                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2326




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NOT PRECEDENTIAL

                     THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    Case No: 04-2326

                            UNITED STATES OF AMERICA

                                              v.

                                SHERROD YOUNG, a/k/a
                                       "G",

                                          Appellant




                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             District Court No.: 01-CR-00401
                     District Judge: The Honorable Edwin M. Kosik


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 15, 2005

               Before: SLOVITER, BARRY, and SMITH, Circuit Judges

                               (Filed: September 20, 2005)


                               OPINION OF THE COURT


SMITH, Circuit Judge.

       Sherrod Young was convicted by a jury of conspiring to distribute crack cocaine in

violation of 21 U.S.C. § 846, and of three counts of distributing and possessing with the

intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). The District Court
for the Middle District of Pennsylvania sentenced Young to 324 months’ imprisonment

on the conspiracy count, and concurrent 240 months’ imprisonment on the distribution

and possession counts. This timely appeal followed.1

       Young contends that his conviction should be vacated because the District Court

erred by denying his motion to suppress evidence seized during the execution of a search

warrant at his home. He also submits that evidence adduced at trial is insufficient to

support his conviction on the conspiracy offense. Alternatively, Young asserts that a new

trial is warranted because the District Court did not grant his request for a separate

conspiracy charge and the verdict form failed to properly submit to the jury whether he

was guilty of a lesser included offense. Finally, Young argues that he should be

resentenced in accordance with United States v. Booker, 125 S.Ct. 738 (2005).

       Young’s motion to suppress challenged whether there was probable cause to issue

a warrant to search his home. We review the District Court’s factual findings for clear

error and conduct de novo review of the application of the law to those facts. United

States v. Lockett, 406 F.3d 207, 211 (3d Cir. 2005). As a reviewing court, we “must

determine only that the magistrate judge had a ‘substantial basis’ for concluding that

probable cause existed to uphold the warrant.” United States v. Whitner, 219 F.3d 289,

296 (3d Cir. 2000) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Here, the affidavit

of probable cause recited that a controlled buy had occurred at Young’s residence within

  1
   The District Court had jurisdiction under 18 U.S.C. § 3231. Appellate jurisdiction
exists pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                              2
the previous forty-eight hours, that Young had been picked up at his residence prior to

other controlled buys, and that the police had verified that Young resided at that particular

address. These facts provided a substantial basis for finding that there was a fair

probability that evidence of a crime would be found at Young’s home. Accordingly, the

District Court did not err by denying Young’s motion to suppress.

       Young contends that the evidence was insufficient to support his conviction for

conspiring to distribute in excess of fifty grams of crack cocaine. Rather, Young asserts

that the evidence proved, at best, that there were a series of conspiracies to sell less than

five grams of crack cocaine. In other words, Young relies upon the variance doctrine set

out in Kotteakos v. United States, 328 U.S. 750 (1946). Under that doctrine, we must

vacate Young’s conviction if the evidence at trial, instead of establishing a single

conspiracy as charged in the indictment, proves merely multiple conspiracies. United

States v. Salmon, 944 F.2d 1106, 1116 (3d Cir. 1991). On this issue we “must review the

record evidence in the light most favorable to the government to determine whether a

reasonable jury could find the existence of a single conspiracy.” Id.

       Michelle Kowalski testified that beginning in March 2001 she lived for a period of

time with Kevin Dowdy and Young, that people would come to that location to purchase

crack cocaine, and that she would sell the crack cocaine packaged in $20 bags. She

explained that, on a typical day, twenty or more such transactions occurred. In addition to

Dowdy and Young, Kowalski testified that Butter, i.e. Bernard Jones, was also involved



                                              3
in the distribution of these drugs and that the three men “were there together, they stayed

together, they lived together, they moved together.” If she had problems with the quantity

or quality of the crack she sold, Kowalski contacted Jones because “he seemed like he

was the one to fix the problems.” Kowalski also described numerous trips to New York

with Dowdy and Young to obtain additional crack cocaine to sell.

       As if Kowalski’s testimony weren’t damning enough, Melissa Martin testified that

she lived with Dowdy from September 2001 until December 2001 when she was arrested.

During that time she also sold crack cocaine, and she described how Dowdy sold crack

“all day. Sometimes it was all night.” Dowdy, according to Martin, worked with Young,

and on occasion she would drive the two men to New York so they could purchase more

crack cocaine. Although Martin was unable to specify the exact quantity of crack cocaine

involved, she described that the crack was in “bars” and that a thousand dollars usually

exchanged hands. Martin confirmed that she was present with Dowdy and Jones when

the police searched the residence in which she and Dowdy lived in December 2001 and

seized the crack cocaine that had been purchased by Dowdy and Jones the night before.

       Law enforcement officials also testified, describing the numerous controlled buys,

the seizure of 58.3 grams of crack cocaine from Dowdy’s and Martin’s residence, and the

seizure of crack cocaine from Young’s residence. Gerard Pender, another player in the

conspiracy, also testified about Young and Dowdy’s roles in the scheme.

       The evidence shows that Young, Dowdy and Jones shared a common goal, namely



                                             4
making a profit from the sale of crack cocaine. Their scheme depended upon Young,

Dowdy and Jones maintaining the contacts that they had with their suppliers in New

York. Although there were other individuals performing various roles in this drug

conspiracy, these men were the constants in the operation. For that reason, we conclude

that the evidence was more than sufficient for a reasonable jury to find the existence of a

single conspiracy. Salmon, 944 F.2d at 1116-17; see also United States v. Padilla, 982

F.2d 110, 114 (3d Cir. 1992) (acknowledging that we have “previously held that drug

conspiracies involving numerous suppliers and distributors operating under the aegis of a

common core group can be treated as a single conspiracy”). Accordingly, there was no

variance between the indictment and the proof adduced at trial.

       Along this same line, Young challenges the District Judge’s refusal to grant his

requested jury instruction which would have allowed the jury to determine if there was a

single conspiracy as charged or multiple conspiracies. The District Judge denied the

request because he did not think it was applicable. Because Young’s request for this

single/multiple conspiracy instruction did not “preserve [his] objection to the instruction

actually given by the court,” Jones v. United States, 527 U.S. 373, 388 (1999), and

because he made no further objection before the jury retired, we review for plain error.

Id.; United States v. Olano, 507 U.S. 725, 732 (1993) (discussing requirements of Fed. R.

Crim. P. 52(b)). Under this standard, “only those errors that ‘undermine the fundamental

fairness of the trial and contribute to a miscarriage of justice’ will be reversed.” Gov’t of



                                              5
the Virgin Islands v. Fonseca, 274 F.3d 760, 765 (3d Cir. 2001) (internal quotation marks

and citations omitted). In light of our conclusion that there was more than sufficient

evidence of record supporting the single conspiracy of conviction, and in the absence of

evidence suggestive of the existence of separate and distinct conspiracies, we find no

error, plain or otherwise, in the District Court’s refusal to give the requested

single/multiple conspiracy instruction.

       Consistent with the fact that Young pressed for a single/multiple instruction,

Young also requested that the verdict slip allow for his conviction on a lesser included

offense, namely conspiracy to distribute less than fifty grams of crack cocaine. Although

Young acknowledges that the District Court tried to accommodate this request, Young

asserts that the verdict slip was inconsistent, confusing and ultimately prevented the jury

from convicting him of a lesser included offense. For that reason, Young asserts that his

conspiracy conviction should be vacated and he should be awarded a new trial.

       Although we agree with Young that questions one, two, and three on the verdict

slip could have confused the jury and were susceptible to inconsistent answers, the fact

remains that the jury was not confused. Its answer to each question was that the quantity

of crack cocaine involved was 50 grams or more. The fact that there was a possibility of

confusion hardly warrants setting aside Young’s conspiracy conviction. Indeed, the

Supreme Court’s decision in United States v. Powell, 469 U.S. 57 (1984), instructs that

such relief is not available. There, the Court adhered to the rule enunciated in Dunn v.



                                              6
United States, 284 U.S. 390 (1932), that a criminal defendant is not entitled to have his

conviction on one count set aside because it is inconsistent with his acquittal on another

count. Powell, 469 U.S. at 63-69. Accordingly, in the absence of either confusion or an

inconsistency in the verdict, there is no reason to disturb the jury’s verdict of guilty for

which there is sufficient evidence.

       Finally, Young contends that the District Court erred at sentencing by finding

under U.S.S.G. § 1B1.3 that the quantity of crack cocaine was 150 to 500 grams, that he

had a managerial role under U.S.S.G. § 3B1.1(b), and that a two point upward adjustment

under U.S.S.G. § 2D1.1(b)(1) was warranted because he possessed a firearm. Relying on

Blakely v. Washington, 124 S.Ct. 2531 (2004), Young asserts that these findings had to be

made by a jury. In a Rule 28(j) letter filed in February 2005, Young cited as additional

authority the Supreme Court’s decision in United States v. Booker, 125 S.Ct. 738 (2005),

and requested resentencing. For the reasons set forth in United States v. Davis, 407 F.3d

162 (3d Cir. 2005) (en banc), we will grant Young’s request, vacate the sentence and

remand to the District Court for resentencing in accordance with Booker.
