NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0692n.06
Filed: August 10, 2005
No. 04-5764
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, On Appeal from the
Plaintiff-Appellee, United States District Court for the
Western District of Tennessee
v.
JERRY NORFLEET,
Defendant-Appellant.
Before: KENNEDY and MOORE, Circuit Judges; and RESTANI, Judge.*
KENNEDY, Circuit Judge. The Defendant appeals his conviction and sentence for
conspiracy to possess with intent to distribute in excess of five kilograms of cocaine in violation of
21 U.S.C. § 846, the object of which was the commission of an offense in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2. The Defendant raises the following arguments. First, he claims that
the district court erred in denying his motion to suppress all physical evidence on the ground that
he was unlawfully seized when the vehicle in which he was a passenger was stopped without
reasonable suspicion of criminal wrongdoing, and that, even if reasonable suspicion did exist to stop
the vehicle, his subsequent detention ripened into an unlawful arrest without probable cause. The
Defendant argues that the district court also erred in denying his motion to suppress recorded
*
The Honorable Jane A. Restani, Chief Judge for the United States Court of International
Trade, sitting by designation.
1
telephone conversations he made while in jail because, he asserts, the recorded conversations were
obtained as a result of a McLaughlin violation since he was detained for more than forty-eight hours
without being brought to a magistrate for a probable cause determination. Next, the Defendant
asserts that the government presented insufficient evidence for any rational trier of fact to find him
guilty. Finally, the Defendant contends that the district court erred in enhancing his sentence for
obstruction of justice and in calculating his base offense level under the guidelines. For the
following reasons, we AFFIRM the Defendant’s conviction, VACATE the Defendant’s sentence,
and REMAND for re-sentencing consistent with United States v. Booker, 125 S. Ct. 738 (2005).
BACKGROUND
On the evening of December 7, 2000, Sergeant Mark Calvi, a drug detector dog handler,
received information that an employee of the U-Stor storage facility in Shelby County, Tennessee,
discovered a large sum of cash hidden inside unit T-12 at the U-Stor facility. Since the storage
unit’s lessee had become delinquent in his payments, a U-Stor employee sought to determine if the
lessee had vacated the unit. To do so, the employee cut off the lessee’s lock, opened the unit’s gate,
discovered that the unit had not been vacated, and replaced the lessee’s lock with one of U-Stor’s
locks.1 On the morning of December 8, 2000, Sgt. Calvi detailed his drug detection dog on various
units in the U-Stor facility and received a positive alert on two units, unit T-12 and unit K-3. After
receiving these positive alerts, Sgt. Calvi contacted Officer Bierbrodt and requested that he obtain
search warrants for those units. He also contacted additional officers to assist him in executing the
1
U-Stor employees find that it is common for lessees who have vacated their units to
nonetheless place their lock on the unit after vacating. If, after removing the lessee’s lock, the U-
Stor employee finds that the lessee has not vacated the unit, then the U-Stor manager will write to
the lessee informing him that he must either pay up on the unit or remove his contents or that the
contents will be auctioned off.
2
warrant upon its receipt. These officers positioned themselves in a parking lot of a grocery store
adjacent to the U-Stor facility. Meanwhile, the manager of the U-Stor told Sgt. Calvi that some men
had come to the U-Stor office on the evening of December 7, 2000, and paid cash to restore the lease
on unit T-12. The manager described the vehicle they were driving as a “gold SUV type vehicle.”
The men also purchased a new lock from the U-Stor facility. After paying up on the unit and
purchasing the new lock, the men requested that they be allowed to put their new lock on the unit.
Although the men were permitted to put their lock on the unit, which they did, the manager informed
them that they still could not immediately gain access to the unit’s contents since only the regional
manager had the key to the lock that the U-Stor employee had put on the unit that morning, and that
he, the local manager, would not be able to get that key until the next day.
While the officers waited for the search warrant, a bronze or gold Ford Explorer drove up
to the U-Stor lot and stopped at the entrance gate. The manager told Sgt. Calvi that he believed that
this vehicle was the same one that he had seen the previous day when the men had renewed unit T-
12's lease. To gain access to the storage facility, one has to input a code at the entrance gate. Each
storage unit is assigned a unique code. The driver entered a valid code. Later, the officers learned
that the driver had entered the code assigned to unit K-3, the other unit to which the drug detection
dog had alerted. After gaining entrance, the Explorer drove toward building T. Sgt. Calvi then
called the other officers in to do a take-down to investigate the occupants of the SUV. The officers
followed the Explorer which stopped in front of the T building. After positioning vehicles both in
front and behind the Explorer to prevent any potential escape, the officers approached the Explorer
with their guns drawn, ordered the occupants, who consisted of the driver, Darelle Jones, and the
lone passenger, the Defendant, from the vehicle, patted them down, handcuffed them, and placed
them in one of the officers’ vehicle. In order to secure the scene, the officers transported the
3
Explorer, Jones, and Defendant to the parking lot of the grocery store across the street. When they
arrived at the grocery store parking lot, Sgt. Calvi detailed his narcotics detection dog around the
Ford Explorer and the dog gave a positive alert. The officers searched the vehicle and found two
kilogram wrappers containing cocaine residue. The officers also found Coastal transmission fluid
in the rear seat, and two keys, one of which opened the lock that had been placed on unit T-12 the
day before.
A short time later, Officer Bierbrodt arrived with search warrants for units T-12 and K-3.
Inside unit T-12, officers found several boxes of Coastal transmission fluid, and inside one of the
transmission fluid boxes was approximately $56,000 in cash. Officers found a copy of the lease for
the unit, which indicated the lessee was Marcus Brown. The address on the lease agreement was
the same address as the Defendant’s. In unit K-3, the officers found several boxes of Coastal
transmission fluid, a cooler containing four kilograms of cocaine, digital scales, and a lease
agreement, which indicated the lessee was Nathaniel Phillips.
After his arrest, the Defendant was brought to Shelby County Jail and booked on Friday,
December 8, 2000, at 6:24 p.m. While held at the Shelby County jail, the Defendant made five
telephone calls, all between the time of 6:30 a.m. and 7:00 a.m. on Saturday, December 9. The calls
were recorded and contain numerous inculpatory statements. There are several signs posted near
the telephones at the jail that notify the inmates that their telephone calls are subject to monitoring
and recording. Moreover, when the recipient of an inmate’s call accepts the call (all calls from the
jail are collect calls), an audible recording is heard by both participants to the call that informs them
that the call is subject to monitoring and recording.
4
After the jury found the Defendant guilty of conspiracy to possess with intent to distribute
in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2, this appeal followed
ANALYSIS
I. Motions to Suppress
A. Physical Evidence
We first consider whether the district court erred in denying the Defendant’s motion to
suppress all physical evidence on the ground that the officers lacked reasonable suspicion to detain
the vehicle in which the Defendant was a passenger, and that the Defendant’s detention ripened into
an unlawful arrest.2 We review a district court’s factual findings concerning a motion to suppress
for clear error and its determination as to the existence of reasonable suspicion de novo. United
States. v. Jacob, 377 F.3d 573, 577 (6th Cir. 2004).
An investigatory stop of a vehicle is permissible under the Fourth Amendment if supported
by reasonable suspicion of criminal wrongdoing. Terry v. Ohio, 392 U.S. 1, 22 (1968). Since an
investigatory stop is less intrusive to one’s personal security than an arrest, the level of suspicion
2
The Defendant also argues that the physical evidence should not have been admitted at trial
because, he contends, the government failed to establish chain of custody over the evidence. We
review this claim for abuse of discretion. United States v. Levy, 904 F.2d 1026, 1030 (6th Cir. 1990).
The Defendant argues that although Detective Selby was the evidence custodian in this case, the
government established custody only through the testimony of Officer Bierbrodt, whose name did
not appear anywhere on the evidence tags. Physical evidence is admissible when the possibilities
of alteration or misidentification “are eliminated, not absolutely, but as a matter of reasonable
probability.” United States v. McFadden, 458 F.2d 440, 441 (6th Cir. 1972). The district noted that
since Detective Selby had died before trial, the government could establish custody through
someone who had personal knowledge of the transactions that Detective Selby recorded. The
government offered Officer Bierbrodt as someone who had personal knowledge of Detective Selby’s
handling of the evidence in this case. The district court concluded that since the government was
able to account for each time period of custody regarding the evidence in this case, it eliminated as
a matter of reasonable probability that the evidence was somehow altered or misidentified. The
district court did not abuse its discretion in reaching this conclusion.
5
necessary for such a stop is thus “considerably less than proof of wrongdoing by a preponderance
of the evidence.” United States v. Sokolow, 490 U.S. 1, 7 (1989). For purposes of determining
whether reasonable suspicion exists, the Supreme Court has instructed that a reviewing court must
consider the “totality of circumstances . . . to see whether the detaining officer has a particularized
and objective basis for suspecting legal wrongdoing.” United States v. Arivizu, 534 U.S. 266, 273
(2002) (quotation marks omitted).
The Defendant argues that the district court erred in denying his motion to suppress all
physical evidence since, he claims, the officers lacked reasonable suspicion to stop the vehicle in
which he was a passenger. Thus, we must consider whether the Defendant was unlawfully detained,
and, if so, whether the discovered evidence was a fruit of that unlawful detention. United States v.
Smith, 263 F.3d 571, 594 (6th Cir. 2001); United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir.
1996). Because we conclude that the Defendant was not unlawfully detained, we need not address
whether the discovered evidence was a fruit of an unlawful detention.3
It is clear, in considering all the factors, that the officers had reasonable suspicion to stop the
vehicle in which the Defendant was a passenger. After receiving the information that a large amount
of cash was discovered in unit T-12 at the U-Stor facility by one of its employees, Sgt. Calvi’s drug
detection dog gave a positive indication to the odor of narcotics in that unit. The U-Stor facility
manager told Sgt. Calvi that men in a gold SUV type vehicle had come to the U-Stor facility the
3
Although the Defendant in his brief argues that all the physical evidence should have been
suppressed, we note that even if we were to hold, infra, that the Defendant was unlawfully detained,
that conclusion would not require the suppression of all the physical evidence. First, the evidence
obtained from the storage units was not a fruit of the Defendant’s claimed unlawful detention as a
search warrant had already been sought for those units at the time of his detention. Moreover, the
Defendant lacks standing to argue that the search itself of the Explorer was unlawful. He can of
course, and he does, argue that the evidence obtained from the Explorer was a fruit of his purported
unlawful detention.
6
previous night to pay up on that unit. While Sgt. Calvi was with the U-Stor manager, a gold Ford
Explorer entered a valid access code at the entry gate and entered the facility. The manager told Sgt.
Calvi that that vehicle was the same one he had seen the previous night. Upon receipt of this
information, the officers followed the Ford Explorer, which drove to building T. At this point, the
officers seized the vehicle. Clearly, at the moment the officers seized the vehicle, reasonable
suspicion existed to believe that the men in the Ford Explorer were possibly engaged in criminal
wrongdoing since a reasonable officer could conclude that the men were associated with unit T-12,
which they had been told by the facility’s manager contained a significant sum of cash, and to which
a drug detection dog had given a positive indication of the presence of narcotics.
The Defendant also argues that even if there were reasonable suspicion to detain the vehicle,
his subsequent detention ripened into an unlawful arrest without probable cause since the officers
approached the vehicle he was in with their guns drawn, ordered the occupants out of their vehicle,
handcuffed them, placed them in back of a patrol car, and drove them to the parking lot of a grocery
store next to the U-Stor facility. Whether a detention based upon reasonable suspicion ripens into
an unlawful arrest without probable cause depends upon whether the officers’ conduct in detaining
a defendant and in investigating the suspected crime was reasonable under the circumstances.
United States v. Sharpe, 470 U.S. 675, 683 & 686 (1985); Jacob, 377 F.3d at 579 (noting that, in
determining whether a detention ripens into an unlawful arrest, the issue is “whether the
investigators’ conduct in detaining the defendants and in pursuing a means of investigation that was
likely to confirm or dispel their suspicions quickly was reasonable under the circumstances”).
Moreover, we have noted, “the degree of force utilized by officers during a detention must be
‘reasonably related in scope to the situation at hand.’” United States v. Heath, 259 F.3d 522, 530
(6th Cir. 2001) (quoting United States v. Hardnett, 804 F.2d 353, 356-57 (6th Cir. 1986)).
7
The officers’ decision to approach the vehicle with their guns drawn, order the men out of
the vehicle, pat them down for weapons, and to handcuff them was reasonable, as concern for the
officers’ safety was at its height under those circumstances. This Court has concluded that officers
who stop a person who is reasonably believed to be either carrying or dealing drugs “are ‘entitled
to rely on their experience and training in concluding that weapons are frequently used in drug
transactions,’ and to take reasonable measures to protect themselves.” Jacob, 377 F.3d at 579
(quoting Heath, 259 F.3d at 530). It was also reasonable under the circumstances for the officers
to place the Defendant and Jones in a patrol car and to move them across the street in order to
maintain the integrity of the scene where the search warrant would be executed and to clear the
scene in case someone else, such as a co-conspirator, drove up, during the ongoing investigation.
When the officers moved the Defendant, the driver, and the vehicle across the street, Sgt. Calvi
promptly detailed his drug detection dog around the vehicle and received a positive alert. This
provided the officers with probable cause to search the vehicle. Upon the search of the vehicle, the
officers discovered kilogram cocaine wrappers and a key to unit T-12. At this point, the officers had
probable cause for the Defendant’s arrest. Since the officers’ conduct in detaining the Defendant
and in pursuing a means of investigation that was likely to confirm or dispel their suspicions quickly
was reasonable under the circumstances, we conclude that the Defendant’s detention did not ripen
into an unlawful arrest.
B. Recorded Jail Telephone Conversations
We next consider whether the district court erred in denying the Defendant’s motion to
suppress all the recorded telephone calls he made while in jail. The Defendant submits that, since
he was not arrested pursuant to a warrant, the failure to bring him in front of a magistrate within
forty-eight hours after his arrest for a probable cause determination violated the Fourth Amendment.
8
See County of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991). The Defendant argues that “but for
this illegal detention, the government would not have been able to obtain the jail house recordings.”
The Supreme Court has concluded that although the Fourth Amendment permits warantless
arrests, persons arrested without a warrant must be promptly brought in front of a magistrate for a
probable cause determination. Gerstein v. Pugh, 420 U.S. 103, 114 (1975). In McLaughlin, the
Court defined what is “prompt” under Gerstein. 500 U.S. at 47, 56. The Court concluded that “a
jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will,
as a general matter, comply with the promptness requirement of Gerstein.” McLaughlin, 500 U.S.
at 56. The Court went on to note that when “an arrested individual does not receive a probable cause
determination within 48 hours, . . . the burden shifts to the government to demonstrate the existence
of a bona fide emergency or other extraordinary circumstance.” Id. at 57.
The Defendant was booked into the Shelby County Jail at 6:24 p.m. on Friday, December
8, 2000. He was not taken before a magistrate until 10:28 a.m. on Monday, December 11, 2000.
Thus, he was detained without a probable cause determination for sixty-four hours.4 Since the
Defendant was held in excess of forty-eight hours without a judicial determination as to probable
cause, the burden shifts to the government to demonstrate an extraordinary circumstance to justify
the delay. It has failed to do so. The fact that the Defendant’s detention occurred over a weekend
is not an excuse. See Id. (noting that intervening weekends do not qualify as an extraordinary
4
Although the record indicates that he was booked at 6:24 p.m. on Friday, December 8, it
does not indicate when he was actually arrested, which would have occurred when the officers
discovered the cocaine wrappers and residue in the Ford Explorer. Obviously, this occurred
sometime before he was booked. Since the clock for determining whether an arrested individual
received a “prompt” judicial determination of probable cause starts running the moment the
individual is arrested, the Defendant was held without a judicial determination of probable cause for
some amount of time in excess of sixty-four hours.
9
circumstance). We conclude, therefore, that the Defendant’s Fourth Amendment right to be free
from unreasonable seizures, as set forth in McLaughlin, was violated.
This conclusion, however, does not dictate that the Defendant’s recorded conversations made
while in jail must be suppressed. The Defendant made the five telephone calls over a half hour time
period from 6:30 a.m. to 7:00 a..m. on Saturday December 9th, 2000. When he made these calls, he
had only been in custody for a little over twelve hours. Since these telephone calls were made
before the McLaughlin violation occurred, they cannot be a fruit of his unlawful detention, as his
detention did not become unlawful until approximately thirty-six hours after he made the calls. See
United States v. Fullerton, 187 F.3d 587, 591 (6th Cir. 1999) (concluding that the suppression of
evidence obtained before the occurrence of a McLaughlin violation is not appropriate since such
evidence is not obtained as a result of the violation).
II. Sufficiency of Evidence
We next consider whether the government offered sufficient evidence for a rational trier of
fact to find beyond a reasonable doubt that the Defendant both conspired to distribute in excess of
five kilograms of cocaine and aided and abetted the possession of a controlled substance intended
for distribution. When a defendant challenges his conviction on the basis of insufficiency of the
evidence, we must determine “whether after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Bashaw, 982 F.2d 168, 171 (6th Cir. 1992) (internal quotation
marks and citation omitted). Moreover, we draw all reasonable inferences from the evidence in
favor of the government. Id.
To convict the Defendant of conspiring to distribute a controlled substance and aiding and
abetting the possession of a controlled substance intended for distribution, the government must
10
establish the following. First, to sustain a drug conspiracy conviction under 21 U.S.C. § 846, the
government must prove beyond a reasonable doubt “that a conspiracy existed, that the accused knew
of the conspiracy, and that [the accused] knowingly and voluntarily joined it.” United States v.
Avery, 128 F.3d 966, 970 (6th Cir. 1997). The government need not prove the existence of a formal
agreement; rather, “a tacit or material understanding among the parties will suffice.” Id. at 970-71.
“The existence of a conspiracy may be inferred from circumstantial evidence that can reasonably
be interpreted as participation in the common plan.” Id. at 971. Next, to sustain the aiding and
abetting the possession of a controlled substance for distribution charge under 18 U.S.C. § 2, the
government must prove that the Defendant knew that the principal possessed drugs with intent to
distribute and that the Defendant assisted in the distribution plan. United States v. Pena, 983 F.2d
71, 72 (6th Cir. 1993).
The Defendant argues that the government presented insufficient evidence to support a
finding of guilt on either the charge of conspiring to distribute in excess of five kilograms of cocaine
or on the charge of aiding and abetting the possession of cocaine intended for distribution. The
Defendant asserts that the evidence presented at trial establishes that the Defendant was merely
riding in Jones’ vehicle. He notes that mere association with someone who possesses or deals drugs
is insufficient to prove a conspiracy. See United States v. Gibbs, 182 F.3d 408, 422 (6th Cir. 1999).
We conclude that the government offered sufficient evidence for a rational trier of fact to
find the Defendant guilty beyond a reasonable doubt of both conspiracy to distribute in excess of
five kilograms of cocaine and of aiding and abetting the possession of cocaine intended for
distribution. The government introduced evidence connecting the Defendant to both units T-12 and
K-3. Upon search of the Explorer, officers not only discovered a key to the lock on unit T-12, a unit
which contained $56,000 in cash and Coastal transmission fluid boxes, but also kilogram cocaine
11
wrappers and additional Coastal transmission fluid boxes. Although the lease agreement for unit
T-12 named Marcus Brown as the lessee, the address on the agreement was the same as the
Defendant’s.
Most damaging to the Defendant’s sufficiency argument, however, are the recordings of the
five calls that he made while in jail. In the first recorded call, the Defendant instructs a female friend
to tell “Mar” to deny knowledge of Nathaniel Williams and to have Mar say that he got the storage
unit in November and that some money was seized from it. He further instructs his female friend
to inform Mar to deny having any knowledge as to what was in the storage unit. The Defendant also
instructs her to tell Mar that “they” are going to ask Mar who the Defendant is and why Mar and the
Defendant have the same address. The Defendant tells her what Mar should say if questioned. The
Defendant also instructs her to tell Mar to say that Mar got the storage unit to store lawnmower
equipment. Moreover, he instructs her to say that he works in landscaping and to tell Marcus that
“they” had to cut the locks in the storage room, because they did not find keys.
In the second telephone call, the Defendant instructs his female friend to hide money and to
remove a gun from the house and throw it in the garbage somewhere. He also tells her to tell Marlo
to say that he (Marlo) does not know Nathaniel Williams, and to tell individuals that “we ain’t
snitched on them.” He further expresses his desire to have individuals deny knowledge as to drug
dealing. In other calls played for the jury, the Defendant requests his female friend to tell
individuals to deny knowing Marcus Brown or Nathaniel Williams and that Nathaniel’s name is not
Nathaniel Williams, but Nathaniel Phillips. Moreover, the Defendant requests that evidence that
might connect him to the storage unit be removed.
From these calls, and from the physical evidence introduced, a juror could certainly conclude
that the Defendant not only participated in a conspiracy to distribute cocaine, but also sought to have
12
it succeed. In light of this evidence, we conclude that the government introduced sufficient evidence
for a rational trier of fact to find the Defendant guilty beyond a reasonable doubt.
III. Sentencing
The Defendant argues that the district court erred in both calculating his base offense level
and in enhancing his sentence for obstruction of justice. While this case was on appeal, the
Supreme Court decided United States v. Booker, 125 S. Ct. 738, which held that the Sixth
Amendment as construed in Blakely v. Washington, 124 S. Ct. 2531 (2004), applied to the federal
sentencing guidelines. 125 S. Ct. at 755-56. Thus, Booker made applicable to the Guidelines the
Supreme Court’s past holding that “[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts established by a plea of guilty
or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt”
or else the Sixth Amendment is violated. Id. at 756. Since the Defendant failed to raise a
Blakely/Booker challenge to his sentence in district court, we can reverse only upon a showing of
plain error. Webb, 403 F.3d at 380.
In this case, the district court found, based upon the telephone calls that the Defendant made
while in jail, that the Defendant obstructed the administration of justice and increased the
Defendant’s offense level by two levels pursuant to U.S.S.G. § 3C1.1. Thus, based on facts that
were neither admitted by the Defendant nor presented to a jury, the applicable sentencing range was
increased. The district court’s reliance on judge-found facts to increase the Defendant’s sentence
violated the Sixth Amendment. We thus vacate the Defendant’s sentence and remand for re-
sentencing. See United States v. Oliver, 397 F.3d 369, 378.
While remand for re-sentencing is required under Booker, we consider the Defendant’s
claims regarding the district court’s application of the Guidelines since the district court will need
13
to consider the correct Guideline-recommended sentence in fashioning its own post-Booker sentence
on remand. See United States v. McDaniel, 398 F.3d 540, 551 (6th Cir. 2005).
The Defendant’s claims that the district court erred in applying the Guidelines are without
merit. The Defendant first argues that the district court erred in applying the obstruction of justice
enhancement pursuant to U.S.S.G. § 3C1.1. Section 3C1.1 provides for a two-level increase if a
defendant “willfully obstructed or impeded . . .the administration of justice during the investigation,
prosecution, or sentencing of the instant offense.” After reviewing the transcripts of the phone calls
that the Defendant made in jail, the district court concluded that the Defendant clearly attempted to
obstruct justice. In the phone calls, the Defendant consistently requested that his female friend assist
him in providing false information and suborning perjury. The Defendant offers no argument in
refutation. The district court did not err in applying the enhancement.
The Defendant also argues that the district court erred in assigning him a base offense level
of 32. A defendant is assigned a base offense level of 32 when it is found that he possessed at least
five but less than fifteen kilograms of cocaine. U.S.S.G. § 2D1.1(c)(4). In finding a base level of
32, the district court found that the Defendant was responsible for at least five kilograms of cocaine,
and thus fell within § 2D1.1(c)(4)’s five to fifteen kilogram range.5 In addition to the four
5
Although the indictment on which the jury found the Defendant guilty charged the
Defendant with conspiring to possess with intent to distribute in excess of five kilograms of cocaine,
the jury never made (or was asked to make) a finding as to the quantity of cocaine that the Defendant
possessed. Rather, the district court judge instructed the jury as follows: “You will note that the
indictment charges that a particular amount of cocaine was the object of the conspiracy. It is not
necessary that the government prove an exact quantity of cocaine. It is sufficient if the government
proves beyond a reasonable doubt that a measurable quantity of cocaine was the object of the
conspiracy.” Prior to the giving of these instructions, the parties had agreed to bifurcate the
conspiracy charge issue from the quantity issue. That is, if the jury found the Defendant guilty on
the conspiracy charge, the parties then planned to have the jury decide the quantity of cocaine the
Defendant possessed. After the Defendant was found guilty, however, the jury was never asked to
find the quantity of cocaine the Defendant possessed. At the sentencing hearing, Defendant’s
counsel noted to the judge that “we did not ask [the jury] to make a specific finding as to quantity.”
14
kilograms of cocaine found in unit K-3, the district court found that the Defendant could be held
responsible for either an additional two kilograms of cocaine due to the two individual kilogram
wrappers found in the Explorer or for an additional three kilograms of cocaine due to the $56,000
seized in unit T-12, which converted into three kilograms of cocaine. The Defendant asserts that
the district court erred in holding him accountable for three kilograms of cocaine because of the
$56,000 found in unit T-12 and for two kilograms of cocaine because of the two kilogram cocaine
wrappers discovered in the Explorer. He only argues, however, “that there was insufficient evidence
. . . linking Defendant’s alleged drug activities to the money.” He does not explain why it was
erroneous for the district court to hold him accountable for two kilograms due to the two individual
kilogram wrappers found in the Explorer. Thus, even excluding the “cash equivalent” three
kilograms, the Defendant would still have been held accountable for 6 kilograms of cocaine, which
would have resulted in the same base level of 32, since 6 kilograms falls within the 5 to 15 kilogram
range provided by U.S.S.G. § 2D1.1(c)(4). In any event, the district court properly held the
Defendant accountable for the “cash equivalent” three kilograms because, as outlined above in the
Sufficiency section of this opinion, the government offered sufficient evidence for the district court
to conclude that the money seized was linked to the Defendant’s drug activities.
The district court judge replied that the indictment, which he read to the jury, charged that the
Defendant conspired to distribute in excess of five kilograms of cocaine “but, of course, when we
gave the instructions [to the jury], we talked about the standard instructions.” The judge continued
by noting that “[i]t is sufficient [for conviction] if the government proves beyond a reasonable doubt
that a measurable amount of cocaine was the object of the conspiracy, and that was stated . . . and
I think everybody was clear that that was the instruction that was desired in the case.” The district
court judge went on to find “by a preponderance of the evidence” that the quantity of cocaine the
Defendant was responsible for exceeded five kilograms. This finding then, made when the
Guidelines were mandatory, violated the Defendant’s Sixth Amendment right.
15
IV. For the foregoing reasons, we AFFIRM the Defendant’s conviction, VACATE the
Defendant’s sentence, and REMAND for re-sentencing in light of this opinion and the Supreme
Court’s opinion in Booker.
16