Petition for Writ of Certiorari — Milburn v. United States (No. 08-1064)

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OFFICE OF THE GL

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Supreme Court of the Gnited States

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RICHARD GLEN MILBURN,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

ALEXANDER M. SALERNO

Counsel of Record

2505 S. Des Plaines Avenue

North Riverside, IL 60546

(708) 443-5400

Attorney for Petitioner

Richard Glen Milburn

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a fatal variance between pleading and proof

and the resultant jury finding of a lesser included

offense would invalidate mandatory consecutive

sentencing provisions and allow a court to fashion a

reasonable sentence under 18 U.S.C. § 3553.

TABLE OF CONTENTS

Page

QUESTION PRESENTED..................ccccccccosccssereess i

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STATUTORY AND CONSTITUTIONAL PROVI-

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STATEMENT OF THE CASE.....................2cc00eeee002 5

REASONS FOR GRANTING THE PETITION..... 5

Neen occas sisccesecesessetscesseescesssess 6

Neen ee ne nn ns cca ssn suicssoescsesccensteness 8

C. CONFLICT WITH SUPREME COURT

on cecwsenesnsnecacsaseocssceess 13

Neen no ., scanvcecvseccsessavecseoees 15

APPENDIX

Sixth Circuit Court of Appeals Opinion, filed

Nee. swasnceenceasesecess App. 1

District Court Judgment in a Criminal Case,

et ee ee App. 12

District Court Superseding Indictment (Rele-

Nee cei csienenensesessocensesseseres App. 18

District Court Verdict Form.....................ccsesseees App. 21

TABLE OF AUTHORITIES

Page

CASES

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000)........ 13

Blakely v. Washington, 124 S. Ct. 2531 (2004)...... 9,14

Booker v. United States, 543 U.S. 296

bo | RCN TEN SEO ET IE BEEN HO Ni NT ar 6,9, 12, 14

Reid v. United States, 127 S. Ct. 456 (2007).............. 12

United States v. Colvin, 353 F.3d 569 (7th Cir.

NE visas ciisca hive eeeecee 11

United States v. Johnson, 223 F.3d 665 (7th

Oe Te vdaiccscccsvaninecsnsi guided atts ean ee aces 12

United States v. Solorio, 337 F.3d 580 (6th Cir.

PE hnndsskcvitsiovl edd taut aed 6

STATUTES AND RULES

BE EF ee se i steer nee passim

96 tie SOE i stasichenn Gee 3, 12,13

37 UE BOA nk.cccdwieee eee 4,5

CONSTITUTION

United States Constitution Amendment V1.......... 1,14

1

OPINION BELOW

The unpublished opinion of the United States

Court of Appeals for the Sixth Circuit affirming the

Petitioner’s convictions is reported at United States v.

Richard Glen Milburn.

JURISDICTION

On October 21, 2008, the Sixth Circuit filed its

opinion affirming Petitioner’s convictions. The Sixth

Circuit issued its mandate on October 21, 2008. On

January 23, 2009, this Court extended the deadline

for filing this petition to February 18, 2009. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

¢

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

Sixth Amendment to the United States Consti-

tution

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which districts shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have

compulsory process for witnesses in his favor, and to

have the assistance of counsel for his defense.”

18 U.S.C. § 924

(e)(1)(A) Except to the extent that a greater mini-

mum sentence is otherwise provided by this subsec-

tion or by any other provision of law, any person who,

during and in relation to any crime of violence or

drug trafficking crime (including a crime of violence

or drug trafficking crime that provides for an en-

hanced punishment if committed by the use of a

deadly or dangerous weapon or device) for which the

person may be prosecuted in a court of the United

States, uses or carries a firearm, or who, in further-

ance of any such crime, possesses a firearm, shall, in

addition to the punishment provided for such crime of

violence or drug trafficking crime —

(i) be sentenced to a term of imprisonment of

not less than 5 years;

(ii) if the firearm is brandished, be sentenced to

a term of imprisonment of not less than 7

years; and

a term of imprisonment of not less than 10

years.

(B) If the firearm possessed by a person convicted of

a violation of this subsection —

(i) is a short-barreled rifle, short-barreled shot-

gun, the person shall be sentenced to a term

of imprisonment of not less than 10 years; or

(iz) 1S a machine gun or a destructive device,

or 1S equipped with a firearm silencer or

3

firearm muffler, the person shall be sen-

tenced to a term of imprisonment of not less

than 30 years.

(C) In the case of a second or subsequent conviction

under this subsection, the person shall —

(i) be sentenced to a term of imprisonment of

not less than 25 years; and

(ii) if the firearm involved is a machine gun or a

destructive device, or is equipped with a fire-

arm silencer or firearm muffler, be sentenced

to imprisonment for life.

{(D) Notwithstanding any other provision of law —

(i) a court shall not place on probation any per-

son convicted of a violation of this subsec-

tion; and

(ii) no term of imprisonment imposed on a per-

son under this subsection shall run concur-

rently with any other term of imprisonment

imposed on the person, including any term of

imprisonment imposed for the crime of vio-

lence or drug trafficking crime during which

the firearm was used, carried, or possessed.

18 U.S.C. § 3553 Imposition of Sentence

(a) Factors to be considered in imposing a

sentence. The Court shall impose a sentence suffi-

cient, but not greater than necessary, to comply with

the purposes set forth in paragraph (2) of this subsec-

tion. The court, in determining the particular sen-

tence to be imposed, shall consider —

4

(1) the nature and circumstances of the offense

and the history and characteristics of the de-

fendant;

(2) the need for the sentence imposed —

(A) to reflect the seriousness of the offense,

to promote respect for the law, and to

provide just punishment for the offense;

(B) to afford adequate deterrence to criminal

conduct;

(C) to protect the public from further crimes

of the defendant; and

(D) to provide the defendant with needed

educational or vocational training, medi-

cal care, or other correctional treatment

in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing

range established for —

(A) the applicable category of offense com-

mitted by the applicable category of de-

fendant as set forth in the guidelines.

21 U.S.C. § 841 Prohibited Acts

(a) Unlawful acts

Except as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distrib-

ute, or dispense, a controlled substance; or

)

(2) to create, distribute, or dispense, or possess

with intent to distribute or dispense, a coun-

terfeit substance.

STATEMENT OF CASE

On January 10, 2006, the Federal Grand Jury

returned a_ twelve-count superseding indictment

charging defendant and twelve co-defendants with

drug trafficking and firearms offenses. The indict-

ment charged multiple violations of 18 U.S.C. § 924(C),

21 U.S.C. § 841(B)(1), (A), (B), and (C), 846 and 28

U.S.C. § 5861(D). Various co-defendants plead guilty

and some agreed to cooperate. Petitioner’s trial began

on December 11, 2006, and Petitioner was convicted

on all counts. Petitioner then filed post trial motions

for acquittal and a new trial which were denied by

the District Court. Judgment was entered on April

23, 2007, and Petitioner timely filed a Notice of

Appeal to the Sixth Circuit Court of Appeals on April

27, 2007. The Sixth Circuit Court of Appeals affirmed

the Petitioner’s convictions on October 21, 2008.

¢

REASONS FOR GRANTING THE PETITION

This Court should grant the instant petition for

the reasons provided in Supreme Court Rule 10(c).

The question presented conflicts with Supreme Court

Law.

6

In this case, the Sixth Circuit affirmed the deci-

sion in United States v. Solorio, 337 F.3d 580 (2003),

and indicated that a defendant, who is charged with a

specific offense in an indictment, is not found guilty of

that offense, but is found guilty of a “lesser included

offense” would still be subject to a mandatory mini-

mum sentence as proscribed by the charged offense.

The Court denied the argument that the Petitioner be

sentenced under the missives of Booker v. United

States, 543 U.S. 296 (2004) and sentenced the Peti-

tioner to three consecutive mandatory minimum

sentences.

A. FACTS

On December 11, 2006, Petitioner, Richard

Milburn, proceeded to trial on the indictment before a

jury. At trial, co-defendant, Mark Saults, and co-

defendant, Thomas Turner, along with numerous

other individuals, testified pursuant to deals with the

government. Defendant Saults who was more culpa-

ble than Petitioner, was sentenced to 82 months.

Petitioner was sentenced to 480 months, in essence a

life sentence. The Petitioner argued at sentencing

that he suffered two near fatal heart attacks, com-

plete mental breakdown, chronic back pain, hyper-

tension, high cholesterol and medical maladies that

will certainly result in him dying in prison.

Saults testified in this case, that on December 1,

2005, he and Petitioner met with Thomas Turner at a

BP station in Washington County, Tennessee. The

7

purpose of the meeting was to pay cooperating

witness Turner for quantities of marijuana and

methamphetamine pursuant to previous negotiations

undertaken by Saults. The negotiations between

Turner and Saults were intercepted by the govern-

ment pursuant to the agreement of Mr. Turner who

gave the government authority for consensual over-

hears. Mr. Saults and the Petitioner were arrested

during the course of that recorded transaction.

$36,000 was seized from Saults on the scene, and two

(2) pistols were recovered, one from the Petitioner

and one from his vehicle. At the time of that arrest,

the government seized other items including a note-

book, a scale and de minimus amounts of drugs that

were introduced at trial. Testimony by cooperating

witnesses lead to determinations that the transaction

for which Petitioner was arrested was for 50 pounds

of marijuana. Without corroboration, Saults claimed

that he had sold Petitioner approximately 25 pounds

of marijuana per week from 2001 through 2005, and

Saults further stated that “in 2002 and 2003,” he

began purchasing methamphetamine from the Peti-

tioner at the purported rate of 1 gram per week. The

arrest on December 1, 2005, also included a negotia-

tion for two pounds of methamphetamine.

Further testimony from cooperating witness Troy

Ward indicated that he went to Georgia on a separate

occasion in September of 2004 with the approval of

Petitioner. He claimed that the purpose of the trip

was to obtain “a quarter pound” of methampheta-

mine. Ward claimed that the money was fronted by

8

Petitioner and was then stolen by “a Mexican named

Julio.” Ward stated that Petitioner then traveled to

Georgia to provide Ward with additional money to

complete the drug transaction. Petitioner was ar-

rested in a motel room in Marietta, Cobb County,

Georgia, on September 8, 2004. According to Officer

Moore of the Cobb County Police Department, Peti-

tioner was not even a subject of the drug investiga-

tion being undertaken by the Smyrna Organized

Crime Task Force. The individual under investigation

was one Jeremy Scott. In the process of investigating,

agents knocked at the door of Room 322 of the Home-

town Inn in Marietta, Georgia. Officers entered the

room, arrested Petitioner and his wife, and seized a

scale and approximately 37.25 grams of metham-

phetamine. Cash and pistols were also seized. This

Georgia offense was joined into Petitioner’s indict-

ment and while the Petitioner argued a motion to

dismiss based upon improper venue, those charges

were tried along with the instant indictment and the

Petitioner was found guilty.

B. ARGUMENT

In Count 1, the Petitioner was charged under 21

U.S.C. § 846 with a Conspiracy to Distribute and to

Possess with the Intent to Distribute Marijuana, in

an amount in excess of 1,000 kilograms. The jury

found the Petitioner guilty, however unanimously and

beyond a reasonable doubt, also found that the amount

of marijuana the Petitioner conspired to distribute

and to possess was actually 100 kilograms or more,

9

but less than 1,000 kilograms. The verdict forms and

instructions went on to explain that if the jury found

the Petitioner guilty of Count 1, the jury should then

consider Counts 5 and 9. Counts 5 and 9 charged the

Petitioner under 18 U.S.C. § 924(c)(1) with carrying a

firearm during and in relation to a drug trafficking

offense AS charged in Count 1 (emphasis added).

Although the jury did not find the Petitioner guilty as

charged in Count 1, the jury found the Petitioner

guilty of Count 5 and Count 9 using and carrying a

weapon during the commission of Count 1 as charged

in the indictment. The Petitioner was then sentenced

to 480 months in violation of this Court’s opinion in

Booker and Blakely v. Washington, 124 S. Ct. 2531

(2004).

There was a fatal variance between the pleading

and proof on Count 1, therefore the lower Court was

required to invalidate that Count. In the alternative,

Petitioner urges that the consecutive 924(c) counts

should have been stricken for sentencing purpose and

that the Petitioner should have been sentenced to the

minimum mandatory sentence of 120 months. The

variance attendant to the jury verdict mandated

dismissal of the Count from sentencing consideration.

Indeed, notwithstanding the quite precise amounts

charged in Count 1 (Conspiracy to Possess with

Intent to Distribute 1,000 Kilograms or more), Peti-

tioner urges that the jury returned a legally inconsis-

tent verdict conflicting the superseding indictment

itself. The jury found that the amount of marijuana

the Petitioner conspired to distribute and to possess

10

with the intent to distribute was “100 kilograms or

more but less than 1,000 kilograms.” The indictment

charged a conspiracy of more than 1,000 kilograms of

marijuana. This was a fatal variance of the conduct

charged in Count 1 and was effectively a finding of

not guilty as to Count 1. Free of the need to impose

the unconscionable 40-year minimum mandatory

sentence, the Petitioner contends that the Court was

free to impose a sentence far less than the proposed

series of minimum mandatory consecutive terms and

no more than the guideline range of 120 months (the

Petitioner bases his 120-month sentence projection

upon the mandatory minimum 120-month terms

prescribed under Counts 2 and 7 of his conviction).

In assessing a 480-month mandatory minimum

sentence, the Pre-Sentence Investigation Report in

this case indicated that the Petitioner had been

charged with and found guilty of a conspiracy to

distribute 100 kilograms but less than 1,000 kilo-

grams of marijuana. Contrary to the Pre-Sentence

Investigation Report, the government never charged

a conspiracy to distribute and possess with the intent

to distribute over 100 kilograms but less than 1,000

kilograms of marijuana. The Petitioner was charged

with distribution and possession of more than 1,000

kilograms of marijuana. That fatal variance is the

linchpin of this Court’s ability to invalidate the con-

viction on Count 1 and accordingly invalidate the

minimum mandatory consecutive provisions of

Counts 5 and 9, which are successive and premised

upon one another and derivatively upon Count 1.

11

Count 5 charged a violation of carrying a firearm

during and in relation to a drug trafficking offense in

violation of 18 U.S.C. § 924(c). Count 9 similarly

charged a violation of carrying a firearm during and

in relation to a drug trafficking offense in violation of

18 U.S.C. §924(c). Notwithstanding the precise

amounts charged in Count 1, the jury returned a

legally inconsistent verdict based upon a finding

other than that alleged within the government’s

charging document, the superseding indictment itself.

The jury found that the amount of marijuana the

Petitioner conspired to distribute and to possess with

the intent to distribute was 100 kilograms or more

but less than 1,000 kilograms. This was effectively a

finding of not guilty as to Count 1. Prior to finalized

jury instructions, the following language was ap-

proved as to the element instruction for both firearm

use counts: “that carrying a firearm was during and

in relation the drug trafficking crime as charged in

the indictment.”

When a jury returns a general verdict that may

have rested on invalid ground, an Appellate Court

will reverse if it cannot be determined whether the

verdict rest on a proper or improper ground. United

States v. Colvin, 353 F.3d 569, 576, 577 (7th Cir.

2003) (Majority held that the crime of murder for

hire requires at least two guilty participants, the

first jury’s rejection of the murder for hire factor

was logically inconsistent with the second jury’s

endorsement and that the logical inconsistency

rendered the second conviction and death sentence

12

unconstitutional). That is precisely the case here.

Moreover, “with the inconsistencies are such as to

indicate that the jury verdict was a product of irra-

tionality, the verdict must be set aside.” United States

v. Johnson, 223 F.3d 665 (7th Cir. 2000). Once invali-

dated, both Section 924(c) counts must fall for sen-

tencing purposes as well.

The sentencing Court felt it could not rely on the

factors enunciated in Reid v. United States, 127 S. Ct.

456 (2007) or Booker v. United States, 543 U.S. 220

(2005) and 18 U.S.C. § 3553. The Petitioner had an

extensive background as a faithful law-abiding

farmer and a citizen who had never been arrested in

the past. The Petitioner argued that he should be

given a fair sentence under the factors of Section

3553(a) and not the mandatory minimum as the

lower Court felt it was required to apply. The Peti-

tioner brought forth overwhelming support of family,

friends and community in the form of letters and his

history and characteristics, people who worked with

him in the past, people who worked in projects with

him and people who knew the Petitioner was a hard

working, faithful law-abiding citizen. The record

indicated that the Petitioner grew up rural and

relatively poor, married and became a vital part of his

community. He was a member of the Milburnton

Methodist Church and worked from dusk to dark

until such time as he was almost unable to walk by

virtue of his steadily declining medical condition and

his injuries suffered at the time he was thrown off a

horse. It was the erroneous belief by the Court below

{

13

that the Petitioner was ineligible for consideration

under the guideline factors enunciated in § 3553

because of the erroneous conviction that led the Court

to believe that he was only entitled to a 480-month

sentence.

C. CONFLICT WITH SUPREME COURT LAW

The sentence imposed in this case and the con-

clusion of the court is contrary to this Court’s enunci-

ated decisions. In Apprendi v. New Jersey, 120 S. Ct.

2348 (2000), this court ruled “other than the fact of a

prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum

must be submitted to a jury and proven beyond a

reasonable doubt.” Further “the statutory maximum

for Apprendi is based solely on facts reflected in the

jury verdict (emphasis added). The jury verdict on

this case did not support a mandatory 480-month

maximum sentence. The jury found the defendant

guilty of a lesser included offense. The jury did not

find the defendant guilty of the conspiracy AS

charged in the indictment. The lower court decided

that the fatal variance was merely a finding on a

lesser included offense, and not a fatal variance or a

finding of not guilty. However, “the characterization

of a fact or circumstance as an ‘element’ or ‘sentenc-

ing question’ is not determinative of the question of

who decides, judge or jury.”

The jury did not determine that Petitioner

committed the acts as alleged in Count 1, but the

14

court still sentenced the defendant to the mandatory

minimum for the 924(c) counts. “The defendant has

the right to have ‘any particular fact’ determined by a

jury, that right is implicated any time a judge seeks

to impose a sentence not solely based on facts re-

flected in the jury verdict or admitted by the defen-

dant.” Blakely v. Washington, 124 S. Ct. 2531 (2004).

“The court below should not have looked past the

specific finding of the jury. It is a defendants right to

a lesser sentence absent additional fact finding that

makes all the difference under the 6th Amendment.”

Id.

Booker v. United States, 543 U.S. 296 (2004)

held that the Sixth Amendment requires a jury to

decide beyond a reasonable doubt any fact that in-

creases the sentence of the Defendant in a criminal

case. The Petitioner was sentenced to a mandatory

480 months on a finding of not guilty. Succinctly put,

the defendant was not found guilty of the offense as

charged in Count 1 in the indictment; therefore, the

defendant would not be eligible for the mandatory

successive consecutive sentences under the 924(c)

counts because they were based in whole on the

defendant being convicted of carrying a firearm

during the commission of the offense as

charged in Count 1. Since he was not guilty as

charged, he could not have carried a firearm during

the commission of the offense. To allow the Sixth

Circuit Court opinion to stand would contradict

established Supreme Court precedent and would

result in the Petitioner being sentenced an additional

15

360 months for an offense for which he was not found

guilty.

¢

CONCLUSION

The Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

ALEXANDER M. SALERNO

Counsel of Record

2505 S. Des Plaines Avenue

North Riverside, IL 60546

(708) 443-5400

Counsel for Petitioner

Richard Glen Milburn

App. l

NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION

No. 07-5617

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

United States of America On Appeal from

Plaintiff-Appellee, the United States

. District Court for

the Eastern District

Richard Glen Milburn of Tennessee

inhibits dedetiaaidl (Filed Oct. 21, 2008)

Before: KENNEDY, SUTTON, and McKEAGUE,

Circuit Judges.

KENNEDY, J. Richard Milburn appeals his

convictions for various drug- and firearm-related

offenses. He raises three arguments on appeal: (1)

venue is improper as to the drug and firearm offenses

relating to his arrest in Georgia; (2) the variance

between the quantity of marijuana charged and the

amount determined in the jury’s verdict on Count

One is impermissible and should result in the dis-

missal of that count; and (3) the district court failed

to consider fully all factors underlying the application

of a reasonable sentence. For the following reasons,

we AFFIRM the judgment of the district court.

App. 2

BACKGROUND

Milburn’s multiple-count indictment and convic-

tion was based on two somewhat independent series

of events involving his narcotics dealings. Milburn

was arrested at a hotel in Georgia on September 8,

2004, and on a separate occasion, Milburn was ar-

rested at a gas station in Tennessee on December 1,

2005.

Milburn traveled to Georgia after leaving Ten-

nessee with cash to purchase methamphetamine from

a contact of Troy Ward, an acquaintance. J.A. at 312...

Ward had done drugs at Milburn’s house and Ward

was involved with an associate of Milburn’s by the

name of Mark Saults. J.A. at 305. Saults had bought

methamphetamine from and sold marijuana to Mil-

burn. J.A. 181-83. In September of 2004, Milburn

asked Ward to purchase methamphetamine in Geor-

gia from a drug dealer known to Ward only as “Julio”

and bring it back to Tennessee. J.A. at 310. Milburn

met Ward in Baileyton, Tennessee — in the Eastern

District of Tennessee — and gave Ward $5,400 in cash

for the methamphetamine and $100 for gas money.

J.A. at 308. Ward took that money to Georgia that

night and gave Julio $4,200 of Milburn’s cash to

purchase a quarter pound of methamphetamine. J.A.

at 311. Julio took the money and never returned. J.A.

at 311. Ward then called Milburn, told him what

happened with Julio, and indicated that he had found

another source for methamphetamine. J.A. at 311-12.

Milburn decided to go to Georgia from Tennessee

himself with between $10,000 and $12,000 in cash to

App. 3

purchase more methamphetamine from Ward’s con-

tact. J.A. at 312. Milburn met Ward at the hotel and

they were arrested. The police officers searched the

room and Milburn’s person and found 37.25 grams of

methamphetamine, cash, three guns, and digital

scales. Both Count Four, attempt to possess with the

intent to distribute methamphetamine in violation of

21 U.S.C §§ 846 and 841(b)(1C) and 18 U.S.C. § 2,

and Count Five, carrying a firearm during and in

relation to a drug trafficking offense in violation of 18

U.S.C. § 924(c)(1), arise out of this series of events.

Police arrested Milburn in Tennessee during a

drug deal between Milburn and Saults on one side,

and Thomas Turner on the other. Turner was a for-

mer drug trafficker who now worked for the police.

J.A. at 276. Turner set up a deal to sell metham-

phetamine and marijuana to Saults, but Saults did

not have the money to purchase the drugs, so Mil-

burn agreed to buy the drugs. J.A. at 189-90. Saults

would sell part of the drugs purchased by Milburn,

and then Saults would use the proceeds to repay

Milburn and they would split the profit. J.A. at 191.

On December 1, 2005, Turner met with Saults and

Milburn at a gas station in Boones Creek, Tennessee

where the police were waiting. J.A. at 222. Turner

gave the signal and the police arrested Saults and

Milburn on the spot. J.A. at 223. In searching Mil-

burn’s pickup truck and his person, officers discov-

ered methamphetamine, tens of thousands of dollars

in cash, two guns, digital scales with drug residue, a

methamphetamine pipe, methlsulfonal monohydrate

App. 4

(used to dilute methamphetamine), and a drug ledger.

J.A. at 224-31. Count Six, attempt to possess with the

intent to distribute marijuana in violation of 21

U.S.C. §§ 846 and 841(b)(1)(D) and 18 U.S.C. § 2;

Count Seven, attempt to possess with the intent to

distribute 50 grams or more of methamphetamine in

violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) and 18

U.S.C. § 2; Count Eight, possession with the intent to

distribute methamphetamine in violation of 21 U.S.C.

§§ 846 and 841(b)(1)(C); and Count Nine, carrying a

firearm during and in relation to a drug trafficking

offense in violation of 18 U.S.C. § 924(c)(1) all arose

out of the events relating to Milburn’s arrest in

Tennessee.

Counts One and Two dealt with conspiracy to

distribute and possession with the intent to distribute

marijuana and methamphetamine, respectively,

arising out of the events leading up to both arrests

mentioned above — in addition to other dealings -—

between approximately January 1995 and December

13, 2005. J.A. at 46, 54. Count Ten, possession of an

unregistered short barreled firearm in violation of 26

U.S.C. §5861(d), came out of the discovery of a

sawed-off shotgun during a lawful search of Milburn’s

house. The last count, Count Eleven, was for possess-

ing contraband in prison.

In the district court, Defendant filed a motion to

dismiss Counts Four and Five for lack of venue which

the district court denied. J.A. at 71. Defendant’s

motion for judgment of acquittal for lack of venue was

also denied by the district court. J.A. at 330. The

App. 5

district court also rejected Defendant’s other argu-

ments that Count One should be stricken, Counts

Five and Nine should fall with Count One, and De-

fendant’s sentence should be adjusted accordingly.

J.A. at 336-37. Convicted as to Counts One and Two

and Counts Four through Eleven, Defendant was

sentenced to 480 months in prison, the statutory

minimum. J.A. at 344.

ANALYSIS

i. Venue as to Counts Four and Five

Separate analyses guide the determination of

whether venue is proper for Counts Four and Five.

Count Five is for carrying a firearm during and in

relation to a drug trafficking offense in violation of

§ 924(c). Its analysis must proceed under the frame-

work of United States v. Rodriguez-Moreno, 526 U.S.

275 (1999) which held that venue is appropriate for a

violation of § 924(c) wherever venue is appropriate as

to the underlying continuing crime. 526 U.S. at 281.

As for Count Four, the underlying continuing crime,

United States v. Cabrales, 524 U.S. 1 (1998) held that

venue is appropriate wherever the offense is “‘begun,

continued, or completed.’” 524 U.S. at 7 (quoting 18

U.S.C. § 3237(a)).

Defendant argues that venue for the Georgia

offenses is improper where “[tJhe alleged offenses

took place many hundreds of miles from one another,”

“[mjore than one full year separated the Georgia and

Tennessee offenses,” and “[alside from the fact that

App. 6

both states’ offenses involved generic drug charges, no

other similarities existed.” Def. Br. at 11. These

arguments misconstrue the relationship the law

focuses on for the purposes of venue as that between

the charges brought against Defendant, when the

real issue in consideration of venue is the relation-

ship between the place of the criminal behavior and

the place of trial. Accordingly, Defendant’s arguments

fail where the facts establish that the crime of at-

tempted possession with the intent to distribute

began in the Eastern District of Tennessee with a

meeting between Milburn and Ward.

United States v. Zidell, 323 F.3d 412 (6th Cir.

2003) controls here. In Zidell, the defendant lived in

Dallas, Texas, but he had met with his associates in

Memphis, he had induced his associates to travel

from Memphis to Dallas on two occasions, and his

associates had taken methamphetamine from the

defendant in Dallas with the aim to sell the drugs

received from the defendant in Memphis and then

pay the defendant back with the proceeds before they

were arrested prior to their arrival in Memphis. 323

F.3d at 423. The defendant was convicted of attempt

to possess with intent to distribute methampheta-

mine in violation of 21 U.S.C. § 846, the same crime

at issue here. He argued that venue was improper in

the Western District of Tennessee since “he supplied

the drugs in question solely in Texas[] and without

traveling to Memphis.” Jd. at 422. The Sixth Circuit

panel in Zidell rejected that argument, and instead

looked at a broader scope of events, indicating that

App. 7

venue was established where the attempted distribu-

tion began in Memphis with the defendant’s meeting

with his associates, continued in Memphis because it

was the point of departure for his associates, and

terminated in Memphis since the defendant’s associ-

ates intended to return there to sell the metham-

phetamine.' Jd. at 423. Similarly, in the instant case,

Defendant met with Ward in the Eastern District of

Tennessee, Ward departed from the Eastern District

of Tennessee to purchase methamphetamine in

Georgia, and Ward intended to return to the Eastern

District of Tennessee to deliver the drugs to Defen-

dant for distribution.

' The court in Zidell also held that since “[t)he effects of the

attempted distribution, if successful, would have been felt in

Memphis,” venue was proper under a substantial contacts test.

323 F.3d at 423. While the court in Zidell seemingly analyzed

substantial contacts as a sufficient, alternative ground on which

to find venue, 323 F.3d at 423 (following an analysis of whether

venue is proper under § 3237(a), the court wrote: “[mlore

generally, we have evaluated challenges to venue under a

‘substantial contacts’ test ...”), other Sixth Circuit panels have

determined whether an offense was begun, continued, or

completed per § 3237(a) through the application of the substan-

tial contacts test. See United States v. Beddow, 957 F.2d 1330,

1335-36 (6th Cir. 1992); see generally United States v. Williams,

788 F.2d 1213, 1215 (6th Cir. 1986) (holding that venue gener-

ally is evaluated under substantial contacts in the Sixth Cir-

cuit). Like the United States Supreme Court in Cabrales, we

look only at locus delicti, determined from “‘the nature of the

crime alleged and the location of the act or acts constituting it,”

524 U.S. at 7 (quoting United States v. Anderson, 328 U.S. 699,

703 (1946)), which prescribes the constitutional minimums for

venue of Article III, § 2, cl. 3 and the Sixth Amendment, and the

statutory requirements of § 3237(a). 524 U.S. at 6-7.

App. 8

Because venue for the underlying offense — here

drug trafficking -— is appropriate in the Eastern

District of Tennessee, venue is proper for Count Five,

namely the carrying of a firearm during and in rela-

tion to a drug trafficking offense in violation of 18

U.S.C. § 924(c). See Rodriguez-Moreno, 526 U.S. at

281-82. Rodriguez-Moreno held that “[wlhere venue is

appropriate for the underlying crime” — in Rodriguez-

Moreno the crime was kidnaping — so too is venue

appropriate “for the § 924(c)(1) offense.” Id. There-

fore, venue is not improper as to both Count Four and

Count Five.

II. Variance as to Count One

Count One charged Defendant with conspiracy to

distribute and possession with the intent to distribute

1000 kilograms or more of marijuana. J.A. at 47. On

the verdict form, the jury checked the “Guilty” blank

as to Count One, but they also checked “100 kilo-

grams or more but less than 1000 kilograms” as to

the amount of marijuana. J.A. at 80. Defendant

argues that since the count itself was for 1000 kilo-

grams or more of marijuana but the amount determined

by the jury was between 100 and 1000 kilograms, there

was a “fatal variance between pleading and proof... .”

* That Rodriguez-Moreno dealt with an underlying crime of

violence — kidnaping — and the case before us deals with drug

trafficking is a distinction without a difference as they are both

continuing crimes that occur across geographic boundaries and

§ 924(c) makes carrying a gun a crime in relation to both.

App. 9

Def. Br. at 2. Defendant’s argument has been fore-

closed by United States v. Solorio, 337 F.3d 580

(2003).°

In Solorio, one count of the indictment alleged

that the defendant “conspired to possess with intent

to distribute 5 kilograms of cocaine,” but the jury

found the defendant guilty of “conspiring to possess

with intent to distribute 500 grams of cocaine.” 337

F.3d at 589. Solorio is “identical” to United States v.

Vazquez, 49 Fed. Appx. 550, 2002 WL 31367162

(6th Cir. 2002) (unpublished) which Solorio relies

upon.’ Solorio, 337 F.3d at 591. In both cases, the

indictment charged the defendant with one count of

conspiracy involving more than 5 kilograms under

§ 841(b)(1)(A); but having found the defendant guilty

of that count, the jury went on to specifically find that

‘

* Defendant also argues that, where “‘inconsistencies ...

indicate that the jury verdict was a product of irrationality,’ the

verdict must be set aside.” Def. Br. at 23 (quoting United States

v. Johnson, 223 F.3d 665, 675-76 (7th Cir. 2000)). However,

Johnson dealt specifically with a death penalty statute and

there are no inconsistencies in the jury findings here as there

were in Johnson where two separate jury forms which had some

of the exact same questions on both the jury marked with

different answers. /d.

* Although Solorio relied upon Vazquez, an unpublished

opinion, the precedential value of Solorio is not in question

because its reasoning is sound and the case is cited favorably by

United States v. Martinez, 430 F.3d 317 (6th Cir. 2005) (holding

that the defendant could be convicted on a conspiracy count even

where the indictment alleged greater quantities of narcotics

under § 841(b)(1)(A) than found by the jury in its special verdict

which corresponded to lesser penalties under § 841(b)(1)(B)).

App. 10

the defendant conspired to distribute more than 500

grams but less than 5 kilograms of cocaine, which

“made out the requirements of § 841(b)(1)(B).” Td.

Both courts held that this did not constitute a preju-

dicial variance nor was it a constructive amendment,

both of which might have called for reversal of the

district court. Id.

Nearly identically here, though Count One

charged Defendant with one count of. conspiracy

involving over 1000 kilograms of marijuana under

§ 841(b)(1)(A), the jury found that Defendant con-

spired as to between 500 grams and 1000 kilograms

of marijuana, making out the requirements under

§ 841(b)(1)(B). Then, as in Solorio and Vazquez, the

jury merely convicted Defendant of a lesser offense

necessarily included in the offense charged, permissi-

ble under Fed. R. Crim. P. 31(c)(1).° Defendant’s

ability to defend himself was left unaffected, which is

the underlying concern of both variance and construc-

tive amendment. /d. at 590.

Ill. Sentencing

Defendant’s remaining arguments concerning

sentencing all rely upon vacating Count One. Counts

* That rule reads: “A defendant may be found guilty of any

of the following: (1) an offense necessarily included in the offense

charged; (2) an attempt to commit the offence charged; or (3) an

attempt to commit an offense necessarily included in the offense

charged, if the attempt is an offense in its own right.” Fed. R.

Crim. P. 31(c).

App. 11

Five and Nine, Defendant argues, must be invali-

dated because they are premised upon Count One

and the sentence should be lowered accordingly. Since

Count One remains, the 480-month statutory mini-

mum stands. Remand for sentencing is inappropriate

because the statutory minimum is mandatory and a

district court is not permitted to depart below it. See

United States v. Hoosier, 442 F.3d 939, 944 (6th Cir.

2006).

IV.

For the foregoing reasons, we AFFIRM the

judgment of the district court.

App. 12

UNITED STATES DISTRICT COURT

Eastern District of Tennessee

UNITED STATES JUDGMENT INA

OF AMERICA CRIMINAL CASE

v. (For Offenses Committed

HARD GLEN URN On or After

_ “a a November 1, 1987)

Case Number:

2:05-CR-100-001

Alexander M. Salerno

Defendant’s Attorney

THE DEFENDANT:

| J pleaded guilty to count(s):

{ J] pleaded nolo contendere to count(s)

which was accepted by the court.

[“] was found guilty on Counts 1,2,4,5,6,7,8,9,10,11 of

the Superseding Indictment after a plea of not guilty.

ACCORDINGLY, the court has adjudicated that the

defendant is guilty of the following offense(s):

Title & Nature of Date Offense Count

Section Offense Concluded Number(s)

See next page.

The defendant is sentenced as provided in pages 2

through 7 of this judgment and the Statement of Rea-

sons. The sentence is imposed pursuant to the Sen-

tencing Reform Act of 1984 and 18 U.S.C. §3553.

[ | The defendant has been found not guilty on count(s) __

App. 13

[“] Count 3 of the Superseding Indictment [“]is[ ] are

dismissed on the motion of the United States.

IT IS ORDERED that the defendant shall notify

the United States Attorney for this district within 30

days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant shall

notify the court and United States attorney of any

material change in the defendant’s economic circum-

stances.

April 19, 2007

Date of Imposition of Judgment

s/ Leon Jordan

United States District Judge

Signature of Judicial Officer

LEON JORDAN,

United States District Judge

Name & Title of Judicial Officer

4-23-07

Date

App. 14

ADDITIONAL COUNTS OF CONVICTION

Title & Nature of Date Offense Count

Section Offense Concluded Numbers

21 U.S.C. Conspiracy to December 1, 1

§§ 846 and Distribute and 2005

841(b)(1)(B) Possession with

the Intent to

Distribute 100

Kilograms or

More of Mari-

juana

21 U.S.C. Conspiracy to December 1, 2

8§ 846 and Distribute and 2005

841(b)(1XA) Possession with

the Intent to

Distribute 500

Grams or More

of Metham-

phetamine

21 US.C. Attempt to December 1, 4

$§ 46 and Possess with the 2005

841(bX1XC) Intent to Dis-

tribute Metham-

phetamine

18 U.S.C. Carrying a December 1, 5,9

§ 924(c)(1) Firearm During 2005

and In Relation

to a Drug Traf-

ficking Offense

App. 15

21 US.C. Attempt to December 1, 6

§§ 846 and Possess with the 2005

841(b)(1XD) Intent to Dis-

and 18 U.S.C. tribute Mari-

§2 juana

21 US.C. Attempt to December 1, 7

§§ 846 and Possess with the 2005

841(b)1XA) Intent to Dis-

and 18 U.S.C. tribute 50

§2 Grams or More

of Metham-

phetamine

21 U S.C. Possession with December 1, 8

§§ 846 and the Intent to 2005

841(bX1KC) Distribute

Methampheta-

mine

26 U.S.C. Possession of an December 1, 10

§ 5861(d) Unregistered 2005

Short Barreled

Firearm

18 U.S.C. Possessing May 23, 2006 11

§ 1791(aX2) Contraband in

and (b\X(3) Prison

IMPRISONMENT

The defendant is hereby committed to the cus-

tody of the United States Bureau of Prisons to be

imprisoned for a total term of 480 months.

This sentence consists of a term of 120 months as

to each of Counts 1,2,4,7,8 and 10, to be served

[v)

[v]

B23

[ J

App. 16

concurrently; a term of 60 months as to each of

Counts 6 and 11, to be served concurrently; a

term of 60 months as to Count 5, to be served

consecutively to all other terms; and a term of

300 months as to Count 9, to be served consecu-

tively to all other terms for a total effective sen-

tence of 480 months.

The court makes the following recommendations

to the Bureau of Prisons:

The court recommends that the defendant receive

500 hours of substance abuse treatment from the

BOP Institution Residential Drug Abuse Treat-

ment Program. Furthermore, the court recom-

mends the defendant be designated to FMC

Lexington, KY.

The defendant is remanded to the custody of the

United States Marshal.

The defendant shall surrender to the United

States Marshal for this district:

[ J at { Jam. [ ] p.m. on

[ ] as notified by the United States Marshal.

The defendant shall surrender for service of

sentence at the institution designated by the

Bureau of Prisons:

[ ] before 2 p.m. on

[ ] as notified by the United States Marshal.

[ ] as notified by the Probation or Pretrial Ser-

vices Office.

App. 17

RETURN

I have executed this judgment as follows:

Defendant delivered on 7/6/07 to AP

at Coleman, FL with a certified copy of this judgment.

/s/ Michael W. Garrett,

Complex Warden

EPRAFRR SEARS MARSHAL

By /s/ L. [Illegible]

DEPUTY UMFED

SPATES-MARSHAL

App. 18

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

GREENEVILLE

UNITED STATES OF AMERICA _ )

V. :

VICTOR HUGO VARGAS ) 2:05-CR-100

SIDNEY CHARLES TERRELL ) JUDGE GREER

RICHARD GLEN MILBURN )

JAMES FRANKLIN DEVOTIE i+)

SUPERSEDING INDICTMENT

COUNT 1

The Grand Jury charges that beginning ap-

proximately the month of January, 1995, and continu-

ing to on or about December 13, 2005, within the

Eastern District of Tennessee, and elsewhere, the

defendants, VICTOR HUGO VARGAS, SIDNEY

CHARLES TERRELL, RICHARD GLEN MILBURN,

JAMES FRANKLIN DEVOTIE, and the following

defendants named but not charged in this supersed-

ing indictment, LOUIS ANTONIO MEDINA, DOUG

KEITH DAVIS, ERIC PHILLIP SHAWBACK, MI-

CHAEL DAMON BAWGUS, MARK ALLEN SAULTS,

SHANNON LUTTRELL, ROBERT ANTHONY HAMP-

TON, and DEREK ANTHONY KEYS, also known as

TONY, TRAVIS BROWN, and other persons known

and unknown to the Grand Jury did knowingly,

intentionally and without authority combine, con-

spire, confederate and agree with each other and with

diverse other persons to commit the following offenses

App. 19

against the United States of America: The distribu-

tion and possession with the intent to distribute a

thousand kilograms or more of a mixture and sub-

stance containing a detectable amount of marijuana,

a Schedule I, controlled substance, in violation of

Title 21, United States Code, Section 841(a)(1).

PURPOSE

The conspiracy consisted of the defendants

VICTOR HUGO VARGAS, SIDNEY CHARLES

TERRELL, RICHARD GLEN MILBURN, JAMES

FRANKLIN DEVOTIE, and the following defendants

named but not charged in this superseding indict-

ment, LOUIS ANTONIO MEDINA, DOUG KEITH

DAVIS, ERIC PHILLIP SHAWBACK, MICHAEL

DAMON BAWGUS, MARK ALLEN SAULTS, SHAN-

NON LUTTRELL, ROBERT ANTHONY HAMPTON,

and DEREK ANTHONY KEYS, also known as TONY,

TRAVIS BROWN, and other persons known and

unknown to the Grand Jury whose primary purpose

was to expand and promote an illegal business activ-

ity deriving profits from the illegal distribution and

possession with the intent to distribute a thousand

kilograms or more of marijuana.

COUNT 9

The Grand Jury further charges that on or about

December 1, 2005, in the Eastern District of Tennes-

see, the defendant, RICHARD MILBURN, did know-

ingly and intentionally carry two firearms during and

App. 20

in relation to a drug trafficking offense, as alleged in

Counts 1, 2, 6, 7, and 8, that is, a violation of Title 21,

United States Code, Sections 841(a)(1) and 846.

FORFEITURE ALLEGATION

As a result of committing the violation of Title 18,

United States Code, Section 924(c), as alleged in

Count 9 of this Indictment, pursuant to Title 18,

United States Code, Section 924(d)(1), and Title 28,

United States Code, Section 2461(c), the Defendant

RICHARD GLEN MILBURN, shall forfeit to the

United States all firearms and ammunition involved

and used in the knowing commission of the offense of

Title 18, United States Code, Section 924(c), including

but not limited to his interest in the Tanfoglio Model

GT27, .25 caliber pistol, serial number M05030 and

the Beretta Model 92FS, 9mm pistol, serial number

BER142285.

[18 U.S.C. §§ 924(c)(1), 924(d)(1), 28 U.S.C. § 2461(c)]

ok ok Bo

App. 21

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

AT GREENVILLE

UNITED STATES OF AMERICA

v.

RICHARD GLEN MILBURN

)

No. 2:05-CR-100

)

VERDICT FORM

We, the members of the jury, find unanimously

from all the evidence as follows:

1. As to Count 1 of the superseding indictment,

charging a violation of 21 U.S.C. § 846 (conspiracy to

distribute and to possess with the intent to distribute

marijuana), we find the defendant RICHARD GLEN

MILBURN

NOT GUILTY

Y GUILTY

Only if you have found the defendant GUILTY of

Count 1, please consider the following:

l(a). We, the members of the jury, find unani-

mously and beyond a reasonable doubt that the

amount of marijuana the defendant conspired to

distribute and to possess with the intent to distribute

was:

App. 22

__ 1000 kilograms or more

100 kilograms or more but less

¥ than 1000 kilograms

less than 500 kilograms

* **