Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 96-00047-William O. Bertelsman, District Judge.
Before: Keith, Batchelder, and Cole, Circuit Judges.
The opinion of the court was delivered by: Keith, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
Defendant-Appellant Michael Angelo Flowal appeals his jury conviction and sentence for possession with intent to distribute cocaine. Defendant-Appellant challenges the district court's determination of the weight of the drugs used in sentencing defendant. For the reasons stated below, we REMAND the defendant's sentence to the district court for further determinations with respect to the weight of the drugs.
The grand jury indicted Michael Angelo Flowal on June 12, 1996 and charged him with one count of possession with intent to distribute approximately 5.2 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). Flowal pled not guilty to the indictment.
On August 23, 1996, Flowal moved the district court to appoint an expert to weigh the cocaine. After a hearing on the defendant's motion, the district court granted the motion and ordered the DEA to reweigh the cocaine.
Following a two day trial, the jury returned a verdict of guilty. On January 22, 1997, the defendant submitted objections to the presentence investigation report. The defendant argued that the reweigh amount of 4.997 kilograms of cocaine, rather than the initial weighing of 5.008 kilograms, should be used to determine his sentence. The defendant then argued that the offense level was improperly calculated, and that the defendant's criminal history category was improperly calculated by the probation office. Finally, he argued that the guidelines were unconstitutional.
On February 6, 1997, a sentencing hearing was held. After the hearing, the defendant filed a motion to renew his objections and request a downward departure from the guidelines. The district court determined that the weight of the cocaine for sentencing purposes was 5.000 kilograms. On March 19, 1997, following the sentencing hearing, the court overruled the defendant's objections to the presentence report and sentenced the defendant to life imprisonment.
The defendant went to the Los Angeles airport on May 16, 1996 and checked two pieces of luggage for which he received two claim tickets. He was scheduled to travel from Los Angeles to Fort Wayne, Indiana with connecting flights through Dallas and Cincinnati. Jim Hughes, a Drug Task Force officer in Dallas, called the drug task force officers at the Greater Cincinnati/Northern Kentucky International Airport and alerted them of the defendant's arrival. Upon receiving the information, the officers located the defendant's luggage and asked the defendant for permission to look in his bags. After searching the defendant's luggage, the officers found five bundles of what appeared to be narcotics. The defendant was then arrested.
When the drugs were taken to the police station, they were weighed and found to be approximately 5.2 kilograms. The drugs were then taken to Chicago where they were weighed again by DEA agent Andrea Michiels. She determined that the cocaine had a net weight of 5.008 kilograms. On September 24, 1996, pursuant to court order, Brian Maloney, a DEA forensic chemist, reweighed the cocaine and determined that it had a net weight of 4.997 kilograms.
The district court's determinations of the quantity of drugs attributable to a defendant are reviewed under the clearly erroneous standard of review. United States v. Walton, 908 F.2d 1289, 1300-01 (6th Cir. 1990). A sentencing Judge's drug quantity determination is not clearly erroneous if supported by "competent evidence in the record." United States v. Brannon, 7 F.3d 516, 520 (6th Cir. 1993).
The defendant first argues that the district court committed clear error when it concluded that the amount of cocaine that should be attributable to him was 5.000 kilograms. The district court found that because the defendant intended to possess and distribute five kilograms, the defendant should be held accountable for that amount. The district court then took into account the defendant's two prior felony convictions and sentenced the defendant to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A) *fn1 .
The drugs at issue were weighed on three different occasions. The cocaine was first weighed at the airport when it was discovered, but only a gross weight determination was obtained. The gross weight was determined by placing all of the cocaine, in all of its original packaging, into the evidence bags and then weighing it. There was no determination of the actual weight of the drugs because the weight of the packaging was not subtracted from the total weight. The next weighing did not occur until two months later on July 16, 1996. DEA employee Andrea Michiels weighed and analyzed the cocaine and determined that it had a net weight ...