                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-23-1999

USA v. Holman
Precedential or Non-Precedential:

Docket 98-1307




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Recommended Citation
"USA v. Holman" (1999). 1999 Decisions. Paper 45.
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Filed February 19, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-1307

UNITED STATES OF AMERICA,

v.

BRIAN HOLMAN,

       Appellant.

On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Cr. No. 92-CR-00119-19)

Argued: December 2, 1998

Before: BECKER, Chief Judge, NYGAARD and
WOOD, JR.,* Circuit Judges.

(Filed February 19, 1999)

       LESLIE LEVI PAYTON, ESQUIRE
        (ARGUED)
       Leslie L. Payton and Associates
       2 Penn Center Plaza, Suite 200
       Philadelphia, PA 19102

       Attorney for Appellant



_________________________________________________________________

* The Honorable Harlington Wood, Jr., United States Circuit Judge for
the Seventh Circuit, sitting by designation.
       MICHAEL S. STILES, ESQUIRE
       United States Attorney
       WALTER S. BATTY, JR., ESQUIRE
       Assistant United States Attorney
       FRANCIS C. BARBIERI, JR.,
        (ARGUED)
       Special Assistant United States
        Attorney
       Room 1250
       615 Chestnut Street
       Philadelphia, PA

       Attorneys for Appellee.

OPINION OF THE COURT

HARLINGTON WOOD, JR., Circuit Judge.

Whether it was cocaine or "crack" is the principal
sentencing issue in this appeal. The district judge found it
was "crack."

In June 1992, defendant-appellant Holman entered an
open guilty plea to a count charging a conspiracy to
distribute cocaine in excess of five kilograms, to another
count charging possession with intent to distribute cocaine,
and to three counts of using a telephone to facilitate a drug
felony, in violation of 21 U.S.C. SS 846, 841(a)(1) and 843.
His drug activities were in and around the Philadelphia,
Pennsylvania area. He was sentenced to 188 months of
imprisonment followed by a term of five years of supervised
release. He did not appeal.

In 1995, Holman filed a motion to vacate or correct his
1992 sentence pursuant to 28 U.S.C. S 2255. The district
court denied Holman's motion. This time he appealed. In
March 1996, this court remanded the case for
reconsideration of an issue not involved in the present
appeal. The district court thereafter, in May 1996, reduced
Holman's sentence from 188 months to 145 months to be
followed by supervised release. Again Holman did not
appeal, but in December 1996 he filed a pro se motion to
vacate or correct his sentence pursuant to 28 U.S.C.

                                 2
S 2255. The district court denied his latest motion as a
second or successive motion, and Holman appealed. In
December 1997, this court reversed the district court's
holding and remanded the case directing the sentencing
court to determine whether the government had proven
that the cocaine seized from Holman was in fact "crack"
and also to consider whether Holman was entitled to a
third level sentence reduction for acceptance of
responsibility.

In February 1998, the district court held a hearing for
those purposes and determined that the cocaine was indeed
"crack." After the hearing, the district court reduced
Holman's sentence to 135 months to be followed by
supervised release. In April 1998, Holman filed this appeal
in which he argues that the government failed to prove at
the sentencing hearing that a substantial portion of
Holman's drugs was "crack." Holman also raises additional
sentence calculation issues including whether he is entitled
to a decrease in his offense level for a mitigating role in the
offense pursuant to U.S.S.G. S 3B1.2; whether he is entitled
to a decrease in his offense level under the "safety valve"
provision, U.S.S.G. S 5C1.2; and whether he is entitled to a
decrease in his offense level pursuant to U.S.S.G. S 5K1.1
for allegedly providing the government with substantial
evidence in the investigation and prosecution of others.

So far Holman has, by his persistence, secured over four
years reduction in his sentence.

BACKGROUND

Whether Holman's cocaine was in substantial part
cocaine base known as "crack," as the government claims,
makes a considerable difference in his sentence. "Given the
highly severe sentencing ratio of 100:1 for crack versus
cocaine . . . a sentence may vary dramatically depending on
whether he sold crack or cocaine." United States v. James,
78 F.3d 851, 856 (3rd Cir. 1996). The reason for this
"dramatic" sentencing enhancement was explained in
United States v. Booker, 70 F.3d 488 (7th Cir. 1995). "In
1986, Congress was concerned about the emergence of a
new, smokable form of cocaine that was more dangerous

                               3
than powder cocaine, less expensive, and highly addictive."
Id. at 493. So, in 1986, Congress passed the Anti-Drug
Abuse Act, which established enhanced sentences for
offenses involving "cocaine base." In 1993, Congress
amended Guideline S 2D1.1 to explain that"cocaine base,"
for the purposes of that guideline, meant "crack." " `Crack' "
it was noted, "is the street name for a form of cocaine base,
usually prepared by processing cocaine hydrochloride and
sodium bicarbonate, and usually appearing in a lumpy
rocklike form." U.S.S.G. S 2D1.1.

At Holman's "crack" sentencing hearings held in
February and March 1998, the district court determined
that 90.253 grams of cocaine base found in Holman's
apartment were "crack" and correspondingly set Holman's
base offense level at 34. Also included in that offense level
determination was an additional 621.3 grams of cocaine,
not "crack," possessed by Holman and stashed in a rented
locker. The government did not argue that the cocaine in
the locker was "crack," and its ownership is not disputed.

We must examine the government's evidence to see if it
meets the burden of showing that a substantial portion of
the drugs seized in Holman's apartment was "crack" as
defined in the Sentencing Guidelines. For sentencing
purposes, the character of the drug substance need not be
shown beyond a reasonable doubt, but only by a
preponderance of the evidence. United States v. Roman, 121
F.3d 136, 141 (3rd Cir. 1997), cert. denied, ___ U.S. ___
(1998). Roman makes plain, however, citing United States v.
Lawrence, 47 F.3d 1559 (11th Cir. 1995), that the lesser
burden of proof requires more than lip service. To carry its
burden, the government must present " `reliable and
specific evidence' " that the substance in question is
"crack." Roman, 121 F.3d at 141 (quoting Lawrence, 47
F.3d at 1566). It is the serious duty of the district court to
hold the government to this burden particularly because of
the impact the identity determination has on sentencing.
That responsibility can come as no surprise to the
government as this court in Roman expressed its concern
with the government's efforts in that case to prove the drug
substance involved was "crack." Id. at 141 n.4. The "crack"
evidence in Roman was found to be sufficient, "but just

                               4
barely." Id. at 140. The only crack evidence in Roman was
the opinion testimony of a drug enforcement officer, not a
chemist, but with years of experience, however, as a police
officer. He testified that the drugs seized were packaged in
"clear plastic vials with color caps" which he described as
the way "crack" is commonly packaged on the streets of
Philadelphia, the location of that arrest. Id. at 141. Based
on this information, the testifying officer concluded that
what he had seized was "crack cocaine." Id.

In the present case, at the March 1998 sentencing
hearing, the government called three witnesses, all
vigorously cross-examined. The first was Corporal
Donahue, the supervisor of the chemical laboratory for the
Philadelphia Police Department. Corporal Donahue
produced the record of the chemical analysis done on
Holman's drugs in 1991. The report showed who the
chemist had been, the weights of the drugs, and the result
of the analysis of two drug items. The drugs themselves
seized at Holman's apartment in 1991, however, had been
destroyed in 1994 according to police protocol and
pursuant to an order of a local court. One of the two items
as shown on the chemist's report was found to be cocaine
base and the second item was described only as cocaine.
The Corporal explained that the chemist's report referred to
cocaine base rather than "crack" as the latter term is not
generally used in the laboratory to further identify cocaine
base.

The government next called Detective Clements, an
employee of the local district attorney's office. He had
served for eight years as a member of the Dangerous Drug
Offenders Unit and as a member of the Philadelphia Police
Department for eighteen years prior to that. Detective
Clements had participated in the 1991 search of Holman's
apartment and the seizure of the drugs. He explained that
he seized four clear plastic bags containing an off-white-
beige substance and an additional three clear plastic bags
containing a white powder substance. These bags were
found in the pockets of clothing in a closet in Holman's
apartment. Detective Clements further testified that the off-
white-beige substance appeared to be "crack" cocaine. He
explained he was familiar with "crack" cocaine based on his

                               5
experience in the police department for as part of his duties
he had purchased "crack" numerous times, seized it in the
execution of search warrants, and had been with other
officers when they had purchased and seized "crack."

Officer Clements described the differences in the
appearances of the two items of seized narcotics. The
substance designated as Item 1, he said, was harder and
off-color when compared with the cocaine in Item 2 which
he described as a powdery substance, lighter in color. The
same appearance distinctions were revealed on the police
property receipt for Holman's seized drugs which the officer
provided. When seized, he explained, the substances had
been kept in separate bags. Officer Clements, on cross-
examination, conceded that his "crack" opinion was based
on his experience and the appearance of the substances,
although he could not be 100% certain. Officer Clements
had conducted no field tests at the time, and he did not
know if anybody else had. He explained technically how
field tests are conducted. A field test, he explained, would
have confirmed his initial "suspicions"; however, even
without the field test, Clements had finally concluded based
on his experience that one of the two substances was in
fact "crack."

As its last witness, the government called Detective
Rodriguez. He had been with the narcotics division of the
Philadelphia district attorney's office since 1988 and for
four prior years was a city police officer in the major
investigation division of the city's narcotics unit. In his
police career, Detective Rodriguez estimated he had
purchased "crack" over fifty times. He testified how, in an
undercover capacity, he would discuss drug quality with
drug sellers as well as how they turned cocaine into
"crack." He described how "crack" was distributed on
Philadelphia streets in packets, vials, and bundles.
Furthermore, he described the distinguishing
characteristics of cocaine and "crack." He had testified as a
narcotics expert previously in federal court in excess of ten
times.

Detective Rodriguez had been present in court during the
testimony of Corporal Donahue and Detective Clements. He
testified that, based on their testimony and his experience,

                               6
the particular item referred to as being cocaine base would
qualify as "crack" on the street. Rodriguez further testified
that, in his experience, the only type of cocaine base sold
in Philadelphia was "crack," although he had previously
heard there was some other paste-like form of cocaine base
prior to 1987. Rodriguez asserted that what he had heard
described in the testimony could only be "crack," not any
other form of cocaine base. On cross-examination he was
unable, not being a chemist he explained, to answer some
of the technical questions put to him. Rodriguez testified
that although "crack" is sometimes contained in vials, none
was so contained in this case as it was in bulk before being
put into vials. Rodriguez testified that he did not know any
of the details of Holman's case from first-hand experience
as he had been directly involved in Holman's case only
because the drug seizure was based on a wire intercept.

That was generally the extent of the government's "crack"
evidence. There was no contrary evidence. At the
conclusion of the sentencing hearing, the court gave
Holman the opportunity to speak, and he did. Holman
advised the court, however, that the issues he was really
interested in were the Guidelines' "safety valve" provision
and the S 3B1.2 mitigating circumstances provision. We will
consider those other issues briefly. Holman was given the
chance but failed to deny or to say any thing whatsoever
about whether he had dealt in "crack."

ANALYSIS

At the conclusion of the hearing, the district judge found
that Holman had possessed and had been involved in
"crack" dealing. The district judge is an experienced trial
judge who heard the evidence and observed the witnesses.
The record reveals he kept the hearing focused on the
"crack" issue and held the government to its full
responsibilities under the standard of proof for sentencing.
He criticized the government for not requiring the chemist
personally to be present, but the chemist's report was
introduced and was considered sufficient. The two police
officers who testified were both very experienced in heroin
and "crack" cases. One of them had been the officer who
actually seized the drugs at Holman's apartment and

                               7
visually identified the "crack" based on his prior
experiences. The cocaine and "crack" had been kept
separate by Holman. There was little doubt considering the
color, texture, and circumstances that the cocaine base was
"crack." One hundred percent certainty is not required, nor
is a precise chemical analysis necessary. United States v.
Dent, 149 F.3d 180, 190 (3rd Cir. 1998)(citing Roman, 121
F.3d at 141). In reviewing the district court's factual
findings underlying application of the Guidelines, we apply
the deferential clearly erroneous standard. United States v.
Fuentes, 954 F.2d 151, 152-55 (3rd Cir. 1992). We will
reverse only if, after reviewing the evidence, we are left with
a definite and firm conviction that a mistake has been
made. Dent, 149 F.3d at 189. As we view the government's
evidence, and there was none to the contrary, the district
judge could only have found that "crack" was involved in
sufficient quantity to justify the sentence enhancement. No
clear error can be found in the district court's findings, nor
is this a case of "barely enough" evidence to sustain the
"crack" findings. See Roman, 121 F.3d at 140-41 (holding
that evidence was sufficient to support a finding of "crack"
when an experienced drug enforcement officer made a
"crack" determination based solely on the manner in which
the drugs were packaged).

Holman also complains that the district court denied him
a decrease in his offense level for his claimed mitigating role
in the offense pursuant to U.S.S.G. S 3B1.2. He had
participated in a large conspiracy, but he argues that his
role in that conspiracy was minor. Section 3B1.2 provides
a reduction in offense level for defendants who are minor or
minimal participants in an offense. To be eligible for a
deduction under S 3B1.2, "[t]he defendant bears the burden
of demonstrating that other participants were involved and
that," under the relevant standards and the facts of his
particular case, "the minor role adjustment should apply."
United States v. Isaza-Zapata, 148 F.3d 236, 240 (3rd Cir.
1998). Holman fails to meet this burden.

In Isaza-Zapata, the defendant was only a one-time
courier, a "mule," hired in Columbia to transport heroin to
the United States on one occasion. The government agreed
that Isaza-Zapata was entitled to a downward adjustment.

                               8
Isaza-Zapata unsuccessfully attempted after his arrest to be
of assistance to the government in locating the United
States contact. In the present case, Holman has admitted
to serving as a distributor in the conspiracy. He pled guilty
to possession of cocaine with intent to distribute. The
record shows that the total amount of cocaine distributed
by the conspiracy during Holman's involvement wasfifty
kilograms. Holman concedes that of this amount ten
kilograms of cocaine can be attributed to him. The district
court surely did not clearly err in determining that the
distributor does not play a mitigating role in a conspiracy
to distribute ten kilograms of cocaine.

Holman was also particularly interested, he said, in the
"safety valve" provision of the Sentencing Guidelines,
S 5C1.2, but that provision does not apply in view of the
sentence he received. Section 5C1.2 is designed to allow the
court to "impose a sentence in accordance with the
applicable guidelines without regard to any statutory
minimum sentence," if the court finds that the defendant
fulfills five criteria. In the present case, the statutory
mandatory minimum was 120 months. 21 U.S.C. S 841
(a)(1). The district court determined that Holman's
applicable guideline range was between 108 and 135
months and sentenced Holman to 135 months. The record
evidence shows that this sentence was made with
consideration of the entire applicable guideline range and
without regard to the statutory minimum sentence. Even if
Holman had been able to show that he met the
requirements of the safety valve provision, the provisions of
S 5C1.2 would be of no help to him.

Holman's final complaint is that he cooperated with the
government and should have been given the sentencing
benefit of a S 5K1.1 downward departure for his alleged
help to the government. The government, however, found
him to be of no help, explaining that Holman offered only
general information which was of no government use.
Holman did offer information about a particular person, but
that person had already been taken into custody.
Generally, a sentencing court may not depart below the
guideline range based on a defendant's cooperation unless
the government makes a motion to permit such a

                               9
departure. U.S.S.G. S 5K1.1 ("Upon motion of the
government stating that the defendant has provided
substantial assistance . . ., the court may depart from the
guidelines."); see also United States v. Abuhouran, 161 F.3d
206, 211-12 (3rd Cir. 1998). It is the government's
prosecutorial decision whether or not to seek a downward
departure under S 5K1.1 where a defendant claims to have
been of assistance to the government. That is an executive
branch discretionary decision ordinarily entitled to
deference in these circumstances. United States v. Paramo,
998 F.2d 1212, 1221 (3rd Cir. 1993). Federal courts do
have the power to review a prosecutor's refusal tofile a
S 5K1.1 motion and to grant a remedy, but only if the
refusal was based on bad faith, if a plea agreement
otherwise required the government to consider offering a
S 5K1.1 departure motion, or on an unconstitutional
motive. Abuhouran, 161 F.3d at 212. At oral argument,
counsel for Holman conceded that he did not allege that the
government acted either in bad faith or with an
unconstitutional motive. Holman, therefore, is not entitled
to a S 5K1.1 departure.

Holman's assertions of trial court error all lack merit.
Therefore, the district court is affirmed in respects.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               10
