FILED
United States Court of Appeals
Tenth Circuit
January 27, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 14-3260 and 14-3261
v. (D.C. No. 2:13-CR-20081-CM-1)
(D. Kansas)
ARRICK WARREN,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, SEYMOUR, and MATHESON, Circuit Judges.
Arrick Warren pled guilty to two counts of distribution and one count of
possession of cocaine base with intent to distribute within 1,000 feet of a public
playground, and one count of maintaining a drug-involved premises, all in
violation of 21 U.S.C. § 856(a)(1) and (a)(2). The district court found Mr.
Warren was accountable for 728 kilograms of cocaine base and for possession of
a firearm. The total sentencing guideline range was calculated to be 168 to 210
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. It may be cited
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
months and the district court imposed a sentence of 180 months. When Mr.
Warren committed the offenses, he was serving a term of supervised release on a
prior conviction in Iowa for offenses related to the distribution of cocaine base.
For violating his release conditions, the district court revoked his supervised
release and sentenced him to 36 months in prison, to be served consecutively to
the 180-month sentence. Mr. Warren appeals both sentences. 1
I
“When reviewing the district court’s application of the sentencing
guidelines, this Court reviews the district court’s findings of fact for clear error
and legal conclusions de novo.” United States v. Kitchell, 653 F.3d 1206, 1226
(10th Cir. 2011) (citation omitted). We “will not disturb a factual finding of the
district court unless it has no basis in the record, and we view the evidence and
inferences therefrom in the light most favorable to the district court’s
determination.” Id. (quotation marks and citation omitted). Viewed in that light,
the facts show the following.
There was testimony at the sentencing hearing that on January 15, 2013,
Mr. Warren twice sold cocaine base to a confidential informant in the amounts of
.552 and .558 grams. Both sales took place through the rear door of Mr.
1
The district court combined the sentencing hearings for the offense of
conviction and the revocation of supervised release. We granted Mr. Warren’s
unopposed motion to consolidate his appeals from the drug offense sentence, No.
14-3260, and the supervised release revocation sentence, No. 14-3261.
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Warren’s residence at 1026 Reynolds. The next day officers executed a search
warrant at the unoccupied residence. They found 20.14 net grams of cocaine
base, and 50.1 net grams of compressed powder cocaine in a plastic baggie, a
razor blade, a box of plastic sandwich baggies, and a scale in a cabinet near the
rear door of the residence. They also recovered from a trash can in the kitchen a
box of baking soda, which is used to convert powder cocaine to cocaine base. In
the dining room, they found a black nylon bag containing approximately 300
grams of powder cocaine and $8,000 in U.S. Currency. They found $17,800 in
U.S. currency in a safe in the bedroom, and a loaded .45 caliber handgun under a
couch in the living room not far from the bedroom door. They also found three
cell phones in the living room. During the search, they located a gas bill
addressed to Mr. Warren at 1026 Reynolds, and a public utilities bill addressed to
Loya Fuel at 924 Riverview. Mr. Warren had told his probation officer that Loya
Fuel was his common law wife and the mother of two of his children.
Officers recently had conducted controlled buys of crack cocaine from a
Mark Murphy at a residence at 924 Riverview, which was located roughly 1000
feet from the1026 Reynolds address. Upon executing a search warrant there, they
recovered a quantity of cocaine base as well as a public utilities bill addressed to
Loya Fuel at 924 Riverview, a digital scale, a razor blade, and a box of sandwich
baggies. Evidence introduced by the government at the sentencing hearing
showed it was highly probable Mr. Warren signed the leases at both the 1026
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Reynolds and the 924 Riverview residences. Both leases listed Mr. Warren and
Loya Fuel as tenants. In addition, data from the three seized cell phones showed
multiple text messages linking Mark Murphy to Mr. Warren.
In determining the amount of cocaine base attributable to Mr. Warren, the
probation department converted the cocaine powder and cash to cocaine base
equivalents and added that to the quantity of cocaine base from each of the two
residences. It also attributed to Mr. Warren the firearm found under the couch at
1026 Reynolds, even though it did not contain his fingerprints. On appeal, Mr.
Warren challenges the drug quantity calculation made by the district court, the
firearm enhancement, and the district court’s assessment of the 18 U.S.C. § 3553
sentencing factors. He also argues the court erred in issuing the above-guidelines
sentence when it revoked his supervised release.
II
Drug Offence Sentence
Drug Quantity
Mr. Warren first contends the district court erred in imposing a sentence
based on enhancements not proven by a preponderance of the evidence and by
improperly weighing the factors enumerated in 18 U.S.C. § 3553 to determine the
appropriate sentence. He argues that the powder cocaine should have been
converted to its marijuana equivalent rather than to cocaine base and that the U.S.
currency should not have been converted to cocaine base.
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Pursuant to the guidelines, “it is proper to sentence a defendant under the
drug quantity table for cocaine base if the record indicates that the defendant
intended to transform powdered cocaine into cocaine base.” United States v.
Angulo-Lopez, 7 F.3d 1506, 1511 (10th Cir. 1993) (citations omitted), superseded
on other grounds as recognized in United States v. Kissick, 69 F.3d 1048, 1053
(10th Cir. 1995). The district court found that Mr. Warren intended to transform
the powder cocaine to crack. In so ruling, the court relied on the testimony of
government witnesses regarding the purchases of crack from 1026 Reynolds, the
evidence recovered in the search the next day indicating that the powder cocaine
was being converted to crack cocaine at the house, and the sales of crack from the
related residence at 924 Riverview. The court also observed that defendant’s
previous conviction was for conspiracy to distribute and possession with intent to
distribute crack cocaine. Accordingly, the record supports conversion of the
powder cocaine recovered from 1026 Reynolds to cocaine base for purposes of
determining the drug quantity attributable to Mr. Warren under U.S.S.G. § 2D1.1.
Mr. Warren also contends the district court’s decision not to calculate the
drug quantity based on a 1:1 ratio of powder cocaine to cocaine base violated his
equal protection rights. We have squarely rejected that argument. See United
States v. Brooks, 161 F.3d 1240, 1247 (10th Cir. 1998) (holding that previous
100:1 ratio’s distinction between crack cocaine and powder cocaine does not
violate Fifth Amendment right to equal protection).
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Nor did the district court clearly err in converting the U.S. currency seized
from 1026 Reynolds to cocaine base and including it in the total drug calculation.
Such conversion is proper “provided the court finds by a preponderance [of
evidence] that the cash is attributable to drug sales which were part of the same
course of conduct or common scheme or plan as the conviction count.” United
States v. Hinson, 585 F.3d 1328, 1341 (10th Cir. 2009) (quotation marks and
citations omitted). The district court found that the cash in the safe should be
converted to cocaine base because the preponderance of evidence showed the
money in the safe was from drug sales. The court relied in part on the testimony
of IRS Agent Jeffrey Thomas, who established that defendant’s 2012 tax refund
would not have been paid to defendant before January 13, 2013, the date the
search warrant was executed. The court also relied on the testimony of U.S.
Probation Officer Roderick Freeman that neither defendant’s part time
employment nor his tax return would account for the quantity of cash that was
found. The district court found not credible the testimony of defendant’s father,
Cedrick Toney, who said defendant’s money came from the family’s music
business and an inheritance from Mr. Toney’s father. The record supports the
district court’s findings.
Firearm Enhancement
Mr. Warren also contends the government failed to present sufficient
reliable evidence to support the firearm enhancement. Under U.S.S.G. §
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2D1.1(b)(1), a court may apply a two-level enhancement “if a dangerous weapon
(including a firearm) was possessed” in connection with a drug offense. “The
initial burden is on the government to prove possession of the weapon by a
preponderance of the evidence, which may be satisfied by showing ‘mere
proximity to the offense.’” United States v. Alexander, 292 F.3d 1226, 1231 (10th
Cir. 2002) (quoting United States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997)).
“This burden is satisfied when the government demonstrates that a temporal and
spatial relation existed between the weapon, the drug trafficking activity, and the
defendant.” United States v. Hall, 473 F.3d 1295, 1312 (10th Cir. 2007). The
necessary showing is made where there is “[e]vidence that the weapon was found
in a location where drugs or drug paraphernalia is stored.” Id. “If the
government meets this initial burden, the burden shifts to the defendant to show
that it is clearly improbable the weapon was connected with the offense.” Id.
The district court concluded that the government had shown a sufficient
nexus between the weapon, defendant, and the drug trafficking activity, and that
Mr. Warren had failed to show it was clearly improbable the gun was connected
to the offense. In so ruling, the court relied on Officer Doleshaw’s testimony that
the handgun, which was found in Mr. Warren’s house the day after he made two
crack cocaine sales to a confidential informant, was located within 15 feet of the
safe and approximately the same distance from the powder cocaine. The
government thus met its burden of demonstrating a temporal and spatial
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relationship between the weapon and the drug trafficking activity. Because Mr.
Warren failed to provide any evidence to demonstrate it was “clearly improbable”
that the weapon was connected to the offense, the district court did not err in
imposing a two-level firearm enhancement.
Consideration of 3553(a) Factors
Citing United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008), Mr.
Warren asserts the district court should have sentenced him in a lower range of 87
to 120 months under the factors enumerated in 18 U.S.C. § 3553. Because Mr.
Warren failed to raise this issue at the sentencing hearing, our standard of review
is plain error. See United States v. Romero, 491 F.3d 1173, 1178 (10th Cir.
2007). Under the plain error standard, we may reverse only when there is “(1)
error, (2) that is plain, (3) which affects substantial rights, and (4) which
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citing United States v. Lopez-Flores, 444 F.3d 1218, 1222
(10th Cir. 2006)).
The sentencing transcript makes clear that the district court considered the
factors set out in § 3553(a). The court described the nature and circumstances of
the offense as (1) “involv[ing] defendant distributing crack cocaine within 1,000
feet of a prohibited location, a playground, on multiple occasions”; (2) being “in
possession of a large amount of cocaine, cash, and a loaded firearm that was
found in the residence that defendant was using to distribute cocaine”; and (3)
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being “on supervised release after conviction and incarceration for a previous
drug trafficking crime.” ROA No. 14-3260, vol. II, pt. 2 at 453. It is plain from
the court’s findings that it was not persuaded by Mr. Warren’s claim that the cash
came from his tax refund and his legitimate business earnings.
Moreover, the court acknowledged defense counsel’s “strenuous” argument
in favor of a downward variance from the guideline range to a range of 87 to 120
months, and discussed Mr. Warren’s attempts to provide the government with
substantial assistance in other matters and cases, as well as information about Mr.
Warren’s background and history and supportive letters from family members and
friends. The court recognized it had the authority to grant a variance or departure
but found “that a sentence outside the guideline range would not be appropriate
for you under your circumstances and convictions.” Id. at 456. In imposing a
sentence of 180 months imprisonment, which “is the mid range of that sentencing
guideline imprisonment range,” id., the district court stated:
[T]he sentence reflects the seriousness of the offense, promotes
respect for the law and provides just punishment. Further, the length
of the sentence should afford adequate deterrence and protect the
public from further crimes of the defendant. [A] [s]ix-year term of
supervised release will allow you the opportunity to receive
correctional treatment in an effective manner, and assist with
community re-integration.
Id.
Mr. Warren has failed to demonstrate any error, much less a plain one with
respect to his claim that the district court failed to consider all applicable
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§ 3553(a) factors. Romero, 491 F.3d at 1178. We accordingly reject his claim
that the sentence imposed by the district court was procedurally unreasonable.
II
Supervised Release Violation
The district court found that Mr. Warren had committed 10 separate
violations of the conditions of his supervised release. It noted that the Grade A
violations, with a criminal history of I, yielded a guideline range of 24 to 30
months’ imprisonment. It then imposed a 36 month term of imprisonment to be
served consecutively to the sentence for the defendant’s new criminal conduct.
On appeal, Mr. Warren challenges both the above-guidelines sentence of 36
months and the district court’s order that the sentence be served consecutively to
the current drug violation sentences. He argues the district court’s consecutive
revocation sentence of 36 months is procedurally and substantively unreasonable
because it failed to account for his individual characteristics, offense conduct or
his efforts to cooperate with the government. Aplt. Brief at 20.
We review Mr. Warren’s revocation sentence for reasonableness, applying
a deferential standard of review. United States v. McBride, 633 F.3d 1229, 1231-
32 (10th Cir. 2011).
“[W]e will not reverse a revocation sentence imposed by the district
court if it can be determined from the record to have been reasoned
and reasonable.” United States v. Contreras–Martinez, 409 F.3d
1236, 1241 (10th Cir. 2005) (brackets and internal quotation marks
omitted). Under our current nomenclature, a “reasoned” sentence is
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one that is “procedurally reasonable”; and a “reasonable” sentence is
one that is “substantively reasonable.” To say that the district court
acted reasonably—either procedurally or substantively—is to say that
it did not abuse its discretion. See United States v.
Alapizco–Valenzuela, 546 F.3d 1208, 1214 (10th Cir.2008).
Id. at 1232. Because Mr. Warren did not object on procedural grounds after the
district court imposed his sentence, we review the procedural reasonableness of
the sentence for plain error. See id. at 1233.
In sentencing Mr. Warren, the district court stated that it had considered the
§ 3553(a) factors. It acknowledged the 36-month sentence was outside the
advisory guideline range of 24 to 30 months, but it explained the upward
departure was warranted by the type of criminal conduct and activity Mr. Warren
was involved in and, particularly, by the fact that he was committing similar new
offenses while on supervised release. It pointed out the government was
advocating a much longer sentence.
While counsel for Mr. Warren asked the district court to run any supervised
release term of imprisonment concurrently with the sentence for the underlying
offense, the government sought consecutive sentences. Although 18 U.S.C. §
3584 gives the district court discretion to impose a concurrent or consecutive
sentence in these circumstances, where a defendant is already subject to an
undischarged term of imprisonment the policy guidelines advise:
Any term of imprisonment imposed upon the revocation of probation
or supervised release shall be ordered to be served consecutively to
any sentence of imprisonment that the defendant is serving, whether
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or not the sentence of imprisonment being served resulted from the
conduct that is the basis of the revocation of probation or supervised
release.
U.S.S.G. § 7B1.3(f). Notwithstanding the mandatory language in the policy
guideline, the district court recognized that these policy guidelines are considered
advisory only post-Booker. See McBride, 633 F.3d at 1232 (“These policy
statements serve essentially the same role as the now-advisory sentencing
guidelines issued by the Commission.”). Given the circumstances of this case, we
cannot say the district court erred in making the sentences consecutive.
Mr. Warren also argues the district court, in imposing the 36 month term of
imprisonment, “failed to account for [the defendant’s] individual characteristics,
offense conduct, or his efforts to cooperate with the government.” Aplt. Br. at 20.
However, the court stated on the record that it had considered these factors, and a
review of the entire sentencing hearing confirms this statement. Among other
factors, the court found that the amount of powder cocaine in Mr. Warren’s
house, combined with the money in the duffel bag and his intent to convert the
powder cocaine to crack, indicated that defendant was a major drug dealer.
To the extent Mr. Warren also asserts that the revocation sentence was
substantively unreasonable, we are not persuaded. “To obtain relief, [Mr.
Warren] must show that the actual sentence imposed was outside the range of
reasonableness.” McBride, 633 F.3d at 1232 (citing United States v. Medley, 476
F.3d 835, 840 (10th Cir. 2007)). As the district court pointed out, the government
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was seeking a much longer sentence based on Mr. Warren’s new convictions so
soon after his release from serving his prior sentence for crack cocaine violations.
On this record, we reject Mr. Warren’s claim of substantive unreasonableness.
In sum, the district court did not abuse its discretion in applying the
applicable § 3553(a) factors and the policy guideline to arrive at a revocation
sentence above the guideline range.
III
For the foregoing reasons, we AFFIRM the sentences imposed by the
district court.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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