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United States v. Robertson

United States Court of Appeals, Eighth Circuit

March 6, 2018

United States of America, Plaintiff- Appellee,
v.
Antonio Laregus Robertson, Defendant-Appellant.

          Submitted: September 22, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before COLLOTON, BENTON, and KELLY, Circuit Judges.

          COLLOTON, Circuit Judge.

         A jury convicted Antonio Robertson of conspiracy to possess and distribute 100 grams or more of phencyclidine ("PCP") and conspiracy to commit money laundering. The district court sentenced Robertson to 252 months' imprisonment. Robertson appeals his convictions and sentences. We affirm the convictions but remand for a correction to Robertson's sentence on the money laundering count.

         I.

         During a routine traffic stop in 2008, Kansas state troopers discovered a large quantity of PCP in a rental car bound for Kansas City, Missouri. The driver of the vehicle was transporting PCP to a man named Walter Sorrells. Investigation showed that Sorrells repackaged PCP for distribution in one-gram, two-ounce, and eight-ounce quantities. A cooperating witness explained how Sorrells referred to each of these quantities. Sorrells sold one-gram quantities of PCP in packages of More brand cigarettes dipped in PCP; these were known as "dips." Sorrells also packaged two ounces, or 47.2 grams, of PCP in reused vanilla extract bottles, referred to as a "red tops." Sorrells distributed eight-ounce quantities, or 198 grams, of PCP in lemon and lime juice bottles, referred to as "yellow tops" and "green tops." Sorrells transferred PCP to people who would sell the drug and pay him the proceeds.

         After obtaining a wiretap on Sorrells's phone, the government intercepted several narcotics-related phone calls and text messages between Sorrells and Robertson during the summer of 2011. An investigating officer testified that drug traffickers often spoke in code when referring to narcotics. On July 21, for example, Robertson requested and received one "CD" from Sorrells. On July 22, he requested a "ticket, " and arranged to meet Sorrells at a QuikTrip gas station.

         On July 25, Robertson requested four "green jolly ranchers, " or "green ones, " from Sorrells-one for Robertson and three for Robertson's partner-and arranged to meet the following day. On the morning of July 26, Robertson increased his order, requesting "at least two" for himself and three for his partner if the partner was "still ready." Sorrells directed his associate, Colette Douglas, to complete the transaction with Robertson at a McDonald's restaurant. Robertson contacted Sorrells again on August 2. In that conversation, Sorrells agreed to meet Robertson at a gas station and said that he was going to give Robertson "the same number I gave you on the last one." Robertson replied that "[i]t's like seven."

         A week later, on August 9, Robertson agreed to pick up three eight-ounce containers of PCP from Sorrells at his home. A detective conducted surveillance outside Sorrells's home on that date. He saw Robertson arrive in a white Kia automobile and watched as Sorrells retrieved a package from his truck, climbed into the passenger side of the Kia, and then exited the Kia without the package. After Robertson drove away, police attempted to stop his vehicle, but Robertson fled. Police located the Kia after it was abandoned. Inside the car, officers found Robertson's identification and several cigarettes not yet "dipped" with PCP. Robertson called Sorrells that night, informing him that he had lost one of the three containers of PCP and buried the other two.

         In 2013, a grand jury charged twenty defendants, including Robertson, with two conspiracy offenses: conspiracy to distribute and to possess with intent to distribute one kilogram or more of PCP, 280 grams or more of cocaine base, and 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) & (B), and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) & (h). After a three-day trial, a jury found Robertson guilty of a lesser-included drug trafficking offense (conspiracy to distribute 100 grams or more of PCP) and guilty of the conspiracy to commit money laundering.

         At sentencing, the district court concluded by a preponderance of the evidence that Robertson was responsible for at least one kilogram of PCP and calculated his base offense level at 30 under USSG §§ 2S1.1(a)(1) and 2D1.1(c)(5). The court then applied a two-level increase under USSG § 2S1.1(b)(2)(B), because Robertson was convicted of money laundering conspiracy under 18 U.S.C. § 1956. Finally, the court applied a two-level increase under USSG § 3C1.2 for reckless endangerment during flight on August 9. With a total offense level of 34 and criminal history category IV, Robertson's guideline range was 210 to 262 months. The court sentenced him to 252 months' imprisonment on each count, to be served concurrently.

         II.

         Robertson first appeals the district court's finding at sentencing that he was accountable for one kilogram of PCP. We review the district court's finding of drug quantity for clear error. United States v. Bradley, 643 F.3d 1121, 1126 (8th Cir. 2011). Under the sentencing guidelines, a conspiracy defendant's base offense level, including drug quantity, is determined based on his own acts and "all acts and omissions of others that were . . . (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity." USSG § 1B1.3(a)(1)(B). Where not all drugs have been seized, the district court may "approximate the quantity of drugs." United States v. Frazier, 280 F.3d 835, 851 (8th ...


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