Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-7-2005
USA v. Coffey
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3128
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 03-3128
UNITED STATES OF AMERICA
v.
TRAVIS COFFEY,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 01-cr-00457-11)
District Judge: Hon. James T. Giles
Submitted Under Third Circuit LAR 34.1(a)
July 15, 2004
Resubmitted Under Third Circuit LAR 34.1(a)
February 16, 2005
Before: SLOVITER, BARRY and WEIS, Circuit Judges
(Filed: July 7, 2005)
OPINION OF THE COURT
1
SLOVITER, Circuit Judge.
Appellant Travis Coffey was found guilty, following a jury trial, of conspiracy to
distribute over 50 grams of cocaine base (“crack”) within 1,000 feet of a school, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), 860, and 846 (Count 1), carrying a
firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) (Count
9), and two counts of possession with intent to distribute cocaine base (“crack”), in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Counts 15 and 20). The District Court
had jurisdiction under 18 U.S.C. § 3231. This court has jurisdiction to review this matter
under 28 U.S.C. § 1291, and jurisdiction to review the sentence imposed on Coffey under
18 U.S.C. § 3742.
I.
Coffey was a member of the “Do or Die” (“D.O.D.”) narcotics group, a violent
narcotics organization led by Daniel Coach, Jr. The organization, which operated from
early 1992 through May 28, 2001, consisted of numerous members who manufactured
and distributed crack cocaine in North Philadelphia. The D.O.D. was responsible for
distributing in excess of 250 kilograms of crack cocaine, and had gross revenues
exceeding $20,000,000.
During this conspiracy, the D.O.D. stored, manufactured, prepared and distributed
crack cocaine from or near buildings owned or controlled by some of the managers,
including Coffey. It operated through an established hierarchy. At the top of the D.O.D.
2
were the “Owners,” principally Daniel Coach, Jr. Other members, including Coffey,
shared partial ownership of the organization during the conspiracy. Below the owners
were the “Managers,” who were each responsible for the overall management of one of
the properties used by the D.O.D. to distribute crack cocaine. The “Enforcers” were
responsible for protecting the distribution corners, and carried firearms while providing
security. “Caseworkers” were responsible for delivering bundles of crack to the sellers at
the distribution properties and returning the cash to a Manager or to Coach. The
“Packagers” were responsible for placing the crack cocaine into the $3 bags or vials.
“Sellers” conducted the transactions. Finally, “Lookouts” alerted other members to the
presence of police, rival drug dealers, or other threats.
The organization sold crack cocaine from various locations in North Philadelphia
year round. In aggregate, they sold between $3,000 to $4,000 and $10,000 to $12,000 per
day. On average, the organization sold approximately nine to ten kilograms of crack
cocaine per month from 1992 to 2001. Two locations used for the sale of this crack
cocaine are located within 1,000 feet of a school zone.
Coffey served as an enforcer for the D.O.D. organization at various time periods
throughout the life of the conspiracy and at different locations used by the D.O.D. until
May of 1999. In this role, Coffey guarded the locations and street corners where the
organization stored and processed cocaine into crack cocaine as well as distributed it to
customers. Coffey was also identified as the co-owner of the D.O.D.’s operation located
3
at 19th and Somerset.
Coffey, as an enforcer, routinely carried firearms to protect the business. During
the conspiracy, Coffey was involved in the 1995 shooting of rival drug dealers at 20th and
Susquehanna, Park Avenue and York Street, and 7th and Montgomery Avenue; the
February 17, 1997 shooting of Raymond Moore and Jerry Shorter; and the May 20, 1998
shooting of Brian Kee at Warnock and Cambria Streets. Coffey owned a house near 9th
and Wyoming Streets where the D.O.D. organization stored drugs, drug proceeds,
firearms, and bagged crack cocaine for distribution.
On August 8, 2001, a grand jury in the Eastern District of Pennsylvania returned a
16-count indictment charging 12 defendants, including Coffey, with conspiracy to
distribute cocaine base and other offenses. Coffey was charged in the four counts noted
above. Eight of the defendants pled guilty and were cooperating with the prosecution
when jury selection began. Four days before opening statements were scheduled, Coach,
one of the remaining defendants, pled guilty and cooperated with the prosecution. The
jury returned a verdict of guilty on all charges against the three remaining defendants.
The District Court imposed a sentence on Coffey of 42 years imprisonment, concurrent
terms of 37 years imprisonment for the drug-related offenses covered by Counts 1, 15,
and 20, and a consecutive five-year sentence on the possession of a firearm during a drug-
related offense covered by Count 9. The court also imposed a lifetime term of supervised
release, a $3,500 fine, and a special assessment of $400.
4
After filing a timely appeal, defense counsel filed a motion to withdraw as counsel
and a brief in support of that motion pursuant to Anders v. California, 386 U.S. 738, 744
(1967). Under Anders, if, after review of the district court record and a conscientious
investigation, counsel is convinced that the appeal presents no issue of arguable merit,
counsel may properly ask to withdraw while filing a brief referring to anything in the
record that might arguably support the appeal. Id. at 741-42, 744. To satisfy the Anders
requirements, appellant’s counsel must “satisfy the court that he or she has thoroughly
scoured the record in search of appealable issues” and then “explain why the issues are
frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000) (citing United
States v. Tabb, 125 F.3d 583, 585-86 (7th Cir. 1997)). We have stated that:
The Court's inquiry when counsel submits an Anders brief is thus twofold:
(1) whether counsel adequately fulfilled [Third Circuit Local Appellate
Rule 109.2's] requirements; and (2) whether an independent review of the
record presents any nonfrivolous issues.
United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Appellant Coffey has been
notified that he can file a pro se brief, and he has done so in this case, along with a motion
for appointment of new counsel. We exercise plenary review of the court record to
determine whether an appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80
(1988).
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II.
Coffey’s attorney has fulfilled his duty under Anders. The appeal was timely,
there is a certificate of service, and the requirements of Local Appellate Rule 109.2 have
been satisfied. The Anders brief references numerous portions of the trial testimony that
show that any appeals on the merits would be frivolous.
As counsel has correctly stated, the evidence against Coffey was “stupendously
overwhelming.” Appellant’s Brief at 13. Most of the evidence against Coffey came from
his co-conspirators, including Coach who owned and ran the organization, who testified
for the prosecution. The following is just a sample of the incriminating testimony given
at trial.
Anthony Martinez testified that he saw and heard Coffey shoot Brian Kee in the
leg and tell him “Smoke[, Coach,] wants you to give that shit up,” on May 20, 1998, App.
at 50a-51a; and that Coffey sold drugs at 19th and Somerset from 1996 to 1999, App. at
54a.
Vincent Jones testified that the D.O.D. stored guns, drugs, and money at Coffey’s
house at 9th and Wyoming Streets, App. at 57a; and that he witnessed transfers of large
quantities of crack cocaine from Coach to Coffey, App. at 58a.
William Rodriguez testified that he bagged crack cocaine at Coffey’s house for
about two months in 1995, App. at 59a-60a; that he witnessed Coffey, among others,
leaving the house at 3115 Hutchinson Street for a shooting expedition and Coffey
6
returning after having been shot in the arm, App. at 61a-63a, referring to the shooting on
February 17, 1997; that he was present when Coffey shot Kee and that he heard Coffey
say, “you’re going to have to give that shit up,” App. at 64a-65a, referring to the drug
operation at the corner of Warnock and Cambria; and that he observed Coffey managing
the drug distribution property at 19th and Somerset and counting money at his house at
9th and Wyoming. App. at 67a-68a.
Troy Anderson testified that Coffey was an enforcer in the D.O.D organization and
also ran the drug corner at 19th and Somerset, App. at 70a-71a; that he saw Coffey
receive crack cocaine from Coach at least seven times, App. at 72a, which was then sold
at the 19th and Somerset location, App. at 73a; and that he saw guns, crack cocaine, and
the bagging of crack cocaine at Coffey’s house at 9th and Wyoming, App. at 74a.
William Smith gave substantially similar testimony regarding the illegal guns and
drugs at Coffey’s house. App. at 74a. Smith testified that the crack bagged there was
transferred to 19th and Somerset for sale. App. at 75a. Smith knew that Coffey ran the
drug operation at 19th and Somerset and that Coffey had participated in the shooting at
20th and Susquehanna, App. at 76a-77a, and that Coach told him that Coach was “in
cahoots” with Coffey’s operation at 19th and Somerset. App. at 78a.
Kyhree Junius and Clifton Junius testified that Coffey sold drugs at 19th and
Somerset and stored drugs, guns, and money at his house. App. at 79a-84a.
Officer Fredericksdorf testified that he found 33 packets of crack cocaine in
7
Coffey’s pocket when Coffey was arrested on December 12, 2000. App. at 85a.
Coach testified that he and Coffey took part in the shooting of rival drug dealers at
13th and Somerset on February 19, 1997, App. at 91a; that he and Coffey sold crack
cocaine at 19th and Somerset from 1993 to 1996, App. at 92a; that for six months in
1999, he and Coffey and Coach were partners in the sales of crack cocaine at 19th and
Somerset, App. at 92a; and that he sold crack cocaine to Coffey from 1994 to 1997 and
that he lived with Coffey for two years during the conspiracy, App. at 94a-95a.
Finally, Kenyatta Muhammad testified that Coffey controlled the corner at 19th
and Somerset and sold crack cocaine there, App. at 96a; that he saw Coffey shoot Kee,
App. at 97a; and that the drug organization was selling $12,000 a day worth of drugs at
Warnock and Cambria, App. at 98a.
In the face of the evidence outlined above, any appeal on the merits of the case
would be frivolous, particularly as the witnesses gave substantially similar testimony
about the same events. Moreover, the physical evidence of crack cocaine found in
Coffey’s possession at the time of at least one of his arrests corroborates the testimony.
Therefore, Coffey’s attorney did not err in arguing that there were no non-frivolous
grounds on which to appeal the conviction.
III.
As noted, Coffey was sentenced to a total term of forty-two years imprisonment to
be followed by supervised release for a term of life. The District Court further imposed a
8
fine and a special assessment. Thereafter, the United States Supreme Court issued its
opinion in Blakely v. Washington, 542 U.S. 296 (2004), where it applied the rule
announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), holding that under the Sixth
Amendment the jury must decide beyond a reasonable doubt any fact that is used to
enhance a defendant’s sentence beyond the statutory maximum. In Blakely, the Court
applied the Apprendi rule to a state’s sentencing guidelines. Less than a year later, it
issued its decision in United States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005), where
the Court held, inter alia, that the United States Sentencing Guidelines were no longer to
be considered mandatory but were discretionary.
None of those decisions affects the five year sentence imposed on Coffey for his
conviction on Count 9, possession of a firearm during and in relation to a drug trafficking
offense, because the statutory minimum punishment for that offense is five years under 18
U.S.C. § 924(c)(1)(A)(i). On the other hand, our review of the record in this case shows
that the District Court set Coffey’s sentence at least in part on the Sentencing Guidelines,
apparently applying them as mandatory. If so, the sentencing would violate Booker.
This court has concluded that sentencing issues such as those presented here are best
determined by the District Court in the first instance. United States v. Davis, 407 U.S.
162 (3d Cir. 2005) (en banc).
For the reasons set forth we will affirm the District Court’s judgment of conviction
and remand to the District Court for its determination of the sentence in light of Booker.
9
IV.
For the reasons set forth, we will affirm the District Court’s judgment of
conviction but will vacate the sentence and remand for resentencing pursuant to Booker.
_________________________