Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Limbaugh, District Judge
Submitted: January 14, 2009
Before MURPHY and SMITH, Circuit Judges, and LIMBAUGH*fn1, District Judge.
This is an appeal from the judgment and sentence imposed following appellant's conviction by a jury on five of six drug-related charges. Appellant presents only two issues: 1) whether the evidence was sufficient to support the conviction on Count One of the Indictment, and 2) whether appellant's sentence was impermissibly enhanced under 21 U.S.C. sec. 851. Affirmed.
The evidence in the case, which we view "in the light most favorable to the jury verdict and giving the verdict the benefit of all reasonable inferences," United States v. Montano, 506 F.3d 1128, 1132 (8th Cir. 2007) (citing United States v. Wintermute, 443 F.3d 993, 1003 (8th Cir. 2006)), is as follows:
On November 20, 2006, an undercover detective with the Kansas City, Missouri Police Department (KCPD) went to a park at 9th and Harrison in Kansas City, known colloquially as 'Jurassic Park' and also known as an open and notorious market for illegal drugs. The detective sat on a bench and waited for a seller to approach him. Appellant, Jermaine Jones, walked toward the detective, and asked him what he wanted. The detective said he wanted $16 worth of crack cocaine. Jones then gave the detective .21 grams of crack for $16 in pre-recorded buy money. The two men exchanged phone numbers for future transactions. Police had maintained surveillance of the transaction and gave Jones' description to uniformed officers so they could arrest him.
After the sale was complete, the uniformed officers approached Jones and a female, identified as Lee Harris, who were sitting on a bench. The officers saw Jones place something shiny on the bench between himself and Harris. The officers recovered the shiny object, which was a Smith & Wesson, .357 caliber revolver. In addition, when the officers ordered Harris to stand up, they saw 3.62 grams of crack cocaine fall from her lap. The officers placed Jones and Harris under arrest, and recovered from Jones the pre-recorded buy money used by the detective to buy the crack cocaine.
After being advised of his rights under Miranda, Jones provided a statement to detectives. He said he had been selling an eight-ball (3.5 grams of crack cocaine) every day for about three months to support his own drug habit. He admitted he was in possession of the money which was the proceeds of the crack cocaine sale. He also said the gun belonged to his girlfriend, Harris, for protection during the crack cocaine sales. Both Jones and Harris were released from custody pending further investigation.
Jones again contacted the buyer (apparently unaware that the buyer was an undercover detective) several times after the initial arrest in order to sell him more crack cocaine. They arranged a deal, which took place on December 5, 2006, at 31st and Harrison, Kansas City, Missouri. The undercover detective contacted Jones by phone once he was in the area, and Jones said he was "sending it out." At that time, an unknown female delivered .58 grams crack cocaine to the detective in exchange for $40.
After the buy, Jones called the detective several times, accusing him of shorting Jones $60 for the crack, and threatening harm to the detective if Jones did not receive the money. The detective then made arrangements to buy an additional $50 worth of crack cocaine, and pay the remaining $60. This transaction was to take place at 3025 Harrison in Kansas City, but due to Jones' threats and his previous possession of a handgun, officers decided to arrest Jones before the planned buy.
On December 6, 2006, the undercover detective saw Jones at 31st and Campbell in Kansas City, and notified uniformed officers to arrest him. When they approached, Jones dropped a plastic bag and fled on foot. He attempted to enter a Lexus that was parked nearby, but the driver of the Lexus saw police and drove away at a high rate of speed. Jones was then apprehended, and the contents of the plastic bag he dropped was determined to be "Sheetrock", which contained no controlled substance.
Meanwhile, the police pursued the Lexus and after an extended chase, the Lexus crashed resulting in the arrest of the occupants. The driver of the Lexus was later identified as Marlin Sanders, and Lee Harris was a backseat passenger. Officers recovered from in and around the Lexus, 4.7 grams marijuana, 64.6 grams crack cocaine, 20.7 grams cocaine powder, and a loaded Glock Model 23, .40 caliber handgun.
After her arrest, Harris gave consent to search the apartment she and Jones shared in Kansas City, Missouri. Detectives recovered a digital scale, 106 grams of Sheetrock similar to what Jones had attempted to sell the undercover detective, and 26 ...