Summary
The Sixth Circuit affirmed the defendants’ sentences for aiding and abetting possession with intent to distribute and distribution of cocaine base. The court upheld the two-level sentencing enhancement under USSG § 2D1.2 for drug distribution within 1,000 feet of a school and rejected a challenge to the admission of testimony from a witness who had violated the sequestration rule.
Topics
Practice areas
Questions Presented
- Whether USSG § 2D1.2 may be applied to a defendant convicted under 21 U.S.C. § 841 without an indictment and conviction under 21 U.S.C. § 860.
- Whether Apprendi, Jones, and Almendarez-Torres required the fact that the drug transaction occurred within 1,000 feet of a school to be charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt.
- Whether the defendant's knowledge that the transaction occurred within 1,000 feet of a school was required for application of the school-zone sentencing enhancement.
- Whether the district court abused its discretion by allowing a witness who had heard another witness's testimony in violation of sequestration to testify at sentencing.
Holdings
- Application of USSG § 2D1.2 does not require indictment and conviction under 21 U.S.C. § 860; the guideline may apply when the offender's actual conduct brings the offense within its scope.
- The school-zone fact did not have to be charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt because the resulting sentences did not exceed the statutory maximum applicable to the defendants' offenses.
- A defendant's knowledge that the drug transaction occurred within 1,000 feet of a protected location is immaterial to application of the school-zone enhancement.
- The district court did not abuse its discretion by allowing Officer Jones to testify after hearing part of another witness's testimony because the violation was innocent and did not occur with the government's consent, connivance, procurement, or knowledge.
Key quotations
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (at 893)
“Thus, while § 2D1.2 certainly applies to offenses like those described in 21 U.S.C. §§ 859, 860, 861, where the involvement of minors or proximity to their schools is an element of the offense, it also applies in cases involving conviction for other offenses (including convictions under 21 U.S.C. § 841), if the conduct of the offender brings him within the scope of § 2D1.2.” (at 893)
“The purpose of the rule is to keep one witness from hearing the testimony of another witness so that he won’t change his testimony to meet that of the other.” (at 895)
Factual background
Grandberry and Cobb pleaded guilty to aiding and abetting possession with intent to distribute and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court found that the transaction occurred within 1,000 feet of Central Elementary School and increased each defendant's offense level by two levels under USSG § 2D1.2. At Grandberry's sentencing hearing, Officer Ken Jones entered the courtroom during another witness's testimony despite the government's invocation of sequestration; the district court found the violation innocent and allowed Jones to testify.
Procedural history
The district court found that the drug transaction occurred within 1,000 feet of a school and applied the two-level increase under USSG § 2D1.2. It sentenced Grandberry to 108 months and Cobb to 96 months. The Sixth Circuit affirmed both sentences and rejected Grandberry's challenge to the admission of the sentencing testimony.