EBEL, Circuit Judge.
Defendant-appellant Corey Cornelius was charged with four counts of federal racketeering- and drug-related offenses in 2008 in the District of Kansas along with nineteen codefendants in a thirty-count indictment. A jury convicted Cornelius in 2009 of one count of conspiracy to commit a violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), one count of conspiracy to distribute crack cocaine, and one count of conspiracy to distribute marijuana. The jury could not reach a verdict on the fourth count against Cornelius, charging racketeering under RICO. The district court sentenced Cornelius to 210 months' imprisonment in 2010. This appeal by Cornelius and cross-appeal by the Government followed.
On appeal, Cornelius argues that (1) the evidence at trial was insufficient to support a conviction on any of the counts under which he was convicted; (2) the district court erred by instructing the jury that it did not need to find that an "enterprise" actually existed in order to convict on the offense of conspiracy to commit a RICO violation; (3) the district court erred by giving the jury an Allen instruction
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reject Cornelius's arguments on appeal and AFFIRM his conviction. Additionally, we agree with the Government that the district court erred by failing to impose the statutory mandatory minimum sentence in this case, and therefore VACATE Cornelius's sentence and REMAND for sentencing consistent with this opinion.
The Crips are one of the more prominent street gangs in Wichita, Kansas. The Crips engage in drug distribution, violent crimes, and other illicit activity. Cornelius was a Crip member, and he had brothers
Cornelius was arrested in May 2007 in relation to a 2006 armed robbery of a credit union in Wichita. Cornelius was charged in the District of Kansas with bank robbery and the use of a firearm during commission of a federal crime of violence, but those charges were dismissed in November 2007. In the meantime, in September 2007, Cornelius was charged in a twenty-five-count Superceding Indictment along with multiple codefendants.
Cornelius faced charges under four counts in the Fifth Superceding Indictment. Under Count 1, Cornelius was charged with racketeering, in violation of 18 U.S.C. § 1962(c), in relation to the following alleged acts: robbery of a man in 1997; possession with intent to distribute marijuana in 2005; robbery of a credit union in 2006; and conspiracy to distribute cocaine and marijuana in 2007. Under Count 2, Cornelius was charged with conspiracy to commit a RICO violation, in violation of 18 U.S.C. § 1962(d), in relation to the previously identified activity. In Count 28, Cornelius was charged with conspiracy to distribute fifty grams or more of a mixture containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Finally, in Count 29, Cornelius was charged with conspiracy to distribute a mixture containing a detectable amount of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Cornelius was tried by a jury in the District of Kansas along with five co-defendants who were also alleged Crips. The trial lasted roughly six weeks, from early March through mid-April 2009. On March 30, after all evidence had been presented and arguments had concluded, the jury began its deliberations. On April 9, the jury informed the judge that it was at an impasse, unable to reach a verdict on sixteen of thirty-four counts. In response, the court issued, over Cornelius's attorney's objection, an Allen instruction to the jury, instructing the members to reconsider their views and to deliberate further in attempt to reach an agreement if possible.
Also on April 9, the jury submitted a question to the court, asking: "Does the enterprise in Count 1 [i.e., racketeering under RICO] have to be established before we can come to a verdict on Count 2 [conspiracy to commit a RICO violation]?" R. Vol. 4 at 4438. The court responded in the negative, issuing the following responsive instruction to the jury:
Id. at 4438-39, 4446. Cornelius's attorney had objected to that instruction by way of adopting the position of counsel for one of Cornelius's codefendants — counsel who had argued that the new instruction "lends undue emphasis to instructions that are already in the court's original instructions." Id. at 4443. Counsel had urged the court simply to refer the jurors back to the original jury instructions, although he conceded that he did not believe that the new instruction misstated the law or otherwise misled the jury. Notably, the original instructions likewise indicated that the jury did not need to find the existence of an enterprise under Count 1 in order to convict on Count 2. See R. Vol. 2 at 358-59 (Instr. 32: "Unlike the charge in Count 1, the government need not prove [under Count 2] ... that the alleged enterprise was actually established....").
On April 15, the jury returned a verdict on twenty-eight counts, unable to reach a verdict on the remaining six counts. With respect to the four charges against Cornelius, the jury failed to reach a verdict on Count 1 (racketeering under RICO), but it found Cornelius guilty under Count 2 (conspiracy to violate RICO), Count 28 (conspiracy to distribute crack cocaine), and Count 29 (conspiracy to distribute marijuana).
After the trial had concluded, some of the jurors chose to meet with the attorneys in the jury room. There, the presiding juror handed an envelope with a typed letter to the prosecution. The letter thanked the prosecutors for their service; offered to discuss the trial, the jury's deliberations, and the applicable law with them, if that would be legal; and referenced the presiding juror's willingness to "help [the Government] rid this cancer in our society." R. Vol. 2 at 403.
On May 6, 2009, Cornelius filed a "Motion for judgment of acquittal or, in the alternative, a new trial," citing insufficient evidence to support a conviction, improper jury instructions, and jury partiality as justifications for relief. The district court denied that motion on July 15, 2009. Cornelius was sentenced on May 12, 2010, to 210 months' imprisonment for each of the three counts of conviction, to run concurrently.
Before trial, the Government had filed an information pursuant to 21 U.S.C. § 851, giving notice of a former felony drug conviction of Cornelius that would subject him to an enhanced sentence — namely, a twenty-year mandatory minimum prison term for Count 28, under 21 U.S.C. § 841(b)(1)(A). Cornelius objected to the consideration of that prior conviction, asserting that the conviction was the result of an unconstitutional search and therefore should be excluded from consideration as fruit of the poisonous tree under the exclusionary rule. The district court, over the Government's objection, did not sentence Cornelius to the twenty-year minimum. Rather, deeming itself to have some flexibility in the matter, and in light of its concern about crack/powder cocaine sentencing disparities, the court sentenced Cornelius to only 210 months — twenty-five months less than the low end of the advisory range yielded by the Federal Sentencing Guidelines.
On May 21, 2010, Cornelius appealed to this Court. As outlined above, he argues that his conviction as well as his sentence
Cornelius argues that the evidence presented at trial was insufficient to support his convictions on Counts 2, 28, and 29. We conclude that the evidence was sufficient for each.
We review the record de novo in sufficiency-of-the-evidence challenges to criminal jury verdicts, asking if, "viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. Dobbs, 629 F.3d 1199, 1203 (10th Cir.2011). We consider "both direct and circumstantial [evidence], together with the reasonable inferences to be drawn therefrom." United States v. Jameson, 478 F.3d 1204, 1208 (10th Cir.2007). "We will reverse a conviction `only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Dobbs, 629 F.3d at 1203 (citation omitted).
Cornelius's sufficiency challenge to his conviction on Count 2 is peculiar insofar as he does not argue directly that there was insufficient factual proof to support a conviction. Rather, he relies upon an inference from the jury's failure to reach a verdict on Count 1 — racketeering under RICO — which he claims is inconsistent with his conviction on Count 2 — conspiracy to commit a RICO violation — such that either a directed acquittal or a new trial is warranted vis-à-vis Count 2. Cornelius first asserts that the RICO conspiracy charge in Count 2 as well as the substantive RICO charge in Count 1, requires a finding of, among other elements, the existence of an enterprise at the time of the offense.
Cornelius's inconsistent-verdicts argument fails without even reaching the question of whether the existence of an enterprise is an essential element of a RICO conspiracy charge under 18 U.S.C. § 1962(d). It is a longstanding principle that "[c]onsistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932); see also id. at 394, 52 S.Ct. 189 ("That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters."); United States v. Swafford, 766 F.2d 426, 429-30 (10th Cir.1985) (applying the rule in Dunn to an allegedly inconsistent conspiracy verdict). See generally 18
Cornelius has not made any additional arguments on appeal with respect to his conviction on Count 2. Cornelius's enterprise argument fundamentally also fails, in addition to the reason discussed above, because the Government was not required to prove the actual existence of an enterprise under 18 U.S.C. § 1962(d) — a legal point we clarify today in United States v. Harris, 695 F.3d 1125 (10th Cir.2012). Reviewing the record de novo and making all reasonable inferences in favor of the Government, see Jameson, 478 F.3d at 1208, we determine that the Government produced sufficient evidence from which a rational trier of fact could have found all the elements of the RICO conspiracy charged in Count 2 beyond a reasonable doubt, see Dobbs, 629 F.3d at 1203.
Cornelius argues that the jury could not reasonably have convicted him on Count 28 because the Government failed adequately to prove the interdependence element of conspiracy. "To obtain a conspiracy conviction, the government must prove: `(1) an agreement by two or more persons to violate the law; (2) knowledge of the objectives of the conspiracy; (3) knowing and voluntary involvement in the conspiracy; and (4) interdependence among co-conspirators.'" United States v. Foy, 641 F.3d 455, 465 (10th Cir.2011). The interdependence prong is "a focal point" of this conspiracy analysis. United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir.2009) (quotation marks, citation omitted). To that end, we ask whether the "coconspirators intend[ed] to act together for their shared mutual benefit within the scope of the conspiracy charged." Id. (internal quotation marks, citation omitted). The Government need not "prove `the conspirators know the identities or details of each scheme or have connections with all other members of the conspiracy.'" Foy, 641 F.3d at 465 (citation omitted). "Circumstantial evidence alone is often sufficient" to demonstrate interdependence, and "a single act" can constitute sufficient proof. Caldwell, 589 F.3d at 1329.
Cornelius contends that his conviction on Count 28 rests upon "an impermissible stacking of inference upon inference" and improper "guilt by association" reasoning. Aplt. Br. at 26. He claims that even if he did buy cocaine from, or sell cocaine to, other Crips, there is no evidence that any two of those occasions were connected, or that any common drug-supplying goal existed between them. He also asserts that "other defendants could have continued with any effort to distribute cocaine even if [he] had not been involved." Id. at 29.
However, the Government did put forth evidence from which a reasonable jury could infer interdependence. It is true that the "existence of a buyer-seller relationship, without more, is inadequate to tie the buyer to a larger conspiracy." United States v. McIntyre, 836 F.2d 467, 471 (10th Cir.1987). However, the buyer-seller principle only shields mere end-user consumers like the defendant in McIntyre, who only shared three cocaine purchases with friends and did not resell the drugs. See, e.g., id. In contrast, as opposed to mere consumers, those who "intend to redistribute
In this case, there was evidence that Cornelius bought and sold drugs in an interdependent distribution scheme. The evidence that Cornelius repeatedly sold cocaine to other drug distributors who in turn sold it to others is sufficient to support a reasonable inference that conspiratorial interdependence existed between Cornelius and other distributors in a conspiracy.
Further supporting that conclusion is evidence that Cornelius was an "OG" — a leader within the gang — as that status would tend to establish Cornelius as a "mid-level" dealer, which bolsters a finding of a conspiratorial relationship. See Ivy, 83 F.3d at 1285-86; Wright, 506 F.3d at 1299. Cornelius's status as an OG could also suggest that he "was privy to information regarding the [nature and objectives] of the criminal conspiracy," which supports an inference of interdependence. Small, 423 F.3d at 1183. Also to that end, testimony regarding Cornelius's attendance at gang meetings supports such an inference, see id. at 1183.
The jury did not need to find that the conspiracy could not have functioned without Cornelius; rather, it is sufficient that Cornelius was an operational link within it. See United States v. Evans, 970 F.2d 663, 670 (10th Cir.1992). In this case, there was adequate evidence, including the testimony identified above, from which a rational jury could conclude that Cornelius was at least an operational link in the cocaine distribution conspiracy.
With respect to Count 29, Cornelius argues that there was insufficient evidence of the necessary respective conspiracy elements of agreement and interdependency. See Caldwell, 589 F.3d at 1329. He asserts that his conviction rested upon an improper guilt-by-association rationale, arguing that there was no proof of conspiracy but rather only evidence of his status as a Crip and his intent to distribute marijuana, apart from any agreement with others.
Once again, however, the Government did produce evidence that supports a reasonable inference of a conspiracy. Fellow Crip Donta Davis testified, "I was buying and [Cornelius] knew the person to get [marijuana and cocaine] from, [Cornelius] would go get [it] for me." R. Vol. 4 at 1019; see also id. at 1020 (testimony that Davis would buy two to three pounds of marijuana at a time, at a price of $500-600 per pound, from Cornelius).
We cannot say that no reasonable jury could have found Cornelius guilty under Count 29.
Cornelius objects to the district court's charge to the jury — via both jury Instruction 32 and the court's response to the jury's subsequent related question, discussed above in the Background — that it need not find that an enterprise existed under Count 1 in order to convict under Count 2. Cornelius argues that this was a clearly erroneous statement of Tenth Circuit law. We conclude that Cornelius's argument fails both under the invited error rule, because Cornelius waived his right to challenge the jury instruction on appeal by expressly endorsing it at trial; or alternatively, considering the question under our forfeiture standard of review, the instruction was not clearly erroneous.
Under the invited error doctrine, this Court will not engage in appellate review when a defendant has waived his right to challenge a jury instruction by affirmatively approving it at trial. "[A] party that has forfeited a right by failing to make a proper objection may obtain relief for plain error; but a party that has waived a right is not entitled to appellate relief." United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir.2009) (internal quotation marks, citation omitted). "A waived claim or defense is one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to preserve." Wood v. Milyard, ___ U.S. ___, 132 S.Ct. 1826, 1832 n. 4, 182 L.Ed.2d 733 (2012); see also United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. McGehee, 672 F.3d 860, 873 (10th Cir.2012) ("Waiver is accomplished by intent, but forfeiture comes about through neglect." (quotation marks, citation, alterations omitted)).
We have found waiver, for instance, when a defendant proposed and agreed to certain conditions of supervised release, and later sought to challenge them. See id. at 1315-16. Similarly, the Seventh Circuit has held that an attorney's express approval of a jury instruction before its submission to the jury precluded appellate review of his client's subsequent claim that the instruction was faulty. See United States v. Griffin, 84 F.3d 912, 923 (7th Cir.1996). In contrast, mere forfeiture occurs where, for example, a defendant simply indicates that he has no objection to a proposed jury instruction at the jury instruction conference. See Harris, 695 F.3d at 1130 n. 4.
In this case, as discussed above in the Background, Cornelius's attorney expressed concern about the answer the district court gave to the jury in response to its question about the relationship between Counts 1 and 2, by way of expressly adopting the position stated by counsel for one of Cornelius's codefendants. Cornelius's attorney effectively stated that the district court's instruction-clarifying charge to the jury — namely, that the jury's respective findings in Counts 1 and 2 were mutually independent — was confusing and misleading. He preferred that the judge respond to the jury's question simply by instructing the jury to reread the instructions they had already received, wherein the proper legal guidance was already present. However, when the judge explicitly asked defense counsel whether the response the judge was giving the jury contained a misstatement of the law or would in fact mislead the jury, defense counsel replied in the negative. Further, defense counsel expressly endorsed Instruction 32, which contained the statement of law with which Cornelius now asserts error. Instruction 32 had advised that, for Count 2,
R. Vol. 2 at 358-59 (emphases added). Thus, not only did Cornelius originally agree to this instruction, but later he implored the trial judge to instruct jurors to return to this now-challenged instruction if the jurors had any doubts about whether the existence of an enterprise needed to be established for conviction on conspiracy.
The invited error doctrine would preclude Cornelius from challenging the "proposition that [he] had urged the district court to adopt." United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005); see Griffin, 84 F.3d at 923. If we determined that Cornelius's express endorsement of the original jury instruction amounted to waiver, we would not review the merits of this issue on appeal. However, in an unpublished opinion concerning one of Cornelius's co-defendants — namely, the codefendant whose position on this jury instruction it was that Cornelius's attorney adopted — we said that while defense counsel's actions "teeter on the edge, they ultimately fall on the side of neglect, rather than intent," and therefore amount to "a forfeiture, rather than an invited error." United States v. Smith, 454 Fed.
Hence, whether we consider Cornelius's jury-instruction objection waived and refuse to consider its merits under the invited error doctrine, or whether we treat the objection as forfeited and review for plain error, Cornelius's argument on appeal fails.
Ten days after the jury began deliberating, it informed the district court that it was at an impasse on eighteen of the thirty-four counts. In response, the judge issued an Allen instruction (Jury Instruction 48), urging jurors to reconsider their views and to try to come to a consensus on the undecided counts. Six days after the Allen instruction, the jury returned a verdict on all but six counts. Cornelius claims that the Allen instruction to the jury was improperly coercive on the jury. He argues that the timing of the Allen instruction, coupled with the apparent effect of the instruction, violated his right to a fair, impartial jury. Reviewing the Allen charge for an abuse of discretion by the district court, see United States v. Ailsworth, 138 F.3d 843, 851 (10th Cir. 1998), we conclude that the instruction was proper.
A district court may issue an Allen instruction "urg[ing] deadlocked jurors to review and reconsider the evidence in the light of the views expressed by other jurors so as to avoid a mistrial," provided that the instruction does not "impose[] such pressure on the jury such that the accuracy and integrity of [the] verdict becomes uncertain." LaVallee, 439 F.3d at 689 (internal quotation marks, citations omitted). In considering whether an Allen instruction was improperly coercive, we consider "(1) the language of the instruction, (2) whether the instruction is presented with other instructions, (3) the timing of the instruction, and (4) the length of the jury's subsequent deliberations." Id. (quotation marks, citation omitted). The "ultimate question" is whether the instruction was "impermissibly coercive in a way that undermined the integrity of the deliberation process." United States v. McElhiney, 275 F.3d 928, 940 (10th Cir.2001) (emphasis added).
In this case, the district court's Allen instruction included the following language:
R. Vol. 2 at 377-78 (emphases added).
First, with regard to the language of the instruction in this case, see LaVallee, 439 F.3d at 689, the language emphasized above makes clear that the district court urged all jurors, not just those in favor of acquittal, to reconsider their views according to the proper standard of the law. Moreover, the instruction did not undermine the deliberative process but rather stressed the importance of integrity in being an impartial, deliberate fact-finder. Such language does not approach impermissible coercion. See, e.g., McElhiney, 275 F.3d at 934 (impermissible coercion where a judge said to a foreperson: "Well, frankly, I'd like to have you [continue to deliberate]. I'd be very happy to have a verdict one way or the other. [T]he time and attention and the danger of this case has been, you know, a problem.... [I]f you find that you're absolutely hopelessly deadlocked, why then I would have nothing else I can do except dismiss you with the thanks of the Court....").
Second, with regard to other, prior jury instructions, the district court told the jury to apply the Allen instruction in conjunction with all of the instructions the court had previously given. That was certainly proper.
Third, with regard to the timing of the instruction, "although it is a preferred rule of procedure that an Allen instruction be given the jury at the same time as other instructions, it is not a per se rule." United States v. McKinney, 822 F.2d 946, 951 (10th Cir.1987); see also United States v. Reed, 61 F.3d 803, 805 (10th Cir.1995). Indeed, "where the trial court administered a supplemental Allen instruction only after the jury informed the court that it was unable to reach a verdict" — as in this case, as opposed to issuing the instruction sua sponte in order to hasten the return of a verdict — this weighs against a determination of improper coercion. See United States v. Butler, 904 F.2d 1482, 1488 (10th Cir.1990).
In conclusion, the district court did not abuse its discretion in issuing the Allen instruction in the form and at the time that it did.
Cornelius argues that he was entitled to a jury instruction on the affirmative defense of duress, reasoning that after he had become a Crip, he was forced by the gang, by the threat of violence, to commit illegal acts as the gang dictated. Cornelius included a duress instruction in his proposed jury instructions, but the district court declined to include it. We review the district court's decision not to instruct the jury on an affirmative defense for an abuse of discretion. United States v. Turner, 553 F.3d 1337, 1347 (10th Cir. 2009). To have been entitled to such an instruction, Cornelius must have produced or at least proffered evidence that, viewed in the light most favorable to Cornelius, demonstrated under a preponderance standard each element of the requested affirmative defense. See United States v. Portillo-Vega, 478 F.3d 1194, 1197-98 (10th Cir.2007). We conclude that Cornelius failed to meet this burden.
To receive an instruction on duress, Cornelius needed to demonstrate the following elements: "(1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity to escape the threatened harm." Id.
Thus, the district court did not abuse its discretion by failing to give a duress instruction.
Cornelius argues that either reversal of his conviction or a new trial is warranted due to jury partiality. He claims that a letter given by the presiding juror to the prosecution in the jury room after the trial had concluded demonstrated that the juror had "discarded his role as an impartial juror." Aplt. Br. at 34. In the letter, the juror told prosecutors that he would be "willing to sit down and discuss ... anything else that may help you in an effort to rid this cancer in our society." R. Vol. 2 at 403. Cornelius deduces (probably accurately) that the letter must have been composed by the juror while deliberations were still ongoing, as it does not appear that the juror had the opportunity to type the letter after the jury's submission of its verdict. Cornelius argues that the "cancer" statement evinces an anti-gang bias of the juror, the existence of which deprived Cornelius of his "constitutional right to be presumed innocent and to be tried by an impartial jury." Aplt. Br. at 34. We determine, however, that the letter is not evidence that was discoverable under the applicable evidentiary rule or legally cognizable as a basis of unconstitutional juror partiality.
We review the denial of a motion for new trial pursuant to Fed. R.Crim.P. 33 for an abuse of discretion. United States v. Easter, 981 F.2d 1549, 1552 (10th Cir.1992). Where juror partiality or juror misconduct has been alleged, a district court should consider whether or not to hold an evidentiary hearing to investigate the matter and determine whether a new trial is warranted. See Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Taking the district court's refusal to set aside Cornelius's conviction as implicitly declining to conduct such an evidentiary hearing, we review that denial for an abuse of discretion, too. See Easter, 981 F.2d at 1552.
Generally speaking, "district courts should be reluctant `to haul jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences.'" United States v. Vitale, 459 F.3d 190, 197 (2d Cir.2006) (citation omitted); see also Easter, 981 F.2d at 1552 (holding that evidentiary hearings are not warranted "when only `thin allegations of jury misconduct' are present" (citation omitted)). An evidentiary hearing "is not mandated every time there is an allegation of jury misconduct or bias. Rather, in determining whether a hearing must be held, the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source." United States v. Smith, 424 F.3d 992, 1012 (9th Cir.2005) (quotation marks, citation omitted). For instance, a hearing is not necessary "where the court knows the exact scope and nature of the bias allegation." Id. (internal quotation marks, citation omitted). Among other things, the district court should consider what information it might gain from an evidentiary hearing in light of Fed. R. of
Fed. R. 606(b) (2009).
In this case, there is no allegation of any improper contact between the foreperson and the prosecution (or anyone else) before the jury's verdict was rendered. Assuming that the foreperson composed the letter in question before the jury delivered its verdict, the letter shows at most that the juror had reached a conclusion that gang-related activity is a "cancer" to our society. However, such a conclusion is within the realm of a "juror's mental processes," Fed.R.Evid. 606(b); and as discussed above, that is something internal into which the court may not inquire at an evidentiary hearing regarding juror misconduct. It may be that the juror reached this conclusion as a result of considering the evidence in this case. In any event, contrary to Cornelius's assertion, an internal bias within a juror does not transform into an external influence
In conclusion, the district court knew the scope and nature of the alleged misconduct, and stood to gain no further, useful information from an evidentiary hearing. See Smith, 424 F.3d at 1012. The court thus did not abuse its discretion in declining to hold such a hearing. Similarly, the district court did not abuse its discretion in denying Cornelius's motion for a new trial, as there was no improper juror bias or misconduct demonstrated in this case.
As a general matter, this Court generally reviews sentencing decisions under an abuse of discretion standard, asking if the sentence imposed was both procedurally and substantively reasonable. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.2009). However, a district court has no discretion to depart from a statutorily mandated minimum sentence under 21 U.S.C. § 841, since statutory minima were not rendered merely advisory by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Payton, 405 F.3d 1168, 1173 (10th Cir.2005).
The Government argues that the district court erred by failing to impose the minimum sentence of twenty years' imprisonment mandated for Cornelius's conviction on Count 28, in light of his prior drug felony conviction. We agree.
The version of 21 U.S.C. § 841(b)(1)(A) under which Cornelius was sentenced mandated that any person who violates any subsection enumerated thereunder — including subsection (iii), involving 50 grams or more of a mixture containing cocaine base (e.g., crack) — "after a prior conviction for a felony drug offense has become final... shall be sentenced to a term of imprisonment which may not be less than 20 years...."
At Cornelius's sentencing, however, despite the Government's invocation of the twenty-year mandatory minimum, the district court sentenced Cornelius to only 210 months, over the Government's objection. The court said that it was "satisfied that [it] could give the enhancement," and that it "th[ought] the Government, if they wanted to really press the issue, is entitled to it." Doc. 1633 at 31-32. However, the court explained that it was "not going to do the 20 year minimum in [Cornelius's] case," reflecting that it "ha[d] some flexibility" and that a twenty-year sentence would "fly in the face of some of the other purposes of sentencing and the principle... that a sentence should be as long as necessary but no longer than necessary to serve the purposes [of incarceration]." Id. at 32. To that end, the court identified its concerns about the injustice of crack/powder sentencing disparities and about the uncertainty regarding the drug quantity with respect to the conspiracy charge.
District courts lack discretion to depart below applicable statutory mandatory minimum sentences under 21 U.S.C. § 841, see Payton, 405 F.3d at 1173, except in particular circumstances not presented by this case, see Altamirano-Quintero, 511 F.3d at 1089-90. Accordingly, and given that the Government properly filed a § 851 information and sought the applicable sentence enhancement, the district court erred in imposing a sentence of less than twenty years' imprisonment for Count 28. We therefore vacate Cornelius's sentence and remand with instructions to the district court to resentence Cornelius in a manner consistent with this opinion.
Cornelius argues that, in relation to his crack-cocaine conviction on Count 28, the twenty-year statutory mandatory minimum sentence is both unconstitutional under the Fifth and Eighth Amendments, and barred by the Fair Sentencing Act of 2010, which Cornelius argues should apply retroactively to his sentence. We disagree.
Cornelius first argues that the Due Process Clause — which in the federal context guarantees equal protection under the law — should invalidate the disparate crack/powder sentencing regime as racially
Next, Cornelius argues that his mandatory minimum sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment argument. However, as this argument appears for the first time in Cornelius's reply brief (in contrast to Cornelius's Fifth Amendment claim, which he made in his opening brief), we decline to entertain it on appeal. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007). In the alternative, considering the merits of the argument, we reject that claim. Cornelius merely recites the general constitutional test for such cruel and unusual punishment claims, and then asserts in conclusory fashion that disparate sentencing fails to serve a legitimate penological function and is therefore unconstitutional. However, insofar as Cornelius complains of the disparity between his sentence and those of individuals convicted of powder-cocaine offenses, such a challenge is properly cognized under an equal-protection theory (rejected above). To the extent Cornelius argues that his sentence is unconstitutionally disproportionate to his offense, that claim is meritless. See, e.g., United States v. Huskey, 502 F.3d 1196, 1200 (10th Cir.2007) (holding that a mandatory life sentence in light of prior-conviction sentence enhancement under 21 U.S.C. § 841(b)(1)(A) was not cruel and unusual punishment).
Moving on to Cornelius's statutory argument, Cornelius contends that the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372 (2010) ("FSA"), which took effect on August 3, 2010, after Cornelius was convicted, should be applied retroactively in his case. He asks this Court to remand in light of the FSA's reduction of certain crack/powder cocaine sentencing disparities under the contemporary sentencing regime, which included increasing certain requisite drug quantity amounts triggering mandatory minimum sentences for crack offenses. See FSA § 2(a). We decline to do so.
We have squarely held that the FSA does not apply retroactively, see United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010), and we see no reason to deviate from that precedent in Cornelius's case. Our ruling is consistent with Dorsey v. United States, in which the Supreme Court more recently held that the more lenient penalty provisions of the FSA should apply "to offenders who committed a crack cocaine crime before August 3, 2010 [i.e., the date the FSA took effect], but were not sentenced until after August 3". ___ U.S. ___, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012); see also id. at 2335 ("For these reasons considered as a
In conclusion, there is no constitutional or statutory infirmity in the mandatory minimum sentence for Cornelius's conviction under Count 28.
Aside from Cornelius's arguments that the statutory scheme under which he was convicted is fundamentally unlawful, Cornelius does not directly dispute that the district court was without discretion to sentence Cornelius to less than twenty years, if his prior felony drug conviction was properly considered. However, Cornelius argues that the district court should not have considered his prior felony drug conviction, reasoning that the court should have extended the exclusionary rule — a constitutional rule of evidence — to bar consideration of the prior conviction at sentencing. We reject this argument and conclude that Cornelius's prior conviction was properly considered for the purpose of his sentence enhancement.
Prior to trial, Cornelius moved to suppress the introduction of evidence stemming from an allegedly illegal search that was related to a 1995 state-court drug felony case in which Cornelius was convicted. Cornelius asserts that he pleaded guilty in that case because of the evidence obtained through the allegedly illegal search. In that case — Case No. 95 CR 383 in Sedgwick County District Court in Wichita, Kansas — Cornelius, then sixteen years old, was tried as an adult and convicted of possession of cocaine and criminal possession of a firearm. In the present case, the district court "granted as uncontested" Cornelius's motion to suppress because the government proffered that it was unable to locate the search warrant from the prior case.
Cornelius's proposed application of the exclusionary rule is unwarranted. The exclusionary rule is a constitutional rule of evidence that generally prevents fact-finders from considering evidence that would not have been available but for the use of unconstitutional means, such as an illegal search. See United States v. Leon, 468 U.S. 897, 905-13, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The rule does not,
In sum, the district court properly considered Cornelius's prior felony drug conviction for the purpose of sentence enhancement vis-à-vis Count 28. Thus, the district court had no discretion to depart below the statutory mandatory minimum twenty-year sentence pursuant to the applicable version of 21 U.S.C. § 841(b)(1)(A).
For the foregoing reasons, we AFFIRM Cornelius's conviction. Further, we VACATE Cornelius's sentence and REMAND for sentencing consistent with this opinion.
18 U.S.C. § 1962(c).
Subsection (d) of § 1962, in turn, declares it "unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section."
