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United States v. Mannings

United States Court of Appeals, Eighth Circuit

March 6, 2017

United States of America Plaintiff- Appellee
v.
Jamayal M. Mannings, also known as Mai, also known as Slim Defendant-Appellant

          Submitted: November 14, 2016

         Appeal from United States District Court for the Western District of Missouri - St. Joseph

          Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.

          PER CURIAM.

         Jamayal Mannings appeals his sentence, challenging the district court's[1]findings regarding drug quantity and two Sentencing Guidelines enhancements, as well as the reasonableness of the sentence. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

         I.

         On February 25, 2013, a federal grand jury for the Western District of Missouri returned a superseding indictment against Mannings and seven other defendants. Mannings was charged with seven counts related to the distribution of cocaine base (crack cocaine) and powder cocaine in the St. Joseph, Missouri, area from January 1, 2009 to February 20, 2013. Mannings initially pleaded guilty to one count of conspiracy to distribute crack cocaine and powder cocaine pursuant to a binding written plea agreement executed under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure.[2] In the agreement, the parties stipulated that Mannings' base offense level was not less than 38. The agreement prescribed a sentence of 300 months' imprisonment, with 5 years of supervised release to follow. A presentence investigation report (PSR) was prepared that calculated Mannings' sentencing guideline range as 360 months to life.

         After receiving the PSR, Mannings moved to withdraw his guilty plea. He was allowed to withdraw his plea on July 9, 2014, and trial was reset for January 12, 2015. On January 8, 2015, however, Mannings pleaded guilty to one count of conspiracy to distribute a mixture or substance containing crack cocaine in an amount of 280 grams or more, and powder cocaine in an amount of 5 kilograms or more. Although there was no written plea agreement, the government agreed to dismiss the remaining six counts against Mannings and to move to withdraw an Information to Establish Prior Conviction that had been filed on March 4, 2013. An amended PSR was prepared, which recommended a drug quantity that resulted in a base offense level 36, and assessed a two-level enhancement because a firearm "was possessed" and a three-level enhancement for Mannings' aggravating role in the offense. After a three-level reduction for acceptance of responsibility, Mannings' total offense level was 38. At a criminal history category III, the recommended sentencing guideline range was 292-365 months. Mannings objected to the drug quantity calculation and both enhancements.

         At the sentencing hearing held on December 3, 2015, the government presented two witnesses-a cooperating co-conspirator, Andre Turner, and Special Agent (SA) Dimechi Herring from the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Taking the matter under advisement, the court continued the sentencing hearing to February 9, 2016, so it could review the transcript of testimony. At the February 9 hearing, the court overruled Mannings' objections and sentenced him to 292 months imprisonment, followed by a five-year term of supervised release.

         II.

         The government bears the burden of proving by a preponderance of the evidence the facts that support drug quantity and sentencing enhancements. See United States v. Gamboa, 701 F.3d 265, 267 (8th Cir. 2012) (role enhancement); United States v. Muniz Ochoa, 643 F.3d 1153, 1156 (8th Cir. 2011) (enhancement for possession of firearm); United States v. Payton, 636 F.3d 1027, 1046 (8th Cir. 2011) (drug quantity). "We review the district court's application of the Guidelines to the facts de novo; its factual findings for clear error; and the ultimate sentence for reasonableness." United States v. Hatcher, 501 F.3d 931, 933 (8th Cir. 2007).

         Mannings first challenges the district court's calculation of drug quantity, alleging the government's evidence was unreliable and uncorroborated. The government's first witness, Andre Turner, testified to his own firsthand knowledge of Mannings' drug trafficking activity in the St. Joseph area. He saw Mannings sell crack cocaine to customers and knew how much Mannings charged. Turner testified that he also purchased crack cocaine from Mannings, which Turner would "break [] down and distribute" to others. Turner saw Mannings "cook" powder cocaine into "ounces" of crack cocaine on a regular basis, and described where and how Mannings did the cooks. Turner's testimony was corroborated by SA Herring, the case agent. SA Herring testified about surveillance operations targeting Mannings and undercover buys of crack cocaine from Mannings. SA Herring also testified about interviews with other cooperating witnesses whose statements were consistent with Turner's testimony about Mannings' drug trafficking activity.

         Mannings notes this testimony was not corroborated by evidence such as audio or video recordings, fingerprint or DNA analysis, or polygraphs of informants. But a court may "consider uncorroborated hearsay evidence so long as the evidence has sufficient indicia of reliability to support its accuracy and the defendant is given a chance to rebut or explain it." United States v. Garcia, 774 F.3d 472, 475-76 (8th Cir. 2014) (per curiam). Here, the district court considered the testimony of both a co-conspirator and an investigating officer. See United States v. Walker, 688 F.3d 416, 421 (8th Cir. 2012) ("A sentencing court may determine drug quantity based on the testimony of a co-conspirator alone." (quoting United States v. Sarabia-Martinez, 276 F.3d 447, 450 (8th Cir. 2002))). Nevertheless, Mannings argues that neither witness was credible: Turner because he testified in the hope of reducing his own sentence; and SA Herring because his testimony was based on statements from individuals who had a motive to fabricate information. However, Mannings cross-examined both witnesses on these purported weaknesses at sentencing and argued the point to the district court. We afford district courts wide latitude in choosing what information to consider in determining drug quantity, and "the sentencing court's assessment of the credibility of witnesses is nearly unreviewable." United States v. Mickelson, 378 F.3d 810, 822 (8th Cir. 2004) (quoting United States v. Dierling, 131 F.3d 722, 736 (8th Cir. 1997)). The district court did not err in relying on the testimony presented to determine the total drug quantity for purposes of establishing Mannings' base offense level.[3]

         Next, Mannings asserts the district court erred in imposing a two-level enhancement for possession of a firearm. See USSG § 2D1.1(b)(1) ("If a dangerous weapon (including a firearm) was possessed, increase by 2 levels."). Mannings points out he was not found in possession of a firearm when he was arrested. But it is not necessary that a defendant be seen with or using a firearm for this enhancement to apply. United States v. Anderson, 618 F.3d 873, 880 (8th Cir. 2010). Nor is the government required to prove ownership of a firearm or the premises on which it is found for a § 2D1.1(b)(1) enhancement to apply. Id. SA Herring testified that two firearms, along with a bulletproof vest, loose ammunition, and approximately 37 grams of crack cocaine, were found in a car Mannings had been seen driving during the course of surveillance-a car registered to the mother of Mannings' children. Turner testified that Mannings carried a gun when he was "out in traffic or doing [drug trafficking] business, " and that Mannings had been involved in shootouts with other ...


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