United States v. Darin Underwood

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-15750 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ April 25, 2006
THOMAS K. KAHN
D. C. Docket No. 04-00165-CR-T-24-MSS CLERK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARIN UNDERWOOD,
a.k.a. Buck,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(April 25, 2006)

Before EDMONDSON, Chief Judge, ANDERSON and FAY, Circuit Judges.

ANDERSON, Circuit Judge:

The defendant, Darin Underwood (“Underwood”), appeals his 135-month

sentence for possession with intent to distribute 50 grams or more of cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Underwood argues that 21

U.S.C. § 841 is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348 (2000), and that under United States v. Booker, 543 U.S. 220, 125

S.Ct. 738 (2005), his sentence must be vacated and remanded because the district

court committed plain error by sentencing him under a mandatory United States

Sentencing Guidelines (“Guidelines”) scheme. Additionally, Underwood argues

that conversations his brother Darryl had with a confidential informant, offered at

trial as statements of a co-conspirator, constituted inadmissible hearsay, the

admission of which violated the Confrontation Clause of the Sixth Amendment and

the requirements of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).

After considering each of the defendant’s arguments, we affirm his

conviction and 135-month sentence.

I. FACTUAL AND PROCEDURAL HISTORY

In November of 2002, the Drug Enforcement Administration (“DEA”) began

investigating Underwood and his brother Darryl (“Darryl”) for drug trafficking. As

part of its investigation, the DEA used a confidential informant named Victoria

Hopps (“Hopps”). On November 4th, Hopps contacted Darryl by phone, and later

in person, and asked to buy three ounces of cocaine base. Darryl replied that he

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“didn’t know nothing about all that” but that his brother, the defendant, would

know everything that Hopps was asking about. Darryl directed Hopps to a location

where she could find Underwood. During their face-to-face meeting, Underwood

promised that he would get some cocaine to sell to Hopps.

On November 12, 2002, Underwood contacted Hopps about the cocaine,

saying he had acquired some and was ready to sell. On the 15th, Darryl drove

Underwood to the location of a pre-arranged meeting and dropped him off. At the

meeting, Hopps purchased 51.2 grams of cocaine base from Underwood. While the

transaction was occurring, law enforcement agents conducting surveillance

observed Darryl parked in his car nearby. After the sale had been made,

Underwood returned to Darryl’s car for a moment, and then Darryl drove off.

On November 18, 2002, Hopps was unable to reach Underwood directly, and

instead contacted Darryl to arrange another meeting to purchase drugs. Later that

day, Hopps met with Underwood and purchased 80.3 grams of cocaine base. After

that transaction was completed, Underwood was driven away by Darryl in Darryl’s

car.

On January 13, 2003, Hopps met with Underwood for the last time, inquiring

once again about purchasing cocaine base. Underwood explained that there were

problems with another deal in which he was involved and he would likely not be

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able to supply any more cocaine. Hopps later met with Darryl, who corroborated

Underwood’s earlier statement that he would no longer be able to provide cocaine.

In April of 2004, the DEA arrested Underwood. He was indicted on two counts of

distributing, and possessing with intent to distribute 50 grams or more of cocaine,

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). At trial the jury found the

defendant guilty of both counts, and he was sentenced to 135 months in prison.

II. DISCUSSION

A. Booker Error.

On appeal, Underwood argues for the first time that, in light of Booker, the

Guidelines are unconstitutional and his case should be vacated and remanded

because the district court applied the Guidelines in a mandatory fashion. When a

defendant fails to raise an objection in the district court on the basis of Booker, we

review for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005), cert. denied, 125 S.Ct. 2935. Under plain error review, there must be (1) an

error, (2) that is plain, and (3) affects the defendant’s substantial rights. Id. When

these three factors are met, we may then exercise our discretion to correct the error

if it seriously affects the fairness, integrity, or public reputation of the judicial

proceedings. Id.

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 On appeal, Underwood maintains that he has met all four prongs under plain

error review. First, he argues that the district court erred by sentencing him under

the mandatory Guidelines system and that the error was plain at the time of

appellate consideration. Next, he claims that because the court sentenced him to

the lowest possible sentence under the Guidelines, there is an indication that, had

the court sentenced Underwood through an advisory Guidelines scheme, his

sentence would have been different. Finally, Underwood argues that under an

advisory scheme, the court would have been able to consider the mitigating factors

set forth in 18 U.S.C. § 3553, which might have resulted in him receiving a lesser

sentence.

Both Underwood and the government correctly concede that the first and

second prongs of the plain error test are easily satisfied. The district court erred

when it sentenced Underwood because it considered the Guidelines to be

mandatory, and even though the error was not plain at the time of sentencing, the

subsequent issuance of Booker establishes that the error is plain at the time of

appellate consideration. See United States v. Shelton, 400 F.3d 1325, 1331 (11th

Cir. 2005); Rodriguez, 398 F.3d at 1299. See also Johnson v. United States, 520

U.S. 461, 468, 117 S.Ct. 1544 (1997) (“[W]here the law at the time of trial was

settled and clearly contrary to the law at the time of appeal–it is enough that the

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error be 'plain' at the time of appellate consideration.”). The question is whether

the court’s error affected Underwood’s substantial rights.

In applying the third prong of the plain error test, the burden is on

Underwood to demonstrate that the plain error “affects [his] substantial rights.”

Rodriguez, 398 F.3d at 1300. We must ask “whether there is a reasonable

probability of a different result if the guidelines had been applied in an advisory

instead of binding fashion by the sentencing judge in this case.” Id. at 1301. As

we explained in Rodriguez, however:

[W]here the effect of an error on the result in the district court is uncertain or
indeterminate–where we would have to speculate–the appellant has not met
his burden of showing a reasonable probability that the result would have
been different but for the error; he has not met his burden of showing
prejudice; he has not met his burden of showing that his substantial rights
have been affected.

Id. at 1301 (citing Jones v. United States, 527 U.S. 373, 394-95, 119 S.Ct. 2090,
2105 (1999)).

The defendant’s burden has been satisfied in past cases by presenting

evidence indicating that the district court was frustrated with the severity of the

Guidelines and sought to find a way to have a lower sentence imposed, United

States v. Martinez, 407 F.3d 1170, 1173-74 (11th Cir. 2005). A sentence that is at

the low end of the Guideline range, however, is not in and of itself sufficient to

satisfy the third-prong burden. See United States v. Fields, 408 F.3d 1356, 1360-

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61 (11th Cir. 2005) (applying plain error review in holding that the fact that the

defendant was sentenced to the bottom of the mandatory Guidelines range, without

more, is insufficient to satisfy the third prong’s requirement that the defendant

show a reasonable probability of a lesser sentence under an advisory guideline

system), petition for cert. filed, No. 05-5157 (U.S. June 29, 2005).

The record indicates no frustration on the part of the district court with the

severity of the Guidelines sentence, nor did the district court indicate a desire to

impose a lesser sentence in Underwood’s case. As a result, Underwood’s argument

relies solely on the fact the district court imposed the lowest possible sentence

within the Guidelines range. We explained in Fields, however, that this is not

sufficient to demonstrate a reasonable probability of a lesser sentence.

Accordingly, Underwood has not established that his substantial rights were

affected by the district court’s Booker error, and thus he is not entitled to relief on

this issue. See Rodriguez, 398 F.3d at 1301.

B. Constitutionality of 21 U.S.C. § 841.

Underwood argues for the first time on appeal that 21 U.S.C. § 841 is

unconstitutional, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348

(2000). Underwood claims that if the drug quantities in 21 U.S.C. § 841 are

sentencing factors and not elements of the offense, as this court has previously

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held, then the statute is unconstitutional. He reasons that, because district courts

have historically determined facts underlying the sentencing factors in 21 U.S.C. §

841(b), and Apprendi requires a jury, not a judge, to determine facts that increase

the penalty for a crime beyond the statutory maximum, § 841 does not conform

with Apprendi and is therefore unconstitutional. When a defendant fails to raise an

Apprendi constitutional error in the district court, we review for plain error, United

States v. Hester, 287 F.3d 1355, 1357 (2000), the requirements of which have been

outlined above.

In United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en banc) we

held that Apprendi only implicated § 841 where a judge-found drug quantity

increased a defendant’s sentence beyond the statutory maximum. Sanchez, 269

F.3d at 1268. In cases where a “defendant’s actual sentence falls within the range

prescribed by the statute for the crime of conviction” there is no Apprendi

constitutional error. Id. (emphasis omitted). Following the reasoning set forth in

Sanchez, we later held that where a defendant “cannot demonstrate that no set of

circumstances exist under which the [statute] would be valid,” a statute is not

unconstitutional. United States v. Tinoco, 304 F.3d 1088, 1101 (11th Cir. 2002)

(holding that 46 U.S.C. app. § 1903, as incorporating 21 U.S.C. § 960, is not

unconstitutional under Apprendi because in most sentencing scenarios “the

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sentence actually imposed will fall below the prescribed statutory maximum.”)

(quotation omitted).

Under our precedent, therefore, an Apprendi constitutional error occurs only

where a defendant is sentenced beyond the statutory maximum for the offense.

Sanchez, 269 F.3d at 1268-69; Tinoco, 304 F.3d at 1101. Though Sanchez

involved the application of § 841(b)(1)(C) and Tinoco the application of § 960(b),

we hold that the principle underlying the holdings of those cases applies with

equal force to § 841(b)(1)(A)(iii), which is at issue in this case. The maximum term

of imprisonment under 21 U.S.C. § 841(b)(1)(A)(iii) is life imprisonment.

Underwood was sentenced to 135 months in prison, well below the statutory

maximum. In a § 841 case where the defendant’s ultimate sentence falls at or

below the statutory maximum penalty in § 841(b)(1)(A)(iii), there is no Apprendi

error. Underwood has failed to demonstrate that the district court committed plain

error, and is therefore not entitled to relief.

C. The Statements from Underwood’s Brother.

At trial, the government sought to introduce and publish to the jury CD’s of

recorded conversations between Underwood’s brother, Darryl, and Hopps, the

confidential informant. The CD’s contained conversations clearly implicating

Underwood in criminal activity. The defense objected to the introduction of the

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CD’s, claiming both that Darryl was not a co-conspirator in the case, and that the

admission of the CD’s was barred under Crawford v. Washington, 541 U.S. 36, 124

S.Ct. 1354 (2004).

We review questions of constitutional law de novo. United States v. Brown,

364 F.3d 1266, 1268 (11th Cir. 2004). Determinations of the admissibility of

evidence are in the discretion of the trial judge and will not be reversed by an

appellate court unless it finds an abuse of discretion. United States v. Myles, 290

F.3d 1341, 1351 (11th Cir. 2002).

At trial, Underwood argued both that Darryl was not a co-conspirator and

that because Hopps was working “under the auspices of law enforcement” as a

confidential informant, the conversations between Hopps and Darryl were not

merely “non-formal statements made by individuals to acquaintances,” but rather

analogous to conversations covered by Crawford. The district judge overruled the

defense objection, finding that Darryl did qualify as a co-conspirator and that

Crawford did not bar admission of the evidence: “And I think clearly based on

what I’ve heard so far, the brother [Darryl] was involved as a co-conspirator in this

case. But Crawford seems to apply to out-of-court statements by witnesses that are

testimonial, and this is not testimonial ... [i]t doesn’t seem that Crawford – the

Crawford case would prohibit the introduction of these CD’s.” Underwood appeals

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both rulings by the district court.

We turn first to the argument that the brother was not a co-conspirator.

Defendant correctly asserts that in order to introduce statements of the co-

conspirator under Fed.R.Evid. 801(d)(2)(E), the government must prove by a

preponderance of the evidence that (1) a conspiracy existed, (2) the conspiracy

included the declarant and the defendant against whom the statement is offered,

and (3) the statement was made during the course of and in furtherance of the

conspiracy. Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778

(1978). The government produced CD’s with recorded conversations between

Darryl and the confidential informant and introduced testimony of agents who

observed Darryl driving to and from drug transactions with Underwood. Darryl

communicated on Underwood’s behalf while the negotiations for the drug deals

were taking place, and helped set up meetings between Underwood and Hopps at

which the drugs were to be sold. We readily conclude that the government

provided ample evidence that Darryl was involved in selling drugs with

Underwood, and satisfied the three requirements for introducing statements of a co-

conspirator.

Nevertheless, Underwood argues that the statements contained on the CD’s

should not have been admitted at trial because they were “testimonial” statements

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under the meaning of the Sixth Amendment and therefore barred under the holding

of Crawford. In Crawford, the Supreme Court held that a Washington state court

had committed error when it admitted at trial the tape recorded statement of the

defendant’s wife, made to police, during the police interrogation of her. The

interrogation concerned the involvement of the defendant and his wife in the

stabbing of a man who had previously tried to rape the wife. The wife was

unavailable to testify at defendant’s trial because of the spousal privilege. The

Court reasoned that the statement to police had been testimonial, and that because

the defendant had never had the opportunity to cross-examine his wife about the

statement, admitting the statement at trial violated his constitutional rights under

the Confrontation Clause.1 Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. In

Crawford, the Court abrogated Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 25, 31

(1980), and changed the legal landscape with respect to prior testimonial

statements, holding: “[w]here testimonial evidence is at issue ... the Sixth

Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination.” Crawford, 541 U.S. at 68, 124 S.Ct. at 1374.

However, Crawford did not alter the law with respect to non-testimonial hearsay.

1
The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with witnesses against him.” U.S. Const.
Amend. VI.”

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Id. (“Where non-testimonial hearsay is at issue, it is wholly consistent with the

framers’ design to afford the States flexibility in their development of hearsay law

– as does Roberts.” ).

Having already concluded that the challenged evidence in this case satisfies

the requirements for introducing statements of a co-conspirator, Underwood’s only

remaining challenge to the admission of the CD’s is whether or not the challenged

evidence was “testimonial.” The Court noted that the Confrontation Clause applies

to “witnesses” who bear testimony, which the Court indicated is typically a solemn

declaration or affirmation made for the purpose of establishing or proving some

fact. Id. at 51, 124 S.Ct. at 1364. The Court in Crawford declined to spell out a

comprehensive definition of “testimonial.” However, the Court did describe the

minimum coverage of “testimonial” status, holding that: “it applies at a minimum

to prior testimony at a preliminary hearing, before a grand jury or at a former trial;

and to police interrogations.” Id. at 68, 124 S.Ct. at 1374. Without adopting a

particular formulation of the core class of “testimonial” statements, the Court did

mention three: (1) “ex parte in-court testimony or its functional equivalent – that is,

material such as affidavits, custodial examinations, prior testimony that the

defendant was unable to cross-examine, or similar pretrial statements that

declarants would reasonably expect to be used prosecutorially” 541 U.S. at 51, 124

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S.Ct. at 1364; (2) “extrajudicial statements ... contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or confessions” id.; and

(3) “statements that were made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a

later trial.” Id. As the Second Circuit has noted, all of these formulations involve

statements made under circumstances which would lead the declarant to believe

that the statement would be available for use at a later trial. United States v. Saget,

377 F.3d 223, 229 (2nd Cir. 2004).

In this case, the challenged evidence consisted of recorded conversations

between the confidential informant and Darryl in which arrangements were made

for the confidential informant to purchase cocaine. This evidence is neither

testimony at a preliminary hearing, nor testimony before a grand jury, nor

testimony at a former trial, nor a statement made during a police interrogation.

Moreover, the challenged evidence does not fall within any of the formulations

which Crawford suggested as potential candidates for “testimonial” status.

Crawford, 541 U.S. at 51, 124 S.Ct. at 1364. Darryl, the declarant in the

challenged evidence, made statements to Hopps in furtherance of the criminal

conspiracy. His statements clearly were not made under circumstances which

would have led him reasonably to believe that his statement would be available for

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use at a later trial. Had Darryl known that Hopps was a confidential informant, it is

clear that he never would have spoken to her in the first place.

Although the foregoing discussion would probably support a holding that the

evidence challenged here is not “testimonial,” two additional aspects of the

Crawford opinion seal our conclusion that Darryl’s statements to the government

informant were not “testimonial” evidence. First, the Court stated: “[m]ost of the

hearsay exceptions covered statements that by their nature were not testimonial –

for example, business records or statements in furtherance of a conspiracy.” Id. at

55, 124 S.Ct. at 1367. Also, the Court cited Bourjaily v. United States, 483 U.S.

171, 107 S.Ct. 2775 (1987), approvingly, indicating that it “hew[ed] closely to the

traditional line” of cases that Crawford deemed to reflect the correct view of the

Confrontation Clause. Crawford, 541 U.S. at 58, 124 S.Ct. at 1368. In approving

Bourjaily, the Crawford opinion expressly noted that it involved statements

unwittingly made to an FBI informant. Id. Bourjaily held that a co-conspirator’s

unwitting statements to an FBI informant were properly admitted at trial against the

defendant, despite the fact that the defendant had not had a prior opportunity for

cross-examination and the declarant was not available at trial. The co-conspirator

statement in Bourjaily is indistinguishable from the challenged evidence in the

instant case.

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 For the foregoing reasons, we conclude that the challenged evidence in this

case was not “testimonial,”2 and that it satisfied the requirements for the admission

into evidence of co-conspirator statements. Accordingly, the district court did not

err in admitting the evidence.

III. CONCLUSION

After consideration of each of the defendant’s arguments, we conclude that

the judgment of the district court is

AFFIRMED.

2
Our holding is consistent with that of every other circuit court of appeals to have
addressed the issue in an analogous context. United States v. Delgado, 401 F.3d 290 (5th Cir.
2005) (involving statements admissible as statements of a co-conspirator); United States v.
Hendricks, 395 F.3d 173 (3rd Cir. 2005) (involving, inter alia, co-conspirator statements); United
States v. Saget, 377 F.3d 223 (2nd Cir. 2004) (involving statements of a co-conspirator admitted
as statements against interest); United States v. Reyes, 362 F.3d 536 (8th Cir. 2004) (involving
statements admissible as statements of a co-conspirator).

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