United States v. Anthony Charles Stephens
136 F. App'x 334
June 23, 2005 · Docket 04-11598; D.C. Docket 03-14052-CR-KMM
Headnotes
Generated summaries- Headnote 1
The court found the appellant received full Miranda warnings, understood them, and chose to talk, rejecting the argument that lack of a precise offense date rendered the waiver unintelligent.
- Headnote 2
The appellate court held the appellant’s statements were introduced to show his intent to traffic crack cocaine, satisfying the relevant‑purpose exception to Rule 404(b) and outweighing any prejudice.
- Headnote 3
The court concluded that because the informants and co‑defendants were never called, the confrontation right was not triggered and no constitutional violation occurred.
- Headnote 4
The district court authenticated the June 5 tape, gave the jury a proper limiting instruction on its use, and the appellate court found no abuse of discretion.
- Headnote 5
The appellate court held the sentencing court’s use of the guideline level based on the jury‑found drug quantity was permissible and did not constitute a Sixth Amendment error.
- Headnote 6
The court found the record showed appellant was given Miranda warnings, understood them, and chose to talk, rejecting his claim that the failure to state the offense date made the waiver unintelligent.
- Headnote 7
The appellate court held the statements were introduced to show appellant’s intent to traffic crack cocaine, not merely to show bad character, and therefore satisfied Rule 404(b) and the Rule 403 balancing test.
- Headnote 8
The court concluded that the informants and co‑defendants were never offered at trial, so the confrontation clause was not triggered, and no plain‑error violation occurred.
- Headnote 9
The district court authenticated the tape through officer testimony, gave a limiting instruction on its use, and the appellate court found no abuse of discretion in admitting the tape and its transcript.
- Headnote 10
The jury found the drug quantity exceeded 50 grams, allowing the court to apply the guideline‑based base offense level without violating the Sixth Amendment.
- Headnote 11
The statute mandates a 120‑month minimum, and the court affirmed the 121‑month sentence because it was grounded in the applicable guideline level derived from the jury‑found drug quantity.
- Headnote 12
The court found the record showed appellant was advised of his rights, understood them, and chose to talk, rejecting the claim that the lack of a date rendered the waiver involuntary.
- Headnote 13
The appellate court held the statements were part of the prosecution’s proof of intent to sell crack cocaine and therefore were not barred by Rule 404(b); the balancing test found sufficient probative value.
- Headnote 14
The court found no authority obligating the trial court to produce the named informants and held that, absent a timely objection and prejudice, no plain error occurred.
- Headnote 15
The district court authenticated the tape through officer testimony, gave a proper limiting instruction, and the appellate court found no abuse of discretion in admitting the tape and its transcript.
- Headnote 16
The appellate court held the guideline base offense level was based on a fact found by the jury (over 50 g of crack), so no enhancement based on extra‑verdict facts occurred and no plain error was present.
- Headnote 17
The appellant was arrested, read his Miranda warnings, acknowledged understanding, and then made statements. He argued the waiver was not intelligent because officers did not tell him the exact date of the crime. The court held the waiver was valid, citing Colorado v. Spring.
- Headnote 18
The district court admitted the appellant's statements to show his intent to sell crack cocaine. The appellant claimed they were merely character evidence. The court found the statements were offered to prove intent, not to show bad character, and thus were not barred by Rule 404(b).
- Headnote 19
The district court weighed the probative value of the appellant's statements against their potential prejudice. Finding that the statements were essential to proving intent and that prejudice was minimal, the court concluded the admission satisfied Rule 403.
- Headnote 20
The appellant sought to compel the government to produce informants and co‑defendants who never testified. The court held that because the government never offered their out‑of‑court statements at trial, the confrontation right was not implicated and no production was required.
- Headnote 21
The appellant alleged plain error for not requiring the production of informants. The court applied the four‑part plain‑error test and concluded that, without a timely objection and showing of prejudice, no plain error occurred.
- Headnote 22
The district court admitted a tape of the June 5 transaction after an officer identified it and testified to its authenticity. The court treated the recording as a non‑hearsay statement offered to prove conduct, satisfying Rules 901 and 801(d)(2).
- Headnote 23
The court instructed the jury on the limited use of the tape and its transcript. The appellant did not show that the admission caused undue prejudice, so the court’s discretion was upheld.
- Headnote 24
The sentencing court applied U.S.S.G. §2D1.1(a)(3), which uses a base offense level of 32 for 50‑150 grams of crack. The jury had found the drug quantity, so the advisory guideline calculation did not breach the Sixth Amendment.
- Headnote 25
The appellant argued that the sentence was enhanced by facts not proven to a jury. The court held no such enhancement occurred because the only factual predicate (drug quantity) was jury‑found, and the appellant raised no objection, so no plain error existed.
Opinion
A jury convicted appellant of possession with intent to distribute 50 grams or more of cocaine base (“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1), and the district court sentenced him to prison for 121 months.
Appellant’s conviction was the result of an undercover investigation by the Florida Department of Law Enforcement, the Drug Enforcement Administration (“DEA”), and the sheriffs offices of two Florida counties, Highlands County and St. Lucie County. On June 5, 2003, in Avon Park, Florida, appellant sold three crack cocaine cookies weighing 62.7 grams to a confidential source for $2300. Several law enforcement officers witnessed the transaction. The officers did not arrest appellant at that time; rather, they set up a surveillance in an attempt to identify the source his drugs. The attempt failed, and on September 4, 2003, a Highlands County Sheriffs Office investigator and DEA agents arrested appellant for the June 5 trafficking episode. After receiving his Miranda warnings and acknowledging that he understood his rights, appellant stated that he had sold cocaine in the past but had been out of the crack cocaine business for a year — after returning from Jamaica and learning that his Mends, Markyrei McCray, Ezzard Dixon, and Kenneth Jenkins, had been arrested for selling drugs. He said that after learning about their arrests, he limited his drug trafficking to marijuana.
In this appeal, appellant challenges his conviction and his sentence. He asks that we vacate his conviction and remand the case for a new trial on four grounds, which we set out and dispose of in order.
1) The district court erred in denying his motion to suppress his post-arrest statements that he knew Markyrie McCray and Ezzard Dixon (who following their arrests implicated appellant as “Jamaican Brother,” their crack cocaine supplier) because he was not informed of the offense for which he was being arrested and thus did not intelligently waive his right to remain silent. We find no merit in this ground because the record is replete with evidence that appellant was advised of his Miranda rights, understood them, and decided to talk. He admits this but says that his statements were involuntary because he was not informed of the specific date of the offense for which he was arrested. See Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987).
2) The district court abused its discretion in admitting appellant’s post-arrest statements into evidence because their only relevance was to show that he was a person of bad character and had a propensity to engage in criminal activity or, alternatively, because the statements’ probative value was substantially outweighed by their undue prejudice. This ground is Mvolous. In pleading not guilty and standing trial, appellant place his intent to traffick crack cocaine in issue. The evidence he challenges was part of the prosecution’s proof that he intended to sell crack cocaine on the occasion described in the indictment.
3) The district court committed plain error in not requiring the Government to produce as witnesses McCray, Dixon, and Kenneth Jenkins (who informed law enforcement that appellant was a crack supplier), and “Chill” and “TK,” the two confidential informants involved in the June 5, 2003 drug transaction. He contends that the Sixth Amendment right of confrontation obligated the court to ensure the witnesses’ presence. Appellant failed to object to the non-production of these witnesses; hence, we consider whether the court’s refusal to act constituted plain error. Appellant cites no authority for such obligation, and we have been unable to find any. No plain error occurred here.
4) The district court abused its discretion in admitting into evidence the audiotape of the June 5, 2003 transaction and a transcript of a portion of the tape. Appellant did not object to the admission of the tape into evidence because he thought it contained exculpatory evidence. The court properly instructed the jury as to their use of the tape and transcript. We find no abuse of discretion here.
In sum, we find no cause for disturbing appellant’s conviction. We therefore turn to the validity of his sentence.
Appellant challenges his sentence on the ground that United States v. Booker, 543 U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which holds that the Sixth Amendment precludes the enhancement of a sentence under a mandatory guidelines system, e.g., the federal guidelines sentencing system, based on facts not found by the jury beyond a reasonable doubt or admitted by the defendant. Because appellant did not present his Sixth Amendment objection to the district court, we examine his challenge for plain error.
No Sixth Amendment violation, and thus no plain error, occurred in this case because appellant was sentenced under U.S.S.G. § 2Dl.l(a)(3) which provides a base offense level of 32 where the amount of crack cocaine involved in the offense is between 50 and 150 grams. The jury found that appellant’s offense involved more than 50 grams or more of the drug; no Sixth Amendment violation occurred because in fashioning appellant’s sentence, the court did not enhance the offense level based on extra-verdict facts.
Appellant does not argue in his brief that the court erred in treating the Sentencing Guidelines as mandatory. We therefore do not consider the point. We do note that the statute, 21 U.S.C. § 841(b)(1)(A), prescribing the penalty for appellant’s offense imposes a mandatory minimum term of imprisonment of 120 months, with a maximum term of life. Appellant’s sentence exceeds this mandatory minimum by one month. Were we to vacate his sentence and remand the case for resentencing under a sentencing regime that treats the Guidelines as advisory, as Booker requires, appellant could receive a sentence considerably in excess of 121 months’ imprisonment. Given this possibility, we choose not to disturb appellant’s sentence.
AFFIRMED.