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United States v. Sykes

United States Court of Appeals, Eighth Circuit

April 14, 2017

United States of America Plaintiff- Appellee
v.
Brandon Jermaine Sykes Defendant-Appellant

          Submitted: January 12, 2017

         Appeal from United States District Court for the Southern District of Iowa - Davenport

          Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.

          MELLOY, Circuit Judge.

         Brandon Sykes pleaded guilty to one count of conspiracy to distribute a mixture or substance containing a detectable amount of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. After calculating a Guidelines range of 360 months to life, the district court[1] sentenced Sykes to 360 months in prison. On appeal, Sykes argues the district court improperly calculated the drug quantity determining his base offense level. He also argues the district court erred in applying three sentencing enhancements. We affirm.

         I.

         The written plea agreement describes Sykes's offense as follows. Around April 2013, Sykes entered into an agreement with individuals living in Chicago and Moline, Illinois, and Davenport, Iowa, to distribute cocaine base. Sykes and his girlfriend, Shataria Beason, would "receive cocaine from a source in Chicago." Beason would drive to Chicago to pick up the cocaine and then supply Sykes with cocaine base, which he sold. Sykes also "received two (2) ounces of powder cocaine from another source in Chicago and then converts [sic] it into four (4) ounces of [cocaine base]."

         In March 2015, law enforcement used a confidential source to conduct four controlled buys of cocaine base from Sykes at his Davenport residence. On April 1, 2015, law enforcement executed search warrants at both Sykes's and Beason's residences. At Sykes's residence, law enforcement seized packaging materials; $748 in cash; a nylon gun case; and two items, a measuring cup and razor blade, with cocaine residue. At Beason's residence in Moline, law enforcement seized 28 grams of cocaine base; $6, 000 in cash; a .380 caliber pistol; and a .45 caliber pistol.

         Sykes was later arrested, pleaded guilty to one count of conspiracy to distribute a substance or mixture containing cocaine base, and stipulated to the above facts. At sentencing, the district court found that the drug-quantity evidence, including additional officer testimony at the sentencing hearing, supported a base offense level of 34. See U.S.S.G. § 2D1.1(c)(3) (fixing a base offense level of 34 to offenses involving more than 2, 800 grams but less than 8, 400 grams of cocaine base). The district court also applied several sentencing enhancements. These included enhancements for managing or supervising criminal activity involving five or more participants, id. § 3B1.1(b); using violence or making a credible threat to use violence, id. § 2D1.1(b)(2); and maintaining a premises for the purpose of manufacturing or distributing a controlled substance, id. § 2D1.1(b)(12). After applying other enhancements and adjustments, the district court found a total offense level of 40 and a criminal history category of VI. This resulted in a Guidelines range of 360 months to life in prison. Both the government and Sykes requested a sentence at the bottom of the Guidelines range, and Sykes was sentenced to 360 months in prison.

         II.

         We review the district court's "factual findings for clear error and its interpretation of the Guidelines de novo." United States v. Vickers, 528 F.3d 1116, 1120 (8th Cir. 2008). On appeal, Sykes argues the district court erred in finding the drug-quantity evidence supported a base offense level of 34. Instead, Sykes argues the drug-quantity evidence only supports a base offense level of 32. He also argues the district court erred in applying three sentencing enhancements. For the following reasons, we conclude the district court properly applied the sentencing enhancements. We further conclude that we need not reach the question of whether the district court erred in applying a base offense level of 34, rather than a base offense level of 32.

         A.

         A defendant is subject to a three-level role enhancement "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(b). On appeal, Sykes argues he was not a manager or supervisor in the conspiracy to distribute cocaine base. Testimony at the sentencing hearing, however, established that Sykes "would bring the powder cocaine to Davenport where he had a 60-year-old female . . . cook the powder cocaine into crack cocaine." Additionally, the presentence investigation report ("PSR") stated that Sykes did not store drugs at his residence at night because he worried law enforcement would perform a raid during that time; rather, Sykes "had Beason bring the drugs to his house every morning and he sold it all day. Each night, Beason picked up the drugs and took them back to her house so Sykes would not get caught with it at his residence." Sykes did not object to these facts in the PSR, and the district court therefore was entitled to rely upon them. See United States v. Bledsoe, 445 F.3d 1069, 1073 (8th Cir. 2006). These facts were sufficient to support the district court's finding that Sykes was a manager or supervisor under § 3B1.1(b). See United States v. Gaines, 639 F.3d 423, 428-29 & n.4 (8th Cir. 2011) (stating that the terms "manager" and "supervisor" are broadly construed under the Guidelines and that control over another participant is sufficient, but not necessary, for the enhancement); United States v. Cole, 657 F.3d 685, 687-88 (8th Cir. 2011) (per curiam) (upholding the enhancement where the defendant directed a participant to transport drugs).

         As to the district court's finding that five or more participants were involved, Sykes contends only that his two cocaine suppliers in Chicago were not participants under the Guidelines. An ongoing supplier relationship, however, is sufficient to support a finding that the supplier was a participant under § 3B1.1. United States v. Starks, 815 F.3d 438, 441 (8th Cir. 2016); United States v. Garcia, 703 F.3d 471, 475-76 (8th Cir. 2013). Further, in the plea agreement's stipulation of facts, Sykes admitted to agreeing to distribute cocaine base with "individuals" living in Chicago, Moline, and Davenport. Although the plea agreement does not specify whether these "individuals" include the Chicago suppliers, the record strongly suggests, and the district court could have ...


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