United States v. Caldwell

UNITED STATES COURT OF APPEALS
Filed 4/17/96 TENTH CIRCUIT
_____________________

THE UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee-Cross-Appellant, )
)
v. ) No. 95-1003
) No. 95-1023
DEDRICK SHAWN CALDWELL ) (D.C. No. 94-CR-210-Z)
) (D. Colo.)
Defendant-Appellant-Cross-Appellee. )

_____________________

ORDER AND JUDGMENT*
_____________________

Before PORFILIO, HENRY, and BRISCOE, Circuit Judges.

Defendant Dedrick Shawn Caldwell appeals his conviction and sentence for

unlawful possession with intent to distribute and distribution of more than five grams of

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 18 U.S.C. § 2. The United States

has filed a cross-appeal challenging the district court’s calculation of Caldwell’s sentence.

For reasons stated below, we affirm Caldwell's conviction and remand for resentencing.

I.

On November 3, 1992, undercover Drug Enforcement Administration (DEA) task

force officer Brad Maerz and an informant named “Ray Ray” met with Victor Dickerson.

Maerz and Ray Ray informed Dickerson that Maerz was interested in purchasing one

ounce of crack cocaine. Dickerson responded that he did not have the cocaine, but could

*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.
take them to a place where it could be obtained. Dickerson, Maerz, and Ray Ray traveled

in Dickerson’s car to a residence at 2237 Lafayette Street, Denver, Colorado. Upon

arriving at the residence, Dickerson introduced Maerz and Ray Ray to a woman later

identified as Jamie Fusco. Fusco informed the men that she would have to page her

source, “Tim.” After receiving a return telephone call, Fusco informed Maerz that she

needed $1,050, and Maerz gave her the money.

Shortly thereafter, a man identified as Tim arrived at the back door of Fusco’s

residence. Fusco opened the door and Tim entered the residence and handed her

packages of crack cocaine wrapped in plastic. Tim walked into the living room and

introduced himself to Maerz. After asking Maerz if he was a cop and if he had a gun or

was wearing a wire, Tim began to frisk Maerz. Maerz replied that he was not a cop and

was not wearing a gun or a wire. Tim asked Maerz where he was selling the crack and

for what price. Maerz replied that he sold crack in “northwest Denver” for “350 or $400

for a quarter ounce.” R. 3 at 100. Apparently satisfied with Maerz’ responses, Tim

backed away and began playing with Fusco’s child.

Fusco then entered the room and gave Maerz a package which was later tested and

found to contain 28.25 grams of cocaine base. Maerz asked Tim “if this was a full ounce,

if he was sure that it was a full ounce and did anybody have any scales.” R. 3 at 102.

Tim asked Maerz why he was questioning him, because he didn’t “sell dope.” Id. Maerz,

Ray Ray, and Dickerson left Fusco’s residence. Fusco gave Tim the money she had

received from Maerz, and Tim gave Fusco $30 to $40.

Fusco and Dickerson were arrested at a later date, pled guilty to the offense of

November 3, 1992, and were sentenced to prison. In return for reductions in their

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sentences, both Fusco and Dickerson cooperated with the government. On five or six

separate occasions between November 3, 1992, and July 1994, Special Agent John Hick

showed photographs to Maerz in an attempt to identify the man named Tim, but Maerz

was unable to identify any of the persons in the photographs. No records were

maintained by Hick or Maerz of these identification efforts.

In July 1994, Fusco contacted Hick and gave him information regarding the

individual she knew as Tim. In particular, Fusco told Hick that Tim had been arrested

recently by Arapahoe County authorities for assault of an acquaintance of hers. Hick

discovered the acquaintance had filed a complaint against a man named Dedrick Shawn

Caldwell. Hick obtained photographs of Caldwell from the Arapahoe County Sheriff’s

Department and the Denver Police Department. On July 20, 1994, Hick showed the

photographs of Caldwell to Maerz, explained how he obtained the photographs, and

asked Maerz, “[I]s this Tim?” Maerz identified the person in the photographs as Tim.

On July 21, 1994, Caldwell was indicted by a federal grand jury, and on July 28,

1994, Hick and Maerz participated in Caldwell's arrest. Following the arrest, Hick

advised Caldwell of his Miranda rights. Caldwell stated “he understood those rights and

. . . would be willing to answer some questions,” but would “not be willing to answer

other questions.” R. 4 at 237. When asked by Hick if he had any sources in St. Louis,

Caldwell said he did not know anyone in St. Louis. When asked by Hick if he had

sources in Los Angeles, Caldwell declined to answer. Maerz asked Caldwell if he

remembered him, to which Caldwell initially responded "no". Maerz then said: “Sure you

do. Remember over on Lafayette Street?” R. 3 at 104-05. Caldwell responded “Oh,

yeah,” and began talking about Fusco and the sentence she received. In particular,

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Caldwell stated Fusco “got a raw deal out of that.” R. 3 at 105. Maerz asked Caldwell

how he got to Fusco’s residence because the surveillance officers outside the residence

did not see him. Caldwell stated he took a cab to the house. Caldwell further stated that

Maerz must have thought he was “a big-time dope dealer” because of the way he was

dressed that day. R. 3 at 105.

Caldwell subsequently filed a number of pretrial motions, including a motion to

suppress his post-arrest statements and a motion to suppress Maerz’ pretrial identification

of him. After hearing testimony from Maerz and Hick, the district court denied both

motions. The government then filed an information pursuant to 21 U.S.C. § 851, alleging

that Caldwell had a prior drug felony conviction that would enhance the statutory

sentence. In particular, the information indicated that “[o]n or about February 20, 1986,

. . . in the Superior Court in the County of Los Angeles, the Defendant was convicted by

way of his plea of guilty, of a violation of California Health and Safety Code § 11352,

sale of a controlled substance (cocaine), a felony pursuant to California Penal Code § 17.”

R. 1, doc. 33.

Caldwell’s criminal jury trial began on October 24, 1994. During trial, Fusco,

Dickerson, and Maerz testified and identified Caldwell as the individual they knew as

Tim who was present at Fusco’s residence on November 3, 1992. R. 3 at 102, 107; R. 4

at 168-69, 203-04. Evidence was completed on October 25, 1994, and the jury was

instructed and began its deliberations that same day. At approximately 4 p.m. on October

26, 1994, the jury sent a note to the district court stating: “We request information from

[the courtroom deputy clerk] or [the trial judge] on hung jury.” R. 5 at 270. After

conferring with counsel, the district court brought the jury into the courtroom, and

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instructed them as follows:

The Court has been notified that the jury wants an instruction on hung
juries. The Court wishes you to continue your deliberations, keeping in mind the
following:
(1) as jurors, you have a duty to consult with one another and to deliberate
with a view to reaching an agreement if it can be done.
(2) Each of you must decide for yourself but only after an impartial
consideration with your fellow jurors;
(3) In the course of deliberation, you should not hesitate to reexamine your
own views and change your opinion if convinced it is erroneous, and
(4) None of you should surrender your honest conviction as to the weight
or effect of the evidence solely because of the opinions of your fellow jurors or for
the sole purpose of returning a verdict.

R. 5 at 274. In addition, the district court made the following comments to the jury:

I would like to add one other thought myself from experience in the past,
and that is when you go back to the jury room to continue your deliberations, could
you just go around the circle, let every juror have his or her say briefly without any
interruption from anyone else. And after you’ve gone around and everyone has
had a short say without interruption, then continue your deliberations.

R. 5 at 274-75.

On October 27, 1994, at approximately 2:55 p.m., the jury returned a guilty verdict

against defendant Caldwell. On December 19, 1994, Caldwell was sentenced to a term of

260 months. During sentencing, the district court rejected Caldwell’s request for a

downward departure from career offender status, as well as the government’s request to

sentence Caldwell within a range of 360 months to life.

II.

On appeal, Caldwell contends the district court erred (1) in denying his motion to

suppress Maerz’ pretrial and in-court identifications of him; (2) in denying his motion to

suppress post-arrest statements made to Hick and Maerz; (3) in charging the jury with a

modified Allen instruction and then adding its own suggestions about the appropriate

method of resuming deliberations; and (4) in refusing to grant his motion for a downward

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departure from career offender status. We address these contentions in order.

A. Maerz’ identification of Caldwell.

Caldwell argues the pretrial identification procedures used by Hick, i.e., showing

Maerz only photographs of Caldwell while simultaneously asking him, “[I]s this Tim,”

were unduly suggestive and unreliable, and that Maerz’ out-of-court and in-court

identifications should not have been admitted into evidence at trial. Because the

constitutionality of identification procedures is a mixed question of law and fact, Sumner

v. Mata, 455 U.S. 591, 597 (1982), we review de novo the ultimate issue of the

constitutionality of identification procedures, while we review for clear error the

underlying factual basis for the district court’s decision. United States v. Kimball, 73

F.3d 269, 272 (10th Cir. 1995).

In examining the constitutionality of a pretrial identification procedure, we engage

in a two-step analysis. Grubbs v. Hannigan, 982 F.2d 1483, 1489 (10th Cir. 1993). First,

we determine whether the procedure was unnecessarily suggestive. Id. If we determine

that the procedure was unnecessarily suggestive, we must then decide whether the

identification was reliable under the totality of the circumstances. Id. at 1489-90. The

Supreme Court has identified five factors to be considered in determining the reliability

of a pretrial identification: (1) the opportunity of the witness to view the criminal at the

time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his or her prior

description of the criminal; (4) the level of certainty demonstrated by the witness at the

identification; and (5) the length of time between the crime and the identification. Neil v.

Biggers, 409 U.S. 188, 199-200 (1972).

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 Assuming, without deciding, that the pretrial identification procedures used by

Hick were unnecessarily suggestive, we conclude that Maerz’ identification of Caldwell

was still reliable. First, as noted by the district court, Maerz was an experienced police

officer who, during the course of the November 3, 1992, drug deal, had “close face-to-

face contact and conversation with the person” named Tim for approximately three to five

minutes. R. 2 at 51. Moreover, although not specifically stated in the record, it is

apparent that Maerz “was a trained police officer who realized that later he would have to

find and arrest the person with whom he was dealing.” Manson v. Brathwaite, 432 U.S.

98, 108 (1977). Accordingly, “he could be expected to pay scrupulous attention to

detail.” Id. at 115. Second, Maerz’ prior description of Tim, i.e., “a young light-skinned

man of color whose hair on top was somewhat thin,” was somewhat generic, but

nevertheless accurate. R. 2 at 51. Third, the district court concluded Maerz was

“confident and certain about his identification,” R. 2 at 52, and we find nothing clearly

erroneous about this factual determination. Moreover, we note that “[t]here is no dispute

that the photograph[s] in question [were] of [defendant].” Brathwaite, 432 U.S. at 115.

Finally, although approximately twenty months had passed between the time of the crime

and the identification, this alone does not render Maerz’ identification unreliable.

Because Maerz’ pretrial identification was reliable in view of the totality of the

circumstances and outweighed any corruptive influence created by the pretrial

identification procedures, we conclude admission of this evidence at trial did not infringe

upon Caldwell’s constitutional rights.

In light of our conclusions concerning the reliability of Maerz’ pretrial

identification, and because Caldwell has not asserted a separate basis for challenging

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Maerz’ in-court identification, we conclude there was no error on the part of the district

court in allowing Maerz to identify Caldwell during trial.

B. Caldwell’s post-arrest statements to Hick and Maerz.

Caldwell next contends the district court erred in denying his motion to suppress

post-arrest statements he made to Hick and Maerz. Caldwell argues the statements were

unconstitutionally obtained because they were made in response to questions asked by the

officers after he had invoked his Miranda rights. According to Caldwell, the officers

should have ended the interrogation after he advised them that he did not want to talk.

The district court denied Caldwell’s motion to suppress after hearing testimony

from Maerz. Based upon this testimony, the district court concluded as follows:

The Court will also deny the motion to suppress the statements. The
testimony at this point is credible that Mr. Maerz heard the Miranda
warnings being given to defendant. Defendant actually decided not to
discuss one area with the law enforcement officials, didn’t want to talk
about Los Angeles. They didn’t pursue it. But the conversation about
whether Mr. Caldwell remembered Mr. Maerz from the Lafayette [Street]
incident [on November 3, 1992] was answered, and the Court finds no
reason to suppress that, since full warnings were given.

R. 2 at 52.

When reviewing the denial of a motion to suppress evidence, we accept the district

court’s findings of fact unless clearly erroneous, but review de novo the district court’s

legal conclusions. United States v. Baez-Acuna, 54 F.3d 634, 636 (10th Cir. 1995).

Upon arrest, a defendant must be advised of his rights before law enforcement

officers begin interrogation. Miranda v. Arizona, 384 U.S. 436, 467-74 (1966). If a

defendant submits to questioning after receiving Miranda warnings, the government has

the burden to establish that the defendant voluntarily, knowingly, and intelligently waived

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his right to remain silent. Colorado v. Connelly, 479 U.S. 157, 168 (1986); Moran v.

Burbine, 475 U.S. 412, 421 (1986). Waiver must be established by a preponderance of

the evidence. Connelly, 479 U.S. at 168-69.

We find no basis for disturbing the district court’s factual findings or legal

conclusions. Our review of the record reveals a sufficient basis for the district court to

conclude that Caldwell was properly advised of his Miranda rights. Likewise, there is a

sufficient basis in the record for concluding that, after receiving the Miranda warning

from Hick, Caldwell voluntarily, knowingly, and intelligently decided to waive his rights

and talk to Hick and Maerz. We conclude the district court did not err in denying

Caldwell’s motion to suppress.

C. The district court’s instructions to the jury.

Caldwell asserts the district court erred when, after receiving a note from the jury

requesting information on a hung jury, it gave a modified Allen instruction to the jury.

See Allen v. United States, 164 U.S. 492 (1896). More specifically, Caldwell asserts the

court’s instructions and comments to the jury had “an impermissibly coercive effect.”

Appellant’s br. at 26.

The purpose of an Allen instruction is to encourage a unanimous verdict. United

States v. Smith, 857 F.2d 682, 683 (10th Cir.1988). We have traditionally urged caution

in the use of the Allen instruction. United States v. Butler, 904 F.2d 1482, 1488 (10th

Cir.1990). "The preferred rule of procedure is to give an Allen instruction at the same

time as other instructions; however, this is not a per se rule." United States v.

Rodriguez-Mejia, 20 F.3d 1090, 1091 (10th Cir.), cert. denied, 115 S.Ct. 640 (1994). We

9
review whether an Allen instruction was erroneously given on a case-by-case basis with a

view toward determining whether the instruction had a coercive effect on the jury. Id.

Factors to be considered in determining whether an Allen charge is coercive include "(1)

[t]he language of the instruction; (2) its incorporation with other instructions; and (3) the

timing of the instruction." United States v. Porter, 881 F.2d 878, 888 (10th Cir.), cert.

denied, 493 U.S. 944 (1989).

We conclude the modified Allen instruction given by the district court and the

court’s accompanying comment to the jury were neutral and were no more prejudicial to

Caldwell than to the government. The instruction and the comment were given only after

the jury specifically requested information “on hung jury.” Further, neither the

instruction nor the comment was prejudicial or coercive on its face. In fact, the modified

Allen instruction made clear that no juror was expected to yield any conscientious

conviction as to the evidence.

D. Downward departure from career offender status.

Caldwell contends the district court should have granted his motion for a

downward departure from his original classification as a career offender. Caldwell

asserts two alleged grounds for departure: (1) placing him in the career offender category

results in an over-representation of his criminal history score under U.S.S.G. § 4A1.3; and

(2) a downward departure was warranted under U.S.S.G. § 5K2.0 because the Sentencing

Commission did not adequately consider the disproportionate treatment of drug offenders

sentenced to the same penalty range for offenses involving drug quantities of

exceptionally different magnitudes.

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 Section 4A1.3 of the Sentencing Guidelines authorizes a downward departure from

the guideline range if a defendant's criminal history is overstated. See United States v.

Maldonado-Campos, 920 F.2d 714, 719-20 (10th Cir.1990). Section 5K2.0 of the

Sentencing Guidelines allows a downward departure if the court finds there exists an

aggravating or mitigating circumstance "of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission in formulating the guidelines and that

should result in a sentence different from that described."

Here, the district court recognized its discretionary authority to depart downward

from the guideline range, but found no basis for doing so. R. 7 at 307. Under these

circumstances, we have no jurisdiction to review the court's discretionary refusal to depart

downward. United States v. Lloyd, 13 F.3d 1450, 1454 (10th Cir.1994); United States v.

Diggs, 8 F.3d 1520, 1526 (10th Cir.1993); United States v. Mendoza-Lopez, 7 F.3d 1483,

1486 (10th Cir.1993), cert. denied, 114 S.Ct. 1552 (1994).

III.

In its cross-appeal, the government argues the district court erred, at the time of

sentencing, in relying upon Application Note 2 to U.S.S.G. § 4B1.1 (career offender), as

amended by the Sentencing Commission on November 1, 1994 (amendment 506).

According to the government, the Commission violated its statutory authority to assure

sentences for career offenders that are “at or near the maximum term authorized,” 28

U.S.C. § 994(h), by amending Application Note 2 to require sentencing courts to rely

upon unenhanced statutory maximum penalties rather than enhanced statutory maximum

penalties in calculating career offender offense levels. Thus, the government argues,

amended Application Note 2 is invalid and should not be applied in sentencing a career

11
offender such as Caldwell.

Before directly addressing the government’s arguments, it is necessary to briefly

review the relevant procedural aspects of this case. Prior to trial, the government filed a

notice under 21 U.S.C. § 851(a)(1) signaling its intention to seek enhanced penalties due

to Caldwell’s prior state drug conviction. The effect of this notice was to raise the

statutory maximum penalty for the charged offense from 40 years to life imprisonment.

See 21 U.S.C. § 841(b)(1)(B). At the time of sentencing, the government urged the

district court to use the enhanced maximum statutory penalty, i.e., life imprisonment, in

determining defendant’s career offender offense level under U.S.S.G. § 4B1.1. The

district court, however, relied upon the unenhanced maximum statutory penalty, i.e., 40

years, as directed by amended Application Note 2 to § 4B1.1. Accordingly, the district

court determined Caldwell’s career offender offense level to be 34 rather than 37 as

argued by the government. The accompanying guideline range under the offense level

calculated by the district court was 262 to 327 months. Under the government’s proposed

calculations, the accompanying guideline range would have been 360 months to life

imprisonment.

In United States v. Novey, ___ F.3d ___, 1996 WL 115326 (10th Cir. 1996), we

addressed the validity of the Sentencing Commission’s November 1, 1994, amendments

to Application Note 2. In Novey, we concluded the amendments were inconsistent with

the clear directive of 28 U.S.C. § 994(h), and were “therefore invalid as beyond the scope

of the Commission’s authority delegated to it by Congress.” Id. at ___; 1996 WL 115326

*3.

Consistent with Novey, we agree with the government in this case that the district

12
court erred in relying upon the amendments to Application Note 2 to determine Caldwell's

career offender offense level. Accordingly, we conclude it is necessary to remand this

case to the district court for resentencing.

IV.

Caldwell's convictions are AFFIRMED and this case is REMANDED for

resentencing consistent with this court's recent ruling in Novey.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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