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United States v. Cooper

United States Court of Appeals, Sixth Circuit

January 7, 2014

United States of America, Plaintiff-Appellee,
v.
Cortez Dewayne Cooper (12-6522) and Terry Lee Adams (13-5535), Defendants-Appellants.

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:10-cr-20366—John Thomas Fowlkes, Jr., District Judge.

Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan, for Appellant in 12-6522.

Jeff Woods, Memphis, Tennessee, for Appellant in 13-5535.

Kevin G. Ritz, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

Before: MOORE and COOK, Circuit Judges; GWIN, District Judge. [*]

OPINION

KAREN NELSON MOORE, Circuit Judge.

On October 27, 2010, a grand jury returned a thirty-nine-count indictment against fourteen individuals, including Defendants-Appellants Terry Lee Adams and Cortez Dewayne Cooper. Among other crimes, the grand jury charged Adams and Cooper with conspiring to distribute cocaine and cocaine base (crack cocaine) in violation of 21 U.S.C. § 846. Both pleaded guilty. Given the defendants' prior offenses, the district court found Adams and Cooper to be career offenders, applied the U.S.S.G. § 4B1.1 sentencing enhancement, and sentenced them to 165 months and 120 months of imprisonment, respectively. On appeal, the co-conspirators challenge their sentences, objecting to the application and constitutionality of the career-offender guidelines. We AFFIRM.

I. BACKGROUND

The Federal Bureau of Investigation started tapping Pierre Isom's telephone in April 2010, suspecting that Isom was distributing powder cocaine and crack cocaine in and around Dyersburg, Tennesseee. While monitoring the wiretap, the FBI learned that Adams and Cooper were involved in Isom's distribution operation. The intercepted conversations led to Adams and Cooper being charged in the thirty-nine-count indictment.

A. Adams

Between April 3 and April 18, 2010, the FBI heard Adams ask—in code—for a total of ninety-one grams of powder cocaine. Based on this information, the grand jury indicted Adams on one count of conspiring to distribute powder cocaine and crack cocaine, in violation of 21 U.S.C. § 846, and two counts of using a telecommunications device to facilitate the distribution of powder cocaine and crack cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 843. R. 4-1 (Indictment at 1–2, 14) (Page ID #126–27, 139). On November 18, 2010, officers arrested Adams, and a magistrate judge released Adams on bond pending trial. While on pretrial release, however, Adams sold 3.37 grams of crack cocaine—$90 worth—to a confidential informant used by the Dyersburg Police Department. These undercover buys led to a grand jury indicting Adams in another federal case.

On October 5, 2012, Adams entered into a Rule 11(c)(1)(C) plea agreement with the government. In exchange for the government dropping the remaining counts and cases against him, Adams pleaded guilty to one count of conspiracy to possess with intent to distribute and to distribute controlled substances in violation of 21 U.S.C. § 846. R. 540 (Adams Plea Agreement at 1–4) (Page ID #942–45). For purposes of the guilty plea, the parties agreed that Adams was responsible for possessing ninety-one grams of powder cocaine. Id. at 1–2 (Page ID #942–43).

Under the Sentencing Guidelines, ninety-one grams of powder cocaine equals 18.2 kilograms of marijuana and corresponds with a base offense level of 16. U.S.S.G. § 2D1.1(c)(12), cmt. n.8(D); see also Adams Presentence Investigation Report ("Adams PSR") at 8 ¶ 19. However, the probation office recommended the application of the career-offender enhancement due to Adams's prior state convictions for the sale of cocaine in 1996 and for aggravated assault in 1999. Adams PSR at 9 ¶ 27, 13 ¶ 41, 15 ¶ 44; see also U.S.S.G. § 4B1.1(a). With the enhancement, which is based on the statutory maximum, Adams's total offense level rose to 32. Adams PSR at 9 ¶ 27.

Adams objected to the classification of his aggravated-assault conviction as a crime of violence under U.S.S.G. § 4B1.1(a). See R. 652 (Adams Am. Sent. Mem. at 1) (Page ID #1309). At the sentencing hearing, Adams restated and elaborated upon his objection to no avail. The district court recognized that Tennessee Code Annotated § 39-13-102 (1998), the applicable statute, punished intentional and knowing conduct as a Class C felony, but it also criminalized reckless assault as a Class D felony. R. 672 (Adams Sent. Hr'g Tr. at 15:18–23) (Page ID #1362). The former would be a crime of violence, but the latter might not qualify. Relying on the state-court indictment and judgment, however, the district court found that Adams was convicted of the Class C felony, meaning that his aggravated-assault conviction qualified as a crime of violence. Id. at 22:5–14 (Page ID #1369). Thus, after granting Adams a three-level adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1, the district court fixed Adams's final offense level at 29, which corresponded to a guidelines range of 151 to 188 months. R. 672 (Adams Sent. Hr'g Tr. at 23:12–16) (Page ID #1370). The district court imposed a sentence of 165 months of incarceration. Id. at 39:10–11 (Page ID #1386). Adams appeals, arguing (1) that the district court erred by designating him a career offender; and (2) that his Sixth Amendment rights were violated when the court, as opposed to a jury, found as a matter of fact that Adams had been convicted of two qualifying felonies.

B. Cooper

The FBI also caught Cooper conversing with Isom regarding the distribution of crack cocaine, which led to his indictment on one count of conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846, and four counts of using a telecommunications device to facilitate the distribution of a controlled substance, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 843. See R.4-1 (Indictment at 1–2, 17) (126–27, 142). On June 8, 2012, Cooper entered into a Rule 11(c)(1)(C) agreement with the government in which he pleaded guilty to one count of conspiring to possess with intent to distribute and to distribute crack cocaine. R. 422 (Cooper Plea Agt. at 1–3) (Page ID #752–54). The parties agreed that Cooper was responsible for seventy-five grams of crack cocaine, which gave Cooper a base offense level of 26. Id. at 2 (Page ID #753); see also U.S.S.G. § 2D1.1(c)(7). During the compilation of Cooper's PSR, however, the probation office discovered that Cooper had two prior convictions for controlled-substance offenses. Cooper PSR at 12 ¶ 39, 13 ¶ 40. These convictions triggered the application of the career-offender enhancement, causing his total offense level to rise to 31, even after a three-level adjustment for acceptance of responsibility. Id. at 7 ¶ 30. An offense level of 31 corresponded to a guidelines-recommended sentence of 188 to 235 months of imprisonment. Id. at 21 ¶ 77.

Cooper did not dispute that he qualified as a career offender under U.S.S.G. § 4B1.1(a), but he objected to the guideline enhancement itself, arguing that it was "much more than is necessary to satisfy the sentencing factors set forth in 18 U.S.C. § 3553(a)." R. 529 (Cooper Sent. Mem. at 2) (Page ID #878). The district court rejected Cooper's policy objection and sentenced him to 188 months in prison. R. 618 (Cooper Sept. 25, 2012 Sent. Hr'g Tr. at 22:7–17) (Page ID #1158). A week later, however, the district court adjusted Cooper's sentence down to 120 months because it considered the 188-month sentence "more time than is sufficient to accomplish the goals of the sentencing factors." R. 619 (Cooper Oct. 1, 2012 Sent. Hr'g Tr. at 7:14–16) (Page ID #1168). The government made no objection, and Cooper's attorney had "no objection to the court's determination that a hundred and [twenty] months is an adequate sentence in this matter." Id. at 8:16–18 (Page ID #1169). Now on appeal, Cooper attacks his sentence; he claims (1) that the application of the career-offender guideline makes his sentence substantively unreasonable; and (2) that his constitutional rights were violated because his prior convictions were not proven to a jury beyond a reasonable doubt.

II. ANALYSIS

A. Crime of Violence

Adams first challenges the district court's application of the career-offender enhancement, particularly the court's determination that Adams's 1999 state-court conviction for aggravated assault qualifies as a crime of violence under U.S.S.G. ยง 4B1.2(a). Whether a defendant is a career offender and whether a crime is a crime of violence under the guidelines are legal ...


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