UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-3407
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UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross-Appellant,
versus
SHENNA MADISON,
Defendant-Appellant
Cross-Appellee.
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Appeals from the United States District Court
for the Eastern District of Louisiana
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(April 21, 1993)
Before POLITZ, Chief Judge, DUHE', Circuit Judge, and BELEW1,
District Judge.
BELEW, District Judge:
On April 22, 1992, SHENNA MADISON ("MADISON"), the defendant-
appellant and cross-appellee, was sentenced to 180 months in prison
and 60 months on supervised release in connection with various
offenses arising from her participation in a narcotics trafficking
1
Senior District Judge of the Northern District of
Texas, sitting by designation.
1
operation. She appeals, contending that the evidence was
insufficient to support her conviction and that upholding her
conviction would result in a manifest miscarriage of justice.
On cross-appeal, the government contends that MADISON's
sentence must be vacated since the district court's downward
departure from the minimum guideline sentence was based, at least
in part, upon patently invalid reasons, namely, MADISON's age, her
culpability relative to that of her co-defendant, and that
MADISON's criminal history category over-represented the
seriousness of her criminal past. Finding that the evidence
supports MADISON's conviction and that the reasons given by the
district court for departure from the minimum guideline sentence
are inadequate, we affirm the conviction and vacate and remand for
resentencing within the sentencing guidelines or for articulation
of adequate reasons for departure.
BACKGROUND2
On October 2, 1991, agents of the Bureau of Alcohol, Tobacco,
and Firearms executed a search warrant at 302 Atlanta Street, in
New Orleans Louisiana, an apartment shared by Ernest Allen and
MADISON. (R., Vol. 5 at 54; Vol.6 at 113). Agents had probable
cause to believe that Ernest Allen, a convicted felon, was in
possession of a semi-automatic weapon. (Id. at 115). The warrant
was executed as Ernest Allen was getting into his car to go to the
hairdresser. As MADISON watched from inside the house, the agents
2
References to the Record on Appeal of this matter are
designated herein as (R., Vol. __ at __). The Presentence
Investigation Report is referenced to as (PSR at __, par. __).
2
stopped and interviewed Allen, and then hand-cuffed him. Five to
ten minutes after they first detained Allen, the agents knocked on
the door. After a brief pause, MADISON, who had no clothes on,
opened the door. (R., Vol.6 at 115, 199-200).
Agents searched the house and seized guns, drugs, and
laboratory equipment. Specifically, more than seven hundred grams
of crack cocaine which had been divided into numerous plastic bags
were seized. (R., Vol. 5 at 18-25). A triple-beam scale, a glass
beaker, and a box of plastic bags was seized as well as a plastic
bag, two glass vials and a spoon, all coated with cocaine residue.
(Id. at 27-29, 87). Allen admitted that drugs were scattered "all
through the house." In fact, drugs and paraphernalia were found in
a closet in the back bedroom. One bag of crack cocaine was
recovered from behind a couch in the living room. Other crack was
recovered from a kitchen cabinet. (Id. at 97). Additional crack
was found in the middle bedroom closet. Still more crack was found
beneath the chest of drawers and television set. (Id. at 100-103).
Also found beneath this chest of drawers was $7,900 in cash.
(Id. at 102-3, Vol. 6 at 108). The money was found inside a
grocery bag along with a peach and a bag of fruit. (Id. at 108-9).
Allen testified, however, that he always kept his money in the
refrigerator, and that he used the chest of drawers where the money
was found exclusively to store his dope. (R., Vol. 5 at 49-50).
Finally, Agents seized a .38 caliber revolver from beneath the
mattress in the bedroom. (Id. at 101-2). Allen testified that he
used the revolver to protect his drugs and his household, and that
3
he took the gun with him when he went to sell drugs in the Desire
Housing Project. (Id. at 45). Allen testified that when he left
the house that morning to get his hair done, the .38 revolver was
sitting on top of the bedroom dresser. (Id. at 46, 80).
Prior to her arrest, MADISON gave a statement to the agents.
She stated that she knew that Allen was dealing drugs, and that she
always felt that there were drugs in the house. She also told
agents that Allen is into guns and violence. (Id. at 119-20).
Agents asked MADISON what her part in the drug dealing was, and
MADISON replied that her job was to spend the proceeds of the drug
trafficking. (R., Vol. 6 at 122).
MADISON was charged in three counts3 of a six count
indictment. Allen was charged in all six counts and, subsequently,
made a plea agreement with the government on the first three counts
in exchange for his testimony against MADISON. At her trial, the
jury found MADISON guilty on all three counts with which she was
charged based on testimony from 11 government witnesses, including
Earnest Allen, her co-conspirator.
ANALYSIS
A. Sufficiency of Evidence to Support the Conviction
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(1) conspiring to knowingly and intentionally possess
cocaine base with the intent to distribute (21 U.S.C. § 846);
(2) knowingly and intentionally possessing approx. 750
grams cocaine base with the intent to distribute (21 U.S.C. §
841(a)(1));
(3) knowingly using and carrying a firearm in
connection with a drug trafficking crime (18 U.S.C. § 924(c)(1)).
4
The first matter before the court on appeal is whether the
evidence supporting MADISON's convictions was so meager that
upholding her conviction would result in a manifest miscarriage of
justice. MADISON contends that the incriminating testimony of her
co-conspirator, Ernest Allen, was inherently unbelievable on its
face since Allen had entered into a plea agreement with the
government. The district court disagreed and this Court affirms.
See Wilkerson v. United States, 591 F.2d 1046 (5th Cir. 1979),
rehearing denied, 595 F.2d 1221 (1979).
In reviewing a verdict challenged on the sufficiency of the
evidence, this Court views the evidence, whether direct or
circumstantial, and all reasonable inferences drawn from the
evidence, in the light most favorable to the jury's verdict.
United States v. Pigrum, 922 F.2d 249, 253 (5th Cir.), cert.
denied, 111 S.Ct. 2064 (1991). In this light, the Court must
determine whether "a rational trier of fact could have found that
the evidence established the essential elements of the offense
beyond a reasonable doubt." United States v. Carter, 953 F.2d
1449, 1454 (5th Cir.), cert. denied, 112 S.ct. 2980 (1992). We
conclude in this case that the jury could have found, as they did,
that the evidence showed beyond a reasonable doubt that MADISON
conspired to possess with intent to distribute crack, that she did
possess with intent to distribute crack, and that she used and
carried a firearm during and in relation to these drug dealing
activities.
MADISON testified that she did not know Ernest Allen was
5
selling drugs. The jury must have disbelieved her claim in light
of the evidence that crack cocaine was found all over the house.
There was a plate of cocaine in the kitchen. Moreover, the
evidence strongly supported the jury's inference that MADISON hid
the cash and the .38 revolver after she witnessed the agents arrest
Ernest Allen. The drug proceeds were not seized from the
refrigerator where Allen had left them, but rather from under his
chest of drawers, where only he hid his dope. Moreover, the fruit
that was found with the money under the drawers supported the
inference that the money had been hurriedly moved from the
refrigerator. Similarly, Allen left the .38 revolver on his
dresser. But, by the time the agents searched the house, the gun
was under the mattress. Madison's actions in hiding the gun and
the money, her ongoing presence in the crack-filled apartment, as
well as her admission that her job was to spend the drug money
suffice to support the jury's guilty verdicts.
It is well-established that plea agreements (such as Ernest
Allen's in this case) raise issues of credibility. United States
v. Puma, 937 F.2d 151, 155 (5th Cir. 1991), cert. denied, 112 S.Ct.
1165 (1992). However, since credibility issues are issues for the
jury, the Court will not invade the province of the jury to weigh
the credibility of the witnesses. United States v. Razo-Leora, 961
F.2d 1140, 1145 (5th Cir. 1992); United States v. Causey, 835 F.2d
1527, 1529 (5th Cir. 1988). Clearly, MADISON has not shown that
her conviction resulted in a manifest miscarriage of justice or
that there was insufficient evidence and, therefore, this Court is
6
of the opinion that her conviction should be affirmed.
B. Adequacy of Reasons for Downward Departure
The second matter before the court on appeal is a cross-appeal
by the UNITED STATES OF AMERICA. The issue raised is whether
MADISON's sentence must be vacated where the district court's
downward departure from the minimum guidelines sentence was based,
at least in part, upon patently invalid reasons, namely, MADISON's
age, her culpability relative to that of her co-defendant, and that
MADISON's criminal history category over-represented the
seriousness of her criminal past. The district court's disposition
toward leniency brings into focus whether the court may depart
below the statutory minimum of the sentencing range yielded by the
guideline calculations. We hold that the court may do so, provided
that appropriate and adequate reasons for the departure are
assigned. 18 U.S.C. §§ 3553(c), 3742(e), (f). Enunciation of an
adequate explanation for departure from the sentencing guidelines
range is a threshold requirement mandated by statute.
In the appellate review of sentences, we examine factual
findings subject to the clearly erroneous rule, and accord great
deference to the trial judge's application of the sentencing
guidelines. 18 U.S.C. § 3742(e); United States v. Mejia-Orosco,
867 F.2d 216 (5th Cir.), clarified, 868 F.2d 807, cert. denied, 109
S.Ct. 3257 (1989). We also review the district court's
interpretation of the Sentencing Guidelines de novo. United States
v. Reyes-Ruiz, 868 F.2d 698, 701 (5th Cir. 1991). Applying these
7
standard, we find error for the following reason: MADISON should
have been sentenced to imprisonment for at least 235 months
pursuant to the minimum sentencing guideline or, the district court
should have articulated adequate reasons for its downward
departure.
Based on a total offense level of 36 and a criminal history
category of III, the guideline imprisonment range contained in the
PSR was from 235-293 months.4 The district court adopted the
PSR's findings and conclusions and, at the April 22, 1992
sentencing hearing, stated:
"Although the guideline calculations presented in the pre-
sentence report are correct, the court believes that a
downward departure is warranted for the following reasons.
The defendant's criminal history category over-represents the
seriousness of the defendant's criminal history.
4
Prior to the April 22, 1992 sentencing, the probation
officer determined the base offense level to be 36 pursuant to
U.S.S.G. § 2D1.1(a)(3). (PSR at 6, par. 9). No adjustments were
recommended by probation and, therefore, the total offense level
was 36. (Id.). In determining MADISON's criminal history
category, the probation officer assessed MADISON one criminal
history point for her 1990 conviction for credit card fraud.
(Id. at 7-8, par. 29). Two points were assessed for MADISON's
1991 conviction for possession of stolen property and criminal
trespass. (Id. at 8, par. 30). Two additional points were
assessed because MADISON committed her instant offense within two
years after being released from confinement on the 1991
conviction. (Id. at 8, par. 31). The total of five criminal
history points placed MADISON in criminal history category III.
One additional conviction, and five different arrests were not
applied to her criminal history score. Accordingly, the minimum
guideline sentencing range was determined to be 235 to 293
months, not including the 60 month consecutive sentence mandated
by 18 U.S.C. § 924(c)(1). According to the PSR, there were no
aggravating or mitigating factors warranting a departure from the
sentencing range. (Id. at 13, par. 63).
Neither party objected to the PSR's recommended findings of
fact, nor to its conclusions concerning the applicable guideline
range. (R., Vol. 1 at 26).
8
Considering the facts of this case, she is less culpable than
her co-defendant, Ernest Allen. A longer period of
incarceration would be counterproductive in view of her age."5
Based on these reasons, the district court sentenced MADISON
to two concurrent terms of 120 months imprisonment as to Counts One
and Two, and to a mandatory consecutive term of 60 months
imprisonment as to Count Three (Id. at 8-9)6; amounting to a
downward departure of 115 months below the minimum guideline
sentencing range as calculated by the PSR.7
1. Defendant's Age
One of the district court's stated reasons for departing from
the Sentencing Guidelines was that the longer Guidelines sentence
"would be counterproductive in view of her age."8 (R., Vol. 4 at
9). The Sentencing Commission, however, gave "careful
consideration to the age of the offender as a mitigating factor in
sentencing, [in U.S.S.G. § 5H1.1]." United States v. White, 945
F.2d 100, 102 (5th Cir. 1991). The Commission "has therefore,
normally eliminated age as a mitigating sentencing factor." Id.
Accordingly, "the circumstance of being young is not a permissible
5
R., Vol. 4 at 9.
6
18 U.S.C. § 924(c)(1).
7
Incidentally, Allen was sentenced to 295 months in
F.C.I. and 60 months of supervised release.
8
In its "Statement of Reasons for Imposing Sentence,"
the district court apparently abandoned this reason. (R., Vol. 1
at 27). Since this statement was not included in the reasons for
sentence entered into the record, we consider it as superfluous
verbiage.
9
consideration under the guidelines." Id. (citing United States v.
Summers, 893 F.2d 63, 69 (4th Cir. 1990)). We conclude that this
was an invalid justification for a downward departure.
2. Relative Culpability of Co-Defendants
The district court also based its "departure" in part on its
determination that MADISON was a less culpable offender than Ernest
Allen. (R., Vol. 4 at 9, Vol. 1 at 27). Apparently, the district
court did not distinguish between the terms "adjustment" and
"departure." While both affect the length of a sentence,
"adjustments" vary the total offense level whereas "departures"
disregard the guideline sentences. Since "departures based on
culpability implicate U.S.S.G. § 3B1.2, which provides for an
adjustment to the offense level upon a finding of minimal
participation," we find that relative culpability is not an
appropriate justification for a downward departure. United States
v. Sellers, 975 F.2d 149, 151 (5th Cir. 1992) (emphasis in
original).9
The lower courts should not be allowed to "depart" from the
9
See also United States v. Fields, 906 F.2d 139, 142
(5th Cir.), cert. denied, 111 S.Ct. 200 (1990) (sentencing court
properly refused to impose a downward departure on the basis that
defendant was a "minor" participant); United States v. Velasquez,
868 F.2d 714, 715 (5th Cir. 1989) (factual assessment of
defendant's lesser culpability gives sentencing court the
discretion to make a downward adjustment in levels); United
States v. Hewin, 877 F.2d 3, 4 (5th Cir. 1989) (U.S.S.G. §§
3B1.1-3B1.4 allows the sentencing court "to adjust a defendant's
offense level, in either direction, to accurately reflect the
defendant's culpability in the particular crime").
10
guidelines for the same reasons that are expressly provided for as
"adjustments" in the guidelines, otherwise the goal of uniformed
sentencing is defeated. Since the district court did not find that
MADISON was a minor or minimal participant within the meaning of
§3B1.1 and thereby adjust her offense level, it should not be
allowed to depart for that same reason.
3. Over-representation of MADISON's Criminal Past
Lastly, we find that the district court erred in finding that
MADISON's criminal history category over-represented her criminal
past, and incorrectly applied the guidelines in departing pursuant
to § 4A1.3 (policy statement).
MADISON already had three felony convictions by the time the
jury convicted her in the case. In 1984, she pleaded guilty to
theft and received a one year suspended sentence and two years
probation. (PSR at 7, par. 28). In 1990, charged with possession
of stolen property, credit card fraud, flight from an officer,
possession of marijuana, and battery, MADISON pleaded guilty to
credit card fraud and was sentenced to time served (PSR at 7, par.
29). In 1991, she was convicted of seventeen counts of possession
of stolen property and criminal trespass. She served a four month
sentence. (PSR at 8, par. 30).
The 1984 conviction was not counted against MADISON's criminal
history score. Also not counted were her five arrests between 1981
11
and 1990.10 Nor did the probation office consider the $10,000 Los
Angeles bench warrant outstanding against MADISON at the time of
her arrest for the instant offense.11
Section 4A1.3 of the Guidelines, a policy statement, permits
downward departures when "a defendant's criminal history category
significantly over-represents the seriousness" of her criminal
history. As an example of circumstances in which such a departure
might be appropriate, the Sentencing Commission suggests "the case
of a defendant with two minor misdemeanor convictions close to ten
years prior to the instant offense and no other evidence of prior
criminal behavior in the intervening period." U.S.S.G. § 4A1.3
(policy statement).
MADISON was clearly an inappropriate candidate for application
of § 4A1.3. The many criminal offenses with which she was charged
and of which she was convicted were all of a serious nature.
MADISON had exhibited a pattern of criminal activity leading right
up to the instant offense. In fact, she was placed in category III
instead of category II because she committed the instant offense
within a short period after being released from her most recent
prison sentence. The sentencing court's application of § 4A1.3 to
MADISON was clearly the result of an incorrect application of the
10
She was charged with battery, theft, and other
offenses. The charges were dropped. (PSR at 8-9, par. 32 -35,
37).
11
That warrant stemmed from MADISON's failure to appear
for arraignment on charges of grand theft, using a stolen credit
card, receiving stolen property, and forgery. (PSR at 9, par.
36).
12
Sentencing Guidelines.
Having considered the briefs, oral arguments, and pertinent
parts of the record, and reviewing assignments of error under
controlling standards of review, we find that sufficient evidence
supported MADISON's convictions and that no manifest miscarriage of
justice resulted. We, therefore, AFFIRM the conviction.
We also find that the district court incorrectly applied the
sentencing guidelines by not basing its departure on acceptable
reasons. We, therefore, VACATE the sentence and REMAND for
resentencing within the Sentencing Guidelines pursuant to Williams
v. United States, 112 S.Ct. 1112 (1992), or for elaboration of
appropriate and adequate reasons for another downward departure
placed on the record.
Affirmed in part and the sentence is vacated and the matter
remanded for resentencing.
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