United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3835
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United States of America, *
*
Plaintiff – Appellee, *
*
v. *
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John Bolden, also known as JB, *
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Defendant – Appellant. *
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Appeals from the United States
No. 08-3872 District Court for the
___________ Northern District of Iowa.
United States of America, *
*
Plaintiff – Appellee, *
*
v. *
*
Zechariah Benjamin, also known as Boo, *
*
Defendant – Appellant. *
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Submitted: October 22, 2009
Filed: March 8, 2010
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Before BYE, BEAM, and SHEPHERD, Circuit Judges.
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BYE, Circuit Judge.
John Bolden and Zechariah Benjamin were found guilty on multiple counts by
a jury for their role in a conspiracy to distribute and possess with intent to distribute
crack cocaine. The district court1 sentenced Bolden and Benjamin each to life
imprisonment. Bolden and Benjamin appeal their convictions and sentences. We
affirm.
I
Bolden and Benjamin are two of five individuals charged in a ten-count
indictment filed January 29, 2008. Their arrests stemmed from five controlled
purchases conducted by a confidential informant for law enforcement officers. Before
each transaction, the informant spoke with Bolden over the telephone to arrange the
purchase. During the first transaction on November 29, 2007, the informant
purchased 2.7 grams of cocaine base (commonly known as crack cocaine) at an
apartment in Cedar Rapids, Iowa. Bolden answered the door to let the informant in
the apartment, after which the informant obtained a plastic baggie containing the crack
cocaine from Wilson Cleaves, while Bolden sat in a chair having his hair done by
Clarence Ross. On December 4, 2007, the informant made a second purchase of 6.4
grams of cocaine base at the apartment. Bolden again opened the door for the
informant while Ross took the informant's money and Cleaves provided the cocaine.
A third purchase occurred at the apartment on December 13, 2007, during which the
informant purchased 5.2 grams of crack cocaine and had a conversation with
Benjamin about why she was not able to purchase a grater amount. Benjamin
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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explained their supplies were running low at the time. On December 17, 2007,
Cleaves and Benjamin sold 7.28 grams of crack cocaine to the informant at the
apartment. Finally, on December 18, 2007, Benjamin sold 10.7 grams of crack
cocaine to the confidential informant at the apartment.
On December 19, 2007, a DEA Task Force and the Cedar Rapids Police
Department executed a search warrant at the apartment. Pursuant to the search,
officers seized 38.9 grams of crack cocaine, a digital scale with white residue on it,
a safe, a firearm holster, and more than $6,000 in cash. Bolden, Cleaves, and Ross
were present at the apartment and were arrested at that time. Benjamin was arrested
the same day at a different location.
At trial, the government offered several individuals as witnesses, including
Pepper Hines, a cooperating defendant who made several purchases from Bolden, and
Ross and Cleaves, who had been indicted with Bolden and Benjamin. Approximately
midway through the trial, during a break, Bolden's girlfriend approached and spoke
with two jurors outside the courtroom for approximately five minutes. After learning
of the conversation, the court questioned the first juror, who indicated she spoke with
Bolden's girlfriend about the weather and did not know her identity or relation to
Bolden. Upon a similar inquiry to the second juror, the court determined the second
juror spoke with Bolden's girlfriend for a longer period of time about more personal
matters, such as the juror's husband's car accident. The second juror also learned the
woman was Bolden's girlfriend. The government was concerned of potential bias
resulting from the latter conversation because it argued the personal information could
be perceived as a threat or as a means to obtain sympathy for Bolden. Bolden's
counsel did not object to excusing the juror, but Benjamin's counsel argued the court
should give the juror an instruction not to consider the relationship in her
deliberations. The court ultimately allowed the first juror to return to the jury, but
excused the second juror due to her knowledge of the identity of Bolden's girlfriend.
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The jury found Bolden guilty of all five counts he was charged with, including:
(1) distribution of 2.7 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(C) (Count I); (2) distribution and aiding and abetting the distribution
of 5 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B), and 18 U.S.C. § 2 (Counts II and VIII); (3) possession with intent to
distribute and aiding and abetting the possession with intent to distribute 5 grams or
more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count
IX); and (4) conspiracy to distribute and possess with intent to distribute 50 grams or
more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846
(Count X). The jury also found Benjamin guilty of all three counts he was charged
with, including: (1) distributing and aiding and abetting the distribution of 5 grams or
more of cocaine base after having been convicted of two felony drug offenses (Counts
V and VIII) in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 851, and 18
U.S.C. § 2, and (2) conspiracy to distribute and possess with intent to distribute 50
grams or more of cocaine base after two prior felony drug offenses in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851 (Count X).
At sentencing, the district court calculated Bolden's base offense level at 38
pursuant to United States Sentencing Guidelines (U.S.S.G.) §§ 2D1.1(a)(3) and (c)(1)
after finding his criminal activity involved more than 4.5 kilograms of crack cocaine
or 36,000 kilograms of marijuana-equivalent drugs. The court found Bolden
possessed a dangerous weapon in connection with his criminal activity and increased
his base offense level by two levels. The court also determined Bolden played a role
as an organizer or leader of the criminal activity, which added four levels to his base
offense level under U.S.S.G. § 3B1.1(a). While the total offense level after making
these adjustments scored a level 44, the district court scored a total offense level of 43
due to a cap on the advisory guideline sentencing table. The district court ultimately
sentenced Bolden and Benjamin to life imprisonment. Bolden and Benjamin each
filed a timely appeal.
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On appeal, Benjamin's sole issue is whether the district court abused its
discretion when it dismissed one of the jurors during the trial. Bolden maintains four
issues on appeal. He first contends there was insufficient evidence to convict him.
Bolden also asserts the district court erred when it found his role in the crimes was a
"leader or organizer" instead of a "manager or supervisor" under the Guidelines.
Bolden further argues the district court erred in calculating the amount of drugs
attributable to him for the purpose of sentencing. Finally, Bolden contends the
district court imposed an unreasonable sentence.
II
We first address Benjamin's challenge to the district court's action in excusing
a juror during trial after Bolden's girlfriend had a conversation with the juror while on
break. We review a district court's decision to remove a juror for abuse of discretion.
United States v. Running Horse, 175 F.3d 635, 638 (8th Cir. 1999). "We will uphold
the district court's decision to remove a juror 'if the record reflects a legitimate basis
for it.'" United States v. Cannon, 475 F.3d 1013, 1023 (8th Cir. 2007) (quoting United
States v. Evans, 455 F.3d 823, 824 (8th Cir. 2006)).
Benjamin asserts no legitimate basis existed for the removal of the juror
because nothing she learned in the conversation with Bolden's girlfriend would cause
her to be impartial. Therefore, Benjamin contends the district court abused its
discretion when it removed her from the jury. Moreover, Benjamin asserts he is
prejudiced by the juror's removal because it effectively granted the government an
additional strike of a juror it preferred not to have on the jury.
We disagree. The district court evinced concern the juror might feel threatened
or biased because she had shared personal information with a defendant's girlfriend.
The district court also noted the possibility the interaction could prejudice the juror.
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See Georgia v. McCollum, 505 U.S. 42, 57 (1992) (discussing the ultimate goal of
selecting a jury is to achieve an impartial jury and a fair trial).
Benjamin argues the removal of the juror provided the government with an
additional strike, but he does not offer any reason the government would have wanted
this particular juror dismissed. Benjamin also does not argue there was any problem
with the alternate seated in the dismissed juror's place. Under the circumstances, the
district court did not abuse its discretion in erring on the side of caution when the juror
in question had contact with an interested third party whose identity was known to the
juror.
III
We next address Bolden's challenge to the sufficiency of the evidence. We
review a challenge to the sufficiency of the evidence for a conviction to determine if
a reasonable jury could have found the defendant guilty beyond a reasonable doubt.
United States v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008). We view the evidence
"in the light most favorable to the government, resolving evidentiary conflicts in favor
of the government, and accepting all reasonable inferences drawn from the evidence
that support the jury's verdict." United States v. Espino, 317 F.3d 788, 791 (8th Cir.
2003).
Bolden asserts he should not have been convicted on Counts I, II, and VIII
because there was insufficient evidence demonstrating he distributed cocaine base.
He does not challenge the sufficiency of the evidence on the conspiracy count. In
order to convict Bolden on the distribution counts, the government was required to
prove beyond a reasonable doubt Bolden knowingly and intentionally distributed
cocaine base. United States v. Luster, 896 F.2d 1122, 1126 (8th Cir. 1990).
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The evidence produced at trial showed Bolden actively participated in each
transaction. One of Bolden's coconspirators testified Bolden was responsible for
supplying the drugs sold at the apartment. The informant testified she spoke with
Bolden on the phone to set up the controlled purchases. Bolden opened the door for
the informant on two occasions and she purchased the drugs from someone other than
Bolden. Bolden was present in the room while the transactions took place. More
importantly, those individuals who personally handled the drugs testified they did so
at Bolden's direction.
This Court has held evidence a defendant acted as a source and facilitated a
transaction is sufficient for a conviction under the distribution statute. United States
v. Anderson, 654 F.2d 1264, 1270 (8th Cir. 1981) ("Where there is sufficient evidence
to implicate a defendant as a participant in each transaction, that defendant need not
be present on the occasions when controlled substances are actually purchased by an
undercover agent, in order to be convicted on charges of distribution."). In this case,
the evidence demonstrated Bolden was not only present during the transactions, but
he facilitated the transactions by initiating and securing the conditions of the
purchases and instructed others to conduct the transactions. This evidence was
sufficient to support the jury's verdict.
Moreover, Bolden does not challenge the sufficiency of evidence relating to his
conspiracy conviction. As a result of the conspiracy, it is clear Bolden may be
convicted for substantive crimes, such as distribution, committed by other conspirators
during and in furtherance of the conspiracy. United States v. Zackery, 494 F.3d 644,
647 (8th Cir. 2007). Despite Bolden's assertions, the government did not need to
show actual possession by Bolden to prove the distribution counts. United States v.
Sykes, 977 F.2d 1242, 1247 (8th Cir. 1992) (citing United States v. Resnick, 745 F.2d
1179, 1186 (8th Cir. 1984)). Viewing the evidence in the light most favorable to the
government, it is clear a reasonable jury could have found Bolden guilty beyond a
reasonable doubt on the distribution counts.
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IV
We next address Bolden's challenge to the drug amounts attributed to him and
the four-level enhancement he received as a result of being a leader or organizer of a
criminal activity involving five or more persons. "We review for clear error the
district court's findings of fact and apply de novo review to the district court's
interpretation and application of the Guidelines." United States v. Spikes, 543 F.3d
1021, 1023 (8th Cir. 2008).
With respect to the drug quantity, we will reverse the district court's
determination only if the entire record definitely and firmly convinces us a mistake
has been committed. United States v. Davidson, 195 F.3d 402, 410 (8th Cir. 1999).
"In determining the drug quantity, the district court may consider any relevant
information provided that the information has sufficient indicia of reliability to
support its probable accuracy." United States v. Palega, 556 F.3d 709, 716 (8th Cir.
2009) (citing U.S.S.G. § 6A1.3(a) (2007)). "Where the amount of drugs seized does
not reflect the scale of the offense, the court shall approximate the quantity of the
controlled substance." Id. (citing U.S.S.G. § 2D1.1, cmt. n. 12 (2007)).
The district court made the finding the government met its burden of proving
the drug quantity by a preponderance of the evidence, resulting in a base offense level
of 38. In order to justify this offense level under the Guidelines, the district court
needed to find Bolden responsible for over 4,500 grams of cocaine base. U.S.S.G. §
2D1.1(c). The court noted the Presentence Investigation Report ("PSIR") attributed
a total of 201,280 kilograms of marijuana equivalent drugs to Bolden. Of this amount,
the PSIR attributed 10,044 grams of cocaine base to Bolden.
Bolden primarily challenges the drug quantities attributed to him as a result of
two individuals, Pepper Hines and a confidential source, M.Z. Bolden contends
Hines's testimony at trial was nonsensical and inconsistent, in part because she could
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not have afforded the quantities she claimed. The PSIR attributed 7.99 kilograms of
cocaine base from Hines's trial testimony. Bolden concedes he engaged in some
transactions with Hines, but he argues the district court erred by not calculating a
reasonable amount of drugs attributed to him through Hines's testimony. With respect
to M.Z., the PSIR attributed 831 grams of cocaine base as a result of the transactions
between her and Bolden. Bolden contends he does not know who M.Z. is, nor did he
have an opportunity to cross examine her because she did not testify at trial.
Bolden's challenge to Hines's testimony involves a credibility determination by
the district court. "Witness credibility is 'quintessentially a judgment call and virtually
unassailable on appeal.'" United States v. Sicaros-Quintero, 557 F.3d 579, 582 (8th
Cir. 2009) (quoting United States v. Hart, 544 F.3d 911, 916 (8th Cir. 2008)). In this
case, Bolden asserts Hines's trial testimony conflicted with her earlier testimony
before the grand jury. The PSIR's drug quantity determination was based on Hines's
trial testimony, which attributed 7.99 kilograms of cocaine base to Bolden, rather than
her grand jury testimony, which attributed 3,971.25 grams of cocaine base to Bolden.
However, it is clear even if the PSIR used Hines's grand jury testimony, Bolden would
still be accountable for 6,025.25 grams of cocaine base, which well exceeds the 4,500
grams necessary for a base offense level of 38.
Similarly, Bolden's challenges to the quantities attributed to him based on
M.Z.'s statements are unavailing. As noted above, the PSIR attributed 831 grams of
cocaine base to Bolden based on M.Z.'s statements. Removing this amount from the
6025.25 grams calculated above leaves Bolden responsible for 5,194.25 grams of
cocaine base, still well over the 4,500 grams required for an offense level of 38.
Finally, Bolden contends the district court did not make adequate findings with
regard to the amount of drugs attributed to him at sentencing. While Bolden objected
to the PSIR, he did not object to the district court's findings at sentencing. We
therefore review for plain error. United States v. Mooney, 425 F.3d 1093, 1103-04
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(8th Cir. 2005). The district court stated at sentencing it based its determination not
on the PSIR alone, but on a careful review of the evidence at trial. The district court
noted it had the benefit of being the trial judge in the case, and it heard evidence with
regard to Bolden's drug activities and his associations with Darius and Brian Whiting,
Benjamin, Cleaves, and Ross, as well as other customers and accomplices. After
describing the efforts it took to review the trial transcript and arguments prior to
sentencing, the district court stated it had weighed the evidence and made credibility
findings in order to determine Bolden was involved with more than 30,000 kilograms
of marijuana equivalent drugs.
While we are somewhat troubled by the lack of specificity in the district court's
findings, given the fact Bolden did not object to the findings at sentencing and the
evidence at trial supported amounts close to those in the PSIR upon which the district
court relied, the findings were adequate under the circumstances. It is clear Bolden
can be held responsible for all contraband "within the scope of criminal activity jointly
undertaken by [him] and reasonably foreseeable to [him]." Davidson, 195 F.3d at 410.
As a result, the drug quantity determination was supported by the extensive testimony
and other evidence produced at trial. Moreover, the drug quantity determination was
"consistent with the guidelines commentary and our prior cases." Sicaros-Quintero,
557 F.3d at 582. Therefore, the base level offense of 38 was not clearly erroneous.
With respect to the four-level enhancement for role in the offense, Bolden
contends the district court erred in finding he exercised a leadership and
organizational role pursuant to U.S.S.G. § 3B1.1(a). Bolden asserts his role was not
greater than a manager or supervisor, which would result in a three-level increase, and
the district court did not take into account the different roles he had at different times,
and thus did not properly compute his adjusted offense level. We disagree.
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This court interprets the terms "organizer" and "leader" broadly. United States
v. Garcia, 512 F.3d 1004, 1005 (8th Cir. 2008). In determining whether to apply the
enhancement, a sentencing court should consider the defendant's
exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed
right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and scope
of the illegal activity, and the degree of control and authority exercised
over others.
U.S.S.G. § 3B1.1 cmt n. 4. The enhancement does not apply solely to those who first
instigated the criminal activity, and the defendant need not be the only organizer or
leader. United States v. Lashley, 251 F.3d 706, 712 (8th Cir. 2001).
In this case, the district court found Bolden directed Cleaves and Ross, and it
relied on their trial testimony in establishing the role in the offense. We have upheld
a district court's finding on this point where evidence showed the defendant "recruited
others to join the conspiracy, he received drug orders from customers, and he directed
others to package and deliver drugs." Garcia, 512 F.3d at 1006. The evidence at trial
showed Bolden recruited members of the conspiracy and directed those members to
distribute drugs. There was evidence he supplied drugs for distribution and retained
a large portion of profit for himself. He also played a role in setting up transactions.
Under these circumstances, we cannot say the district court clearly erred in applying
the four-level enhancement under U.S.S.G. § 3B1.1(a). See Razo-Guerra, 534 F.3d
at 976-77 (affirming the application of the leadership enhancement where the
defendant recruited others and directed them to make drug deliveries, supplied dealer
quantities to others, and made the decision to deliver drugs in a specific area); United
States v. Noe, 411 F.3d 878, 889-90 (8th Cir. 2005) (affirming four-level
enhancement where the evidence at trial showed the defendant controlled others in the
conspiracy and supplied drugs to lower level dealers). Moreover, because we affirm
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the drug quantity determination above, this point is irrelevant because a three-level
increase under the manager or supervisor role would yield an offense level of 43, the
highest level on the sentencing chart and the level used by the district court. See
United States v. Tomac, 567 F.3d 383, 385-86 (8th Cir. 2009) (standard for harmless
error in calculating Guidelines offense levels).
V
Finally, Bolden challenges the reasonableness of the sentence he received.
Specifically, Bolden contends the district court did not adequately take into
consideration he was twenty-eight years old at the time of sentencing and a life
sentence would be projected to be a term of approximately 49.68 years. The district
court also did not give appropriate weight to a study by the United States Sentencing
Commission, Bolden asserts, which suggests an early offender can reasonably be
deterred by a lengthy initial federal sentence. Finally, Bolden contends the district
court over-relied on the Guidelines because it presumed the advisory range generated
a correct or reasonable sentence. Bolden argues his lack of criminal history was not
adequately represented by his life sentence.
We review the district court's sentence for abuse of discretion. Gall v. United
States, 552 U.S. 38, 51 (2007). We presume a sentence within the guidelines range
is reasonable and the burden is on a defendant to show his sentence should have been
lower considering the factors enumerated in 18 U.S.C. § 3553(a). United States v.
Milk, 447 F.3d 593, 603 (8th Cir. 2006). "An abuse of discretion may occur when (1)
a court fails to consider a relevant factor that should have received significant weight;
(2) a court gives significant weight to an improper or irrelevant factor; or (3) a court
considers only the appropriate factors but in weighing those factors commits a clear
error of judgment." United States v. Kane, 552 F.3d 748, 752 (8th Cir. 2009).
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As an initial matter, Bolden's sentence is within the Guidelines range, and we
therefore accord it a presumption of reasonableness. Id.; see also United States v.
Turbides-Leonardo, 468 F.3d 34, 41 (1st Cir. 2006) (“It will be the rare case in which
a within-the-range sentence can be found to transgress the parsimony principle.”).
However, Bolden argues the district court also presumed the sentence calculated under
the Guidelines was reasonable. It is impermissible for a district court to rely on the
presumption of reasonableness to justify imposing a sentence in the Guidelines range.
Nelson v. United States, __ U.S. __, 129 S.Ct. 890, 891 (2009). Bolden bases his
argument on the district court's conclusion, "the Court finds no basis to vary
downward from the advisory Guideline range." However, this language, taken in
context, indicates the district court considered the evidence placed before it in favor
of a variance and concluded none was warranted. The statement does not demonstrate
the district court presumed the advisory Guidelines range was reasonable.
Bolden also argues the district court erred when it failed to take into account a
sentencing study he presented, indicating a long sentence would adequately serve the
purpose of deterrence and he was unlikely to reoffend after a long prison term. The
district court mentioned the study in its sentencing, but it indicated it believed the best
predictor of recidivism in this case was its individualized assessment regarding the
defendant's conduct. The district court's ultimate rejection of the study, after
consideration of Bolden's argument, was not an abuse of discretion because the district
court was not required to accept the study's findings.
Similarly, Bolden asserts his sentence was in disparity with the sentences of his
coconspirators. While the terms of the sentences were similar, Bolden argues he
should have received a lower sentence because the two individuals he compares
himself with had two prior felony drug convictions each, while Bolden had a limited
criminal history. However, the court clearly discussed these factors in its sentencing:
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I also have worked hard to make sure that the sentence that I am
imposing today avoids unwarranted sentence disparities among
defendants with similar records found guilty of similar conduct. And as
Mr. Swift talked about, the folks whose names were mentioned or who
testified in the Bolden and Benjamin trial, the Court feels that the
sentence that will be imposed will not create unwarranted sentence
disparities. Mr. Bolden's role in the offense, his drug quantity, the fact
that he did not get the three-level decrease for acceptance of
responsibility, make me feel that this has been totally consistent and that
he's not being punished more severely than anyone who is similarly
situated as he is who has been found guilty of similar conduct.
Sent. Tr. at 68. The district court also considered Bolden's age and education at the
time of sentencing. Moreover, the district court found, based on information not
objected to in the PSIR, he had convictions for possession of marijuana, resisting and
eluding police, and possession of a controlled substance. The district court also found
Bolden had never spent more than three or four days in jail, but it took into account
other criminal conduct relating to possession of an assault rifle. Finally, the district
court found Bolden was an abuser of alcohol and street drugs and, though he has had
legitimate employment, most of Bolden's income came from selling street drugs.
After careful review of the record, it is clear the district court considered and
weighed the relevant sentencing factors under 18 U.S.C. § 3553(a). United States v.
Tobacco, 428 F.3d 1148, 1151 (8th Cir. 2005) (acknowledging a presumptively
reasonable sentence within the Guidelines range may still be unreasonable if the
district court fails to consider a relevant factor, gives significant weight to an improper
factor, or commits a clear error of judgment in weighing the factors). The district
court did not abuse its discretion by imposing the sentence calculated under the
Guidelines and its sentence was not unreasonable.
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VI
For the foregoing reasons, we affirm the convictions and sentences in all
respects.
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