United States v. Deondre Higgin

Filing

OPINION FILED - THE COURT: James B. Loken, Kermit E. Bye and Michael J. Melloy AUTHORING JUDGE:Michael J. Melloy (PUBLISHED) [4019635] [11-2905]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-2905
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Deondre Cordell Higgins
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 16, 2012
Filed: March 29, 2013
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Before LOKEN, BYE, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
In a bench trial, Deondre Higgins was found guilty of conspiring to distribute
crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and
distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The
district court found that Higgins's conspiracy conviction qualified for an enhanced
sentence under § 841(a)(1) and (b)(1)(A) because of two prior felony drug offenses
and that Higgins was a career offender under U.S.S.G. § 4B1.1 because of two prior

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controlled substance convictions. The court sentenced Higgins to a mandatory term
of life imprisonment for the conspiracy conviction and a concurrent term of 360
months' imprisonment for his distribution conviction. Higgins appeals the district
court's finding of guilt and its sentencing rulings.
I.
On November 20, 2008, a grand jury returned a six-count indictment charging
Higgins and four other individuals with conspiring to distribute crack cocaine.
Higgins was charged specifically under count one with conspiracy to distribute fifty
grams or more of crack cocaine and under count five with distribution of crack
cocaine.1
Trial commenced on September 27, 2010. Testimony from co-defendants Darl
Douglas Denson and Stacie Emmerich, as well as witness Michelle Carlisle, indicated
that Higgins purchased large quantities of crack cocaine from Denson and then resold
it to numerous others. Denson testified that these sales occurred at regular intervals
from October 2007 to November 2008, and the amounts Denson testified he sold to
Higgins added up to more than 5,000 grams over the course of that time period.
Higgins also was involved in individual sales of crack cocaine to Detective
James Armstead. Armstead testified about three separate drug transactions in January
2008 and identified Higgins as the person with whom he negotiated these deals over
the phone. Higgins, who is confined to a wheelchair, remained in another vehicle
during each transaction while Emmerich or another woman delivered the drugs to
Armstead in person. Following two of these transactions, tactical officers stopped the

1

The indictment also charged Higgins under count two with possession with
intent to distribute 50 grams or more of crack cocaine, but this count was later
dismissed on the government's motion.
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vehicle Higgins was in and recovered from Higgins marked bills that Armstead had
used in the transactions.
On November 15, 2010, the district court found Higgins guilty beyond a
reasonable doubt on both counts. Count one of the indictment had charged Higgins
with conspiring to distribute fifty grams or more of crack cocaine under
§ 841(b)(1)(A), and the same amount was listed in the court's final judgment;
however, the district court specifically noted in its findings of guilt that the
conspiracy had involved 280 grams or more of cocaine base—the amount required
under § 841(b)(1)(A) as amended by the Fair Sentencing Act of 2010, which
Congress enacted after Higgins's indictment had been returned. In determining the
quantity of crack cocaine that was involved in the conspiracy, the district court
credited Denson's testimony that demonstrated he had sold Higgins in excess of 5,000
grams over the course of Higgins's involvement in the conspiracy.2 In finding
Higgins guilty under count five of the indictment, the court credited Detective
Armstead's testimony, which established that Higgins had knowingly and
intentionally distributed crack cocaine on two occasions.
The district court held two sentencing hearings on July 6 and August 30, 2011.
Before trial, the government had filed a notice of its intent to use prior convictions
to enhance Higgins's sentence pursuant to 21 U.S.C. § 851. The notice listed two
prior felony drug convictions:
1)

Geary County, KS Case # 95CR583; felony possession of cocaine
within 1000 feet of a school; Conviction date: 11/13/1995;

2

In order to avoid duplication, the district court based its determination of
quantity on Denson's testimony alone, and did not add to that amount the quantities
testified to by Carlisle, Emmerich, or Detective Armstead.
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2)

Clay County, MO Case # CR100-3135F; felony trafficking
cocaine second degree, felony delivery cocaine (2 counts);
Conviction date: 05/01/2001.

In the initial sentencing hearing, a dispute arose as to whether Higgins's 1995
conviction had been for "felony possession," as the notice stated, or whether it was
for felony possession with intent to distribute. While a handwritten journal entry for
Higgins's conviction indicated that he pled nolo contendere to "possession,"3 other
documents, including the original criminal complaint and the plea agreement signed
by Higgins, indicated that he pled nolo contendere to possession with intent to sell.4
The district court recessed the sentencing hearing so that a transcript of Higgins's
Kansas plea hearing could be obtained to settle this dispute.
After reconvening on August 30, 2011, the court determined that the plea
transcript clearly established Higgins's Kansas conviction was for possession with
intent to sell. Higgins objected that the misidentification of this conviction in the
government's § 851 notice rendered the document defective and deprived him of due
process. The district court overruled Higgins's objections and sentenced him under
count one to the mandatory life imprisonment pursuant to § 841(a)(1) and (b)(1)(A).
The court also sentenced Higgins as a career offender to 360 months' imprisonment
on count five, which was to be served concurrently with the life sentence. Higgins
appeals.

3

The same document, however, indicated he was convicted under 1994 K.S.A.
65-4161 (a), and (d), which prohibited possession with intent to sell, deliver or
distribute drugs within 1000 feet of school property—not mere possession.
4

The presentence report noted and the district court took judicial notice of the
fact that no Kansas statute exists for mere possession of a narcotic within 1000 feet
of a school.
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II.
Higgins argues that there was insufficient evidence of his guilt under counts
one and five of the indictment. "'We review the sufficiency of the evidence after a
bench trial in the light most favorable to the verdict, upholding the verdict if a
reasonable factfinder could find the offense proved beyond a reasonable doubt . . . .'"
United States v. Huggans, 650 F.3d 1210, 1222 (8th Cir. 2011) (quoting United States
v. Kain, 589 F.3d 945, 948 (8th Cir. 2009)).
To convict Higgins of conspiracy to distribute cocaine, the government had to
prove that a conspiracy existed, that Higgins knew of the conspiracy, and that he
intentionally joined that conspiracy. See United States v. Williams, 534 F.3d 980,
985 (8th Cir. 2008). Viewing the evidence in a light favorable to the verdict, the
corroborating testimony of Denson, Emmerich, Carlisle, and Detective Armstead was
more than adequate for a reasonable factfinder to conclude under count one that
Higgins both knew of and had intentionally joined the conspiracy. Likewise,
Armstead's testimony and the evidence recounted above about individual transactions
in January 2008 were more than adequate for a reasonable factfinder to conclude
under count five that Higgins knowingly and intentionally distributed crack cocaine.5

5

Citing Anders v. California, 386 U.S. 738 (1967), Higgins also argues for the
first time on appeal that his conviction under count five was "duplicitous" of his
conviction under count one. However, because Higgins contends that he should not
have been charged with "both counts," we read his argument as actually challenging
his conviction as "multiplicitous" (a single offense charged in more than one count)
rather than "duplicitous" (a single count charging more than one offense). See United
States v. Street, 66 F.3d 969, 974–75 (8th Cir. 1995). Having reviewed the record
independently pursuant to Penson v. Ohio, 488 U.S. 75 (1988), we have found no
nonfrivolous issue regarding either argument.
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III.
Higgins's challenges to his sentence merit more discussion. Higgins argues
first that there was a defect in the government's § 851 notice of its intent to use prior
convictions for enhancement purposes because it misidentified one of his prior
convictions. Higgins also argues that the district court erred in sentencing him as a
career criminal because he avers that he did not have the two predicate controlled
substance offenses that are required for enhancement. Finally, Higgins argues for the
first time on appeal that his indictment was defective because it failed to indicate the
quantity of crack cocaine actually involved in the conspiracy. We address these
arguments in turn.
A.
Higgins argues specifically that because his § 851 notice misidentified his prior
conviction as "possession" rather than "possession with intent," it deprived him of
sufficient notice of the government's intent to seek a sentencing enhancement.6 We
review de novo whether the government's notice complied with § 851. United States
v. Sturdivant, 513 F.3d 795, 803 (8th Cir. 2008). Section 851 states that the
government must file notice before trial or before entry of a guilty plea if it intends
to use prior convictions to enhance the defendant's sentence. However, the section
also provides that "[c]lerical mistakes in the information may be amended at any time
prior to the pronouncement of sentence." 21 U.S.C. § 851(a)(1). The statute does not
define "clerical mistakes," but the Eighth Circuit has described them as errors "where
the government's initial information still gave the defendant 'reasonable notice of the
6

Higgins does not challenge on appeal the district court's finding that he was,
in fact, convicted of "possession with intent." He concedes that no Kansas statute
prohibited mere possession of drugs within 1000 feet of school, and he now argues
only that the § 851 notice was defective because it listed a conviction for a crime that
doesn't exist, rather than the crime for which he was actually convicted.
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Government's intent to rely on a particular conviction.'" Sturdivant, 513 F.3d at 804
(quoting United States v. Curiale, 390 F.3d 1075, 1076 (8th Cir. 2004) (per curiam)).
On appeal, Higgins does not dispute that the § 851 notice he received included
the correct date, case number, and county of origin for his 1995 conviction.
However, the notice did mislabel the conviction as being for felony possession of
cocaine within 1000 feet of a school—an offense that does not exist in
Kansas—rather than felony possession of cocaine with intent to distribute—the
offense for which the district court in this case concluded he had actually been
convicted. Higgins contends that this was more than a mere clerical mistake and that
it deprived him of reasonable notice that his 1995 conviction would be used to
enhance his sentence because the conviction it listed was not an actual offense.
We find Higgins's argument unpersuasive, and conclude that the error in the
government's notice was similar to other clerical mistakes we have previously
identified. In Curiale, we reviewed a § 851 notice that erroneously listed the
defendant's earlier crime as "sale" rather than "possession" of illegal drugs. 390 F.3d
at 1077. The government's notice in that case otherwise correctly identified the
county of origin, date of conviction, and case number of the original conviction, and
we therefore concluded it was a correctable mistake under § 851(a)(1). Id. Similarly,
the notice sent to Higgins in the present case included the county of origin, date of
conviction, and case number of the conviction. See also United States v. King, 127
F.3d 483, 489 (6th Cir. 1997) (clerical error on conviction date did not render
information defective because it otherwise detailed the correct offense and location
of conviction); Perez v. United States, 249 F.3d 1261, 1266–67 (11th Cir. 2001)
(same); United States v. Weaver, 267 F.3d 231, 248 (3d Cir. 2001) (information not
defective where clerical error listed previous conviction for "involuntary
manslaughter" instead of "voluntary manslaughter").

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The purpose of the § 851 notice requirement is to provide the defendant with
"notice of the prior conviction, the effect it would have on the maximum sentence,
and an opportunity to dispute the conviction." United States v. Timley, 443 F.3d 615,
626 (8th Cir. 2006). The error in the § 851 notice did not deprive Higgins of notice
about which conviction the government intended to use, the enhancement of his
sentence for which they were asking, or an opportunity to dispute the conviction.
Higgins did, in fact, dispute the conviction: he unsuccessfully argued at sentencing
that the conviction was for mere possession within 1000 feet of a school—an offense
that he now concedes does not exist in any Kansas statute. Higgins was also
unsuccessful in his argument that neither his 1995 Kansas conviction nor his 2001
Missouri conviction qualified for enhancement purposes.
B.
Higgins argues that the district court erred in sentencing him as a career
offender because he did not have two prior "controlled substance offense" convictions
as required by the sentencing guidelines. Although Higgins's brief could be read as
tying this argument to the § 851 notice issue, we construe it as a separate argument.7
This argument has no bearing on Higgins's life sentence under count one. The
mandatory term of life imprisonment for count one following two or more prior
felony drug offense convictions under § 841(b)(1)(A) overrides any advisory
guidelines range for the offense. Higgins does not dispute that he was convicted of

7

To the extent that Higgins may have intended to link this issue to any
purported defect in the § 851 notice, we note that "it is well-settled that a § 851
information is limited to situations in which a convicted defendant's statutory
minimum or maximum penalty is enhanced under Part D of Title 21, and not to [an
enhancement under the now-advisory guidelines] which is within a statutory range."
United States v. Bailey, 677 F.3d 816, 817–18 (8th Cir. 2012) (alterations in original)
(internal quotation marks omitted).
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two prior felony drug offenses.8 However, the district court's finding that Higgins
was a career offender may have influenced his sentence under count five, and we will
therefore address his argument.
Higgins was sentenced to 360 months under count five, which was the statutory
maximum under § 841(b)(1)(C). His offense level was 37, and his criminal history
category was VI, giving rise to a sentencing range of 360 months to life. Had Higgins
not received an enhancement as a career criminal under § 4B1.1(b), his base offense
level would have been 36 and his criminal history category would have been IV,
giving rise to a sentencing range of 262 to 327 months.
Higgins argues that his Clay County, Missouri, conviction in 2001 does not
qualify as a predicate offense for enhancement purposes under § 4B1.1(b). The
Missouri conviction was based on two counts: count one was for "felony trafficking
cocaine second degree," and count two was for "felony delivery cocaine." Higgins
argues, and the government concedes, that because "felony trafficking" could be
based on mere possession, it does not meet the definition of "controlled substance
offense" under § 4B1.2(b).9 The government contends, however, that because
Higgins was convicted under count two for felony delivery—which Higgins does not
dispute meets the definition of "controlled substance offense"—the career offender
enhancement was proper.

8

"Felony drug offense" is defined as "an offense that is punishable by
imprisonment for more than one year under any law that prohibits or restricts conduct
relating to narcotic drugs." 21 U.S.C. § 802(44).
9

"Controlled substance offense" is defined as "an offense under federal or state
law, punishable by imprisonment for a term exceeding one year, that prohibits the
manufacture, import, export, distribution, or dispensing of a controlled substance (or
counterfeit substance) or the possession of a controlled substance (or counterfeit
substance) with intent to manufacture, import, export, distribute, or dispense."
U.S.S.G. § 4B1.2(b).
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Higgins draws the court's attention to King v. United States, 595 F.3d 844 (8th
Cir. 2010), in which we vacated a sentence that had been enhanced under § 4B1.1
because of a novel and sophisticated argument about the grouping of prior
convictions. King involved a technical reading of how criminal history points are
assigned to groups of prior convictions. Although the analysis there involved prior
crimes of violence as defined in § 4B1.2(a), it applies equally to controlled substance
offenses under § 4B1.2(b).
A conviction is not a "prior felony" within the meaning of § 4B1.1 unless it
receives criminal history points under § 4A1.1(a), (b), or (c). When prior convictions
are grouped together because they occurred on the same occasion—as Higgins's 2001
Clay County offenses, which occurred on the same day, were grouped—a question
arises about which conviction receives criminal history points under § 4A1.1. See
King, 595 F.3d at 849. "In order to determine which subsection of § 4A1.1 a group
of related prior sentences fall under, we '[u]se the longest sentence of imprisonment
if concurrent sentences were imposed.'" Id. (quoting U.S.S.G. § 4A1.2(a)(2)).
Higgins received three criminal history points under § 4A1.1(a) for his 2001 Clay
County conviction, which grouped together a twenty-year sentence for trafficking,
and a ten-year sentence for delivery, running concurrently. According to §
4A1.2(a)(2), however, when multiple offenses are grouped together, the longest
sentence should get the criminal history point. See King 595 F.3d at 849. For
Higgins, this would mean the non-predicate trafficking offense. If Higgins's 2001
delivery offense did not receive a criminal history point, it cannot be considered a
prior felony conviction for sentencing purposes.
Finding this reading of the guidelines "plausible" in King, id. at 850, we
applied the rule of lenity and gave the defendant the benefit of the reading which
resulted in a shorter sentence, id. at 852. The same reading applies to Higgins's
sentence of 360 months' imprisonment under count five, and we therefore vacate that
sentence and remand for resentencing.
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C.
The indictment charged Higgins with violating 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846 by conspiring to distribute fifty grams or more of crack cocaine.
The judgment entered found him guilty of that offense. Higgins argues for the first
time on appeal that his indictment should have charged him with conspiring to
distribute 280 grams or more of crack cocaine, pursuant to the Fair Sentencing Act
of 2010 (FSA), and that the indictment was therefore fatally defective.
Enacted on August 3, 2010—almost two years after Higgins's indictment was
returned—the FSA changed the threshold quantity of crack cocaine required by
§ 841(b)(1)(A)(iii) from fifty grams to 280 grams. See Fair Sentencing Act of 2010,
Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010). This circuit had previously held
that the FSA did not apply retroactively, "even as to defendants who were sentenced
after the enactment of the FSA where their criminal conduct occurred before the
enactment." United States v. Sidney, 648 F.3d 904, 910 (8th Cir. 2011). However,
the Supreme Court recently announced that the FSA's more lenient penalties for crack
cocaine convictions do apply to sentences imposed after passage of the Act for preAct crimes, Dorsey v. United States, 132 S. Ct. 2321, 2331 (2012), thus abrogating
our decision in Sidney. United States v. Gamble, 683 F.3d 932, 933 (8th Cir. 2012).
Despite the retroactive application of the FSA, Higgins must now do more than
prove that his indictment was technically defective. Because Higgins did not
challenge the quantity listed in the indictment before the trial court his argument is
reviewed under a plain error standard. See United States v. Lee, 374 F.3d 637, 650
(8th Cir. 2004). Under this standard, Higgins must now prove that "the indictment
was defective and that it seriously affected the fairness and integrity of the judicial
proceedings." Id. at 651 (citing United States v. Cotton, 535 U.S. 625, 631 (2002)).

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Even if, in light of Dorsey, it was error for Higgins's indictment to list the preFSA quantities required by § 841(b)(1)(A)(iii), Higgins has not attempted to show
how it seriously affected the fairness and integrity of the judicial proceedings. Aware
that the FSA might be applied retroactively, the government agreed before trial to
meet the burden of proving Higgins's conspiracy involved 280 grams or more of crack
cocaine, as is now required under the Act. Furthermore, at Higgins's bench trial the
district court explicitly found beyond a reasonable doubt that the conspiracy involved
in excess of 5,000 grams of crack cocaine. The fact that Higgins's indictment listed
pre-Act quantities did not affect the fairness or integrity of the judicial proceedings
where it was established at trial that the conspiracy involved amounts of cocaine base
far in excess of the current requirements. See Cotton, 535 U.S. at 632–33
(concluding that an indictment's failure to allege drug quantity required by pre-FSA
version of § 841(b)(1)(A) "did not seriously affect the fairness, integrity, or public
reputation of judicial proceedings" when "evidence that the conspiracy involved at
least 50 grams of cocaine base was 'overwhelming' and 'essentially uncontroverted.'").
IV.
Accordingly, we affirm in part the decision of the district court, but we vacate
Higgins's sentence for distribution under count five and remand for further
sentencing.
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