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


6-12-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2625




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2625


                           UNITED STATES OF AMERICA

                                             v.

                                ANDRE T. HICKSON,

                                                  Appellant




                      Appeal from the United States District Court
                              for the District of Delaware
                       (D.C. Criminal Action No. 04-cr-00024)
                      District Judge: Honorable Sue L. Robinson


                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 7, 2006

            Before: AMBRO, FUENTES and GREENBERG, Circuit Judges

                            (Opinion filed    June 12, 2006 )




                                       OPINION


AMBRO, Circuit Judge

      Andre Hickson (“Hickson”) was found guilty by a jury of possession with intent to

distribute more than 50 grams of a substance containing a detectable amount of cocaine
base in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). He was sentenced to 120 months

imprisonment. Hickson appeals, arguing that the Government failed to prove beyond a

reasonable doubt that the “cocaine base” seized from him was “crack cocaine.” For the

reasons that follow, we affirm.1

                                             I.

       As we write for the parties, only a brief summary of pertinent facts and procedural

history is necessary. At trial, the Government put forward several witnesses who testified

regarding the nature of the controlled substance that Hickson was alleged to have

possessed with the intent to distribute. The Government first called Delaware State

Police Detective Daniel Meadows. Detective Meadows told the jury that, during the

execution of a search warrant on Hickson’s car, he found several bags of a “white,

chunky, rock-like substance” in the car’s glove compartment and he “immediately

recognized . . . from past training experience that this was crack cocaine.”

       Jennifer King, a Drug Enforcement Agency forensic chemist who had conducted a

laboratory analysis on the controlled substance recovered from Hickson’s automobile,

also took the stand. King had analyzed 340 drug exhibits during her career and had

testified previously in federal court as an expert in forensic chemistry. It was her expert

opinion that the substance at issue was 68.7 grams of “cocaine base.”



  1
    The United States District Court for the District of Delaware had subject matter
jurisdiction over this case pursuant to 18 U.S.C. § 3231. Hickson filed a timely appeal
and we have jurisdiction under 28 U.S.C. § 1291.

                                              2
       Delaware State Police Detective Donald Pope, a seventeen-year veteran police

officer assigned to a drug unit, also testified. Detective Pope was admitted by the District

Court as an expert regarding, inter alia, the distribution, use, packaging and street value

of crack cocaine. At trial, he was shown the controlled substance recovered from

Hickson’s automobile and stated that, based on his training and experience, the substance

was crack cocaine. He also explained that crack cocaine is a form of cocaine base.

       As stated above, the jury found Hickson guilty of possession with intent to

distribute more than 50 grams of a substance containing a detectible amount of cocaine

base. By statute, the minimum term of imprisonment for that offense is 120 months while

the maximum term of imprisonment is life. 21 U.S.C. § (b)(1)(A).

       At sentencing, the District Court found that the facts asserted in the presentence

report (“PSR”) were consistent with the evidence at trial, including the fact that Hickson

had possessed with intent to distribute more than 50 grams of crack cocaine. The Court

nonetheless rejected the 188 to 235 Sentencing Guidelines range set out in the PSR and

sentenced Hickson to the mandatory minimum sentence prescribed by statute: 120 months

imprisonment. This appeal followed.

                                             II.

       Hickson’s sole contention on appeal is that he is entitled to resentencing because

the Government did not establish by proof beyond a reasonable doubt that the controlled

substance he possessed was “crack cocaine.” The District Court’s determination that a



                                              3
controlled substance is crack cocaine is a finding of fact generally reviewed for clear

error. United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997); see also United States v.

Brigman, 350 F.3d 310, 313 (3d Cir. 2003) (noting that the District Court’s factual

findings during sentencing cannot be disturbed “unless this Court is left with a definite

and firm conviction that a mistake has been made”) (citations and quotation marks

omitted). Because Hickson did not raise an objection in the District Court, however, we

review his claim for plain error. Johnson v. United States, 520 U.S. 461, 465 (1997).

       It is undisputed that the Government charged, and the jury found beyond a

reasonable doubt, that Hickson “possessed with intent to distribute over 50 grams of a

controlled substance containing a detectable amount of ‘cocaine base.’” Hickson does

not argue that the Government failed to put forward sufficient evidence at trial to support

the jury’s finding that the substance he possessed was “cocaine base.” Thus, regardless

whether the Government introduced sufficient proof to establish that the substance in

question was crack cocaine, any resulting error had no effect on Hickson’s sentence and

certainly cannot amount to plain error. See United States v. Barbosa, 271 F.3d 438, 467

(3d Cir. 2001) (holding that, for purposes of applying the mandatory maximum and

minimum sentences under 21 U.S.C. § 841(b), the jury need only find that the defendant

possessed with intent to distribute more than 50 grams of a substance containing any form

of “cocaine base”—not the specific “crack cocaine” form of cocaine base).

       Moreover, it was not error for the District Court to find that the substance Hickson



                                             4
possessed was crack cocaine. It is well settled that a sentencing court may determine the

drug identity involved in a violation of 21 U.S.C. § 841 by using a preponderance of the

evidence standard “[s]o long as the resulting, and possibly enhanced, sentence is below

the statutory maximum authorized by the jury’s factual findings.” Id. at 457 (citing

Apprendi v. New Jersey, 530 U.S. 466 (2000)). Because the statutory maximum sentence

authorized by the jury’s findings in this case was life imprisonment, 21 U.S.C. §

841(b)(1)(A), the District Court could have lawfully imposed a sentence within the

Guidelines range so long as it found by a preponderance of the evidence—not beyond a

reasonable doubt—that the controlled substance was crack cocaine.

       Here the facts introduced at trial were more than sufficient to meet that evidentiary

threshold. As explained above, King, a DEA chemist, testified that her expert analysis

had confirmed that the substance at issue was cocaine base. Moreover, Detective

Meadows, who had extensive experience in cases involving crack cocaine, testified that

the “white, chunky rock-like substance” was crack. Finally, Detective Pope, a veteran of

“hundreds” of investigations involving crack, testified, based on the visual appearance of

the drug and his investigatory experience, that the substance was crack. This cumulative

evidence supports a finding by a preponderance of the evidence that the drugs in

questions were crack cocaine. See, e.g., United States v. Brigman, 350 F.3d 310, 314 (3d

Cir. 2003) (holding that District Court’s conclusion that drugs were crack not erroneous

where DEA chemist testified that drugs were cocaine base based on their appearance and



                                             5
his investigatory experience); United States v. Waters, 313 F.3d 151, 156 (3d Cir. 2002)

(same where experience officer testified, inter alia, that “rock form” of substance helped

him conclude that substance was intended to be smoked and was crack); United States v.

Dent, 149 F.3d 180, 190 (3d Cir. 1998) (same where chemist identified substance as

cocaine base and veteran officer stated that crack was often packaged in the manner in

which the drugs were found). Accordingly, the District Court did not err in its conclusion

to that effect.

                                         *****

       For the foregoing reasons, we affirm the judgment of the District Court.




                                             6
