United States v. Demetrius Colbert

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Michael J. Melloy and Steven M. Colloton AUTHORING JUDGE:Roger L. Wollman (PUBLISHED); Granting [4309480-2] [4313027-2] motion to file supplemental brief filed by Appellant Mr. Demetrius Colbert.; [4423492] [15-1374]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1374
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Demetrius Colbert, also known as D-Coop
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: January 14, 2016
Filed: July 8, 2016
____________
Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
____________
WOLLMAN, Circuit Judge.

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Demetrius Colbert appeals from his conviction on several drug-trafficking and
firearm-related charges and from the sentence imposed by the district court.1 We
affirm.2
I.
Colbert’s conviction was one of many resulting from Operation Delta Blues,
a multi-year, multi-agency drug-trafficking and public-corruption investigation
conducted by the Federal Bureau of Investigation (FBI), the Drug Enforcement
Administration, the Internal Revenue Service, the Bureau of Alcohol Tobacco and
Firearms, and the criminal-investigation division of the Arkansas State Police. The
investigation resulted in more than seventy arrests, which included those of officers
in the Helena-West Helena Police Departments and the Phillips County Sheriff’s
Office.
In early 2011, court-ordered wiretaps on phones used by Sedrick Trice and
Leon Edwards, along with information provided by a confidential witness revealed
that Colbert was a large-scale cocaine distributer in Marianna and Helena-West
Helena, Arkansas. Based on that information, on April 12, 2011, the FBI obtained
a court order granting a wiretap for a thirty-day period on a cell phone that the FBI
believed was primarily used by Colbert. The FBI obtained court authorization for a
thirty-day extension of the wiretap beginning on May 12, 2011. The wiretap ended
on June 10th or 11th, by which time the FBI had intercepted more than 7,000 calls
made or received by Colbert’s cell phone, approximately 710 of which the FBI
determined were related to criminal activity.

1

The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
2

We grant Colbert’s motion for permission to file a pro se supplemental brief.
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A grand jury returned a seventeen-count indictment charging Colbert and seven
others on October 4, 2011. An arrest warrant was issued for Colbert the following
day. The government obtained a search warrant on October 6, 2011, for Colbert’s
home located on Hillcrest Street in Marianna, Arkansas (the Hillcrest Street house).
The search warrant permitted law enforcement officers to search the residence for
evidence of money laundering and to execute the search warrant at any time of the
day or night.
The FBI’s Special Weapons and Tactics (SWAT) team executed the warrant
at 4:00 a.m. on October 11, 2011. Colbert was in the house at the time, along with
his long-time girlfriend Catina Davis and their two children. The twelve-member
SWAT team arrived at the Hillcrest Street house in two SUVs and was accompanied
by a state trooper. Upon arriving at the house, the state trooper illuminated his squad
car’s blue overhead lights, which he directed at the front of the house in order to alert
anyone inside to the FBI’s presence. Two SWAT-team members acted as
“breachers,” who were responsible for positioning themselves outside the front door
on the left- and right-hand sides, announcing the FBI’s presence, and, if necessary,
forcing the door open with a hand-held battering ram. After the team was positioned,
FBI Agent Wendell Cosenza, the breacher positioned to the right of the door,
knocked loudly on the front door with his extendable baton and announced, “FBI,
warrant, come to the door.” He repeated the knock-and-announce sequence two more
times, pausing briefly each time, with the entire process taking less than one minute.
The team leader then instructed the other breacher to “hit it” and breach the front door
with the battering ram.
Immediately before the battering ram struck the front door, a shot was fired
from within the house, followed by at least seven more shots in rapid succession after
the door was breached. After the front door was forced open, an agent threw a
flashbang grenade into the house, the team leader issued a “cover up” command, and
the team retreated to covered positions. During the shooting, two FBI agents returned
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fire into the house. One agent fired three shots through the front window of the house
into the living room, toward where the first shots originated, and moments later
another agent fired two shots through a bedroom window, located to the left of the
front door, after the agent observed a gun in the window. One of the bullets fired
from inside the house struck Agent Cosenza in the leg. After the FBI agents took
cover, they ordered those in the house to surrender. Approximately one or two
minutes later, Davis surrendered to the FBI’s custody, followed by Colbert
approximately one or two minutes after Davis’s surrender. Team members then
secured the house and brought Colbert’s children out of the house.
During the subsequent search of the house, FBI agents recovered $423,313 in
cash hidden throughout the house (including $139,673 found in two bags that were
located in the trunk of Colbert’s 1971 Oldsmobile Cutlass), a .40 caliber handgun
with an empty magazine from the top of the vanity in the master bathroom, empty
plastic bags containing cocaine residue from the toilet in the master bathroom, digital
scales containing cocaine residue from the master bathroom and the garage, several
pieces of diamond jewelry worth approximately $26,000, and two of Colbert’s five
cars.
In a superseding indictment, a grand jury charged Colbert with one count of
conspiracy to distribute or possess with intent to distribute cocaine and cocaine base,
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and two counts of use of a
communications facility in furtherance of a drug-trafficking crime, in violation of 21
U.S.C. § 843(b) (collectively the conspiracy charges). It further charged Colbert with
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2), with assaulting a federal officer with a dangerous or deadly weapon, in
violation of 18 U.S.C. § 111(b), and with possession and discharge of a firearm in
connection with a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)
(collectively the firearm-related charges).

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Colbert filed pretrial motions to suppress evidence from the wiretaps and the
search and to sever the trial. Colbert objected to the wiretap evidence on the ground
that the government had not met its burden under 18 U.S.C. § 2518(1)(c) to show that
a wiretap was necessary. Colbert objected to the search warrant on the ground that
the affidavit did not establish a nexus between the Hillcrest Street house and moneylaundering evidence. In support of his motion to sever, Colbert argued that the
firearm-related offenses were unrelated to the drug-trafficking-related offenses.
The government filed a pretrial motion to suppress testimony from Marcus
Thompson, one of Colbert’s co-conspirators. Thompson was arrested on the same
day as Colbert by an FBI hostage rescue team (HRT) executing a no-knock warrant.
When the HRT ignited an explosive breaching device attached to Thompson’s front
door, Thompson fired several rounds. Thompson would have testified that he
believed someone was breaking into his home to steal his drugs and money. Colbert
argued that this testimony would demonstrate that he reasonably believed that he was
acting in self defense when he fired his gun at the SWAT team. The government
objected to the testimony, arguing that it was irrelevant because of the different
tactics used by the two teams.
The district court denied Colbert’s motions and granted the government’s. The
case proceeded to a five-day jury trial. Before the case was submitted to the jury,
Colbert moved for a judgment of acquittal on each of the counts except the felon-inpossession count, on which he conceded his guilt. As relevant here, Colbert argued
that he was entitled to a judgment of acquittal on the counts of assaulting a federal
officer, and of brandishing and discharging a firearm in furtherance of a federal drugtrafficking offense, because he had acted in self defense. The court denied Colbert’s
motion, Colbert presented no evidence, and the jury found him guilty of all of the
charged offenses.

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Colbert’s presentence investigation report (PSR) calculated the drug quantity
that Colbert was responsible for to be 200 kilograms of cocaine and 21 kilograms of
crack cocaine. That drug quantity was based on testimony from Alvin Long, Marcus
Thompson, and Leon Edwards, as well as on the intercepted telephone conversations
that were played at trial. Based on that drug quantity, the PSR calculated Colbert’s
base offense level to be 38 for the conspiracy, communications-facility, and felon-inpossession offenses. The PSR applied a 2-level enhancement based on Colbert’s
pattern of criminal conduct, which was Colbert’s sole source of income, and a 4-level
enhancement based on Colbert’s leadership role in the organization, resulting in an
adjusted offense level of 44. The PSR calculated Colbert’s offense level to be 27 for
his assault offense, but that conviction did not affect his total offense level due to the
multiple-count adjustment. Because Colbert’s combined offense level was greater
than the highest level permitted by the U.S. Sentencing Guidelines (U.S.S.G. or
Guidelines), the resulting total offense level was 43. Based on an offense level of 43
and a criminal history category of III, the Guidelines’ advisory sentence was life
imprisonment. For the offense of brandishing or discharging a firearm in furtherance
of a drug-trafficking crime, the Guidelines recommended the mandatory minimum
sentence of ten years’ imprisonment, to be served consecutively to the sentence for
the other offenses. The resulting advisory Guidelines sentence was life
imprisonment, with a 10-year consecutive sentence to follow.
Colbert objected to the PSR’s drug-quantity calculation and to the application
of several enhancements, including the 4-level leadership-role enhancement. The
district court rejected Colbert’s objections, adopted the calculations in the PSR, and
imposed a sentence of life imprisonment, with an additional ten years’ imprisonment
to be served consecutively.

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II.
Colbert appeals his convictions, arguing that the evidence derived from the
wiretap and the search of the Hillcrest Street house should have been suppressed, that
Thompson’s testimony about the search warrant executed at his house should have
been admitted, that there was insufficient evidence to prove that he intended to shoot
a federal agent, and that the firearm-related charges should have been severed from
the conspiracy charges.
A. The Motions to Suppress
“We review the district court’s factual findings supporting the denial of
[motions] to suppress for clear error and its legal determinations de novo.” United
States v. Garcia-Hernandez, 682 F.3d 767, 771 (8th Cir. 2012).
1. The Wiretap
Colbert argues that the wiretap evidence should have been suppressed, because
the application and affidavit used to secure the wiretap failed to satisfy the necessity
requirement set forth in 18 U.S.C. § 2518(1)(c), which provides that such an
application must include “a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they reasonably appear to
be unlikely to succeed if tried or to be too dangerous.” This necessity requirement
prevents the government from routinely using wiretaps “as the initial step in an
investigation.” United States v. Thompson, 210 F.3d 855, 858-59 (8th Cir. 2000)
(quoting United States v. Maxwell, 25 F.3d 1389, 1394 (8th Cir. 1994)). But as we
have repeatedly held, the necessity requirement does not mandate that the government
“exhaust all possible techniques before applying for a wiretap.” United States v.
Macklin, 902 F.2d 1320, 1326-27 (8th Cir. 1990) (“The government is simply not
required to use a wiretap only as a last resort.”); see also United States v. Kahn, 415
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U.S. 143, 153 n.12 (1974) (noting that the necessity requirement “is simply designed
to assure that wiretapping is not resorted to in situations where traditional
investigative techniques would suffice to expose the crime”). A district court’s
determination that a wiretap is necessary constitutes a finding of fact, which is subject
only to clear-error review. Thompson, 210 F.3d at 859.
The record belies Colbert’s contention that the government had not attempted
traditional surveillance techniques before seeking a wiretap. The affidavit supporting
the application outlined several traditional investigative techniques the government
employed with respect to Colbert, beginning no later than December 2010. These
techniques included physical surveillance, information from two confidential
witnesses, attempted controlled buys, and the installation of a pen register and trapand-trace device on Colbert’s cell phone. Moreover, the affidavit explained why
those techniques were insufficient to gather evidence necessary to secure a
conviction. For example, the government attempted a controlled buy using a
cooperating witness on December 20, 2010, and attempted to conduct physical
surveillance of that transaction. But, after contacting Colbert and Thompson,
arranging to purchase a small quantity of crack cocaine, and going to Thompson’s
residence to buy the drugs, the witness could not complete the purchase because
Thompson never opened his door and Colbert would not answer his phone. That
same cooperating witness again attempted to conduct a controlled buy for the
government on February 1, 2011, but Colbert denied having any drugs to sell. The
affidavit stated that controlled buys would not be an effective investigative technique,
because Colbert did not trust the government’s cooperating witness and because no
other cooperating witnesses had been identified.
Colbert argues that the timing of the wiretap application demonstrated that the
government could not have attempted alternative investigative techniques and that the
government’s explanations for why certain techniques were infeasible lacked merit.
An application need only establish that the government has attempted traditional
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investigative techniques and demonstrate that those techniques are “insufficient to
reveal the full conspiracy or the identity of” the conspirators. Thompson, 210 F.3d
at 859. Colbert claims that the government’s investigation of him did not begin until
March 28, 2011, when the government first intercepted a phone call from Colbert’s
phone through the wiretap on another co-conspirator’s phone, and that the only
investigative technique attempted after that date was the pen register. But the
government’s affidavit shows that the investigation began well before March 28,
when the government attempted the aforementioned controlled buys in December
2010 and February 2011.
Colbert also argues that the affidavit’s use of boilerplate language did not
satisfy the necessity requirement. An affidavit that explains “in general terms why
some of the procedures have failed in other investigations and would likely fail in this
case,” satisfies § 2518(1)(c) if it contains “particular instances in which normal
procedures were used and did in fact fail.” Macklin, 902 F.2d at 1327. The
affidavit’s use of explanations that “are common to most drug conspiracy
investigations . . . does not necessarily preclude a finding of necessity under section
2518(1)(c).” Thompson, 210 F.3d at 859 (“[A]lthough the affidavit’s assertions of
inadequacy ‘might appear boilerplate, the fact that drug investigations suffer from
common investigatory problems does not make these problems less vexing.’”
(quoting United States v. Milton, 153 F.3d 891, 895 (8th Cir. 1998))). We conclude
from our review of the affidavit that the district court did not clearly err in finding
that the wiretap was necessary.
2. The Search Warrant
Colbert argues that the search-warrant application’s failure to allege a nexus
between the Hillcrest Street house and money laundering rendered it inadequate to
establish probable cause. “[T]here must be evidence of a nexus between the
contraband and the place to be searched before a warrant may properly issue.”
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United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000). “The requisite nexus
between a particular location and contraband is determined by the nature of the crime
and the reasonable, logical likelihood of finding useful evidence.” United States v.
Etheridge, 165 F.3d 655, 657 (8th Cir. 1999). “[W]e accord substantial deference”
to the district court’s probable-cause determination, affirming as long as the court
“had a ‘substantial basis for concluding that probable cause existed.’”
Garcia-Hernandez, 682 F.3d at 771 (quoting United States v. Buchanan, 574 F.3d
554, 561 (8th Cir. 2009)).
The affidavit included information provided by two witnesses, one who had
engaged in transactions with Colbert in the past, and another who had been present
when Colbert sold cocaine to other individuals. The affidavit also included
intercepted phone calls in which Colbert used coded language to coordinate cocaine
sales. The affidavit stated that Colbert owned several expensive cars, that he
frequently wore expensive jewelry, and that he was in the process of renovating his
primary residence, the Hillcrest Street house, but that he had not filed taxes in several
years and had no apparent legitimate source of income. Although public records did
not list Colbert or Davis as the owner of the house, the FBI determined that Colbert
was the owner based on intercepted phone calls and the fact that he was renovating
the house by, for example, adding granite counter tops and new fixtures in the kitchen
and bathroom. It was reasonable to infer from those facts that the Hillcrest Street
house itself and any improvements or jewelry located in the house were paid for with
proceeds from Colbert’s drug-trafficking business and that such evidence was likely
to be located in the house. Those facts thus provided a substantial basis for the
district court’s conclusion that there was a reasonable likelihood that the government
would find evidence of money laundering in the Hillcrest Street house.3
3

Colbert contends that the warrant was improperly granted, because although
the application sought evidence of money laundering, he was not charged with money
laundering, and many of the items listed on the warrant application were not found
during the search. Nevertheless, probable cause that evidence of money laundering
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Colbert argues in the alternative that, assuming that probable cause existed, the
motion to suppress should have been granted because the warrant was based on stale
information. “A warrant becomes stale if the information supporting the warrant is
not ‘sufficiently close in time to the issuance of the warrant and the subsequent search
conducted so that probable cause can be said to exist as of the time of the search.’”
United States v. Brewer, 588 F.3d 1165, 1173 (8th Cir. 2009) (quoting United States
v. Palega, 556 F.3d 709, 715 (8th Cir. 2009)). “Important factors to consider in
determining whether probable cause has dissipated . . . include the lapse of time since
the warrant was issued, the nature of the criminal activity, and the kind of property
subject to the search.” Id. (quoting United States v. Gibson, 123 F.3d 1121, 1124 (8th
Cir. 1997)). We conclude that the affidavit established the existence of an ongoing
drug conspiracy from which Colbert was actively earning money, that police observed
Colbert overseeing construction on his house less than three weeks before the warrant
issued, and that Colbert resided at the Hillcrest Street house and kept his cars and
personal property inside the house. In light of these circumstances, we conclude that
the information used to establish probable case was not stale, and we hold that the
district court did not err in denying the motion to suppress evidence derived from the
search of the Hillcrest Street house.
B. Thompson Testimony
Colbert argues that the district court abused its discretion by granting the
government’s motion to exclude certain testimony from Thompson. “We review the
district court’s evidentiary rulings for abuse of discretion.” United States v. Lemons,
792 F.3d 941, 947 (8th Cir. 2015). As set forth earlier, the government moved to
exclude Thompson’s testimony as irrelevant. In granting the motion, the district court

would be present in the house existed at the time the warrant issued, and there is
nothing to suggest that the warrant was a pretext for “general, exploratory
rummaging.” Cf. United States. v. Schmitz, 181 F.3d 981, 987-88 (8th Cir. 1999).
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noted “the distinction between the amount of force or what happened in the two
separate warrants” and the lack any of evidence that Thompson had communicated
with Colbert at the time the warrants were served.
Colbert argues that Thompson’s testimony about the search of his house was
relevant to show that Colbert reasonably believed he was acting in self defense.
Evidence is relevant if “it has any tendency to make a fact more or less probable than
it would be without the evidence.” Fed. R. Evid. 401(a). While “[t]he threshold for
relevance is ‘quite minimal,’” United States v. Holmes, 413 F.3d 770, 773 (8th Cir.
2005) (quoting United States v. Guerrero-Cortez, 110 F.3d 647, 652 (8th Cir. 1997)),
we agree with the district court that the dissimilarity of the two events rendered the
proposed testimony irrelevant. The tactics that the HRT used when they executed
their no-knock warrant at Thompson’s home were completely different from those
used by SWAT at Colbert’s home. Unlike the SWAT team, the HRT did not knock
on Thompson’s door, announce their presence, or shine bright lights into Thompson’s
windows before breaching his front door. The district court thus did not abuse its
discretion in excluding Thompson’s testimony.
C. Misjoinder and Severability
Colbert argues that his conspiracy counts were misjoined with his firearmrelated counts under Federal Rule of Criminal Procedure 8(a). “We review de novo
a decision to join counts together into a single indictment.” United States v. Midkiff,
614 F.3d 431, 439 (8th Cir. 2010). Rule 8(a) provides for the joinder of multiple
offenses that “are of the same or similar character, or are based on the same act or
transaction, or are connected with or constitute parts of a common scheme or plan.”
Here, the charges were properly joined because all of the charges arose from the same
act, Colbert’s participation in a cocaine-distribution conspiracy. Specifically, the
indictment charged Colbert with possession and discharge of a firearm in furtherance
of the drug-trafficking conspiracy for which he was also charged in that indictment.
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The remaining firearm-related offenses are in turn based on the same firearm as the
possession-and-discharge offense. Joinder was therefore proper.
Joinder being proper, we turn to whether the district court erred in denying
Colbert’s severance motion. We review a district court’s denial of a severance
motion for abuse of discretion, and “we will reverse only when that abuse of
discretion results in severe or clear prejudice.” United States v. Robinson, 781 F.3d
453, 461 (8th Cir. 2015) (quoting United States v. Reynolds, 720 F.3d 665, 669 (8th
Cir. 2013)); see also Fed. R. Crim. P. 14(a). No such prejudice exists “when evidence
of the joined offense would be properly admissible in a separate trial for the other
crime.” Id. (quoting Reynolds, 720 F.3d at 670). Under the circumstances of this
case, the same evidence would be admissible at trials for both the conspiracy and the
firearm-related offenses. For example, the empty plastic bags containing cocaine
residue that were recovered from the bathroom at the Hillcrest Street house would
have been admissible as evidence of Colbert’s involvement in the cocainedistribution conspiracy at a trial for the conspiracy offenses and as evidence that
Colbert was not acting in self defense at a trial for the firearm-related offenses. The
district court thus did not abuse its discretion in denying the motion to sever.
D. Judgment of Acquittal
Colbert argues that the government failed to prove that he acted with the intent
required to establish his conviction for assaulting a federal officer, 18 U.S.C. § 111.
“We review the denial of a motion for a judgment of acquittal de novo but view the
evidence in a light most favorable to the verdict.” United States v. Paris, 816 F.3d
1037, 1038-39 (8th Cir. 2016). “We reverse only when no reasonable jury could have
found the accused guilty.” Id. at 1039.
We conclude that there was substantial evidence that Colbert was not acting
in self defense when he fired on the SWAT team. The jury heard testimony from
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Agent Cosenza regarding how loudly he knocked on Colbert’s door and announced
the FBI’s presence; it viewed pictures of the dents left in the front door by Agent
Cosenza’s baton; and it heard testimony from other law-enforcement officials about
the lights directed inside the house and the sheer curtains that only partially covered
the windows. The jury also heard testimony that agents found kilogram-sized plastic
bags containing cocaine residue in the toilet of the master bathroom near where
Colbert’s gun was found. It considered testimony from the FBI’s firearms tool mark
examiner, who mapped the trajectories of the bullets that Colbert fired and concluded
that at least one bullet struck the door before it was opened. From this evidence, a
reasonable jury could find that Colbert knew that the FBI was at his door, that he
fired before the door was opened, and that he did so in order to buy the time
necessary to allow him to destroy evidence. The district court thus properly denied
Colbert’s motion.
III. Sentencing Issues
In reviewing Colbert’s sentence, we “first ensure that the district court
committed no significant procedural error,” and we then determine whether the
sentence imposed was substantively unreasonable. Gall v. United States, 552 U.S.
38, 51 (2007). “We review a district court’s interpretation and application of the
guidelines de novo and its factual findings regarding enhancements for clear error.”
United States v. Aguilar, 512 F.3d 485, 487 (8th Cir. 2008). Colbert argues that the
district court procedurally erred by “selecting a sentence based on clearly erroneous
facts,” Gall, 552 U.S. at 51, when it calculated the drug quantity attributable to
Colbert, see U.S.S.G. § 2D1.1(c), and when it applied the four-level organizer-orleader enhancement, U.S.S.G. § 3B1.1(a).4

4

Colbert also objected to the application of a 6-level enhancement for
knowingly assaulting a police officer, U.S.S.G. § 3A1.2(c)(1), but that enhancement
did not ultimately affect his sentence, and we see no error resulting from it.
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Colbert argues that the district court relied on testimony from witnesses who
were not credible in calculating the drug quantity attributable to Colbert. The court’s
drug-quantity calculation is a finding of fact that we review for clear error, reversing
“only if the entire record definitely and firmly convinces us that a mistake has been
made.” United States v. Gonzalez-Rodriguez, 239 F.3d 948, 953 (8th Cir. 2001)
(quoting United States v. Granados, 202 F.3d 1025, 1028 (8th Cir. 2000)).
The district court’s drug-quantity calculation was based on the recordings of
Colbert’s intercepted phone calls that were played at trial and the trial testimony of
three of Colbert’s co-conspirators, Thompson, Edwards, and Long. Thompson
testified that he had purchased two to three kilograms of cocaine from Colbert per
week, totaling between 168 and 252 kilograms of cocaine in 2010 and 2011.
Edwards testified that he had purchased between four and one-half ounces and nine
ounces of cocaine from Colbert two to four times per week and converted
approximately four ounces out of every nine ounces into crack, which amounted to
a total of forty-nine kilograms of cocaine, of which twenty-one kilograms had been
converted to crack over the relevant period. Long testified that he had facilitated
meetings between Colbert and Mexican drug suppliers, that he had received
approximately $500 per kilogram that Colbert purchased at these transactions, and
that he had profited $100,000 from facilitating the sale of at least 200 kilograms of
cocaine between 2010 and October 2011.
Colbert asserts that none of these witnesses was credible. He notes that Long
had previously lied to the FBI about his role in the conspiracy and the amount of
cocaine he had purchased, and that Thompson’s testimony was inconsistent because
he claimed at one point to have purchased two to three kilograms per week, but also
claimed that he had purchased only between twenty and forty kilograms over the
relevant period. The district court acted within its broad discretion when it in credited
Long’s testimony and when it credited the greater amount of cocaine that Thompson
claimed in his testimony. See United States v. Jackson, 782 F.3d 1006, 1014 (8th
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Cir.), cert. denied sub nom. O’Bryant v. United States, 136 S. Ct. 501 (2015). We
thus conclude that the district court did not clearly err in making its drug-quantity
calculation.
Colbert next argues that the 4-level organizer-or-leader enhancement under
U.S.S.G. § 3B1.1(a) was not supported by the record because he did not exercise any
control or decision-making authority over his co-conspirators. We disagree. We
broadly interpret the terms “organizer” and “leader” under § 3B1.1(a). United States
v. Morris, 791 F.3d 910, 914 (8th Cir. 2015). “Although an individual in a drug
conspiracy must do more than sell drugs for resale in order to be deemed an organizer
or leader, he need not directly control his co-conspirators.” Id. (quoting Thompson,
210 F.3d at 861). The trial testimony and recorded phone conversations indicate that
Colbert instructed his sister, Antoinette Colbert, to deliver cocaine on his behalf, and
on at least one occasion ordered Thompson to conduct a sale on his behalf, with
Thompson receiving no compensation for doing so. Moreover, Colbert was a highvolume distributor with several customers, some of whom purchased cocaine on
credit. The district court did not clearly err in finding that Colbert was a leader or
organizer of the conspiracy. See id.
Having found no procedural error, we next determine whether the sentence
imposed was substantively reasonable, a question we review under a deferential
abuse-of-discretion standard, considering the totality of the circumstances. United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). “If the defendant’s
sentence is within the Guidelines range, then we ‘may, but [are] not required to, apply
a presumption of reasonableness.’” Id. (alterations in original) (quoting Gall, 552
U.S. at 51). The district court abuses its discretion if “it fails to consider a relevant
factor, gives significant weight to an irrelevant or improper factor, or considers only
appropriate factors but nevertheless commits a clear error of judgment by arriving at
a sentence that lies outside the limited range of choice dictated by the facts of the
case.” United States v. San-Miguel, 634 F.3d 471, 475 (8th Cir. 2011) (quoting
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United States v. Jones, 509 F.3d 911, 913 (8th Cir. 2007)). Colbert does not claim
that the district court considered irrelevant or improper factors, and we conclude that
the district court did not commit a clear error of judgment.
The district court properly considered the relevant § 3553(a) factors, noting
that the sentence was appropriate in light of “the seriousness of the offense,” that it
was necessary “to promote respect for the law,” that it ensured “just punishment for
the offense,” that it provided “an adequate deterrence . . . and protect[ed] the public
from further crimes from this defendant,” and that it reflected “Colbert’s apparent
complete lack of acceptance of responsibility for his criminal behavior.” The court
considered Colbert’s recitation of his claimed mitigating factors, and it did not
commit a clear error of judgment by imposing a life sentence.
Colbert argues for the first time on appeal that a term-of-years sentence is
necessary to avoid unwarranted sentence disparities, 18 U.S.C. § 3553(a)(6), noting
that Bobby Banks, a defendant in another case, was convicted of similar crimes and
was sentenced to fifty-five years’ imprisonment, see United States v. Banks, 494 F.3d
681, 683 (8th Cir. 2007). Although Banks also involved a conspiracy under 18
U.S.C. § 846, that case did not involve the firearm-related charges and the drug
quantity present in this case.
Finally, Colbert argues that a sentence of life imprisonment constitutes cruel
and unusual punishment in violation of the Eight Amendment to the United States
Constitution, a challenge that we review by using the “‘narrow proportionality
principle’ that ‘applies to noncapital sentences.’” United States v. Wiest, 596 F.3d
906, 911 (8th Cir. 2010) (quoting Ewing v. California, 538 U.S. 11, 20 (2003)).
Given the seriousness of Colbert’s crimes, we conclude that a life sentence is not
“grossly disproportionate” to his crime. Id.
The judgment and sentence are affirmed.
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