United States v. Dennis

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JIMMIE DENNIS, JR., Defendant-Appellant.

No. 20-12438

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

May 28, 2021

[DO NOT PUBLISH]

Non-Argument Calendar

D.C. Docket No. 3:08-cr-00296-TJC-JRK-1

Appeal from the United States District Court for the Middle District of Florida

Before BRANCH, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Jimmie Dennis, Jr., appeals the district court's order revoking his supervised release and imposing a thirty-six-month sentence under 18 U.S.C. § 3583(e)(3). On appeal, Dennis raises several arguments: (1) the district court abused its discretion by applying the incorrect standards when reviewing the evidence; (2) there was no direct evidence establishing his participation in a drug conspiracy; (3) the comments he made to his probation officer were purposefully sarcastic and should not constitute answering questions untruthfully; and (4) his sentence is both procedurally and substantively unreasonable. For the reasons stated below, we disagree and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Background Facts and Underlying Convictions

As detailed by the presentence investigation report ("PSI"), Dennis, a career criminal, has previous convictions for: grand theft; possession with intent to deliver or sell crack cocaine; possession of cocaine; possession of marijuana; driving with a suspended license; resisting arrest without violence; fleeing and eluding a police officer; disorderly conduct; and possession of crack cocaine. Additionally, in 1999, while Dennis was on supervised release, a jury convicted him of conspiracy to distribute cocaine and cocaine base.

That brings us to the instant proceeding. On three occasions in June and July 2008, Dennis sold crack cocaine to a confidential informant. In total, he wasresponsible for 40.3 grams of cocaine base. A federal grand jury subsequently indicted Dennis on three counts of distributing five grams or more of cocaine base. See 21 U.S.C. § 841(a)(1), (b)(1)(B). He subsequently pleaded guilty to one of the three counts, and the government dismissed the other two counts.

Dennis's criminal history, as calculated in the PSI, resulted in 12 criminal-history points, placing him in criminal-history category V. The statutory range was between five- and forty-years' imprisonment, and, based on a total offense level of 25, the U.S. Sentencing Guidelines' range was 100-to-125 months' imprisonment. The district court sentenced him to a prison sentence of 105 months followed by a five-year term of supervised release. The conditions of his supervised release required him, in part, not to commit another crime and to answer any questions from his probation officer truthfully. Based on several amendments to the Sentencing Guidelines, the district court reduced Dennis's prison sentence twice: in 2012, to seventy months; and, in 2015, to fifty-eight months. Later in 2015, his prison sentence ended, he was released, and his supervised release began on November 2, 2015.

B. Violations of Supervised Release

Approximately four years later, in 2019, Officer Joseph Pinto, Dennis's probation officer, filed a petition for summons alleging Dennis had violated the conditions of his supervised release, and subsequently filed three supersedingpetitions over the following months. The petition alleged that Dennis committed four violations of his supervised release: (1) conspiring to traffic heroin/opium or a derivative from September 2018 to June 2019, for which he had been arrested in Florida ("Violation 1"); (2) failing to truthfully identity his companion at a Lowe's Home Improvement Store on September 27, 2019 ("Violation 2"); (3) again failing to truthfully identify this companion when asked on October 3, 2019 ("Violation 3"); and (4) failing to provide an address for land that he owned in St. Johns County, Florida ("Violation 4"). In a memorandum attached to the petition, the probation officer stated that, if the district court found that Dennis had possessed a controlled substance, it would be statutorily required to revoke his supervised release and sentence him up to three years' imprisonment. Because Dennis challenges the sufficiency of the government's evidence, we present the facts in thorough detail.

1. Involvement in Drug Use and Trafficking

As to Violation 1, Detective William Campbell, a narcotics detective at the Jacksonville Sheriff's Office, was part of an investigation that involved Dennis since September 2018. Detective Campbell had a cooperating individual, who was facing drug trafficking charges, tell him that Dennis was involved with a large quantity of heroin. Detective Campbell told the cooperating individual to obtain a heroin sample from Dennis. The cooperating individual did so, and Dennis went with the cooperating individual to RL Trucking, a trucking company in Jacksonville. Whenthey arrived, Dennis went inside the business and returned with a "cellophane baggie of what appeared to be heroin," which was a free sample and was not paid for. The cooperating individual brough the sample to Detective Campbell, who conducted a field test that came back positive for heroin. Detective Campbell told the cooperating individual to continue buying from Dennis, and the next transaction was on September 21, 2018. The cooperating individual called a phone number beginning with 904-233, which the cooperating individual believed to belong to Dennis, and asked to buy half an ounce of heroin. Detective Campbell and the cooperating individual drove to RL Trucking, and the cooperating individual went to the business's gate and met an older white male who took cooperating individual's money, went inside the business, and returned with a bag of heroin. While they were driving away, the cooperating individual received a phone call, and the caller told the cooperating individual to come back because he had not been given the full amount, so they returned, and the white male gave the cooperating individual another bag. The cooperating individual stated that the caller was Dennis. Both bags field-tested positive for heroin, totaling 16 grams.

Detective Campbell had the cooperating individual set up another transaction for October 10, 2018. Detective Campbell obtained a picture of Dennis, and the cooperating individual confirmed that Dennis was who he had previously met with and that he knew Dennis "real [sic] well" and for about "15, 16 years." Thecooperating individual called Dennis on October 10 and asked for an ounce of heroin, and Dennis told the cooperating individual to "go on up there," which Detective Campbell and the cooperating individual took to mean RL Trucking. When they arrived, the cooperating individual again gave the money to an unknown white male, who went inside the business and returned with a bag. The bag's contents field-tested positive for heroin and weighed approximately 28.9 grams. Detective Campbell told the cooperating individual to set up another transaction for November 21, 2018.

On November 21, the cooperating individual called Dennis and asked for an ounce of heroin, and Dennis told the cooperating individual to go to RL Trucking and wait for him to get there. Detective Campbell and the cooperating individual waited, and eventually, a van pulled up that contained Dennis, who Detective Campbell recognized from his photo and whom Detective Campbell identified in the courtroom. Dennis called the cooperating individual and asked if he was in the waiting car, and Dennis left the van and walked toward the back of RL Trucking. Dennis went inside the business while the cooperating individual stayed outside, and Detective Campbell stated that he could see this from his car. The cooperating individual gave the same white male money, who went inside and returned with a bag, while Dennis remained inside the building. The contents of the bag tested positive for 29 grams of heroin. The cooperating individual did not report any directcontact with Dennis other than the phone call. Detective Campbell told the cooperating individual to set up another transaction for January 4, 2019. The cooperating individual called Dennis on January 4, using a new 406- number that the cooperating individual stated that Dennis had given him, and asked for another ounce. When Detective Campbell and the cooperating individual returned to RL Trucking, the same unknown white male took the cooperating individual's money and gave him a bag, which tested positive for 29.9 grams of heroin. Detective Campbell was unable to identify the unknown white male. An identical transaction occurred on January 24, 2019, using the 406-number, which resulted in 29 grams of heroin.

On February 6, 2019, Detective Campbell had the cooperating individual contact Dennis using the 406-number, and when they went to RL Trucking, an unknown black male told the cooperating individual that he did not recognize him. A well-known drug dealer, Roosevelt Lewis, then exited the business and spoke to the cooperating individual in the parking lot, within Detective Campbell's sight, and the dealer and the cooperating individual then went inside another building. Lewis said something to the unknown black male, who went inside the main building, retrieved a package, and gave it to Lewis, who in turn gave it to the cooperating individual. The package contained 28.6 grams of heroin. Lewis had told the cooperating individual that he did not "have to go through him no more," whichDetective Campbell and the cooperating individual took to mean that Dennis was a middleman, and thus, in March 2019, the cooperating individual went straight to RL Trucking without calling Dennis and obtained a package of heroin.

Detective Campbell subsequently applied for a wiretap to further his investigation. For his application, he learned Dennis's address by looking at location data for the two phone numbers: the 233-number and a 406-number. He wiretapped the 406-number,...