United States v. Kevin Burdock , 355 F. App'x 81 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1358
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
Kevin Lee Burdock, * [UNPUBLISHED]
*
Defendant - Appellant. *
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Submitted: November 20, 2009
Filed: December 4, 2009
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Before MURPHY, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Kevin Burdock was convicted by a jury of conspiracy to distribute at least 500
grams of methamphetamine and possession of marijuana with intent to distribute. The
district court found that Burdock had two prior felony drug offenses and sentenced
him to life in prison. 21 U.S.C. § 841(b). Burdock appeals his conviction and
sentence on three grounds: insufficient evidence to support his convictions, sentencing
error, and ineffective assistance of counsel. We affirm the convictions, vacate the
sentence, but remand for resentencing.
Burdock argues that insufficient evidence exists to support his convictions
because the government relied on the testimony of coconspirators with cooperation
agreements. We review the sufficiency of the evidence de novo, viewing the evidence
and all reasonable inferences therefrom in the light most favorable to the government.
United States v. Van, 543 F.3d 963, 964 (8th Cir. 2008). We will reverse only if "no
reasonable jury could have found the defendant guilty beyond a reasonable doubt."
United States v. May, 476 F.3d 638, 640-41 (8th Cir. 2007).
Four of Burdock's coconspirators testified at his trial. The witnesses testified
as to Burdock's role in the conspiracy, his methamphetamine sources, the manner in
which he shipped the drugs, and the quantities and frequency of his drug deals.
Burdock concedes that the testimony of a coconspirator is sufficient to sustain a
conviction, but contends that the testimony of his alleged coconspirators so lacked
credibility that no reasonable jury could have credited their testimony. Assessing
witness credibility is within the province of the jury and absent extraordinary
circumstances not present here, we will not review that assessment. United States v.
Wesseh, 531 F.3d 633, 637 (8th Cir. 2008). We have "repeatedly upheld jury verdicts
based solely on the testimony of co-conspirators and cooperating witnesses" noting
that it is the jury's task to make credibility assessments. United States v. Bower, 484
F.3d 1021, 1026 (8th Cir. 2007).
The government's evidence was not limited to the testimony of Burdock's co-
conspirators, however. The government presented evidence that dealer quality
marijuana and methamphetamine paraphernalia had been found in Burdock's
bedroom. Burdock was recorded on a surveillance video following a controlled drug
purchase from one of his distributors and later on the telephone talking about the
police interception of a methamphetamine package. The jury also heard evidence of
Burdock's own admissions to law enforcement that he had attempted to purchase large
amounts of methamphetamine and had successfully purchased small amounts of
cocaine. The evidence was sufficient for a reasonable jury to find Burdock guilty of
conspiring to distribute at least 500 grams of methamphetamine and possession of
marijuana with intent to distribute.
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Burdock also argues that the district court improperly enhanced his sentence to
life imprisonment based, in part, on a state conviction that did not qualify as a "felony
drug offense" under 21 U.S.C. § 802(44). A defendant with a prior felony drug
offense may be subject to enhanced punishment under 21 U.S.C. § 841(b)(1)(B).
"Felony drug offense" is defined broadly as "an offense that is punishable by
imprisonment for more than one year under any law ... that prohibits or restricts
conduct relating to narcotic drugs." 21 U.S.C. § 802(44). We review de novo whether
a prior conviction qualifies as a "felony drug offense" for the purpose of sentence
enhancement. United States v. Tlaseca, 546 F.3d 571, 579 (8th Cir. 2008).
On February 29, 1996 Burdock was convicted in Arizona state court of
possessing drug paraphernalia, in violation of A.R.S. § 13-3415 (2009). Violations
of § 13-3415 are "class 6 felonies." At the time of Burdock's 1996 conviction, the
maximum term of punishment for a class 6 felony under Arizona law was one year.
Under current Arizona law, however, a judge may sentence a defendant to a maximum
of two years for a class 6 felony. Relying on the current version of the Arizona
statute, the district court used the 1996 offense to enhance Burdock's sentence to life
in prison. Burdock argues, and the government agrees, that his 1996 conviction does
not qualify as a felony drug offense under § 802(44) because it was not punishable by
imprisonment for more than one year. We conclude that the district court erred by
finding that Burdock's 1996 conviction qualified as a felony drug offense and by
enhancing his sentence based on that finding.
We decline to review on direct appeal Burdock's final claim of ineffective
assistance of counsel. See United States v. McAdory, 501 F.3d 868, 872-73 (8th Cir.
2007) (appellate court ordinarily defers ineffective assistance claims to 28 U.S.C. §
2255 proceedings).
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For the foregoing reasons, we affirm Burdock's convictions, but reverse and
remand for resentencing consistent with this opinion.
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