United States v. Hinton

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

1-3-2003

USA v. Hinton

Precedential or Non-Precedential: Non-Precedential

Docket 02-1442

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"USA v. Hinton" (2003). 2003 Decisions. Paper 898.

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NOT- PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

Case No: 02-1442

UNITED STATES OF AMERICA

v.

DAMARX ALI HINTON,

Appellant

____________________________

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(D.C. Civ. No. 00-cr-00123-1)

District Judge: Honorable James F. McClure, Jr.

_____________________________

Submitted Under Third Circuit LAR 34.1(a)

December 10, 2002

Before: BECKER, Chief Judge, ROTH and SMITH, Circuit Judges

(Filed January 3, 3003)

______________________

OPINION

______________________

D. BROOKS SMITH, Circuit Judge:

On May 29, 2001, appellant Damarx Ali Hinton pled guilty to Count One of an

Indictment, possession with the "intent to distribute more than fifty (50) grams of cocaine

base (crack cocaine)" in violation of 21 U.S.C. 841(a)(1). Thereafter, Hinton requested

an evidentiary hearing prior to sentencing to establish whether the drugs seized were

cocaine or crack cocaine, the latter of which is subject to a harsher penalty under 2D1.1

of the Sentencing Guidelines. After a hearing, the District Court concluded that the drugs

were crack cocaine and sentenced Hinton accordingly. On appeal, Hinton contends that

the District Court erred in finding that the substance was crack cocaine and thereby

sentencing him pursuant to the sentencing guideline for that drug. We affirm.

I.

The determination that the seized substances were crack cocaine is a finding of

fact subject to review for clear error. United States v. Roman, 121 F.3d 136, 140 (3d Cir.

1997). The District Court’s application of the Sentencing Guidelines is subject to plenary

review. Id.

II.

At sentencing, the government has the burden of showing by a preponderance of

the evidence that the drug at issue is actually crack cocaine. Roman, 121 F.3d at 140-41.

In determining whether the government has met its burden, a district court may rely upon

"admissions to the court by a defendant during a guilty plea colloquy[.]" United States v.

James, 78 F.3d 851, 856 (3d Cir. 1996); see also Roman, 121 F.3d at 141. When the

indictment and the plea agreement specifically identify the drug as "crack cocaine" and

the plea colloquy specifically refers to the drug involved as crack cocaine, there is ample

evidentiary support for a conclusion that the drug is in fact "crack cocaine." United

States v. Faulks, 143 F.3d 133, 138-39 (3d Cir. 1998); United States v. Powell, 113 F.3d

464, 470 (3d Cir. 1997); Roman, 121 F.3d at 141 n.4.

Here, the indictment explicitly charged Hinton with possession of "cocaine base

(crack cocaine)." The plea agreement Hinton executed specified that the parties agreed to

recommend to the court, in relevant part, the following:

That pursuant to 2D1.1(c)(4) of the United States Sentencing Guidelines

the amount of cocaine base (crack cocaine) involved in this matter that can

be proven beyond a reasonable doubt is more than fifty (50) grams but less

than one-hundred fifty (150) grams.

During the plea colloquy, Hinton acknowledged that the prosecution’s recitation of the

evidence, which specifically referred to "crack cocaine" five times, was correct. Judge

McClure then asked Hinton if he "knew that [he] was carrying crack cocaine?" Hinton

responded: "Yes." In response to a second inquiry from Judge McClure, Hinton again

acknowledged that the drug involved was crack cocaine.

Under these circumstances, there is ample evidentiary support for Judge

McClure’s finding that the drug involved was crack cocaine. Faulks, 143 F.3d at 138-39;

Powell, 113 F.3d at 470. As Judge McClure explained in a thorough and well-reasoned

memorandum, Faulks and Powell are controlling and Hinton’s knowing and voluntary

plea was a sufficient basis for the finding that the drug was crack cocaine.

This finding was also supported by the testimony of Agent Dincher, the

prosecuting officer, that the characteristics of the controlled substances involved were

consistent with crack cocaine. As we pointed out in Roman, 121 F.3d at 141, an officer’s

testimony regarding the identity of the drug involved in the case is relevant and

appropriately considered by the district court even if that testimony does not establish the

drug’s identity with one-hundred percent certainty. See also United States v. Waters, No.

01-3784, slip. op. at 11 (3d Cir. December 12, 2002) (concluding that government met its

burden of proving that drug was crack cocaine by presenting testimony of: (1) DEA

chemist that crack could also be cut with niacinamide; and (2) detective that appearance

of drug was consistent with crack and niacinamide was commonly used in Philadelphia to

process the powder form to cocaine base); United States v. Dent, 149 F.3d 180, 190 (3d

Cir. 1998) (testimony by chemist and officer which did not definitively identify substance

as crack cocaine was sufficient to satisfy the government’s burden at sentencing).

III.

After determining that the drug involved in this case was in fact crack cocaine, the

District Court refused to reduce Hinton’s offense level by three points for acceptance of

responsibility. The district judge concluded that Hinton was falsely denying that the

drugs in question were crack cocaine and that such denial should preclude an award of

the downward adjustment to him under sentencing guideline 3E1.1.

Whether a defendant has "accepted responsibility" warranting a downward

adjustment under 3E1.1 is a factual issue subject to a clearly erroneous standard of

review. United States v. Muhammad, 146 F.3d 161, 167 (3d Cir. 1998); United States v.

Deleon-Rodriguez, 70 F.3d 764, 767 (3d Cir. 1995). Indeed, the sentencing guidelines

recognize that the "sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility. For this reason, the determination of the sentencing judge is

entitled to great deference on review." U.S.S.G. 3E1.1, Application Note 5.

After reviewing the record, we find no error by the District Court. Under 3E1.1,

a defendant qualifies for an acceptance of responsibility reduction in his offense level for

certain behavior, including "truthfully admitting the conduct comprising the offense(s) of

conviction[.]" U.S.S.G. 3E1.1, Application Note 1(a). "However, a defendant who

falsely denies, or frivolously contests, relevant conduct that the court determines to be

true has acted in a manner inconsistent with acceptance of responsibility." Id.

Here, the District Court found that Hinton falsely denied at sentencing that the

drugs at issue were crack after he had explicitly acknowledged during the guilty plea

colloquy that the drugs were indeed crack cocaine. In light of this about face, and in the

absence of any indication by Hinton earlier in the proceedings that he intended to

challenge the identity of the drugs at sentencing, we will not disturb the District Court’s

ruling.

The judgment of the District Court will be affirmed.

______________________________________

TO THE CLERK:

Please file the foregoing Opinion.

/s/ D. Smith Brooks

Circuit Judge