                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2006

USA v. Hodge
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3443




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"USA v. Hodge" (2006). 2006 Decisions. Paper 563.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/563


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                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEAL
                          FOR THE THIRD CIRCUIT


                                    No. 05-3443


                            UNITED STATES OF AMERICA

                                          v.

                                  ALEX HODGE,

                                               Appellant


                           On Appeal from the District Court
                                  of the Virgin Islands
                            (D.C. Criminal No. 99-cr-00066)
                 District Judge: Hon. Raymond L. Finch, Chief Judge


                                Argued May 11, 2006

              BEFORE: FISHER, COWEN and ROTH,* Circuit Judges

                               (Filed: August 21, 2006)

Natalie N. Tang How, Esq.
27 & 28 King Cross Street
Christiansted, St. Croix
USVI, 00820



      *The Honorable Jane R. Roth assumed senior status on May 31, 2006.
Richard F. Della Fera, Esq. (Argued)
Entin, Margules & Della Fera
110 Southeast 6th Street
Suite 1970
Fort Lauderdale, FL 33301

       Counsel for Appellant

Denise A. Hinds-Roach, Esq. (Argued)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI, 00820

       Counsel for Appellee


                                         OPINION


COWEN, Circuit Judge.

       Defendant Alex Hodge appeals his conviction and sentence contending that there

was insufficient evidence for a jury to find that he possessed more than 50 grams of

cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and that the District

Court erred by failing to consider his argument about the sentencing disparities between

crack cocaine and powder cocaine. We will affirm.

                                             I.

       Because the parties are familiar with the facts, we only briefly recite them here.

On July 19, 1999, government agents were conducting surveillance on King Street and

observed Hodge and a known drug dealer talking. The agents saw Hodge reach into his

pants to retrieve something and believed that Hodge was about to consummate a drug

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transaction. When the agents approached Hodge, he ran and threw away plastic bags

retrieved from the front of his pants. After the agents subdued Hodge, they found two

plastic bags containing 25.8 grams of crack cocaine. The agents arrested Hodge and

obtained a warrant to search his home. Agents searched Hodge’s bedroom and found

14.5 grams of crack cocaine hidden in a man’s bathrobe and 9.1 grams of marijuana in a

man’s shirt pocket. In the kitchen, the agents discovered three plastic bags in a cupboard

containing 391.7 grams of cocaine base and 80.1 net grams of powder cocaine. They also

found an Ohause scale and a police scanner.

       Hodge was indicted in the District Court of the Virgin Islands. Among other

offenses, count two charged him with possession and an intent to distribute over 5 grams

of a mixture or substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B)(iii); count four charged him with possession and an intent to distribute over

50 grams of a mixture or substance containing cocaine base in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(A)(iii); count five charged him with possession and an intent to

distribute over 50 grams of a mixture substance containing cocaine base within one

thousand feet of a public school in violation of 21 U.S.C. §§ 860 and 841(a)(1) and

(b)(1)(A)(iii); and count six charged him with possession of marijuana in violation of 21

U.S.C. § 844(a).

       After a jury trial, Hodge was found guilty of counts four, five, and six for the drugs

found at his home within 1000 feet of a school. He was found not guilty of count two for

the drugs seized after the King Street arrest. During the sentencing hearing, Hodge

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argued that the sentencing guidelines imposed disparate sentences for crack cocaine and

powder cocaine. He asserted that the quantity of crack to cocaine ratio of 100:1 was

unjust and that the court should adopt the sentencing commission’s proposed 10:1 ratio

instead. He requested that he be sentenced to the minimum mandatory of ten years. The

government argued that there were no mitigating circumstances to take the sentence

outside of the 151 to 188 months guideline range. The government further noted that

Hodge sometimes shared the home where the drugs were found with a preteen daughter

and that the home was located catacorner to a school. The District Court decided to apply

the 151 to 188 range and sentenced Hodge to 166 months because Hodge was not

remorseful despite his repeated involvement with drugs.

                                             II.

       We have jurisdiction over the District Court’s order of judgment and conviction

pursuant to 28 U.S.C. § 1291. We have jurisdiction to review Hodge’s sentence for

unreasonableness pursuant to 18 U.S.C. § 3742(a)(1).

       Hodge first contends that the government failed to prove that he possessed over 50

grams of a mixture or substance containing cocaine base to sustain his conviction under

count four. “In reviewing a jury verdict for sufficiency of the evidence, we must consider

the evidence in the light most favorable to the government and affirm the judgment if

there is substantial evidence from which a rational trier of fact could find guilt beyond a

reasonable doubt.” United States v. Haywood, 363 F.3d 200, 204 n.3 (3d Cir. 2004)

(internal quotations and citation omitted). “The burden on a defendant who raises a

                                              4
challenge to the sufficiency of the evidence is extremely high.” United States v. Lore,

430 F.3d 190, 203-04 (3d Cir. 2005) (internal quotations and citation omitted).

       In the present case, Hodge argues that the government improperly combined the

amount of cocaine base seized after his King Street arrest with the amount of cocaine

base found at his home to establish count four of the indictment. Hodge’s argument is

without merit. During the trial, the government presented evidence that police searched

his house and found 391.7 grams of cocaine base and 80.1 grams of powder cocaine in

plastic bags located in the kitchen. The police also found 14.5 grams of crack cocaine in

his bedroom. After reviewing the record, we find that a rational jury could find that

Hodge possessed over 50 grams of cocaine base to sustain the conviction for count four.

       Hodge next contends that the District Court erred by failing to consider his

argument that the Guidelines impose an unjust disparity in sentences with crack cocaine

and powder cocaine. During the sentencing hearing, Hodge urged the District Court to

adopt the Sentencing Commission’s recommendation in a policy report that the 100-to-1

quantity ratio between crack and powder cocaine be lowered. The District Court did not

adopt the Sentencing Commission’s recommendation.

       When reviewing a district court’s sentence, we must determine whether the

sentence is reasonable under Booker. To be reasonable, the “[t]he record must

demonstrate the trial court gave meaningful consideration to the § 3553(a) factors,” which

include the range suggested by the sentencing guidelines. United States v. Cooper, 437

F.3d 324, 329 (3d Cir. 2006). We then consider whether the District Court gave

                                             5
“meaningful consideration” to the § 3553(a) factors and to “any sentencing grounds

properly raised by the parties which have recognized legal merit and factual support in the

record.” Id. at 329, 332. Finally, we consider whether the District Court “reasonably

applied [the § 3553(a) factors] to the circumstances of the case.” Id. at 330. The party

that challenges the sentence has the burden of proving that it is unreasonable. See id. at

332.

       In the present case, the District Court heard arguments from the government and

Hodge regarding the § 3553(a) factors. After hearing the arguments, the District Court

noted that the guideline ranges are advisory and accepted the applicable guideline range

of 151-188 months. The District Court sentenced Hodge to 166 months and noted that

Hodge expressed no remorse for his actions and that he is a repeat offender. The court

further stated that there were no mitigating circumstances in his case. After reviewing the

record, we find this sentence reasonable. We make no general pronouncements here

about the 100-1 crack-powder ratio or the sentencing Commission’s recommendations to

Congress regarding the ratio. Under Booker, the Guidelines are no longer binding

positive law, and we review sentences simply for the reasonableness of the sentence

imposed and the adequacy of the district court’s explanation of that sentence. This is of

necessity, a case-by-case inquiry. In our decisions applying Booker, we have not held,

nor do we now hold, that district courts must apply the 100-1 ratio in crack cases, nor that

it is per se reasonable, or unreasonable, to do so. We also have not held, nor do we hold

today, that district courts must, or must not, consider the Sentencing Commission’s

                                             6
recommendations to Congress in their sentencing deliberations. We hold only that, on

this record, the sentence imposed was reasonable and the District Court gave an adequate

explanation of its reasons.

                                          III.

       For the reasons set forth above, we will affirm Hodge’s conviction and sentence.




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