Jury Issues Raised in Crack Cocaine Life Sentence Appeal

and 841(b)(1)(c) (count i); (2) distribution and aiding and abetting the distribution distribute and aiding and abetting the possession with intent to distribute 5 grams or supplying the drugs sold at the apartment. the informant testified she spoke with deterred by a lengthy initial federal sentence. finally, bolden contends the district the informant on two occasions and she purchased the drugs from someone other than apartment in cedar rapids, iowa. bolden answered the door to let the informant in sentencing study he presented, indicating a long sentence would adequately serve the specifically, bolden contends the district court did not adequately take into * prejudiced by the juror's removal because it effectively granted the government an 2003). eluding police, and possession of a controlled substance. the district court also found vi order to convict bolden on the distribution counts, the government was required to the honorable linda r. reade, chief judge, united states district court for other criminal conduct relating to possession of an assault rifle. finally, the district her to be impartial. therefore, benjamin contends the district court abused its the guidelines was reasonable. it is impermissible for a district court to rely on the government, it is clear a reasonable jury could have found bolden guilty beyond a u.s.s.g. § 3b1.1 cmt n. 4. the enhancement does not apply solely to those who first criminal activity involving five or more persons. "we review for clear error the -7- district court fails to consider a relevant factor, gives significant weight to an improper explained their supplies were running low at the time. on december 17, 2007, filed: march 8, 2010 organizational role pursuant to u.s.s.g. § 3b1.1(a). bolden asserts his role was not at sentencing, the district court calculated bolden's base offense level at 38 * -15- greater than a manager or supervisor, which would result in a three-level increase, and ___________ m.z.'s statements are unavailing. as noted above, the psir attributed 831 grams of deliberations. the court ultimately allowed the first juror to return to the jury, but benjamin about why she was not able to purchase a grater amount. benjamin transactions with hines, but he argues the district court erred by not calculating a -12- bolden. upon a similar inquiry to the second juror, the court determined the second cocaine base from hines's trial testimony. bolden concedes he engaged in some describing the efforts it took to review the trial transcript and arguments prior to as a result, the drug quantity determination was supported by the extensive testimony testified in the bolden and benjamin trial, the court feels that the ___________ not reflect the scale of the offense, the court shall approximate the quantity of the midway through the trial, during a break, bolden's girlfriend approached and spoke no. 08-3835 nelson v. united states, __ u.s. __, 129 s.ct. 890, 891 (2009). bolden bases his "consistent with the guidelines commentary and our prior cases." sicaros-quintero, his base offense level by two levels. the court also determined bolden played a role enhancement, a sentencing court should consider the defendant's commission, bolden asserts, which suggests an early offender can reasonably be ii bye, circuit judge. to the psir, he did not object to the district court's findings at sentencing. we undercover agent, in order to be convicted on charges of distribution."). in this case, with respect to the drug quantity, we will reverse the district court's transaction is sufficient for a conviction under the distribution statute. united states two individuals, pepper hines and a confidential source, m.z. bolden contends quantities to others, and made the decision to deliver drugs in a specific area); united noted it had the benefit of being the trial judge in the case, and it heard evidence with more of cocaine base in violation of 21 u.s.c. §§ 841(a)(1), 841(b)(1)(a), and 846 benjamin argues the removal of the juror provided the government with an a jury for their role in a conspiracy to distribute and possess with intent to distribute sentence that will be imposed will not create unwarranted sentence 1021, 1023 (8th cir. 2008). a within-the-range sentence can be found to transgress the parsimony principle."). a large portion of profit for himself. he also played a role in setting up transactions. these adjustments scored a level 44, the district court scored a total offense level of 43 enhancement where the evidence at trial showed the defendant controlled others in the (2) a court gives significant weight to an improper or irrelevant factor; or (3) a court v. garcia, 512 f.3d 1004, 1005 (8th cir. 2008). in determining whether to apply the plaintiff ­ appellee, * findings in order to determine bolden was involved with more than 30,000 kilograms regard to the amount of drugs attributed to him at sentencing. while bolden objected hines's testimony at trial was nonsensical and inconsistent, in part because she could additional strike of a juror it preferred not to have on the jury. 841(b)(1)(b), and 18 u.s.c. § 2 (counts ii and viii); (3) possession with intent to states, 552 u.s. 38, 51 (2007). we presume a sentence within the guidelines range -10- see georgia v. mccollum, 505 u.s. 42, 57 (1992) (discussing the ultimate goal of coconspirators. while the terms of the sentences were similar, bolden argues he benjamin, cleaves, and ross, as well as other customers and accomplices. after finally, bolden contends the district court did not make adequate findings with increase under the manager or supervisor role would yield an offense level of 43, the the jury found bolden guilty of all five counts he was charged with, including: this court interprets the terms "organizer" and "leader" broadly. united states the four-level enhancement he received as a result of being a leader or organizer of a purchasesconductedbyaconfidentialinformantforlawenforcementofficers. before resultingfromthelatterconversationbecauseitarguedthepersonalinformationcould woman was bolden's girlfriend. the government was concerned of potential bias he does not challenge the sufficiency of the evidence on the conspiracy count. in purchased 2.7 grams of cocaine base (commonly known as crack cocaine) at an finally, bolden challenges the reasonableness of the sentence he received. defendants with similar records found guilty of similar conduct. and as to m.z., the psir attributed 831 grams of cocaine base as a result of the transactions situated as he is who has been found guilty of similar conduct. a total of 201,280 kilograms of marijuana equivalent drugs to bolden. of this amount, grams or more of cocaine base after two prior felony drug offenses in violation of 21 in question had contact with an interested third party whose identity was known to the juror spoke with bolden's girlfriend for a longer period of time about more personal imposing today avoids unwarranted sentence disparities among downward from the advisory guideline range." however, this language, taken in purpose of deterrence and he was unlikely to reoffend after a long prison term. the defendant ­ appellant. * importantly, those individuals who personally handled the drugs testified they did so grams of cocaine base at the apartment. bolden again opened the door for the more of cocaine base after having been convicted of two felony drug offenses (counts that support the jury's verdict." united states v. espino, 317 f.3d 788, 791 (8th cir. defendant's conduct. the district court's ultimate rejection of the study, after support its probable accuracy." united states v. palega, 556 f.3d 709, 716 (8th cir. bolden's girlfriend about the weather and did not know her identity or relation to 6025.25 grams calculated above leaves bolden responsible for 5,194.25 grams of respects. determination only if the entire record definitely and firmly convinces us a mistake court did not abuse its discretion by imposing the sentence calculated under the himself with had two prior felony drug convictions each, while bolden had a limited (8th cir. 2005). the district court stated at sentencing it based its determination not her grand jury testimony, which attributed 3,971.25 grams of cocaine base to bolden. at bolden's direction. tobacco, 428 f.3d 1148, 1151 (8th cir. 2005) (acknowledging a presumptively discretion when it removed her from the jury. moreover, benjamin asserts he is of 38. in order to justify this offense level under the guidelines, the district court theapartment,afterwhichtheinformantobtainedaplasticbaggiecontainingthecrack of a variance and concluded none was warranted. the statement does not demonstrate cocaine base, still well over the 4,500 grams required for an offense level of 38. responsibility, make me feel that this has been totally consistent and that apartment. finally, on december 18, 2007, benjamin sold 10.7 grams of crack turbides-leonardo, 468 f.3d 34, 41 (1st cir. 2006) ("it will be the rare case in which informant purchased 5.2 grams of crack cocaine and had a conversation with with two jurors outside the courtroom for approximately five minutes. after learning interpretation and application of the guidelines." united states v. spikes, 543 f.3d commission of the offense, the recruitment of accomplices, the claimed therefore review for plain error. united states v. mooney, 425 f.3d 1093, 1103-04 clarence ross. on december 4, 2007, the informant made a second purchase of 6.4 however, it is clear even if the psir used hines's grand jury testimony, bolden would factor, or commits a clear error of judgment in weighing the factors). the district weighed the relevant sentencing factors under 18 u.s.c. § 3553(a). united states v. * for it.'" united states v. cannon, 475 f.3d 1013, 1023 (8th cir. 2007) (quoting united court also did not give appropriate weight to a study by the united states sentencing similarly, bolden's challenges to the quantities attributed to him based on district court's findings of fact and apply de novo review to the district court's ___________ this particular juror dismissed. benjamin also does not argue there was any problem conspiracy conviction. as a result of the conspiracy, it is clear bolden may be show actual possession by bolden to prove the distribution counts. united states v. -9- we disagree. the district court evinced concern the juror might feel threatened united states of america, * leader. united states v. lashley, 251 f.3d 706, 712 (8th cir. 2001). or biased because she had shared personal information with a defendant's girlfriend. regard to bolden's drug activities and his associations with darius and brian whiting, of the government, and accepting all reasonable inferences drawn from the evidence issues on appeal. he first contends there was insufficient evidence to convict him. we next address bolden's challenge to the sufficiency of the evidence. we he's not being punished more severely than anyone who is similarly ___________ needed to find bolden responsible for over 4,500 grams of cocaine base. u.s.s.g. § of 5 grams or more of cocaine base in violation of 21 u.s.c. §§ 841(a)(1) and conspiracy and supplied drugs to lower level dealers). moreover, because we affirm attributable to him for the purpose of sentencing. finally, bolden contends the at trial, the government offered several individuals as witnesses, including and other evidence produced at trial. moreover, the drug quantity determination was united states of america, * officers seized 38.9 grams of crack cocaine, a digital scale with white residue on it, i also have worked hard to make sure that the sentence that i am benjamin asserts no legitimate basis existed for the removal of the juror -6- is reasonable and the burden is on a defendant to show his sentence should have been legitimate employment, most of bolden's income came from selling street drugs. iv united states v. tomac, 567 f.3d 383, 385-86 (8th cir. 2009) (standard for harmless under these circumstances, we cannot say the district court clearly erred in applying john bolden and zechariah benjamin were found guilty on multiple counts by v a court fails to consider a relevant factor that should have received significant weight; the four-level enhancement under u.s.s.g. § 3b1.1(a). see razo-guerra, 534 f.3d grams necessary for a base offense level of 38. for the eighth circuit during and in furtherance of the conspiracy. united states v. zackery, 494 f.3d 644, instigated the criminal activity, and the defendant need not be the only organizer or therefore accord it a presumption of reasonableness. id.; see also united states v. we first address benjamin's challenge to the district court's action in excusing after careful review of the record, it is clear the district court considered and contends the district court erred in finding he exercised a leadership and highest level on the sentencing chart and the level used by the district court. see 647 (8th cir. 2007). despite bolden's assertions, the government did not need to of marijuana equivalent drugs. * defendant ­ appellant. * because there was insufficient evidence demonstrating he distributed cocaine base. the district court also noted the possibility the interaction could prejudice the juror. presumption of reasonableness to justify imposing a sentence in the guidelines range. milk, 447 f.3d 593, 603 (8th cir. 2006). "an abuse of discretion may occur when (1) affirm. after finding his criminal activity involved more than 4.5 kilograms of crack cocaine with the alternate seated in the dismissed juror's place. under the circumstances, the with respect to the four-level enhancement for role in the offense, bolden information provided that the information has sufficient indicia of reliability to iii v. anderson, 654 f.2d 1264, 1270 (8th cir. 1981) ("where there is sufficient evidence considerationofbolden'sargument,wasnotanabuseofdiscretionbecausethedistrict bolden's challenge to hines's testimony involves a credibility determination by as an organizer or leader of the criminal activity, which added four levels to his base of the conversation, the court questioned the first juror, who indicated she spoke with indictment filed january 29, 2008. their arrests stemmed from five controlled not have afforded the quantities she claimed. the psir attributed 7.99 kilograms of before bye, beam, and shepherd, circuit judges. while we are somewhat troubled by the lack of specificity in the district court's distribute drugs. there was evidence he supplied drugs for distribution and retained more of cocaine base in violation of 21 u.s.c. §§ 841(a)(1) and 841(b)(1)(b) (count discretion when it dismissed one of the jurors during the trial. bolden maintains four 2009) (citing u.s.s.g. § 6a1.3(a) (2007)). "where the amount of drugs seized does -2- right to a larger share of the fruits of the crime, the degree of findings, given the fact bolden did not object to the findings at sentencing and the the district court presumed the advisory guidelines range was reasonable. time of sentencing. moreover, the district court found, based on information not considers only the appropriate factors but in weighing those factors commits a clear * a third purchase occurred at the apartment on december 13, 2007, during which the sentenced bolden and benjamin to life imprisonment. bolden and benjamin each or 36,000 kilograms of marijuana-equivalent drugs. the court found bolden moreover, bolden does not challenge the sufficiency of evidence relating to his imprisonment. bolden and benjamin appeal their convictions and sentences. we be present on the occasions when controlled substances are actually purchased by an district court did not abuse its discretion in erring on the side of caution when the juror -3- error of judgment." united states v. kane, 552 f.3d 748, 752 (8th cir. 2009). john bolden, also known as jb, * a district court's finding on this point where evidence showed the defendant "recruited relied on their trial testimony in establishing the role in the offense. we have upheld a reasonable jury could have found the defendant guilty beyond a reasonable doubt. argument on the district court's conclusion, "the court finds no basis to vary "in the light most favorable to the government, resolving evidentiary conflicts in favor -11- as an initial matter, bolden's sentence is within the guidelines range, and we of the illegal activity, and the degree of control and authority exercised -13- lower considering the factors enumerated in 18 u.s.c. § 3553(a). united states v. undertaken by [him]and reasonably foreseeable to [him]." davidson,195f.3dat410. the same day at a different location. selecting a jury is to achieve an impartial jury and a fair trial). for the foregoing reasons, we affirm the convictions and sentences in all cocaine to the confidential informant at the apartment. purchase. during the first transaction on november 29, 2007, the informant on the psir alone, but on a careful review of the evidence at trial. the district court disparities. mr. bolden's role in the offense, his drug quantity, the fact mr. swift talked about, the folks whose names were mentioned or who 2d1.1(c). the court noted the presentence investigation report ("psir") attributed guidelines and its sentence was not unreasonable. consideration he was twenty-eight years old at the time of sentencing and a life be perceived as a threat or as a means to obtain sympathy for bolden. bolden's bolden on the phone to set up the controlled purchases. bolden opened the door for i cir. 2009) (quoting united states v. hart, 544 f.3d 911, 916 (8th cir. 2008)). in this cocaine base to bolden based on m.z.'s statements. removing this amount from the united states v. birdine, 515 f.3d 842, 844 (8th cir. 2008). we view the evidence exercise of decision making authority, the nature of participation in the in this case, the district court found bolden directed cleaves and ross, and it (count x). the jury also found benjamin guilty of all three counts he was charged -5- this court has held evidence a defendant acted as a source and facilitated a predictor of recidivism in this case was its individualized assessment regarding the bolden and benjamin are two of five individuals charged in a ten-count the drug quantity determination above, this point is irrelevant because a three-level the district court's decision to remove a juror 'if the record reflects a legitimate basis others to package and deliver drugs." garcia, 512 f.3d at 1006. the evidence at trial the evidence demonstrated bolden was not only present during the transactions, but due to a cap on the advisory guideline sentencing table. the district court ultimately 557 f.3d at 582. therefore, the base level offense of 38 was not clearly erroneous. purchases and instructed others to conduct the transactions. this evidence was plaintiff ­ appellee, * possessed a dangerous weapon in connection with his criminal activity and increased on december 19, 2007, a dea task force and the cedar rapids police others to join the conspiracy, he received drug orders from customers, and he directed sykes, 977 f.2d 1242, 1247 (8th cir. 1992) (citing united states v. resnick, 745 f.2d criminal history. however, the court clearly discussed these factors in its sentencing: each transaction, the informant spoke with bolden over the telephone to arrange the v. * juror. court relied, the findings were adequate under the circumstances. it is clear bolden were present at the apartment and were arrested at that time. benjamin was arrested filed a timely appeal. has been committed. united states v. davidson, 195 f.3d 402, 410 (8th cir. 1999). bolden asserts he should not have been convicted on counts i, ii, and viii we review the district court's sentence for abuse of discretion. gall v. united break. we review a district court's decision to remove a juror for abuse of discretion. error in calculating guidelines offense levels). before the grand jury. the psir's drug quantity determination was based on hines's bolden had never spent more than three or four days in jail, but it took into account can be held responsible forall contraband "within the scopeof criminal activity jointly matters, such as the juror's husband's car accident. the second juror also learned the between her and bolden. bolden contends he does not know who m.z. is, nor did he over others. zechariah benjamin, also known as boo, * adequately represented by his life sentence. * bolden also asserts the district court erred when it found his role in the crimes was a united states court of appeals context, indicates the district court considered the evidence placed before it in favor should give the juror an instruction not to consider the relationship in her district court mentioned the study in its sentencing, but it indicated it believed the best the evidence produced at trial showed bolden actively participated in each the district court made the finding the government met its burden of proving participation in planning or organizing the offense, the nature and scope (1) distribution of 2.7 grams of cocaine base in violation of 21 u.s.c. §§ 841(a)(1) convictedforsubstantivecrimes,suchasdistribution,committedbyotherconspirators case, bolden asserts hines's trial testimony conflicted with her earlier testimony pepper hines, a cooperating defendant who made several purchases from bolden, and sentencing, the district court stated it had weighed the evidence and made credibility reasonable sentence within the guidelines range may still be unreasonable if the department executed a search warrant at the apartment. pursuant to the search, controlled substance." id. (citing u.s.s.g. § 2d1.1, cmt. n. 12 (2007)). trial testimony, which attributed 7.99 kilograms of cocaine base to bolden, rather than excused the second juror due to her knowledge of the identity of bolden's girlfriend. pursuant to united states sentencing guidelines (u.s.s.g.) §§ 2d1.1(a)(3) and (c)(1) however,boldenarguesthedistrictcourtalsopresumedthesentencecalculatedunder should have received a lower sentence because the two individuals he compares v and viii) in violation of 21 u.s.c. §§ 841(a)(1), 841(b)(1)(b) and 851, and 18 bolden. bolden was present in the room while the transactions took place. more that he did not get the three-level decrease for acceptance of sent. tr. at 68. the district court also considered bolden's age and education at the cleaves and benjamin sold 7.28 grams of crack cocaine to the informant at the sufficient to support the jury's verdict. showed bolden recruited members of the conspiracy and directed those members to the psir attributed 10,044 grams of cocaine base to bolden. a safe, a firearm holster, and more than $6,000 in cash. bolden, cleaves, and ross bolden primarily challenges the drug quantities attributed to him as a result of crack cocaine. the district court1 court was not required to accept the study's findings. and thus did not properly compute his adjusted offense level. we disagree. -14- transaction. one of bolden's coconspirators testified bolden was responsible for -4- submitted: october 22, 2009 informant while ross took the informant's money and cleaves provided the cocaine. * evidence at trial supported amounts close to those in the psir upon which the district the drug quantity by a preponderance of the evidence, resulting in a base offense level bolden also argues the district court erred when it failed to take into account a cocaine from wilson cleaves, while bolden sat in a chair having his hair done by a juror during trial after bolden's girlfriend had a conversation with the juror while on a correct or reasonable sentence. bolden argues his lack of criminal history was not on appeal, benjamin's sole issue is whether the district court abused its court over-relied on the guidelines because it presumed the advisory range generated reasonable amount of drugs attributed to him through hines's testimony. with respect * with, including: (1) distributing and aiding and abetting the distribution of 5 grams or we next address bolden's challenge to the drug amounts attributed to him and states v. evans, 455 f.3d 823, 824 (8th cir. 2006)). bolden further argues the district court erred in calculating the amount of drugs cocaine base. united states v. luster, 896 f.2d 1122, 1126 (8th cir. 1990). v. * he facilitated the transactions by initiating and securing the conditions of the united states v. running horse, 175 f.3d 635, 638 (8th cir. 1999). "we will uphold counsel did not object to excusing the juror, but benjamin's counsel argued the court -8- thedistrictcourt. "witnesscredibilityis'quintessentiallyajudgmentcallandvirtually at 976-77 (affirming the application of the leadership enhancement where the 1179, 1186 (8th cir. 1984)). viewing the evidence in the light most favorable to the ___________ northern district of iowa. "in determining the drug quantity, the district court may consider any relevant to implicate a defendant as a participant in each transaction, that defendant need not district court imposed an unreasonable sentence. ross and cleaves, who had been indicted with bolden and benjamin. approximately offense level under u.s.s.g. § 3b1.1(a). while the total offense level after making reasonable doubt on the distribution counts. appeals from the united states have an opportunity to cross examine her because she did not testify at trial. ix); and (4) conspiracy to distribute and possess with intent to distribute 50 grams or 1 defendant recruited others and directed them to make drug deliveries, supplied dealer prove beyond a reasonable doubt bolden knowingly and intentionally distributed u.s.c. §§ 841(a)(1), 841(b)(1)(a), 846, and 851 (count x). "leader or organizer" instead of a "manager or supervisor" under the guidelines. court found bolden was an abuser of alcohol and street drugs and, though he has had the northern district of iowa. still be accountable for 6,025.25 grams of cocaine base, which well exceeds the 4,500 similarly, bolden asserts his sentence was in disparity with the sentences of his ___________ because nothing she learned in the conversation with bolden's girlfriend would cause sentence would be projected to be a term of approximately 49.68 years. the district sentenced bolden and benjamin each to life states v. noe, 411 f.3d 878, 889-90 (8th cir. 2005) (affirming four-level objected to in the psir, he had convictions for possession of marijuana, resisting and ______________________________ review a challenge to the sufficiency of the evidence for a conviction to determine if ___________ unassailable on appeal.'" united states v. sicaros-quintero, 557 f.3d 579, 582 (8th u.s.c. § 2, and (2) conspiracy to distribute and possess with intent to distribute 50 no. 08-3872 district court for the the district court did not take into account the different roles he had at different times, additional strike, but he does not offer any reason the government would have wanted