictitious persons and addresses in Bakersfield to North Dakota,
suggesting one overarching drug dealing conspiracy. Hotel and car rental records
show that Dickson also rented vehicles and hotel rooms for four trips from
Bakersfield to Bismarck, including the vehicle that Taylor used to collect proceeds
for the intercepted Boelter package. Dickson and Taylor -- who both had close
relationships with Curry -- repeatedly worked together to deliver drugs in North
Dakota and then collect proceeds from mailed packages. See, e.g., United States v.
Sparks, 949 F.2d 1023, 1027-28 (8th Cir. 1991) (defendants’ presence in the same car
on a journey to further the conspiracy indicates cooperation and agreement). Viewing
this evidence in the light most favorable to the verdict, as we must, we conclude that
there is sufficient evidence to uphold Dickson’s conspiracy conviction.
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II. Sentencing Issue
Dickson argues the district court committed procedural sentencing error when
it adopted the PSR and then varied upward based on findings that contradicted those
in the PSR. We will reverse only if the court committed significant procedural error.
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Procedural
errors include improperly calculating the advisory guidelines range, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence. Id.The jury found Dickson not guilty of conspiring to distribute 500 or more
grams of methamphetamine but guilty of conspiring to distribute between 50 and 500
grams. To calculate the drug quantity for Dickson’s base offense level, the PSR
counted only the drugs found in the August 2016 intercepted package, 72.98 grams
of heroin and 310.04 grams of methamphetamine. This produced a base offense level
of 26. See USSG § 2D1.1. With no offense-level adjustments and Dickson’s
Category I criminal history, the advisory guidelines sentencing range would be 63 to
78 months imprisonment. The government’s sentencing brief observed that “the drug
quantity was likely higher,” but the government did not object to the PSR drug
quantity finding and guidelines range calculations. The government recommended
a 78-month sentence.
Early in the sentencing hearing, the district court stated: “The Court will then
adopt the Presentence Report as indicated, the sentencing guideline calculation as
provided.” Dickson requested a sentence between 60 to 63 months imprisonment,
emphasizing he could not be “the major cog” in the conspiracy because the jury
convicted him of conspiring to distribute only 50 to 500 grams of methamphetamine.
The district court disagreed, sentencing Dickson to 120 months imprisonment. The
court explained that the 18 U.S.C. § 3553(a) factors warranted a substantial upward
variance:
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He was an essential cog in the drug conspiracy. I listened carefully to
the trial testimony . . . and I have concluded based upon a preponderance
of the evidence that Mr. Dickson had a much larger role in this
conspiracy than the charge reflects. Therefore, I believe that with regard
to aggravating factors, approximately seven packages were sent to
Zachariah Boelter, a codefendant from Bakersfield, between May of
2016 to August of 2016. In addition, 17 packages were sent from
Bakersfield to an address in Dickinson . . . [and] there’s also a record of
one package from Bakersfield to David Hollingshead who was indicted
in a separate conspiracy. . . . The punishment simply does not fit the
crime and the nature and circumstances surrounding Mr. Dickson’s
active role and central role in this conspiracy.
Dickson objected, arguing as he does on appeal that he “should be given the
opportunity to make additional comment and additional filings” because “[t]his is an
unusual circumstance in which the Court has issued a sentence that is well above the
guideline range without the request of the Government.” On appeal, Dickson argues
that the inherent contradictions between the PSR’s advisory guidelines range and the
district court’s finding that Dickson was a driving force in the conspiracy mean that
the court procedurally erred, either by fully adopting the PSR or by basing its
sentencing decision on clearly erroneous facts.
We reject the assertion the district court committed error merely by finding that
Dickson was more culpable than the jury’s mixed verdict seemed to suggest. “[A]n
acquittal does not prevent the sentencing court from considering conduct underlying
the acquitted charge, so long as that conduct has been proved by a preponderance of
the evidence.” United States v. Ruelas-Carbajal, 933 F.3d 928, 930 (8th Cir. 2019)
(quotation omitted). However, we agree the court procedurally erred because the fact
findings underlying the variance imposed -- that Dickson was involved in
transporting 25 packages from California to North Dakota, traveled to North Dakota
on five occasions, collected drug debts, rented vehicles for Taylor, and was an
“essential cog in the drug conspiracy” -- are inconsistent with court-adopted PSR
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findings -- that Dickson was accountable for only one transaction and recommending
no role-in-the-offense adjustment. See United States v. Brown, 453 F.3d 1024, 1026
(8th Cir. 2006); United States v. Portillo, 458 F.3d 828, 830 (8th Cir. 2006).
The PSR’s findings may have been influenced by the jury’s drug quantity
verdict, which the district court was not obligated to follow if it found by a
preponderance of the evidence that Dickson played a central role in the conspiracy
and was responsible for conspiring to distribute drug quantities the jury found were
not proven beyond a reasonable doubt. But the court should not have adopted the
PSR findings if it intended to make contrary findings based on its first-hand
knowledge of the trial evidence. The court could then have increased the drug
quantity used to calculate Dickson’s base offense level and applied an offense-level
enhancement for his aggravating role in the offense. See, e.g., United States v.
Gregg, 467 F.3d 1126, 1129 (8th Cir. 2006). In addition, because the government did
not object to the PSR’s guideline range calculations, the court should have alerted
counsel before the hearing that it was considering an upward variance based on trial
evidence that Dickson was an “essential cog” in the conspiracy, or at least given
defense counsel an opportunity to be heard when the court explained that it was
varying upward based on transactions the PSR did not attribute to Dickson and on his
aggravated role in the conspiracy. See USSG § 6A1.3(a); United States v. Wiley, 509
F.3d 474, 479 (8th Cir. 2007).
On the record before us, we cannot conclude that the inconsistencies between
the PSR findings and the findings on which the district court based its upward
variance, combined with the lack of prior notice, resulted in procedural sentencing
error that was harmless. See, e.g., United States v. Williams, 627 F.3d 324, 329 (8th
Cir. 2010). Indeed, the government does not argue that any procedural sentencing
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error was harmless. Accordingly, we affirm Dickson’s conviction, vacate the
Judgment in a Criminal Case, and remand for resentencing.1
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1
Because we are remanding for resentencing, we do not reach Dickson’s
argument that the district court erred when it justified a longer sentence for Dickson
than for Boelter and Taylor because both conspirators cooperated with the
government, when only Boelter cooperated.
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