UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments of the District Court are AFFIRMED.
Defendants-Appellants Kevin Sims, Lut Muhammad, and Okeiba Sadio appeal from their judgments of conviction entered on January 11, 2012. Sims, Muhammad, and Sadio were indicted on December 2, 2009 on various narcotics charges related to a cocaine base — or "crack" cocaine — conspiracy led by twin Bronx residents William and Wilson Pena. Sims pleaded guilty to one count of conspiracy to possess with intent to distribute, and to distribute, 5 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and the District Court imposed a sentence principally of 120 months' imprisonment and five years of supervised release. Muhammad pleaded guilty to eleven counts, including conspiracy to possess with intent to distribute, and to distribute, 50 grams or more of cocaine base. He was convicted of violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 851 and sentenced to concurrent terms of 240 months' imprisonment, followed by eight years of supervised release. After trial, a jury convicted Sadio of two counts: conspiracy to possess with intent to distribute, and to distribute, 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846, and possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The District Court sentenced Sadio to concurrent terms of 240 months' imprisonment, followed by eight years of supervised release. We assume the parties' familiarity with the facts and record of the prior proceedings, to which we refer only as necessary to explain our decision to affirm.
Sims purchased crack cocaine from other members of the conspiracy, including Muhammad and co-defendant Emmanuel Tyson, and sold some of it to support his drug addiction. Sims appeals his sentence on two grounds. First, he argues that the District Court erroneously attributed more than 112 grams of crack cocaine to him. Second, Sims argues that the District Court unreasonably failed to consider his mental illness and drug dependency as mitigating factors. We address each argument in turn.
"A Sentencing Guidelines calculation must begin with an identification of the defendant's relevant conduct, which in the case of a drug . . . offense includes the quantity of drugs controlled by the defendant . . . ."
The District Court held an evidentiary hearing to determine the quantity of cocaine base attributable to Sims. At that hearing, Emmanuel Tyson testified that he sold one to two grams of crack cocaine to Sims two to three times per week, from July 2009 to November 2009. The District Court found Tyson credible and, based on that range of quantities and frequencies, calculated that in a 20-week period, Tyson sold Sims 75 to 80 grams of crack cocaine. Wiretap evidence revealed that between September 24, 2009, and November 3, 2009, Sims purchased crack cocaine from Lut Muhammad two or three times a week in quantities ranging from two to five grams. The District Court reasoned that Sims purchased an estimated 70 to 74 grams of cocaine base from Muhammad. The court then estimated that Sims bought a total of 145 to 154 grams of crack cocaine from Tyson and Muhammad. As an offender responsible for between 112 and 196 grams of cocaine base, Sims's base offense level was 28, yielding a Guidelines range of 120 to 150 months' imprisonment.
Sims asserts that the District Court erred by relying on Tyson's testimony at the hearing, as Tyson previously stated that Sims purchased drugs from him only eight or nine times, and his statements at the hearing with regard to the number of sales were somewhat contradictory. Sims also argues that the District Court should have discounted Tyson's testimony because Tyson was a drug abuser with an extensive criminal record. "[C]redibility determinations are the province of the trial judges, and should not be overruled on appeal unless clearly erroneous."
Similarly we reject Sims's argument that the District Court's estimate of drug quantity was not reliable and conservative, as it should have accounted for the possibility that Tyson sold to Sims only eight or nine times. "[G]iven the wide latitude of the district court to make credibility determinations, the court is not restricted to accepting the low end of a quantity range estimated by a witness."
We also reject Sims's argument that the District Court imposed a procedurally and substantively unreasonable sentence by failing to decrease his sentence based on his history of mental illness and drug abuse.
Muhammad, the original target of the Government's 2009 investigation, purchased crack cocaine in the Bronx and distributed it in and around Stamford, Connecticut. He challenges his sentence on appeal, arguing that the District Court erred by sentencing him based on drug quantities that were neither voluntarily pleaded nor proved to a jury. Specifically, Muhammad claims that the court erred when it determined that he purchased at least 2.8 kilograms of cocaine base during the course of the conspiracy. For the following reasons, we reject Muhammad's arguments and affirm his sentence.
On September 7, 2010, just over a month after the Fair Sentencing Act lowered the penalties for crack cocaine offenses,
We reject Muhammad's argument that the District Court erred under
In connection with Muhammad's sentencing the District Court held a quantity hearing on January 4, 2012. Based on all of the evidence presented at the hearing, the District Court determined that 3,829 grams of crack cocaine were attributable to Muhammad and sentenced him accordingly. Muhammad argues that the District Court clearly erred by finding that he purchased over 2.8 kilograms of crack cocaine during the conspiracy. For the following reasons, we disagree.
We first reject Muhammad's argument that William Pena's testimony was not "specific evidence" supporting a finding that Muhammad purchased 1,040 grams of crack cocaine between May 15 and August 28, 2009.
Pena's description of Muhammad's course of conduct was sufficiently specific to support the District Court's finding. This case is not like
We also reject Muhammad's argument that the District Court erred by attributing 124 grams of crack cocaine to Muhammad based on the $4,300 cash he possessed in his bedroom at the time of his arrest and the price he paid for crack cocaine. "[A] district court may equate seized currency to a quantity of drugs, at least when a preponderance of the evidence indicates that the currency was used to purchase drugs."
Sadio challenges his conviction on two grounds. First, he argues that the affidavit in support of the search warrant for his home failed to establish a nexus between the cocaine base he purchased in the Bronx and his Connecticut residence. Based on that argument Sadio asserts that the evidence found in the residence should have been suppressed. Second, he argues that the evidence presented at trial was insufficient to establish beyond a reasonable doubt that he intended to distribute crack cocaine and that he participated in a crack cocaine conspiracy. For the following reasons, we reject both arguments.
"To establish probable cause to search a residence, two factual showings are necessary — first, that a crime was committed, and second, that there is probable cause to believe that evidence of such crime is located at the residence."
The affidavit in support of the search warrant established probable cause to believe that evidence of Sadio's drug crimes would be found at his Connecticut residence. The affidavit described events on three separate days. On October 28, 2009, (1) an intercepted telephone call indicated that a subject wanted to buy drugs from the Pena brothers in the Bronx, (2) an officer observed Wilson Pena and Sadio engage in a transaction in Sadio's car, and (3) another officer saw Sadio arrive home in Stamford, Connecticut 55 minutes later. On November 2, 2009, law enforcement intercepted a call wherein Sadio arranged to buy 80 grams of crack cocaine from Wilson Pena. Officers observed Pena get in and out of Sadio's car in the Bronx, and another officer observed Sadio arrive home approximately 45 minutes later. Finally, on November 27, 2009, law enforcement intercepted a call in which Sadio arranged to purchase 135 grams of crack cocaine and five grams of powder cocaine, an officer observed Sadio enter and exit William Pena's residence in the Bronx, and another officer saw Sadio arrive home and enter his Connecticut residence 38 minutes later. Sadio argues that these facts fail to establish probable cause because the officers did not actually follow Sadio home, so they could not have discounted the possibility that he deposited the drugs somewhere along the way. He notes that the affidavit mentions a woman in the car with Sadio in the Bronx but does not mention her arriving at his house, suggesting that she may have left and taken the drugs with her. He also points out that the officers did not aver that, based on their experience, narcotics dealers typically keep drugs in their homes.
We conclude that the facts averred in the search warrant affidavit established a "fair probability" that a search of Sadio's home would yield crack cocaine. The short time between Sadio's transactions in the Bronx and his arrival at his Stamford home provides a "reasonable inference" of a nexus between the drug purchases and his residence "based on common sense."
Even if the affidavit in support of the warrant had not established probable cause, the District Court would not have erred in declining to suppress the evidence because the officers who obtained the warrant acted "with objective good faith."
"[A] defendant challenging the sufficiency of the evidence that led to his conviction at trial bears a heavy burden, as the standard of review is exceedingly deferential."
Although no witness at trial saw Sadio distribute drugs and the Government did not make any controlled buys from Sadio, the Government presented enough evidence that Sadio intended to sell the drugs that he purchased. First, law enforcement officers found 93.7 grams of crack cocaine in his bedroom, and an expert with the Drug Enforcement Administration testified that a "use quantity" of crack cocaine is approximately 0.1 grams. Second, recorded conversations between Sadio and the Pena brothers revealed that he frequently purchased large quantities of crack cocaine, including 50 grams on October 30, 2009, 80 grams on November 2, 143 grams of crack cocaine and 7 grams of powder cocaine on November 10, and 135 grams of crack cocaine and 5 grams of powder cocaine on November 27. Third, the Pena brothers testified that Sadio sometimes complained about the quality of the drugs by telling them, "the people was saying that it was no good," "`they're not liking it,' `they're not feeling it,'" or, if the drugs were good, "`[t]hey're lovin' me.'" Fourth, during the search of Sadio's bedroom, officers found $2,321 cash in his clothing pockets, even though he had reported a total of $800 in income from autumn of 2006 to autumn of 2010. Fifth, the search revealed six cell phones and approximately a dozen SIM cards. Finally, the search of Sadio's room failed to reveal equipment typically associated with crack cocaine use, such as a pipe. Cumulatively, this evidence would permit a rational juror to find, beyond a reasonable doubt, that Sadio intended to distribute the drugs that he purchased.
The same evidence also would permit a rational juror to convict Sadio on the conspiracy charge. A defendant may be convicted of a conspiracy charge if he "knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it."
The jury had a sufficient basis to conclude beyond a reasonable doubt that Sadio and the Pena brothers shared the purpose of advancing Sadio's sales to his own customers. As noted, the Penas testified that Sadio referred to third parties complaining about or complimenting his product, and the Penas assumed these third parties were his customers. Although "mere awareness on the part of the seller that the buyer intends to resell the drugs is not sufficient to show that the seller and the buyer share a conspiratorial intent to further the buyer's resale,"
"In such case, the liability of buyer and seller for having conspired together to transfer drugs . . . depend[s] . . . on a further showing of the seller's interest, shared with the buyer, in the success of the buyer's resale."
In sum, the evidence was sufficient to permit a rational jury to conclude beyond a reasonable doubt that Sadio regularly sold the drugs he purchased and purchased more drugs, so he "knowingly and intentionally participated in the narcotics-distribution conspiracy by agreeing to accomplish its illegal objective beyond the mere purchase or sale."
We have considered all of appellants' remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgments of conviction of the District Court are AFFIRMED.