NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-3020
_____________
UNITED STATES OF AMERICA
v.
RAHSEEM DRUMMOND,
Appellant
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 1-09-cr-00159-001
District Judge: The HonorableYvette Kane
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 17, 2012
Before: SMITH, and FISHER, Circuit Judges
and STEARNS, District Judge
(Filed: May 18, 2012)
_____________________
OPINION
_____________________
The Honorable Richard G. Stearns, United States District Judge for the United
States District Court of Massachusetts, sitting by designation.
STEARNS, District Judge.
On December 2, 2010, Rahseem Drummond pled guilty to two counts of
using a communication facility in furtherance of drug trafficking, 21 U.S.C. §
843(b). On July 18, 2011, the District Court sentenced Drummond to ninety-six
months in custody, one year of supervised release, and a $1,000 fine. Drummond
raises two issues on appeal: whether inculpatory statements he made to law
enforcement agents should have been suppressed because he was not informed of
his Miranda rights1 prior to the interrogation, and whether the sentence imposed
was unreasonable under the circumstances. We will affirm the District Court.
BACKGROUND
Because we write exclusively for the parties, we set forth only those facts
and procedural aspects that are relevant to our decision. In early 2009, the
Cumberland County Drug Task Force learned from several informants that
Rahseem Drummond was importing marijuana from New Jersey for resale in the
Chambersburg and Shippensburg area. Among the informants was Drummond‟s
(then) girlfriend, Channel Thomas, who also confided that Drummond was in
possession of a sawed-off shotgun and a handgun. Thomas admitted to
accompanying Drummond regularly on his supply runs to New Jersey.
On May 5, 2009, another confidential source (CS) told the investigators that
1
See Miranda v. Arizona, 384 U.S. 436 (1966).
2
Drummond was planning a trip to New Jersey the following day to purchase crack
cocaine and marijuana. Agents assisted the CS in renting a Chevrolet Impala to
lend to Drummond for the New Jersey trip, and implanted the vehicle with a GPS
device. On the evening of May 5, Drummond, accompanied by Thomas and Orson
Adams, a co-defendant, drove the Impala from Chambersburg to a hotel in St.
Thomas, Pennsylvania. There Drummond gave Thomas a large sum of cash to
purchase drugs. Leaving the Impala for the two couriers, Drummond took
Thomas‟s car and drove himself home.2 Thomas and Adams continued on to New
Jersey.
On May 9, 2009, the CS alerted investigators that Thomas and Adams were
on the way back to Chambersburg from New Jersey. At the investigators‟ request,
Pennsylvania State Troopers stopped the Impala on Interstate 81 and confiscated
several pounds of marijuana from the trunk. At the Harrisburg State Police
barracks, while being booked, Thomas admitted to having what proved to be 99.7
grams of crack cocaine in her pants.
In coordination with the stop of Thomas and Adams, the investigators, led
by Drug Enforcement Administration (DEA) Agent Keith Kierzkowski, stopped
It appears that Thomas‟ car was already parked at the hotel in St. Thomas.
2
See App. at 82.
3
Drummond in a car driven by Kierra Rice.3 Drummond was placed under arrest,
and after being told of the arrest of Thomas and Adams, stated that he would “take
the hit for the weed but not the crack.” At this point, investigators had yet to learn
that Thomas had crack cocaine in her possession.
On May 13, 2009, a federal grand jury indicted Drummond, together with
Thomas, Adams, and another conspirator, Carolyn Stratum, with multiple counts
of federal drug crimes.4 On May 26, 2010, a second superseding indictment
charged Drummond with seven counts, including two use of communication
facilities counts to which he eventually pled guilty.
Prior to pleading guilty, Drummond sought to suppress both his post-arrest
statements and the crack cocaine and marijuana seized from the rented Impala. On
February 4, 2010, after an evidentiary hearing, the District Court denied both
motions to suppress and scheduled the case for trial. In December of 2010,
Drummond entered into a plea agreement with the government. Under the terms
of the agreement, Drummond was permitted to plead guilty to the two use of
3
Rice was found to have marijuana hidden in her purse and bra. She told
investigators that Drummond had given the drugs to her and that on several
occasions Drummond had hired her to drive to New Jersey to pick up marijuana.
4
A superseding indictment adding a fifth defendant, Jason Morris, was
returned on July 29, 2009.
4
facilities counts with respect to the marijuana only.5 Both Drummond and the
government reserved the right to contest the issue of Drummond‟s responsibility
for the crack cocaine at sentencing. Drummond also reserved the right to appeal
the District Court‟s suppression rulings.
DISCUSSION6
Drummond’s Motion to Suppress7
On appeal, Drummond challenges only the refusal of the District Court to
suppress the incriminating statement that he made to Agent Kierzkowski after his
arrest.8 The essence of Drummond‟s argument is that there is no affirmative proof
that he was informed of the entirety of his Miranda rights. According to
Drummond, the record establishes only that Agent Kierzkowski “read Mr.
5
The government agreed to dismiss the remaining five counts of the
indictment.
6
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231; we have
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
7
We review “the District Court‟s denial of a motion to suppress for clear
error as to the underlying factual findings and exercise[ ] plenary review of the
District Court‟s application of the law to those facts.” United States v. Perez, 280
F.3d 318, 336 (3d Cir. 2002) (citing United States v. Riddick, 156 F.3d 505, 509
(3d Cir. 1998)).
8
Agent Kierzkowski testified that after he told Drummond that Thomas had
been arrested as well, he “said something to the effect of, I‟ll take the hit for the
weed, but I‟m not going to take the hit for the crack, and that he‟s a weed guy and
he sells weed, he has nothing to do with what‟s in that vehicle.” App. at 69.
5
Drummond his rights from a DEA 13A card. However, Agent Kierzkowski never
specified what he told Mr. Drummond. Also, a DEA 13A card was never entered
into the record.” Appellant‟s Br. at 21. Given this void, the argument continues,
the District Court abused its discretion in rejecting Drummond‟s countervailing
testimony that he was never told of his right to remain silent or to consult with an
attorney.
The Fifth Amendment provides that “no person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V. While
“admissions of guilt by wrongdoers, if not coerced, are inherently desirable,”
United States v. Washington, 431 U.S. 181, 187 (1977), the Supreme Court in
Miranda “presumed that interrogation in certain custodial circumstances is
inherently coercive and held that statements made under those circumstances are
inadmissible unless the suspect is specifically informed of his Miranda rights and
freely decides to forgo those rights.” New York v. Quarles, 467 U.S. 649, 654
(1984).9 The “Miranda rights,” while not constitutionally compelled, have a
“constitutional underpinning,” and thus, they may not be rescinded by an act of
Congress or be treated with anything but the most scrupulous regard by a
9
The government does not contest the fact that Drummond was in custody
when the incriminating statement was made.
6
reviewing court. Dickerson v. United States, 530 U.S. 428, 440 n.5, 444 (2000).
The Miranda warnings are as follows:
“[A suspect] must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used against him in
a court of law, that he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be appointed for him prior
to any questioning if he so desires.”
Miranda, 376 U.S. at 479.
At the September 3, 2009 suppression hearing, Agent Kierzkowski testified
that after Drummond was told that he was under arrest, Kierzkowski advised
Drummond of his Miranda rights by reading from a DEA 13A card. “It‟s a
Miranda warning waiver card. It is provided to us, and I read it verbatim off this
yellow card that I usually carry around my neck with my badge.”10 App. at 68.
Drummond, for his part, testified that the agents had pulled him from the car with
guns drawn, thrown him to the ground, belittled him, and after he was handcuffed,
Kierzkowski violently beat him before placing him in the State Police cruiser. He
also testified that neither Kierzkowski nor any other officer advised him of his
Miranda rights. See id. at 92-99. The District Court found Drummond‟s
10
Agent Kierzkowski gave nearly identical testimony about his customary
practice in reading the Miranda rights from his personal DEA 13A card in a
separate case. See United States v. Jones, 2007 WL 4365741, at *3 (M.D. Pa. Dec.
12, 2007). As in this case, the District Court in Jones credited his testimony and
rejected the defendant‟s assertion that no Miranda warnings had been given.
7
testimony wholly incredible.11 By contrast, she found Kierzkowski‟s testimony
persuasive and credible and thus denied the motion to suppress. Id. at 144.
This pretty much ends the matter. Under the clear error standard, we will
accept the District Court‟s factual determinations unless they are either (1)
“completely devoid of minimum evidentiary support displaying some hue of
credibility,” or (2) “bear[ ] no rational relationship to the supportive evidentiary
data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972). See also United
States v. Bethancourt, 65 F.3d 1074, 1078 (3d Cir. 1995) (“[W]e will not review a
district court‟s credibility determination.”). We find no error in the District
Court‟s ruling, much less a clear one.
Drummond’s Sentence
Drummond argues that the District Court made both procedural and
substantive errors in formulating his sentence.12 The 96-month sentence imposed
11
The District Court stated that it was “not persuaded that Agent
Kierzkowski punched Defendant in front of several other officers, including
[Pennsylvania State Police] officers, for failing to respond to his un-Mirandized
questioning. Moreover, the Court is not persuaded by Defendant‟s testimony that
he was not informed of the reasons for his arrest for several days – until his
attorney arrived at the county jail – , that he asked for an attorney despite all
officers‟ failure to inform him of his rights, or that any incriminating statements
were completely fabricated by Agent Kierzkowski.” Id. at 144. The District Court
also noted that Drummond had shifted his version of the supposed assault during
his testimony and found that his “demeanor was unconvincing.” Id.
8
by the District Court consisted of consecutive terms of imprisonment of 48 months
on each of the two counts to which Drummond pled guilty. Drummond contends
that the District Court miscalculated the sentencing guidelines range (SGR) and
improperly weighed the 18 U.S.C. § 3553 factors.13 Specifically, he faults the
District Court for: (1) holding him responsible for the 99.7 grams of crack cocaine
seized from Thomas; (2) applying a two-level increase for possession of a deadly
weapon; (3) applying a four-level increase for his supervisory role; (4) denying any
credit for acceptance of responsibility; (5) declining to depart downward in
recognition of the harsh conditions of his confinement at the Dauphin County jail;
(6) declining to vary based on the lower sentences received by his co-defendants;
and (7) declining to vary because of alleged “sentencing entrapment.”
We recently explained that
“Our review of a criminal sentence . . . proceeds in two stages. First,
we review for procedural error at any sentencing step, including, for
example, failing to make a correct computation of the Guidelines
range at step one, failing to rely on appropriate bases for departure at
step two, or failing to give meaningful consideration to the § 3553(a)
factors at step three.” [United States v. Wright, 642 F.3d 148, 152 (3d
Cir. 2011)] (internal citations and quotations omitted). “If there is no
12
“The abuse-of-discretion standard applies to both [the] procedural and
substantive reasonableness inquiries.” United States v. Tomko, 562 F.3d 558, 567
(3d Cir. 2009) (citations omitted).
13
Based on Drummond‟s offense level of 34 and criminal history category
IV, the SGR was calculated at 210-262 months; however, because of the statutory
maximum of four years on each use of communications facilities count, the SGR
was capped at 96 months.
9
procedural error, the second stage of our review is for substantive
unreasonableness, and we will affirm the sentence unless no
reasonable sentencing court would have imposed the same sentence
on that particular defendant for the reasons the district court
provided.” Id. [citations omitted].
United States v. Fumo, 655 F.3d 288, 308 (3d Cir. 2011).
The alleged errors can be disposed of in quick order. The attribution
of the crack cocaine found on Thomas to Drummond was reasonable given
the predictive information supplied to Agent Kierzkowski by the CS (that he
had been told by Drummond that Thomas and Adams had begun the journey
back from New Jersey after successfully purchasing marijuana and crack
cocaine), Thomas‟s confirmatory testimony at the sentencing hearing
regarding the trip to New Jersey, and Drummond‟s blurting out on his arrest
that “he wouldn‟t take the hit for the crack” before any of the officers had
told him that crack had been seized.14 While some of the information on
which the District Court relied was hearsay, as Drummond acknowledges,
reliable hearsay is admissible at a sentencing hearing. Appellant‟s Br. at 29.
The hearsay at issue here had the virtue of being not only internally cross-
corroborating, but also corroborated by external events. See United States v.
Berry, 258 F.3d 971, 976 (9th Cir. 2001) (“One factor evidencing the
14
Thomas testified that the day prior to the New Jersey trip, she overheard
Drummond and Adams talking about “how much money they can make . . . if they
brought it [crack cocaine] back.”
10
reliability of hearsay statements . . . is external consistency.”). See also
United States v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996) (quoting United
States v. Miele, 989 F.2d 659, 664 (3d Cir. 1993) (“The sentencing court can
give a high level of credence to hearsay statements, going so far as to „credit
hearsay evidence over sworn testimony, especially where there is other
evidence to corroborate the inconsistent hearsay statement.‟”)).15
A four-level increase based on a leadership role in a criminal
enterprise is warranted “[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive . . . .” United States Sentencing Guidelines (USSG) § 3B1.1
(emphasis added). Drummond‟s argument that he did not supervise five or
more criminal subordinates is beside the point. Whether Keirra Rice, Jason
Morris, and Paul Galdfelter16 (who seem to have been peripheral players) are
counted in or out of the conspiracy, it was not unreasonable for the District
15
Reliable hearsay also supported the two-level enhancement for possession
of a deadly weapon. Thomas testified that Drummond owned at least two guns –
one of which she distinctly remembered because Drummond used it to threaten her
during a domestic argument. She also testified that on most occasions he carried a
weapon (a knife) when they travelled to New Jersey to buy marijuana. The
Presentence Report noted that three other witnesses had told investigators that they
had seen Drummond in possession of firearms on numerous occasions.
16
Galdfelter was another actor involved in Drummond‟s illegal dealings.
11
Court to have found Drummond‟s interstate drug trafficking activity
“extensive.”
Similarly, it was not an abuse of discretion to refuse to give
Drummond credit for acceptance of responsibility. A guilty plea does not
guarantee a defendant the two-level decrease in his offense level otherwise
authorized by USSG § 3E1.1. “[A] defendant who falsely denies, or
frivolously contests, relevant conduct that the court determines to be true has
acted in a manner inconsistent with acceptance of responsibility.” USSG §
3E1.1, Application Note 1(a). Having determined that Drummond lied
under oath about the crack cocaine, the District Court was well within its
discretion in concluding that Drummond had failed to accept full
responsibility for his criminal conduct. See United States v. Ceccarani, 98
F.3d 126, 129 (3d Cir. 1996) (“[T]he Guidelines make clear that „[t]he
sentencing judge is in a unique position to evaluate a defendant‟s acceptance
of responsibility. For this reason, the determination of the sentencing judge
is entitled to great deference on review.‟”) (quoting USSG § 3E1.1,
Application Note 5).
12
Finally, the District Court did not abuse its discretion by failing to
properly weigh the § 3553(a) factors.17 With respect to the potential
sentencing disparity between co-defendant Adams and Drummond, the
District Court questioned the prosecutor and declared her satisfaction with
the explanation that Adams had received a significantly lesser sentence
recommendation based on willingness to cooperate with the DEA.
Drummond‟s complaints about his conditions of confinement at the Dauphin
County jail might find their place in an appropriate § 1983 due process
action, see Villanueva v. George, 659 F.2d 851, 853-854 (8th Cir. 1991), but
as the District Court indicated, they have little if any relevance to
punishment after conviction. Finally, Drummond‟s theory of “sentencing
entrapment,” like its twin theory of “sentencing factor manipulation,” has
yet to be formally recognized in this Circuit, and we decline to consider it in
a case like this one, where the facts would not support application of the
theory even were we to adopt it. See United States v. Sed, 601 F.3d 224, 229
17
“[A]n appellate court reviews a sentence for reasonableness with regard to
the factors set forth in 18 U.S.C. § 3553(a). . . . In order for a sentence to be
reasonable, the record must demonstrate that the sentencing court gave
„meaningful consideration‟ to these factors.” United States v. Bungar, 478 F.3d
540, 542-543 (3d Cir. 2007) (internal citation omitted).
13
(3d Cir. 2010).18 Discerning no procedural error in the imposition of
Drummond‟s sentence, we also find no substantive error. See Tomko, 562
F.3d at 568 (“[I]f the district court‟s sentence is procedurally sound, we will
affirm it unless no reasonable sentencing court would have imposed the
same sentence on that particular defendant for the reasons the district court
provided.”).19
Consequently, we will affirm the judgment of the District Court.
18
Sentencing manipulation theories have had a largely hostile reception in
other circuits. See United States v. Gibbens, 25 F.3d 28, 31 (1st Cir. 1994); United
States v. Washington, 44 F.3d 1271, 1279-1280 (5th Cir. 1995); United States v.
Garcia, 79 F.3d 74, 76 (7th Cir. 1996); United States v. Baker, 63 F.3d 1478, 1500
(9th Cir. 1995); United States v. Lacey, 86 F.3d 956, 963 (10th Cir. 1996); United
States v. Williams, 954 F.2d 668, 672-673 (11th Cir. 1992); United States v. Walls,
70 F.3d 1323, 1329 (D.C. Cir. 1995).
19
It must be noted that Drummond received a significant discount in his
potential sentence because of the government‟s decision to dismiss the five more
serious charges as part of Drummond‟s plea agreement. That decision effectively
capped Drummond‟s sentence at 96 months, roughly 45 percent of the 210-month
advisory minimum under the properly calculated SGR.
14