United States v. Holman

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

2-23-1999

USA v. Holman

Precedential or Non-Precedential:

Docket 98-1307

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Filed February 19, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-1307

UNITED STATES OF AMERICA,

v.

BRIAN HOLMAN,

Appellant.

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Cr. No. 92-CR-00119-19)

Argued: December 2, 1998

Before: BECKER, Chief Judge, NYGAARD and

WOOD, JR.,* Circuit Judges.

(Filed February 19, 1999)

LESLIE LEVI PAYTON, ESQUIRE

(ARGUED)

Leslie L. Payton and Associates

2 Penn Center Plaza, Suite 200

Philadelphia, PA 19102

Attorney for Appellant

_________________________________________________________________

* The Honorable Harlington Wood, Jr., United States Circuit Judge for

the Seventh Circuit, sitting by designation.

MICHAEL S. STILES, ESQUIRE

United States Attorney

WALTER S. BATTY, JR., ESQUIRE

Assistant United States Attorney

FRANCIS C. BARBIERI, JR.,

(ARGUED)

Special Assistant United States

Attorney

Room 1250

615 Chestnut Street

Philadelphia, PA

Attorneys for Appellee.

OPINION OF THE COURT

HARLINGTON WOOD, JR., Circuit Judge.

Whether it was cocaine or "crack" is the principal

sentencing issue in this appeal. The district judge found it

was "crack."

In June 1992, defendant-appellant Holman entered an

open guilty plea to a count charging a conspiracy to

distribute cocaine in excess of five kilograms, to another

count charging possession with intent to distribute cocaine,

and to three counts of using a telephone to facilitate a drug

felony, in violation of 21 U.S.C. SS 846, 841(a)(1) and 843.

His drug activities were in and around the Philadelphia,

Pennsylvania area. He was sentenced to 188 months of

imprisonment followed by a term of five years of supervised

release. He did not appeal.

In 1995, Holman filed a motion to vacate or correct his

1992 sentence pursuant to 28 U.S.C. S 2255. The district

court denied Holman's motion. This time he appealed. In

March 1996, this court remanded the case for

reconsideration of an issue not involved in the present

appeal. The district court thereafter, in May 1996, reduced

Holman's sentence from 188 months to 145 months to be

followed by supervised release. Again Holman did not

appeal, but in December 1996 he filed a pro se motion to

vacate or correct his sentence pursuant to 28 U.S.C.

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S 2255. The district court denied his latest motion as a

second or successive motion, and Holman appealed. In

December 1997, this court reversed the district court's

holding and remanded the case directing the sentencing

court to determine whether the government had proven

that the cocaine seized from Holman was in fact "crack"

and also to consider whether Holman was entitled to a

third level sentence reduction for acceptance of

responsibility.

In February 1998, the district court held a hearing for

those purposes and determined that the cocaine was indeed

"crack." After the hearing, the district court reduced

Holman's sentence to 135 months to be followed by

supervised release. In April 1998, Holman filed this appeal

in which he argues that the government failed to prove at

the sentencing hearing that a substantial portion of

Holman's drugs was "crack." Holman also raises additional

sentence calculation issues including whether he is entitled

to a decrease in his offense level for a mitigating role in the

offense pursuant to U.S.S.G. S 3B1.2; whether he is entitled

to a decrease in his offense level under the "safety valve"

provision, U.S.S.G. S 5C1.2; and whether he is entitled to a

decrease in his offense level pursuant to U.S.S.G. S 5K1.1

for allegedly providing the government with substantial

evidence in the investigation and prosecution of others.

So far Holman has, by his persistence, secured over four

years reduction in his sentence.

BACKGROUND

Whether Holman's cocaine was in substantial part

cocaine base known as "crack," as the government claims,

makes a considerable difference in his sentence. "Given the

highly severe sentencing ratio of 100:1 for crack versus

cocaine . . . a sentence may vary dramatically depending on

whether he sold crack or cocaine." United States v. James,

78 F.3d 851, 856 (3rd Cir. 1996). The reason for this

"dramatic" sentencing enhancement was explained in

United States v. Booker, 70 F.3d 488 (7th Cir. 1995). "In

1986, Congress was concerned about the emergence of a

new, smokable form of cocaine that was more dangerous

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than powder cocaine, less expensive, and highly addictive."

Id. at 493. So, in 1986, Congress passed the Anti-Drug

Abuse Act, which established enhanced sentences for

offenses involving "cocaine base." In 1993, Congress

amended Guideline S 2D1.1 to explain that"cocaine base,"

for the purposes of that guideline, meant "crack." " `Crack' "

it was noted, "is the street name for a form of cocaine base,

usually prepared by processing cocaine hydrochloride and

sodium bicarbonate, and usually appearing in a lumpy

rocklike form." U.S.S.G. S 2D1.1.

At Holman's "crack" sentencing hearings held in

February and March 1998, the district court determined

that 90.253 grams of cocaine base found in Holman's

apartment were "crack" and correspondingly set Holman's

base offense level at 34. Also included in that offense level

determination was an additional 621.3 grams of cocaine,

not "crack," possessed by Holman and stashed in a rented

locker. The government did not argue that the cocaine in

the locker was "crack," and its ownership is not disputed.

We must examine the government's evidence to see if it

meets the burden of showing that a substantial portion of

the drugs seized in Holman's apartment was "crack" as

defined in the Sentencing Guidelines. For sentencing

purposes, the character of the drug substance need not be

shown beyond a reasonable doubt, but only by a

preponderance of the evidence. United States v. Roman, 121

F.3d 136, 141 (3rd Cir. 1997), cert. denied, ___ U.S. ___

(1998). Roman makes plain, however, citing United States v.

Lawrence, 47 F.3d 1559 (11th Cir. 1995), that the lesser

burden of proof requires more than lip service. To carry its

burden, the government must present " `reliable and

specific evidence' " that the substance in question is

"crack." Roman, 121 F.3d at 141 (quoting Lawrence, 47

F.3d at 1566). It is the serious duty of the district court to

hold the government to this burden particularly because of

the impact the identity determination has on sentencing.

That responsibility can come as no surprise to the

government as this court in Roman expressed its concern

with the government's efforts in that case to prove the drug

substance involved was "crack." Id. at 141 n.4. The "crack"

evidence in Roman was found to be sufficient, "but just

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barely." Id. at 140. The only crack evidence in Roman was

the opinion testimony of a drug enforcement officer, not a

chemist, but with years of experience, however, as a police

officer. He testified that the drugs seized were packaged in

"clear plastic vials with color caps" which he described as

the way "crack" is commonly packaged on the streets of

Philadelphia, the location of that arrest. Id. at 141. Based

on this information, the testifying officer concluded that

what he had seized was "crack cocaine." Id.

In the present case, at the March 1998 sentencing

hearing, the government called three witnesses, all

vigorously cross-examined. The first was Corporal

Donahue, the supervisor of the chemical laboratory for the

Philadelphia Police Department. Corporal Donahue

produced the record of the chemical analysis done on

Holman's drugs in 1991. The report showed who the

chemist had been, the weights of the drugs, and the result

of the analysis of two drug items. The drugs themselves

seized at Holman's apartment in 1991, however, had been

destroyed in 1994 according to police protocol and

pursuant to an order of a local court. One of the two items

as shown on the chemist's report was found to be cocaine

base and the second item was described only as cocaine.

The Corporal explained that the chemist's report referred to

cocaine base rather than "crack" as the latter term is not

generally used in the laboratory to further identify cocaine

base.

The government next called Detective Clements, an

employee of the local district attorney's office. He had

served for eight years as a member of the Dangerous Drug

Offenders Unit and as a member of the Philadelphia Police

Department for eighteen years prior to that. Detective

Clements had participated in the 1991 search of Holman's

apartment and the seizure of the drugs. He explained that

he seized four clear plastic bags containing an off-white-

beige substance and an additional three clear plastic bags

containing a white powder substance. These bags were

found in the pockets of clothing in a closet in Holman's

apartment. Detective Clements further testified that the off-

white-beige substance appeared to be "crack" cocaine. He

explained he was familiar with "crack" cocaine based on his

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experience in the police department for as part of his duties

he had purchased "crack" numerous times, seized it in the

execution of search warrants, and had been with other

officers when they had purchased and seized "crack."

Officer Clements described the differences in the

appearances of the two items of seized narcotics. The

substance designated as Item 1, he said, was harder and

off-color when compared with the cocaine in Item 2 which

he described as a powdery substance, lighter in color. The

same appearance distinctions were revealed on the police

property receipt for Holman's seized drugs which the officer

provided. When seized, he explained, the substances had

been kept in separate bags. Officer Clements, on cross-

examination, conceded that his "crack" opinion was based

on his experience and the appearance of the substances,

although he could not be 100% certain. Officer Clements

had conducted no field tests at the time, and he did not

know if anybody else had. He explained technically how

field tests are conducted. A field test, he explained, would

have confirmed his initial "suspicions"; however, even

without the field test, Clements had finally concluded based

on his experience that one of the two substances was in

fact "crack."

As its last witness, the government called Detective

Rodriguez. He had been with the narcotics division of the

Philadelphia district attorney's office since 1988 and for

four prior years was a city police officer in the major

investigation division of the city's narcotics unit. In his

police career, Detective Rodriguez estimated he had

purchased "crack" over fifty times. He testified how, in an

undercover capacity, he would discuss drug quality with

drug sellers as well as how they turned cocaine into

"crack." He described how "crack" was distributed on

Philadelphia streets in packets, vials, and bundles.

Furthermore, he described the distinguishing

characteristics of cocaine and "crack." He had testified as a

narcotics expert previously in federal court in excess of ten

times.

Detective Rodriguez had been present in court during the

testimony of Corporal Donahue and Detective Clements. He

testified that, based on their testimony and his experience,

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the particular item referred to as being cocaine base would

qualify as "crack" on the street. Rodriguez further testified

that, in his experience, the only type of cocaine base sold

in Philadelphia was "crack," although he had previously

heard there was some other paste-like form of cocaine base

prior to 1987. Rodriguez asserted that what he had heard

described in the testimony could only be "crack," not any

other form of cocaine base. On cross-examination he was

unable, not being a chemist he explained, to answer some

of the technical questions put to him. Rodriguez testified

that although "crack" is sometimes contained in vials, none

was so contained in this case as it was in bulk before being

put into vials. Rodriguez testified that he did not know any

of the details of Holman's case from first-hand experience

as he had been directly involved in Holman's case only

because the drug seizure was based on a wire intercept.

That was generally the extent of the government's "crack"

evidence. There was no contrary evidence. At the

conclusion of the sentencing hearing, the court gave

Holman the opportunity to speak, and he did. Holman

advised the court, however, that the issues he was really

interested in were the Guidelines' "safety valve" provision

and the S 3B1.2 mitigating circumstances provision. We will

consider those other issues briefly. Holman was given the

chance but failed to deny or to say any thing whatsoever

about whether he had dealt in "crack."

ANALYSIS

At the conclusion of the hearing, the district judge found

that Holman had possessed and had been involved in

"crack" dealing. The district judge is an experienced trial

judge who heard the evidence and observed the witnesses.

The record reveals he kept the hearing focused on the

"crack" issue and held the government to its full

responsibilities under the standard of proof for sentencing.

He criticized the government for not requiring the chemist

personally to be present, but the chemist's report was

introduced and was considered sufficient. The two police

officers who testified were both very experienced in heroin

and "crack" cases. One of them had been the officer who

actually seized the drugs at Holman's apartment and

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visually identified the "crack" based on his prior

experiences. The cocaine and "crack" had been kept

separate by Holman. There was little doubt considering the

color, texture, and circumstances that the cocaine base was

"crack." One hundred percent certainty is not required, nor

is a precise chemical analysis necessary. United States v.

Dent, 149 F.3d 180, 190 (3rd Cir. 1998)(citing Roman, 121

F.3d at 141). In reviewing the district court's factual

findings underlying application of the Guidelines, we apply

the deferential clearly erroneous standard. United States v.

Fuentes, 954 F.2d 151, 152-55 (3rd Cir. 1992). We will

reverse only if, after reviewing the evidence, we are left with

a definite and firm conviction that a mistake has been

made. Dent, 149 F.3d at 189. As we view the government's

evidence, and there was none to the contrary, the district

judge could only have found that "crack" was involved in

sufficient quantity to justify the sentence enhancement. No

clear error can be found in the district court's findings, nor

is this a case of "barely enough" evidence to sustain the

"crack" findings. See Roman, 121 F.3d at 140-41 (holding

that evidence was sufficient to support a finding of "crack"

when an experienced drug enforcement officer made a

"crack" determination based solely on the manner in which

the drugs were packaged).

Holman also complains that the district court denied him

a decrease in his offense level for his claimed mitigating role

in the offense pursuant to U.S.S.G. S 3B1.2. He had

participated in a large conspiracy, but he argues that his

role in that conspiracy was minor. Section 3B1.2 provides

a reduction in offense level for defendants who are minor or

minimal participants in an offense. To be eligible for a

deduction under S 3B1.2, "[t]he defendant bears the burden

of demonstrating that other participants were involved and

that," under the relevant standards and the facts of his

particular case, "the minor role adjustment should apply."

United States v. Isaza-Zapata, 148 F.3d 236, 240 (3rd Cir.

1998). Holman fails to meet this burden.

In Isaza-Zapata, the defendant was only a one-time

courier, a "mule," hired in Columbia to transport heroin to

the United States on one occasion. The government agreed

that Isaza-Zapata was entitled to a downward adjustment.

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Isaza-Zapata unsuccessfully attempted after his arrest to be

of assistance to the government in locating the United

States contact. In the present case, Holman has admitted

to serving as a distributor in the conspiracy. He pled guilty

to possession of cocaine with intent to distribute. The

record shows that the total amount of cocaine distributed

by the conspiracy during Holman's involvement wasfifty

kilograms. Holman concedes that of this amount ten

kilograms of cocaine can be attributed to him. The district

court surely did not clearly err in determining that the

distributor does not play a mitigating role in a conspiracy

to distribute ten kilograms of cocaine.

Holman was also particularly interested, he said, in the

"safety valve" provision of the Sentencing Guidelines,

S 5C1.2, but that provision does not apply in view of the

sentence he received. Section 5C1.2 is designed to allow the

court to "impose a sentence in accordance with the

applicable guidelines without regard to any statutory

minimum sentence," if the court finds that the defendant

fulfills five criteria. In the present case, the statutory

mandatory minimum was 120 months. 21 U.S.C. S 841

(a)(1). The district court determined that Holman's

applicable guideline range was between 108 and 135

months and sentenced Holman to 135 months. The record

evidence shows that this sentence was made with

consideration of the entire applicable guideline range and

without regard to the statutory minimum sentence. Even if

Holman had been able to show that he met the

requirements of the safety valve provision, the provisions of

S 5C1.2 would be of no help to him.

Holman's final complaint is that he cooperated with the

government and should have been given the sentencing

benefit of a S 5K1.1 downward departure for his alleged

help to the government. The government, however, found

him to be of no help, explaining that Holman offered only

general information which was of no government use.

Holman did offer information about a particular person, but

that person had already been taken into custody.

Generally, a sentencing court may not depart below the

guideline range based on a defendant's cooperation unless

the government makes a motion to permit such a

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departure. U.S.S.G. S 5K1.1 ("Upon motion of the

government stating that the defendant has provided

substantial assistance . . ., the court may depart from the

guidelines."); see also United States v. Abuhouran, 161 F.3d

206, 211-12 (3rd Cir. 1998). It is the government's

prosecutorial decision whether or not to seek a downward

departure under S 5K1.1 where a defendant claims to have

been of assistance to the government. That is an executive

branch discretionary decision ordinarily entitled to

deference in these circumstances. United States v. Paramo,

998 F.2d 1212, 1221 (3rd Cir. 1993). Federal courts do

have the power to review a prosecutor's refusal tofile a

S 5K1.1 motion and to grant a remedy, but only if the

refusal was based on bad faith, if a plea agreement

otherwise required the government to consider offering a

S 5K1.1 departure motion, or on an unconstitutional

motive. Abuhouran, 161 F.3d at 212. At oral argument,

counsel for Holman conceded that he did not allege that the

government acted either in bad faith or with an

unconstitutional motive. Holman, therefore, is not entitled

to a S 5K1.1 departure.

Holman's assertions of trial court error all lack merit.

Therefore, the district court is affirmed in respects.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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