United States v. Demetrius Brown

Citation: 148 F.3d 1003Docket: 97-2600, 97-2997 and 97-3093

Court: Court of Appeals for the Eighth Circuit; July 7, 1998; Federal Appellate Court

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The United States Court of Appeals for the Eighth Circuit reviewed appeals from Carlos Laron Hewitt, Michael Lynn Flowers, and Demetrius Brown regarding their sentences and convictions related to drug offenses. The court affirmed the lower court's decisions. The case involved a street gang known as 'The Detroit Boys,' which dominated the crack cocaine trade in south Minneapolis during the early 1990s, characterized by extreme violence and organized crime. Hewitt and Brown held leadership roles, with Hewitt managing finances and drug distribution, while Brown oversaw sales and operations. Flowers served as the primary cocaine supplier from Los Angeles.

In June 1996, Hewitt, Brown, Flowers, and eight others were indicted on various drug charges. Hewitt faced multiple counts, including conspiracy to distribute cocaine, aiding and abetting drug possession, using a telephone for drug offenses, being a felon in possession of a firearm, and money laundering. He ultimately pled guilty to most charges, excluding the firearm charge, which the government dismissed. The district court determined his sentence using the U.S. Sentencing Guidelines, relying on the findings in his presentence report.

Hewitt's offenses were categorized into two groups under Part D of Chapter Three (Multiple Counts). The first group included conspiracy, possession with intent to distribute, and use of a telephone in a felony drug offense, leading to a base offense level calculated using the drug quantity table in section 2D1.1(c). Hewitt was held accountable for distributing at least 5.4 kilograms of powder cocaine and 1.07 kilograms of crack, which converted to equivalent amounts of 200 kilograms of cocaine and 21,400 kilograms of crack, totaling 21,600 kilograms of marijuana. This placed him in a base offense level of 36. His level was increased by two for possessing a firearm during the crimes and by four for being a leader in a significant criminal activity, resulting in an adjusted offense level of 42. After a two-level downward adjustment for acceptance of responsibility, his final offense level was 40, with a criminal history category of IV, leading to a sentencing range of 360 months to life imprisonment. The court sentenced him to concurrent terms of 420, 48, and 240 months, along with five years of supervised release and a $650 special assessment.

In his appeal, Hewitt raised four arguments challenging the district court's application of the Guidelines based on factual findings, which are reviewed for clear error. He contended that he was entitled to a three-level reduction for acceptance of responsibility instead of the two-level reduction granted. Section 3E1.1(a) states that a defendant demonstrating clear acceptance of responsibility is eligible for a two-level decrease, and if they notify authorities of a guilty plea in a timely manner, they may receive an additional one-level reduction under section 3E1.1(b)(2). Although he acknowledged that pleading guilty on the trial day typically does not warrant the supplemental reduction, he argued that his late plea did not waste significant resources because the government was preparing related cases against co-defendants. He claimed his plea ultimately contributed to a more efficient trial process.

Arguments against the government's case preparation efforts are rejected, emphasizing that the involvement of an additional defendant, particularly the alleged leader of a conspiracy, does not imply duplicative efforts. The charges against Hewitt were more serious and numerous compared to co-defendants Brown and Williams, necessitating extensive preparation by the government to prove Hewitt's guilt on multiple counts, consuming significant time and resources. Hewitt's late plea did not aid court efficiency, as the court had to organize its docket with the assumption of a trial, dealing with twelve motions from Hewitt before his change of plea. The district court correctly declined to increase the reduction under section 3E1.1 from two levels to three. 

Hewitt also challenged the court's accountability for all drugs involved in the conspiracy. While he accepted responsibility for two specific quantities of cocaine, he disputed the inclusion of other amounts. A defendant in a conspiracy can be held accountable for reasonably foreseeable acts of co-conspirators, and the court can consider drug transactions not directly involving the defendant as long as they are part of the same scheme. The court must determine, based on a preponderance of evidence, that any drug transactions attributed to the defendant were in furtherance of the conspiracy and either known or foreseeable to him. Relevant factors include the benefits received from co-conspirators and the defendant's commitment level. The court can also estimate total drug quantities using various evidence, and no errors were found in the court's determination of drug quantities, which were deemed conservative.

Evidence establishes a strong link between Hewitt and the conspiracy involving the Detroit Boys for distributing illegal narcotics, with each quantity tied to potential profits for Hewitt had the conspiracy not been disrupted. Hewitt contested a four-level enhancement for being a leader in a criminal activity involving five or more participants, arguing for a lesser two-level increase. The court considered several factors under U.S.S.G. 3B1.1, including decision-making authority and control over others, concluding that all factors supported the four-level enhancement due to Hewitt's role as the organizer of a sophisticated interstate drug distribution operation.

Hewitt also challenged a two-level enhancement for possessing a dangerous weapon in connection with the conspiracy. The government must show by a preponderance of the evidence that the weapon was present and connected to the offense. The court noted that constructive possession was established through Hewitt’s ownership and control over firearms found at locations where drugs were cooked and sold. The record indicated that Hewitt had several firearms and had used violence to maintain control within the operation, which justified the enhancement.

The court found no merit in Hewitt's challenges to his sentence. Demetrius Brown was charged with conspiracy to distribute cocaine and aiding in possession with intent to distribute cocaine, resulting in convictions for both charges. Brown was held accountable for drug distribution only until his imprisonment began on March 25, 1996, totaling 1,168.4 grams of powder cocaine and 743.5 grams of crack.

Substances were converted to marijuana equivalents, resulting in 233.68 kg of cocaine and 14,870 kg of crack, totaling 15,103.68 kg of marijuana. The court set Brown’s base offense level at 36, as per U.S.S.G. 2D1.1(c)(2), and increased it by four due to his leadership role in the conspiracy, leading to a total offense level of 40. With a criminal history category of III, he faced a sentencing range of 360 months to life. Ultimately, he was sentenced to 360 months on each count, concurrently, along with ten years of supervised release and a $100 special assessment.

On appeal, Brown argued for a new trial based on the admission of his 1991 felony conviction for cocaine trafficking in Michigan, which the court allowed under Rule 404(b) of the Federal Rules of Evidence. The court determined the conviction was relevant to Brown's knowledge, intent, and opportunity concerning the current conspiracy, given its connection to Michigan. Brown's defense claimed he was unaware of the conspiracy, but the prior conviction countered his assertions of naivete. The court found the probative value of the conviction outweighed its prejudicial effect, especially with a cautionary jury instruction.

Brown also contested the inclusion of 704.5 grams of crack seized from his motel room in Houston when calculating his base offense level. He contended there was a 'quasi-agreement' with the government not to call a police officer as a witness, which resulted in the Houston connection not being established at trial. He argued this was improper, especially since the court indicated its findings would be based solely on evidence proven during the trial.

Sentencing courts may base their factual findings on a preponderance of the evidence and will only be overturned if there is a definite and firm conviction of error. The court is permitted to consider extensive information regarding the defendant’s background and conduct, regardless of its admissibility at trial, as long as it has sufficient reliability. In this case, Brown's association with the cocaine found in his motel room was established through pretrial testimony, justifying the district court's consideration of that drug quantity in sentencing. Brown argued that since the jury did not specify the type of drug involved in the conspiracy, it should be assumed only powder cocaine was considered, potentially leading to a lighter sentence. However, this argument is countered by the Supreme Court's ruling in Edwards v. United States, which states that it is the judge's responsibility, not the jury's, to determine the type and amount of controlled substances for sentencing purposes. The guidelines require the judge to assess these factors, which the district court properly did in Brown's case, despite the jury's general verdict.

Brown challenges the enhancement of his statutory minimum sentence under 21 U.S.C. § 841(b)(1)(A) and § 851(a)(1), (2) based on his prior felony drug trafficking conviction. He argues that the phrase "the offense for which such increased punishment may be imposed" in § 851(a)(2) refers to his prior offense rather than the current charge. However, precedent from United States v. Trevino-Rodriguez clarifies that the requirement for waiver or indictment applies only to the current offense, not to enhance sentencing based on a prior conviction. Therefore, Brown's argument is rejected, and his additional claims are deemed without merit.

Michael Lynn Flowers was charged with conspiracy and distribution of cocaine but entered a plea agreement to plead guilty to the conspiracy charge, leading to the dismissal of other counts. The agreement included a waiver of his right to appeal if sentenced at or below a total offense level of 33. During the plea hearing, the court confirmed Flowers understood this waiver. Following a sentence of 151 months, which was within the agreed range, Flowers attempted to appeal, but his waiver of appellate rights was found to be knowing and voluntary, leading to the dismissal of his appeal.

The court affirms the sentence of Hewitt, and Brown's conviction and sentence are also affirmed, while Flowers's appeal is dismissed. Flowers's criminal history includes a manslaughter conviction stemming from a violent incident involving a shooting.