APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 5:11-CR-40078-JAR-6).
O. Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the supplemental brief, and Dionne M. Scherff, Erickson Scherff, LLC, Overland Park, Kansas, on the brief), Office of the Federal Public Defender for the Districts of Colorado and Wyoming, Denver, Colorado, appearing for Defendant - Appellant.
James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Kansas, Topeka, Kansas, appearing for Plaintiff - Appellee.
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
MATHESON, Circuit Judge.
Kennin Dewberry supplied significant amounts of powder cocaine to Virok Webb and his associates, who ran a drug distribution ring out of Junction City, Kansas. Mr. Webb and his associates would transform some of this powder into crack cocaine and expand the rest of it into more
(albeit diluted) powder cocaine by using a process dubbed the " trick." Mr. Webb and his associates then sold the crack and powder to dealers and drug users.
Based on this drug activity, the Government charged Mr. Dewberry and several other codefendants with conspiracy to distribute 280 grams or more of a mixture or substance containing a detectable amount of crack cocaine (Count 1) and conspiracy to distribute 5 kilograms or more of a mixture or substance containing a detectable amount of powder cocaine (Count 2). Only Mr. Dewberry went to trial, with the other codefendants entering into plea agreements with the Government. A jury found Mr. Dewberry guilty on both charges. The jury also returned special verdicts pertaining to the amount of drugs and finding he conspired to distribute 280 grams or more of crack and 5 kilograms or more of powder. The district court sentenced Mr. Dewberry to the mandatory minimum of 20 years in prison on Count 1 and 168 months on Count 2. It determined both sentences would run concurrently.
On appeal, Mr. Dewberry challenges (A) the sufficiency of the evidence for the two conspiracy convictions, (B) the sufficiency of the evidence for the jury's finding that he was accountable for 280 grams or more of crack, (C) the district court's imposition of a 168-month prison term on Count 2, and (D) the district court's denial of his initial pretrial motion to sever. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
A. Factual History
The investigation of Mr. Webb's drug-dealing activities began in 2009 or 2010. Mr. Webb was the " top guy" in a powder and crack cocaine drug ring in the Junction City area of Kansas. ROA, Vol. III at 23-24. His first source of drug supply, Sammy Ray Smith, Jr., lived in Wichita, Kansas. In the summer of 2009, Mr. Smith was shot and killed. After Mr. Smith's death, Mr. Webb secured Mr. Dewberry, his half-brother, as his new source of supply. Mr. Dewberry lived in Kansas City, Missouri, a two-hour drive from Junction City.
Megan Fuller and Michael Lillibridge were two of Mr. Webb's drivers. They would drive to Kansas City to retrieve cocaine from Mr. Dewberry. Ms. Fuller and other witnesses testified that they received only powder cocaine from Mr. Dewberry. By contrast, in the past, Mr. Webb had received crack cocaine from Mr. Smith. From the summer of 2009 to March 2010, Mr. Webb was buying about 4.5 to 9 ounces of powder cocaine from Mr. Dewberry on a weekly basis.
Ms. Fuller and Mr. Lillibridge would bring the powder cocaine to Junction City, where drug ring members would cook some of it into crack cocaine or cut it with other ingredients--in a process dubbed the " trick" --to double the quantity of powder. Mr. Webb would then distribute the drugs for resale. Several people testified at trial that Mr. Webb sold both powder and crack cocaine. Only Mr. Lillibridge testified Mr.
Webb " almost exclusively" sold crack. Id. at 279.
B. Procedural History
On October 19, 2011, a grand jury returned a superseding indictment charging Mr. Dewberry, Mr. Webb, Ms. Fuller, and others with two drug conspiracies. Count 1 charged them with conspiring to distribute 280 grams or more of crack cocaine in violation of 21 U.S.C. § 846, with reference to 21 U.S.C. § § 841(a)(1) and 841(b)(1)(A)(iii). Count 2 charged them with conspiring to distribute 5 kilograms or more of powder cocaine in violation of 21 U.S.C. § 846, with reference to 21 U.S.C. § § 841(a)(1) and 841(b)(1)(A)(ii). The Government also filed an information stating Mr. Dewberry had a prior felony marijuana conviction, which would increase his mandatory minimum sentences on each of the two charges.
On March 8, 2012, Mr. Dewberry filed a motion to sever, arguing " [a] joint trial in the present case will result in great prejudice to Ke[n]nin Dewberry and a denial of his Sixth Amendment rights to confront witnesses against him as well as his Sixth Amendment right to a speedy trial." ROA, Vol. I at 62. On April 5, 2012, the district court denied his motion without prejudice, deeming it premature. On February 14, 2013, Mr. Dewberry filed a second motion to sever. Id. at 92-96. On March 5, 2013, the district court granted Mr. Dewberry's motion.
Mr. Dewberry's trial began on July 22, 2013. The Government's case against Mr. Dewberry was based almost entirely on the testimony of cooperating witnesses, including Ms. Fuller and Mr. Lillibridge. Mr. Lillibridge, in particular, testified that Mr. Dewberry and Mr. Webb had together, on one occasion, cooked powder cocaine into crack cocaine. All the witnesses had entered into plea agreements with the Government.
Mr. Dewberry moved for a judgment of acquittal at the close of both the Government's case and his case under Rule 29 of the Federal Rules of Criminal Procedure. The court denied both motions. The jury convicted Mr. Dewberry on both counts. The jury also returned special verdicts pertaining to the amount of drugs and finding he conspired to distribute 280 grams or more of crack and 5 kilograms or more of powder. Mr. Dewberry moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure, which the district court denied.
The U.S. Probation Office prepared a presentence report (" PSR" ) that analyzed the amount of drugs attributable to Mr. Dewberry and calculated his Guidelines range on each offense. The parties discussed the PSR's calculations at the sentencing hearing, ROA, Vol. IV at 232-62, and in their briefs, Aplt. Br. at 24-26; Aplt. Supp. Br. at 6-8; Aplee. Br. at 27-30. The district court adopted the PSR's calculations. ROA, Vol. IV at 261. We briefly recount this information from the PSR discussed at the sentencing hearing and in the parties' briefs.
The PSR determined the trial evidence established that Mr. Dewberry provided Mr. Webb between 4.5 and 9 ounces of cocaine per week from at least October 1, 2009 to February 28, 2010. The PSR therefore recommended that Mr. Dewberry be held accountable for 4.5 ounces per week for 21 weeks. It then estimated that out of the 4.5 ounces of powder cocaine Mr. Webb received weekly, he converted 2.5 ounces into crack, for a 21-week total of 52.5 ounces or 1,488.375 grams of crack, which equals 5,314.98 kilograms in marijuana equivalent. The remainder of the
weekly powder cocaine--2.0 ounces--was doubled to 4.0 ounces by employing the trick, for a 21-week total of 84 ounces or 2,381.40 grams of powder. This equals 476.28 kilograms in marijuana equivalent. The crack and powder cocaine calculations in total equaled 5,791.26 kilograms in marijuana equivalent.
The PSR determined a base and total offense level of 34. See U.S.S.G. § 2D1.1(c)(3) (2013) (providing a 21 U.S.C. § 846 offense involving at least 3,000 kilograms but not more than 10,000 kilograms of marijuana equivalent has a base offense level of 34). The offense level combined with Mr. Dewberry's criminal history category of II yielded a Guidelines range of 168 to 210 months. But the PSR noted Mr. Dewberry faced a mandatory minimum sentence of 20 years (240 months) on each count based on the quantity distributed and his prior felony conviction. See 21 U.S.C. § 841(b)(1)(A).
Mr. Dewberry filed written objections to the PSR's crack cocaine calculation, noting that only Mr. Lillibridge's testimony implicated him in any crack-related activities. This testimony--which concerned a single cook of 3.5 grams of cocaine--did not, he contended, establish that the large quantities of powder Mr. Webb converted into crack cocaine were reasonably foreseeable to Mr. Dewberry.
At the sentencing hearing on January 27, 2014, the district court rejected Mr. Dewberry's objection to the PSR's crack cocaine calculation. The court noted, " Mr. Dewberry wasn't engaged in selling crack cocaine; he was engaged in selling powder cocaine to Mr. Webb, who in turn turned it into crack cocaine." ROA, Vol. IV at 247. Nevertheless, the court found it was reasonably foreseeable to Mr. Dewberry that Mr. Webb was producing and selling crack cocaine. The court relied on Mr. Lillibridge's testimony that Mr. Dewberry witnessed Mr. Webb cooking powder into crack: " Whether that was one occasion or 200 occasions, what that evidence illustrates is that Mr. Dewberry was aware that Mr. Webb distributed crack cocaine, that he was at least turning part of the powder cocaine into ...