United States Court of Appeals
For the First Circuit
No. 05-2170
UNITED STATES OF AMERICA,
Appellee,
v.
GILBERTO BROWN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
Bjorn Lange, Assistant Federal Public Defender, Federal
Defender Office, for appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellee.
June 13, 2006
TORRUELLA, Circuit Judge. Following a two-day trial, a
jury convicted defendant-appellant Gilberto Brown ("Brown") of two
counts of distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). Brown was sentenced to 70 months' imprisonment. The
district court based the sentence on a finding that the substance
Brown distributed was crack cocaine and that, given the nature of
his offense and his criminal history, 70 months was a reasonable
sentence to impose. Brown now challenges both his conviction and
sentence. After careful consideration, we affirm.
I. Background
Brown was arrested after an investigation in which he
made two drug sales to government informant Steven Rheaume
("Rheaume"). Rheaume initiated the purchases from Brown in January
and February 2004. On both occasions, Rheaume called Brown's
cellular phone to arrange the deal at a specific gas station. Drug
Enforcement Administration ("DEA") officers recorded the calls and
subsequently observed a beige Kia Sephia, registered to Brown,
leave Brown's apartment and return shortly thereafter. Rheaume was
driven to the meeting place in a van by Detective Mark Newport
("Detective Newport") of the Portsmouth Police Department. On both
occasions, the same beige Kia identified at Brown's apartment
pulled into the gas station in front of the van. Detective Newport
testified that he recognized the driver as Brown from a photograph.
He also made an in-court identification of Brown as the man he had
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seen in the beige Kia. For each purchase, Rheaume went for a short
ride in the beige Kia and the DEA received body wire recordings of
the conversations taking place between Rheaume and the driver of
the Kia. After the two purchases, Rheaume handed over to Detective
Newport 4.2 grams and 2.2 grams, respectively, of a mixture
containing cocaine base. Detective Newport, in turn, handed the
substance over to the DEA.
Brown was indicted for two counts of distribution of
cocaine base in violation of 21 U.S.C. § 841(a)(1) and was
convicted of both counts following a two-day trial. He received
the minimum sentence under the Sentencing Guidelines of 70 months'
imprisonment.
Brown now appeals, raising several issues. First, he
contends that the district court twice erred in admitting testimony
from DEA Agent Edward Bals ("Agent Bals"), who identified Brown as
the person with whom Rheaume had spoken over the phone and in the
beige Kia even though the agent lacked sufficient knowledge of
Brown's voice. Second, Brown contends that the district court
erred in determining his offense level by ruling, without
explicitly finding, that the "cocaine-based" substance at issue was
crack. Third, Brown contends that the district court imposed an
unreasonable sentence.
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II. Discussion
A. Evidentiary Issues
1. Agent Bals's Testimony Regarding the Phone Calls
The district court admitted testimony from Agent Bals,
the coordinator of the investigation against Brown, in which Bals
described the recorded telephone calls that took place prior to
each of the two purchases between Rheaume and the person who sold
Rheaume the cocaine. Agent Bals indicated that Brown was the
person who made statements to Rheaume during the calls as to where
and when the deal would take place. However, Agent Bals did not
first demonstrate that he could identify Brown's voice. The
district court denied Brown's objection that Agent Bals's testimony
contravened the Federal Rules of Evidence, which prohibit a witness
from testifying to a matter in which he lacks personal knowledge or
qualifying expertise. See Fed. R. Evid. 602. Because Brown
objected below, we review the admission of Agent Bals's testimony
for abuse of discretion. United States v. Gilbert, 181 F.3d 152,
160 (1st Cir. 1999).
In its brief, the government argued that the admission of
Agent Bals's testimony was not error because it was offered not for
the purpose of identifying Brown as the speaker in the telephone
conversations, but rather to explain the actions taken by the DEA
in its investigation of Brown. The government argued that Agent
Bals's reference to the phone calls served to corroborate the
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surveillance of Brown and his vehicle going to and from Brown's
apartment. The government also argued that, even if admission of
the testimony was error, it was harmless. At oral argument,
however, the government changed its approach and conceded that
Agent Bals's testimony as elicited was error but went on to argue
that the error was harmless. For purposes of this appeal, we will
assume that admission of the testimony was error.
When a court errs in admitting evidence, we will not
reverse if the error is harmless, i.e., "if it is highly probable
that the error did not influence the verdict." United States v.
García-Morales, 382 F.3d 12, 17 (1st Cir. 2004). We find that this
is such a case. At trial, and prior to any testimony from Agent
Bals, Rheaume testified from first-hand knowledge that Brown was
the other person on the phone. Further, both Rheaume and Detective
Newport made in-court identifications of Brown as the person who
arrived in the brown Kia. Since the challenged testimony from
Agent Bals added little to the testimony already provided by
Rheaume and Detective Newport, we see no reason to believe that a
re-trial excluding the impermissible portion of Agent Bals's
testimony would result in a different outcome. See id.
2. Agent Bals's Testimony Regarding the Body Wire
Recordings
At trial, Agent Bals also testified about the mini-disc
recordings of the conversations that took place between Rheaume and
Brown in the beige Kia during the two drug deals. Brown contests
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the admissibility of this testimony, claiming that Agent Bals
lacked appropriate knowledge to identify the speaker in the
recordings as Brown. Since this issue is raised for the first time
on appeal, we review for plain error. United States v. Medina, 427
F.3d 88, 91 (1st Cir. 2005). To successfully argue plain error,
"the challenging party has the burden of showing (1) an error, (2)
that is plain, (3) that affects substantial rights (i.e. the error
was not harmless), and (4) that seriously undermines the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Glenn, 389 F.3d 283, 288 (1st Cir. 2004).
The government conceded at oral argument that the
admission of this testimony was error. However, even assuming that
the admission of the testimony was error and that the error was
plain, we find that it did not affect substantial rights because it
was harmless. Brown therefore cannot meet the third prong of plain
error review.
The inclusion of Agent Bals's testimony cannot be said to
have affected the outcome of the case. Agent Bals described the
recordings on the mini-disc as between Rheaume and Brown only after
Rheaume had testified to the same. In light of the first-hand
identification testimony provided by both Rheaume and Detective
Newport, along with the corroborating circumstantial evidence that
the seller was in Brown's vehicle, traveled to and from Brown's
apartment at the time of the drug deals, and employed Brown's
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cellular phone, we find that the admission of Agent Bals' testimony
was not plain error.
B. Cocaine Base versus "Crack"
Brown was convicted for distributing 6.4 grams of cocaine
base in violation of 21 U.S.C. § 841(a)(1). We have held that the
term "cocaine base" in 21 U.S.C. § 841 "includes all forms of
cocaine base, including but not limited to crack." United States
v. Richardson, 225 F.3d 46, 49 (1st Cir. 2000). However, as used
in the Sentencing Guidelines, "cocaine base" has a narrower
meaning. Id. Under the Guidelines
"Cocaine base," for the purposes of this
guideline, means "crack." "Crack" is the
street name for a form of cocaine base,
usually prepared by processing cocaine
hydrochloride and sodium bicarbonate, and
usually appearing in a lumpy, rocklike form.
U.S.S.G. § 2D1.1(c), Note (D). Thus, under the Guidelines, "forms
of cocaine base other than crack are treated as cocaine."
Richardson, 225 F.3d at 49. The district court found that Brown
was responsible for cocaine base as that term is used by the
Guidelines and assigned him a total offense level of twenty-six.1
Because Brown "was sentenced under the Guideline provision for
1
The base level for an offense involving a quantity of "cocaine
base" -- as that term is defined by the Guidelines, i.e., crack --
is equivalent to that for an offense involving 100 times that
quantity of "cocaine." U.S.S.G. § 2D1.1(c).
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cocaine base[,] his sentence . . . depended on a finding that the
substance attributed to him was crack." Id. at 50.2
Brown appeals the district court's finding that the
"cocaine-based" substance in the instant case is "crack" and
contends that he should have received an offense level consistent
with the distribution of "cocaine."3 We review the district
court's interpretation of the Guidelines de novo and its factual
findings for clear error. United States v. Meada, 408 F.3d 14, 24
(1st Cir. 2005).
The district court based its finding that Brown was
responsible for crack on the fact that he was convicted for
distribution of "cocaine base." The district court (and the
government) believed that "cocaine base," as used in 21 U.S.C.
§ 841, had the same meaning as "cocaine base" as used in the
Guidelines. The court believed that because Brown had been
convicted of distributing "cocaine base" under 21 U.S.C. § 841, he
was necessarily responsible for "cocaine base" -- i.e., crack --
under the Guidelines. However, as the government admits on appeal,
this view was erroneous and contrary to our holding in Richardson.
2
At sentencing, Brown argued that the government had failed to
prove that he distributed crack.
3
The Sentencing Guidelines distinguish only between "cocaine
base," defined as "crack," and "cocaine." The latter, undefined,
could therefore include other forms of cocaine base and certainly
includes cocaine hydrochloride (powder cocaine). See U.S.S.G.
§ 2D1.1(c).
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Nevertheless, if there is sufficient evidence to support
an alternative explanation for the court's finding that the
substance at issue was crack, the error is harmless and there would
be no reason to remand to the district court when the result would
be the same. See, e.g., United States v. Pizarro-Berríos, __ F.3d
__, 2006 WL 1195664, at *5 (1st Cir. May 5, 2006). We therefore
turn to whether the district court's finding that the substance in
question was crack is supported by the record.
In Richardson, we stated that the distinction in the form
of cocaine base lies not in its chemical profile, as crack is
chemically identical to other forms of cocaine base, but rather its
physical properties. 225 F.3d at 50. While laboratory testing and
expert testimony can specifically identify when sodium bicarbonate
-- which is often used in making crack -- is present, crack is also
uniquely identified by its "rock-like" texture and yellowish or
off-white color. See id. Lay opinion as to the appearance of a
substance to this effect may be used to prove that the substance is
crack. Id.
A survey of the record reveals the following evidence in
support of a finding that the substance Brown sold was crack: (1)
a forensic chemist testified that the substance given to her for
tests was cocaine base in "rock-like form"; (2) Rheaume testified
that he ordered crack from Brown, and the two discussed Brown
getting "those things" for Rheaume, which Rheaume explained meant
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"crack"; (3) Detective Newport testified that Rheaume gave him a
"hard rock-like substance," and identified the substance as
"crack"; and (4) Agent Bals, with twenty-one years of law
enforcement experience, testified that each bag of drugs turned
over to the DEA contained a "rock, off-white substance," which
appeared to him to be crack cocaine. In view of all of the
testimony presented at trial, see id., and in light of the "'utter
absence' of evidence that the substance was anything other than
crack cocaine," United States v. Robinson, 144 F.3d 104, 109 (1st
Cir. 1998), we discern no clear error in the district court's
determination that the substance at issue in this case was crack.4
C. The Reasonableness of the Sentence
We now turn to Brown's only remaining claim, that his
sentence was unreasonable. Given an offense level of twenty-six,
and a Criminal History Category of II, the Guidelines range for
Brown's sentence was 70-87 months. The district court imposed a
sentence at the low end of the range, 70 months' imprisonment on
each distribution count, to run concurrently, to be followed by
three years of supervised release. We evaluate the reasonableness
4
Brown argues that the record does not support a finding of
"crack" because the evidence does not indicate that the substance
at issue was "smokable." We have never held that the government
must prove that a substance is smokable in order for there to be a
proper finding that the substance was crack, and we decline to do
so here. While smokability might be relevant to the inquiry, we do
not think that it is a necessary element for finding a substance to
be crack.
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of this within-Guidelines sentence according to the methodology set
forth in United States v. Jiménez-Beltre, 440 F.3d 514, 516-19 (1st
Cir. 2006) (en banc) (holding that regardless of whether a sentence
falls inside or outside the applicable Guideline range, we use the
district court's reasons for a sentence to assess its
reasonableness).
After reviewing the record, we conclude that the district
court's sentencing procedure did not run afoul of Jiménez-Beltre.
The court consulted the Guidelines along with the relevant
statutory factors in 18 U.S.C. § 3553(a) prior to handing down its
final decision. See United States v. Sagendorf, 445 F.3d 515, 517
(1st Cir. 2006) (in affirming the defendant's sentence, noting that
the district court had consulted the § 3553(a) factors and the
Guidelines before deciding that sentence at the bottom of the
Guidelines range was reasonable and just). The court also stated
that it took into account the statutory factors, along with Brown's
"record as a whole," specifically noting Brown's "troubled history"
and that the offenses were "deliberate sales" of "highly addictive
drugs." With these facts in mind, the district court stated that
"60 to 75, 80 months is where I would be absent the advisory
guidelines, and 70 months certainly seems like a reasonable
sentence."
Brown also argues that the court's reference to the
reasonableness of the sentence it was choosing to impose is an
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indication that the court treated the Guidelines as presumptively
reasonable, in contravention with Jiménez-Beltre. We disagree.
The district court is required to give due weight to the Guidelines
range in providing justification for the sentence. Jiménez-Beltre,
440 F.3d at 518; Booker, 543 U.S. at 264 ("The district courts,
while not bound to apply the Guidelines, must consult [them] and
take them into account when sentencing."). By indicating that a
70-month sentence would have been appropriate even in the absence
of the Guidelines, the court dispelled any suspicion that the
Guidelines were the determinative, or even controlling, factor.5
In other words, the district court determined where it would be
without the Guidelines. Then, taking the Guidelines into account
as an additional factor, it decided that 70 months was an
appropriate sentence. We do not think that the district court
considered the Guidelines to be presumptively reasonable.
The court provided a "plausible," and therefore at least
"defensible," explanation for the sentence. See Sagendorf, 445
F.3d at 518. We therefore find that the sentence was reasonable.
III. Conclusion
For the foregoing reasons, we affirm Brown's conviction
and sentence.
5
Brown also argues that his sentence was unfair and thus
"unreasonable" because the Guidelines treat one gram of crack as
equivalent to 100 grams of cocaine. We reject this argument. See
United States v. Pho, 433 F.3d 53, 62-63 (1st Cir. 2005).
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