Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-21-2006
USA v. Hodge
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3443
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 05-3443
UNITED STATES OF AMERICA
v.
ALEX HODGE,
Appellant
On Appeal from the District Court
of the Virgin Islands
(D.C. Criminal No. 99-cr-00066)
District Judge: Hon. Raymond L. Finch, Chief Judge
Argued May 11, 2006
BEFORE: FISHER, COWEN and ROTH,* Circuit Judges
(Filed: August 21, 2006)
Natalie N. Tang How, Esq.
27 & 28 King Cross Street
Christiansted, St. Croix
USVI, 00820
*The Honorable Jane R. Roth assumed senior status on May 31, 2006.
Richard F. Della Fera, Esq. (Argued)
Entin, Margules & Della Fera
110 Southeast 6th Street
Suite 1970
Fort Lauderdale, FL 33301
Counsel for Appellant
Denise A. Hinds-Roach, Esq. (Argued)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI, 00820
Counsel for Appellee
OPINION
COWEN, Circuit Judge.
Defendant Alex Hodge appeals his conviction and sentence contending that there
was insufficient evidence for a jury to find that he possessed more than 50 grams of
cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and that the District
Court erred by failing to consider his argument about the sentencing disparities between
crack cocaine and powder cocaine. We will affirm.
I.
Because the parties are familiar with the facts, we only briefly recite them here.
On July 19, 1999, government agents were conducting surveillance on King Street and
observed Hodge and a known drug dealer talking. The agents saw Hodge reach into his
pants to retrieve something and believed that Hodge was about to consummate a drug
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transaction. When the agents approached Hodge, he ran and threw away plastic bags
retrieved from the front of his pants. After the agents subdued Hodge, they found two
plastic bags containing 25.8 grams of crack cocaine. The agents arrested Hodge and
obtained a warrant to search his home. Agents searched Hodge’s bedroom and found
14.5 grams of crack cocaine hidden in a man’s bathrobe and 9.1 grams of marijuana in a
man’s shirt pocket. In the kitchen, the agents discovered three plastic bags in a cupboard
containing 391.7 grams of cocaine base and 80.1 net grams of powder cocaine. They also
found an Ohause scale and a police scanner.
Hodge was indicted in the District Court of the Virgin Islands. Among other
offenses, count two charged him with possession and an intent to distribute over 5 grams
of a mixture or substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B)(iii); count four charged him with possession and an intent to distribute over
50 grams of a mixture or substance containing cocaine base in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(A)(iii); count five charged him with possession and an intent to
distribute over 50 grams of a mixture substance containing cocaine base within one
thousand feet of a public school in violation of 21 U.S.C. §§ 860 and 841(a)(1) and
(b)(1)(A)(iii); and count six charged him with possession of marijuana in violation of 21
U.S.C. § 844(a).
After a jury trial, Hodge was found guilty of counts four, five, and six for the drugs
found at his home within 1000 feet of a school. He was found not guilty of count two for
the drugs seized after the King Street arrest. During the sentencing hearing, Hodge
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argued that the sentencing guidelines imposed disparate sentences for crack cocaine and
powder cocaine. He asserted that the quantity of crack to cocaine ratio of 100:1 was
unjust and that the court should adopt the sentencing commission’s proposed 10:1 ratio
instead. He requested that he be sentenced to the minimum mandatory of ten years. The
government argued that there were no mitigating circumstances to take the sentence
outside of the 151 to 188 months guideline range. The government further noted that
Hodge sometimes shared the home where the drugs were found with a preteen daughter
and that the home was located catacorner to a school. The District Court decided to apply
the 151 to 188 range and sentenced Hodge to 166 months because Hodge was not
remorseful despite his repeated involvement with drugs.
II.
We have jurisdiction over the District Court’s order of judgment and conviction
pursuant to 28 U.S.C. § 1291. We have jurisdiction to review Hodge’s sentence for
unreasonableness pursuant to 18 U.S.C. § 3742(a)(1).
Hodge first contends that the government failed to prove that he possessed over 50
grams of a mixture or substance containing cocaine base to sustain his conviction under
count four. “In reviewing a jury verdict for sufficiency of the evidence, we must consider
the evidence in the light most favorable to the government and affirm the judgment if
there is substantial evidence from which a rational trier of fact could find guilt beyond a
reasonable doubt.” United States v. Haywood, 363 F.3d 200, 204 n.3 (3d Cir. 2004)
(internal quotations and citation omitted). “The burden on a defendant who raises a
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challenge to the sufficiency of the evidence is extremely high.” United States v. Lore,
430 F.3d 190, 203-04 (3d Cir. 2005) (internal quotations and citation omitted).
In the present case, Hodge argues that the government improperly combined the
amount of cocaine base seized after his King Street arrest with the amount of cocaine
base found at his home to establish count four of the indictment. Hodge’s argument is
without merit. During the trial, the government presented evidence that police searched
his house and found 391.7 grams of cocaine base and 80.1 grams of powder cocaine in
plastic bags located in the kitchen. The police also found 14.5 grams of crack cocaine in
his bedroom. After reviewing the record, we find that a rational jury could find that
Hodge possessed over 50 grams of cocaine base to sustain the conviction for count four.
Hodge next contends that the District Court erred by failing to consider his
argument that the Guidelines impose an unjust disparity in sentences with crack cocaine
and powder cocaine. During the sentencing hearing, Hodge urged the District Court to
adopt the Sentencing Commission’s recommendation in a policy report that the 100-to-1
quantity ratio between crack and powder cocaine be lowered. The District Court did not
adopt the Sentencing Commission’s recommendation.
When reviewing a district court’s sentence, we must determine whether the
sentence is reasonable under Booker. To be reasonable, the “[t]he record must
demonstrate the trial court gave meaningful consideration to the § 3553(a) factors,” which
include the range suggested by the sentencing guidelines. United States v. Cooper, 437
F.3d 324, 329 (3d Cir. 2006). We then consider whether the District Court gave
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“meaningful consideration” to the § 3553(a) factors and to “any sentencing grounds
properly raised by the parties which have recognized legal merit and factual support in the
record.” Id. at 329, 332. Finally, we consider whether the District Court “reasonably
applied [the § 3553(a) factors] to the circumstances of the case.” Id. at 330. The party
that challenges the sentence has the burden of proving that it is unreasonable. See id. at
332.
In the present case, the District Court heard arguments from the government and
Hodge regarding the § 3553(a) factors. After hearing the arguments, the District Court
noted that the guideline ranges are advisory and accepted the applicable guideline range
of 151-188 months. The District Court sentenced Hodge to 166 months and noted that
Hodge expressed no remorse for his actions and that he is a repeat offender. The court
further stated that there were no mitigating circumstances in his case. After reviewing the
record, we find this sentence reasonable. We make no general pronouncements here
about the 100-1 crack-powder ratio or the sentencing Commission’s recommendations to
Congress regarding the ratio. Under Booker, the Guidelines are no longer binding
positive law, and we review sentences simply for the reasonableness of the sentence
imposed and the adequacy of the district court’s explanation of that sentence. This is of
necessity, a case-by-case inquiry. In our decisions applying Booker, we have not held,
nor do we now hold, that district courts must apply the 100-1 ratio in crack cases, nor that
it is per se reasonable, or unreasonable, to do so. We also have not held, nor do we hold
today, that district courts must, or must not, consider the Sentencing Commission’s
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recommendations to Congress in their sentencing deliberations. We hold only that, on
this record, the sentence imposed was reasonable and the District Court gave an adequate
explanation of its reasons.
III.
For the reasons set forth above, we will affirm Hodge’s conviction and sentence.
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