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UNITED STATES v. BROWN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


March 18, 1997

UNITED STATES OF AMERICA V. WILBERT BROWN

The opinion of the court was delivered by: ROBRENO

MEMORANDUM

 EDUARDO C. ROBRENO, J.

 March 18, 1997

 I.

 Defendant Wilbert Brown pled guilty to one count of possession with the intent to distribute cocaine base crack, in violation of 21 U.S.C. § 841(a)(1). (doc. 31) At sentencing, the Court applied the enhancement provision for crack cocaine under § 2D1.1 of the Sentencing Guidelines. *fn1" Following a sentencing hearing, the court sentenced the defendant to seventy-two months imprisonment. The defendant has appealed the sentence. This Memorandum is being filed in accordance with Rule 3.1 of the Third Circuit Local Appellate Rules. *fn2"

 II.

 Relying upon the Third Circuit's recent decision in United States v. James, 78 F.3d 851 (3d Cir. 1996), the defendant argued at sentencing that the Court was not authorized to apply the crack cocaine enhancement provision under the Sentencing Guidelines, 18 U.S.S.G. § 2D1.1, because the government had failed to prove that the drugs involved were crack cocaine.

 In James, the indictment charged the defendant with possession and distribution of "a substance containing a detectable amount of cocaine base." James at 855. Likewise, both the plea agreement and the laboratory analysis referred to by the prosecutor during the course of the plea colloquy in James described the contraband as cocaine base and not as crack cocaine. Id. Moreover, while "the indictment, the defendant, and the [district] court at the plea colloquy [spoke] in terms of cocaine base," government counsel referred "to the contraband as 'crack cocaine.'" Id.

 Faced with such ambiguities, the Third Circuit reasoned that "we do not believe that, without more, the casual reference to crack by the government in the colloquy with the court over 'the relevant quantity of cocaine base in determining Mr. James's offense level' unmistakably amounted to a knowing and voluntary admission that the cocaine base constituted crack." Id at 856.

 Absent a knowing and voluntary admission by the defendant, the Third Circuit explained that in order for the crack cocaine enhancement provision under § 2D1.1 to apply, the government was required to show at sentencing "by a preponderance of the evidence that the substance at issue was actually crack, especially in light of the enormously high punishment at risk in this determination." Id. The Third Circuit found in James that the evidence which the government had introduced at sentencing through the testimony of a chemist generally regarding the "chemical properties of cocaine and cocaine base" and the "several ways of preparing cocaine base" was insufficient to satisfy the government's burden. Id. at 856 *fn3" Therefore, the Third Circuit remanded the case to the district court for resentencing. See id. at 858.

 James is distinguishable from this case. First, unlike James, where the indictment charged the defendant with possession and distribution of cocaine base, the indictment in this case charged the defendant with possession with intent to distribute cocaine base crack. *fn4" Second, also unlike James, where the defendant was asked at the plea colloquy about an indictment which identified the contraband as cocaine base, the defendant here agreed at the plea colloquy that the contraband charged in the indictment and involved in the instant offense was cocaine base crack. *fn5" Third, also unlike James, where the defendant was asked at the plea colloquy about a plea agreement which referred to the contraband as cocaine base, the defendant here agreed at the plea colloquy that the plea agreement described the contraband as cocaine base crack. Therefore, in light of the indictment, and of the defendant's own unambiguous responses to questions at the plea colloquy as to whether he understood the offense as charged in the indictment and as stated in the plea agreement to be possession with intent to distribute cocaine base crack, the Court concludes that the defendant's admission at the plea colloquy that he possessed cocaine base in the form of crack was knowing and voluntary. *fn6" See e.g., Bailey v. United States, 949 F. Supp. 495, 497-98 (E.D. Mich. 1996) (finding no ambiguity in the plea colloquy and concluding that the defendant's admission that the cocaine base constituted crack was knowing and voluntary).

 Since "there can be no question that admissions to the [district] court by a defendant during a guilty plea colloquy can be relied upon by the [district] court at the sentencing stage," James, 78 F.3d at 856, and in light of the knowing and voluntary admission by the defendant that the contraband involved was crack cocaine, the Court concludes that it was proper to sentence the defendant pursuant to the crack cocaine enhancement provision under § 2D1.1.

 Even if the Court were unable to find that the defendant had made a knowing and voluntary admission at the plea colloquy that the contraband was crack cocaine, the Court concludes that under James the government has met its burden at sentencing by establishing by a preponderance of the evidence that the contraband involved in the instant offense was crack cocaine. See also United States v. Bennett, 100 F.3d 1105, 1111 (3d Cir. 1996) (explaining that under James the crack cocaine sentencing enhancement provision contained in § 2D1.1 applies "where the government proves by a preponderance of the evidence that the cocaine involved in the instant offense was crack."). At the sentencing hearing, the government called Philadelphia Police Officer Kenneth Bellis, who testified that the field tests which were performed on the narcotics contained in plastic bags seized from the defendant's residence tested positive for "cocaine." Doc. 61 at 25-26. Furthermore, based upon his police training and participation in "numerous arrests" for drug sales involving crack cocaine, Officer Bellis testified that the contraband seized from the plastic bags found inside the defendant's residence "was all a small off-white colored rocky substance. . . like gravel. . . which looked like--it appeared to be crack cocaine." Doc. 61 at 24. While Officer Bellis acknowledged that the laboratory report from the Philadelphia Police Department used the term "cocaine base" to describe the results from subsequent laboratory tests performed on the contraband, nevertheless, he explained that "when we get the analysis back [from the laboratory] saying cocaine base, that it means they have a presence for crack cocaine in that cocaine. That's been my experience." Doc. 61 at 30. Therefore, based upon the competent and credible testimony of Officer Bellis, the Court concludes that the government has shown by a preponderance of the evidence that the contraband at issue in the instant offense was crack cocaine.

 III.

 For the above reasons, the Court finds that it was proper to sentence the defendant pursuant to the crack cocaine enhancement provision under § 2D1.1.

 EDUARDO C. ROBRENO, J.


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