United States v. Hunt

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0212p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 06-5690

v.

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JAMES HENRY HUNT, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 98-20302—Jon Phipps McCalla, District Judge.

Submitted: May 30, 2007

Decided and Filed: June 7, 2007

Before: DAUGHTREY and MOORE, Circuit Judges; SHADUR, District Judge.*

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COUNSEL

ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant. Stuart J. Canale, ASSISTANT

UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. Appellant-Defendant James Henry Hunt

(“Hunt”), also known as Jamon Cameron Jones, pleaded guilty in 1998 to one count of fraudulent

use of a social security number and one count of establishment of a controlled substances

distribution operation. While released on bail before sentencing, Hunt fled. After being recaptured

in 2006, Hunt was sentenced to 188 months in prison, three years of supervised release, and a $200

special assessment. Hunt now appeals his sentence, arguing that he merely allowed cocaine to be

stored in his apartment and did not participate in any underlying drug offense, entitling him to a

lower advisory Guidelines range pursuant to U.S. Sentencing Guideline § 2D1.8(a)(2). Because the

district court did not clearly err in determining that Hunt was responsible for delivering the supply

of cocaine found in his apartment and was thus not entitled to the benefit of Guideline § 2D1.8(a)(2),

we AFFIRM the judgment of the district court.

*

The Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by

designation.

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No. 06-5690 United States v. Hunt Page 2

I. BACKGROUND

From 1997 to 1998, a Drug Enforcement Agency task force in Memphis, Tennessee

investigated a drug trafficking organization operating out of Dallas, Texas led by Gregory Lewis

(“Lewis”). As a result of the investigation, a federal grand jury issued an indictment for Lewis.

While the task force was attempting to apprehend Lewis, Officer David McGriff (“McGriff”), then

assigned to the task force, received information from a confidential informant that Lewis, who lived

in Dallas, was currently staying in an apartment complex in the Harbor Town area of Memphis and

had been seen in a car fitting a particular description. Through surveillance at the apartment

complex, the task force was able to locate the car and learned that it had been leased by a rental car

company to Eric Rollo Brown (“Brown”), who, McGriff knew, was the focus of a number of drug

investigations.

On December 3, 1998, two people were seen leaving the apartment complex in Brown’s car.

Before leaving, Brown’s car was seen parked in front of apartment number 301, and Officer McGriff

learned from the realty leasing company that apartment 301 was leased to a man by the name of

Jamon Jones (“Jones”). Through further investigation, Officer McGriff determined that Jones had

provided someone else’s social security number to the leasing company when he leased the

apartment and to the local utility companies when he contracted for services.

While Officer McGriff was attempting to determine who had leased apartment 301, two

people returned in Brown’s car. Police officers approached the car and saw that Lewis was driving,

but the officers did not recognize the passenger. The passenger provided the officers with a

Tennessee Department of Safety identification card that identified him as Jamon Jones, and Lewis

and Jones were both placed under arrest. Later investigation revealed that Jones was actually

Appellant-Defendant James Henry Hunt, although Hunt’s name had to that point never come up in

the course of the task force’s investigation.

Thereafter, Officer McGriff obtained a search warrant for apartment 301. When the police

executed the warrant, they discovered approximately $48,000 stuffed in the ceiling, cocaine residue

in the bathroom, cooking utensils in the kitchen that also had cocaine residue and appeared to be

used for making crack cocaine, several suitcases, and some clothes. Officer McGriff testified that

the apartment appeared to be “a temporary place for individuals to live while they were in the

process of distributing narcotics” and not anyone’s full-time residence. Joint Appendix (“J.A.”) at

61 (Sentencing Hr’g at 13 (McGriff Test.)). Also inside the apartment was one person, Tremaine

Farris (“Farris”), who was placed under arrest.

Officer McGriff questioned Farris that evening and again the next day, December 4, 1998.

Officer McGriff testifed that Farris told him that Farris, Lewis, and Hunt distributed cocaine in the

Memphis area, including approximately twenty kilograms of cocaine that had been brought to

Memphis and distributed from apartment 301 within the last several days. Officer McGriff also

testified that Farris “described Mr. Lewis’ role as the person that was distributing the cocaine in the

Memphis area, and Mr. Hunt is the person who was furnishing the cocaine from Texas to be

distributed in Memphis.” J.A. at 62 (Sentencing Hr’g at 14 (McGriff Test.)). Farris further told

Officer McGriff that one kilogram of cocaine had been returned to the apartment because it was of

poor quality, and Farris was attempting to make crack out of that kilogram of cocaine.

Officer McGriff also questioned Hunt, who agreed to cooperate with the authorities. Hunt

entered into a plea agreement with the government, and on December 22, 1998, Hunt pleaded guilty

to an information that charged him with one count of fraudulent use of a social security number, in

violation of 42 U.S.C. § 408(a)(7)(B), and one count of establishment of a controlled substances

distribution operation, in violation of 21 U.S.C. § 856. Hunt was released on bond, but failed to

No. 06-5690 United States v. Hunt Page 3

report to the pretrial services office in January and February 1999. A warrant was issued for his

arrest, and Hunt remained a fugitive until February 2006.

In February 1999, Officer McGriff was contacted by Joe Hunt, James Henry Hunt’s brother.

Joe Hunt was being prosecuted in federal court in Dallas, Texas, and wanted to secure favorable

treatment by providing information about his brother. Officer McGriff testified that he promised

to advise the U.S. Attorney’s office in Dallas if any of the information provided by Joe Hunt was

useful, and Joe Hunt detailed his brother’s drug activities. According to Officer McGriff, Joe Hunt

stated that James Henry Hunt “was bringing cocaine or providing cocaine to the Memphis area to

several people,” including Eric Rollo Brown. J.A. at 65 (Sentencing Hr’g at 17 (McGriff Test.)).

Officer McGriff also testified that Joe Hunt said that he, Joe Hunt, had come to Memphis after his

brother’s arrest and discussed with Brown a recent delivery of twenty kilograms of cocaine brought

to Memphis by Gregory Lewis and James Henry Hunt. Among other things, Joe Hunt discussed

with Brown one kilogram of cocaine that had been determined to be of poor quality.

James Henry Hunt was rearrested in February 2006, and his case proceeded to sentencing.

Hunt filed objections to the presentence report prepared in 1999, arguing, inter alia, that he should

have a base offense level of 16, pursuant to Guideline § 2D1.8(a)(2), because he “had no

participation in the underlying controlled substance offense other than allowing use of the premises.”

U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2D1.8(a)(2) (1998). The government filed a

response, and on May 15, 2006, the district court held a sentencing hearing, during which the court

concluded that Hunt was not entitled to the benefit of Guideline § 2D1.8(a)(2) and calculated Hunt’s

advisory Guidelines range using a base offense level of 34. The district court sentenced Hunt to 188

months in prison, three years of supervised release, and a $200 special assessment, and Hunt timely

appealed.

II. ANALYSIS

A. Standard of Review

On appeal, we must determine whether a district court’s sentencing determination was

reasonable, United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005), cert. denied, --- U.S. ---, 126

S. Ct. 1110 (2006), which includes review of the district court’s Guidelines calculations, United

States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005). “[We] review[] the district court’s

application of the United States Sentencing Guidelines de novo and the district court’s findings of

fact at sentencing for clear error.” United States v. Tocco, 306 F.3d 279, 284 (6th Cir. 2002), cert.

denied, 539 U.S. 926 (2003); see also Davidson, 409 F.3d at 310. The district court properly applied

the preponderance-of-the-evidence standard in making its findings of fact. See United States v.

Ferguson, 456 F.3d 660, 665 (6th Cir. 2006); United States v. Mayle, 334 F.3d 552, 556-57 (6th Cir.

2003).

B. Guideline § 2D1.8(a)(2)

Hunt argues that, pursuant to Guideline § 2D1.8(a), the Guideline provision which applies

to defendants convicted under 21 U.S.C. § 856, the district court should have calculated the

applicable advisory Guidelines range using a base offense level of 16 rather than 34. The 1998

version1 of Guideline § 2D1.8(a), provides:

1

The district court applied the 1998 version of the U.S. Sentencing Guidelines Manual, and neither party has

argued that this was in error. Moreover, calculation of Hunt’s Guidelines range is the same under the 1998 version and

the 2006 version.

No. 06-5690 United States v. Hunt Page 4

(a) Base Offense Level:

(1) The offense level from § 2D1.1 applicable to the underlying controlled

substance offense, except as provided below.

(2) If the defendant had no participation in the underlying controlled

substance offense other than allowing use of the premises, the offense

level shall be 4 levels less than the offense level from § 2D1.1 applicable

to the underlying controlled substance offense, but not greater than level

16.

U.S.S.G. § 2D1.8(a) (1998). An application note to Guideline § 2D1.8 provides further guidance:

Subsection (a)(2) does not apply unless the defendant had no participation in the

underlying controlled substance offense other than allowing use of the premises. For

example, subsection (a)(2) would not apply to a defendant who possessed a

dangerous weapon in connection with the offense, a defendant who guarded the

cache of controlled substances, a defendant who arranged for the use of the premises

for the purpose of facilitating a drug transaction, a defendant who allowed the use

of more than one premises, a defendant who made telephone calls to facilitate the

underlying controlled substance offense, or a defendant who otherwise assisted in the

commission of the underlying controlled substance offense. Furthermore, subsection

(a)(2) does not apply unless the defendant initially leased, rented, purchased, or

otherwise acquired a possessory interest in the premises for a legitimate purpose.

U.S.S.G. § 2D1.8 cmt. n.1 (1998).

The district court concluded that subsection (a)(2) did not apply in this case. During the

sentencing hearing, the district court quoted one particular portion of Hunt’s 1998 plea colloquy:

[Question:] And you allowed your apartment to be used to store cocaine?

Answer: Yes, sir.

Question: What was the reason you allowed your apartment to be used in

that way?

Answer: To make money.

J.A. at 83-84 (Sentencing Hr’g at 35-36) (quoting J.A. at 45 (Plea Hr’g at 15)). The district court

stated that this portion of Hunt’s plea colloquy was by itself sufficient to warrant the conclusion that

Guideline § 2D1.8(a)(2) did not apply.

Reviewing de novo the district court’s interpretation of the Guidelines, we conclude that the

quoted portion of Hunt’s plea colloquy was not by itself sufficient to preclude application of

Guideline § 2D1.8(a)(2). The criminal statute to which Hunt pleaded guilty on count two, 21 U.S.C.

§ 856, does not require as an element of the crime that Hunt participated in a drug offense in any

way beyond allowing cocaine to be stored in his apartment.2 Hunt’s plea colloquy is also

insufficient to establish any participation in a drug offense beyond accepting money in exchange for

2

Title 21, U.S.C. § 856 states, in relevant part:

(a) Except as authorized by this subchapter, it shall be unlawful to—

(1) knowingly open or maintain any place for the purpose of manufacturing, distributing, or

using any controlled substance;

(2) manage or control any building, room, or enclosure, either as an owner, lessee, agent,

employee, or mortgagee, and knowingly and intentionally rent, lease, or make available

for use, with or without compensation, the building, room, or enclosure for the purpose of

unlawfully manufacturing, storing, distributing, or using a controlled substance.

21 U.S.C. § 856.

No. 06-5690 United States v. Hunt Page 5

allowing cocaine to be stored in his apartment. Neither the language of Guideline § 2D1.8(a) nor

the application note suggests that a defendant who accepts money but takes no other actions in

support of a drug offense is not entitled to the benefit of Guideline § 2D1.8(a)(2).

However, the district court did not end its analysis with Hunt’s plea colloquy. The district

court concluded that “[t]he information provided as to the statements by Mr. Farris and Mr. Joe Hunt

completely corroborates and expounds on the defendant’s own statements at the time of the plea

colloquy.” J.A. at 84 (Sentencing Hr’g at 36). The district court “accept[ed] the testimony that

[James Henry Hunt] was the source of the cocaine that was being distributed, that he was the person

from Texas who was the supplier of cocaine to Gregory Lewis who was then distributing it to others

in the Memphis area.” Id. The district court also noted that this testimony was corroborated, at least

in part, by the facts that scales, cocaine residue, and a large amount of money were found inside the

apartment, that Hunt used a false social security number, and that Hunt used an alias when first

detained, apparently to attempt to avoid detection.

Hunt does not argue that these factual findings are insufficient as a matter of law to establish

that he was not entitled to the benefit of Guideline § 2D1.8(a)(2), but instead argues that the district

court clearly erred in making its factual findings. Hunt argues that McGriff’s recounting of the

statements of Farris and Joe Hunt was hearsay and that Farris and Joe Hunt were co-conspirators and

thus inherently unreliable.

Guideline § 6A1.3(a) permits the district court to “consider relevant information without

regard to its admissibility under the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G.

§ 6A1.3(a) (1998). This court has explicitly stated that the district court may consider hearsay in

sentencing, but the district court must “find[] it to have sufficient or minimally adequate indicia of

reliability.” United States v. Silverman, 976 F.2d 1502, 1513 (6th Cir. 1992) (en banc), cert. denied,

507 U.S. 990 (1993); see also United States v. Gibbs, 182 F.3d 408, 441 (6th Cir.), cert. denied, 528

U.S. 1051 (1999). Moreover, “[d]ue to a co-conspirator’s ‘strong motivation to implicate the

defendant and to exonerate himself,’ a co-conspirator’s statements about the defendant’s

involvement in the crime should be viewed with ‘special suspicion.’” United States v. Gomez-

Lemos, 939 F.2d 326, 330 (6th Cir. 1991) (quoting Lee v. Illinois, 476 U.S. 530, 541 (1986)); see

also Hill v. Hofbauer, 337 F.3d 706, 717 (6th Cir. 2003) (noting that statements made to the police

by a co-conspirator require “closer scrutiny,” in part because such statements may be “motivated

by a desire to curry the favor of law enforcement officials”). Thus, the statements of Farris and Joe

Hunt required, as hearsay, sufficient indicia of reliability in order to support the district court’s

conclusion, and were even more suspect as statements by co-conspirators made out of an explicit

or implicit desire to secure favorable treatment from the police. See United States v. Huckins, 53

F.3d 276, 279 (9th Cir. 1994) (concluding that a hearsay statement of a co-conspirator had no indicia

of reliability and thus could not properly be considered in sentencing).

Nevertheless, we conclude that the district court did not clearly err by determining that the

statements of Farris and Joe Hunt were supported by sufficient indicia of reliability. First, the two

statements, given independently and months apart, corroborate each other, including such details

as the fact that one kilogram of cocaine supplied by Hunt was returned because it was of poor

quality. Cf. Silverman, 976 F.2d at 1513-14 (concluding that statements from a confidential

informant and from a co-conspirator were sufficiently reliable for sentencing purposes because the

two statements corroborated each other). Second, Hunt’s use of a false social security number when

leasing the apartment, the evidence of drug trafficking found inside the apartment, and Officer

McGriff’s testimony that it did not appear that anyone lived in the apartment provide circumstantial

evidence that Hunt leased and used the apartment as a participant in a drug trafficking operation, and

not as a resident. Cf. United States v. Bowen, 194 F. App’x 393, 401-02 (6th Cir. 2006)

(unpublished opinion) (concluding that the testimony of co-conspirators that the defendant helped

No. 06-5690 United States v. Hunt Page 6

prepare and sell crack cocaine from a particular residence was corroborated by Pyrex containers

found in the residence that were “consistent with the cooking of powder cocaine into crack” and bills

and tax returns linking the defendant to the residence), petition for cert. filed, No. 06-8324 (Dec. 6,

2006). Accordingly, the district court did not clearly err by relying on the statements of Farris and

Joe Hunt. Moreover, in the absence of evidence contradicting the statements of Farris and Joe Hunt

and the corroborating evidence discovered in the search of the apartment, we conclude that the

district court did not clearly err by determining that the preponderance of the evidence showed that

James Henry Hunt was responsible for delivering the supply of cocaine found in the apartment.

III. CONCLUSION

Because the district court did not clearly err in determining that Hunt was responsible for

delivering the supply of cocaine found in his apartment and was thus not entitled to the benefit of

Guideline § 2D1.8(a)(2), and because no apparent basis to challenge the reasonableness of the

district court’s sentence exists, we AFFIRM the judgment of the district court.