                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0341n.06

                                            No. 09-5583

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                      FILED
UNITED STATES OF AMERICA,                          )                            May 20, 2011
                                                   )                      LEONARD GREEN, Clerk
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
TOBY TOBIAS SENTER,                                )   EASTERN DISTRICT OF TENNESSEE
                                                   )
       Defendant-Appellant.                        )


       Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District Judge.*

       SUTTON, Circuit Judge. A jury found Toby Senter guilty of conspiring to distribute

cocaine. At sentencing, the district court found that Senter joined the conspiracy after at least two

prior felony drug convictions, requiring a life sentence. Senter’s challenges to the sufficiency of the

evidence and to his sentence come up short, and accordingly we affirm.


                                                  I.


       In 2006, a federal-state drug task force learned that Senter might be selling drugs in the

Knoxville area. In early 2007, agents convinced Dustin Isom, a known associate of Senter and a

fellow trafficker, to work as a confidential informant. After Isom made a controlled buy of 125.2

grams of cocaine, a federal judge authorized a wiretap on Senter’s phones. The task force



       *
         The Honorable James L. Graham, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 09-5583
United States v. Senter

intercepted several trafficking-related conversations between Senter and several local dealers,

including Walter Holt, Todd Douglas and Keith Hicks, as well as Senter’s Atlanta supplier, Oswald

Vyphuis.


       In March 2007, Senter made a series of phone calls to Vyphuis and arranged to buy three-

and-a-half kilograms. The task force contacted DEA agents in Atlanta who identified a silver Nissan

Maxima linked to Senter parked outside Vyphuis’s house. On April 4, 2007, Senter called Todd

Douglas and told him he was making another trip to Atlanta. He offered to take Douglas along and

to get him “two” on top of the kilograms of cocaine Senter would be buying. Trial Tr., Vol. I, at 142.

The task force planned to arrest Senter once he made the trip, but their wiretap warrant expired on

April 7th, leaving the investigation with “no ears.” Id. at 149. On April 9th, the task force decided

to bring Senter in, and after one failed attempt and an hour-long car chase across four counties, they

arrested him.


       A federal grand jury indicted Senter, Douglas, Holt and Hicks for conspiring to distribute five

or more kilograms of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. Douglas, Holt and Hicks pled

guilty, and they all testified at Senter’s trial about the cocaine he had sold them, which came to over

100 kilograms. The jury found Senter guilty. At sentencing, the district court found that Senter

entered the conspiracy after at least two felony drug offenses and imposed a life sentence.




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United States v. Senter

                                                  II.


        Senter styles his first argument as a challenge to the sufficiency of the government’s

evidence. But the thrust of his claim is that the district court should have excluded as hearsay certain

“out-of-court statements made by the coconspirators.” Senter Br. at 25. We cannot agree.


        Statements by coconspirators made in furtherance of a conspiracy are not hearsay. Fed. R.

Evid. 801(d)(2)(E). To admit such evidence, the government must establish (1) the existence of a

conspiracy, (2) the defendant’s participation in it and (3) that the statement furthered the aim of the

conspiracy. United States v. Damra, 621 F.3d 474, 492 (6th Cir. 2010). The government must do

so by a preponderance of the evidence, and the court may consider the statement itself in satisfying

these requirements, though it must require “corroborat[ing] . . . independent evidence” in doing so.

United States v. Payne, 437 F.3d 540, 544 (6th Cir. 2006).


        Senter does not challenge the government’s efforts to meet these three requirements,

expressly conceding the first, see Senter Br. at 27, and never addressing the other two. He instead

argues that the government did not present independent evidence to corroborate the content of some

of the statements, namely the quantities of drugs he sold. Nothing in the rules of evidence or the

decisions of this Court, however, requires independent evidence to bolster the factual assertions

contained in a coconspirator’s statement. See Damra, 621 F.3d at 493 (the coconspirator rule does

not require “confirmation of the contents of any one statement”). In determining a statement’s

admissibility, the district court, as an evidentiary gatekeeper, must demand independent evidence


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United States v. Senter

to meet the conspiracy, participation and furtherance requirements. But in determining a statement’s

weight, the jury faces no such limitation and may believe the statement (or disbelieve it) with or

without corroboration.


       Senter’s argument, for what it is worth, fails even on its own terms, as other evidence

confirmed he trafficked in large amounts of cocaine. Douglas, Holt and Hicks all gave in-court, first-

hand accounts of the drugs Senter sold them. Douglas testified that Senter agreed to give him eighty

ounces (between two and three kilograms) of cocaine “to sell at a thousand dollars a pop.” Trial Tr.,

Vol. II, at 29. As Douglas’s partner, Hicks explained, “[Senter] offered [Douglas] a deal, 80 ounces

of cocaine for $80,00[0] in return and then when they met the agreement, when that was done,

[Douglas] was supposed to get some real low prices on some kilos.” Id. at 125. Holt testified that

50 kilograms was a “low estimate” for what Senter sold him in 2006 alone. Trial Tr., Vol. III, at 5.

This testimony makes it difficult to deny, or perhaps even question, that Senter sold large amounts

of cocaine, and none of it involves hearsay as each statement was “made by the declarant while

testifying at the trial.” Fed. R. Evid. 801(c). A rational juror could find beyond a reasonable doubt

that Senter conspired to distribute at least five kilograms of cocaine. Jackson v. Virginia, 443 U.S.

307, 319 (1979).


       Senter raises several challenges to his life sentence, all unavailing. The government

complied with 21 U.S.C. § 851, which sets out the procedure for enhancing sentences in drug-

trafficking cases. The AUSA gave Senter notice before trial that he intended to seek an enhanced

sentence based on Senter’s prior felony drug convictions. See id. § 851(a)(1). The notice identified

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United States v. Senter

each offense, date of offense, court of conviction, docket number and date of sentencing. The district

court asked Senter whether he conceded or denied the prior convictions. See id. § 851(b). He denied

them. Over the defendant’s written objections, the government introduced Senter’s parole officer

as a witness and submitted certified copies of the judgments. See id. § 851(c). The district court

found that Senter had two or more prior convictions and imposed the life sentence. See id. § 851(d).

The government met each requirement of § 851.


       Once the court made these findings, it had no choice when it came to imposing this sentence.

Congress requires a life sentence in this setting, see id. § 841(b)(1)(A), and that is so despite the

admonition in 18 U.S.C. § 3553(a) that federal courts “shall impose a sentence sufficient, but not

greater than necessary, to comply with” the defined objectives of sentencing. On several occasions,

criminal defendants have asked us to conclude that § 3553(a) trumps mandatory minimum sentences,

and each time we have answered the same way: no. See, e.g., United States v. Wettstain, 618 F.3d

577, 591–92 (6th Cir. 2010); United States v. Cecil, 615 F.3d 678, 695 (6th Cir. 2010).


       Senter independently makes a separate argument under § 841(b)(1)(A). Three times in

§ 841(b), he points out, Congress said, “Notwithstanding any other provision of law, the court shall

not place on probation or suspend the sentence of any person” convicted under certain provisions.

By omitting the same clause from § 841(b)(1)(a), Senter submits, Congress meant to embrace the

Goldilocks sentencing principle of § 3553(a) for sentences under this subsection: not too long, not

too short, just right, see United States v. Pruitt, 502 F.3d 1154, 1175 (10th Cir. 2007) (McConnell,

J., concurring) (describing § 3553(a) but not § 841(b)(1)(a)).

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United States v. Senter

        Senter’s reading of the two provisions would give no effect to the phrase “mandatory term

of life imprisonment” in § 841(b)(1)(A), particularly the word “mandatory.” It also would ignore

18 U.S.C. § 3551, which says that defendants must be sentenced according to § 3553(a), “[e]xcept

as otherwise specifically provided.” In § 841(b)(1)(A), Congress “specifically provided” that

defendants like Senter would be sentenced to life imprisonment. Further confirming the mandatory

nature of this sentence is the venerable principle that “a specific provision . . . controls ones of more

general application.” Bloate v. United States, __ U.S. __, 130 S. Ct. 1345, 1354 (2010). Section

3553(a) is the more general of the two sentencing provisions, and as such it “will not be held to apply

to a matter specifically dealt with” in § 841(b)(1)(A). Bloate, 130 S. Ct. at 1354. Against this

backdrop, the rule of lenity adds nothing to Senter’s argument. The rule applies only if “ambiguity

or uncertainty” remains “at the end of the process of construing what Congress has expressed.”

Chapman v. United States, 500 U.S. 453, 463 (1991). Because § 841(b)(1)(A) unambiguously

requires a life sentence for Senter, one that is not subject to modification under § 3553(a), there is

no work for the lenity canon to do.


        Nor do United States v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 552

U.S. 85 (2007), somehow make § 841(b)(1)(A) advisory. Kimbrough, the latter of the two cases,

said as much, explaining that district courts remain “constrained by the mandatory minimums

Congress prescribed in the 1986 Act.” 552 U.S. at 108. And we have said the same thing. See

United States v. Whitehead, 415 F.3d 583, 590 (6th Cir. 2005).




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United States v. Senter

       Nor does this mandatory life sentence violate the United States Constitution. It is consistent

with the Fifth Amendment’s guarantee of due process, even though it “gives the prosecutor a great

deal of discretion.” United States v. Pruitt, 156 F.3d 638, 645 (6th Cir. 1998). It does not deprive

defendants of the equal protection of the laws. See United States v. Wimbley, 553 F.3d 455, 463 (6th

Cir. 2009). It does not run afoul of the Eighth Amendment’s prohibition against cruel and unusual

punishments. United States v. Flowal, 163 F.3d 956, 963–64 (6th Cir. 1990). And it is consistent

with Woodward v. North Carolina, 428 U.S. 280 (1976), and Lockett v. Ohio, 438 U.S. 586 (1978),

which establish procedural restrictions for capital cases.


                                                III.


       For these reasons, we affirm.




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