United States of America v. Antonio Laregus Robertson

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 eightounce

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.”

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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.

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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 Cir. 2002). In

that event, the measurements need not be precise, “so long as the record reflects a

basis for the court’s decision.” United States v. Roach, 164 F.3d 403, 414 (8th Cir.

1998).

In the presentence report, the probation office recommended that Robertson

was accountable for 1.36 kilograms of PCP. The probation office relied on three

transactions: (1) the July 22 intercepted communication showing that Robertson

arranged to receive from Sorrells a “ticket,” which the probation office construed to

mean an eight-ounce bottle of PCP; (2) the July 26 transaction in which Robertson

received two “jolly green ranchers,” which the probation office construed to mean

two eight-ounce bottles of PCP; and (3) the August 9 incident during which

Robertson obtained three eight-ounce bottles of PCP from Sorrells. The probation

office totaled these transactions to arrive at 48 ounces of PCP, multiplied the number

of ounces by 28.35 grams, and reached a sum of 1.36 kilograms of PCP. Robertson

objected to the recommendation.

At sentencing, the district court found by a preponderance of the evidence that

“there was at least 1 kilo of PCP that was dealt with, and I suspect there was more.”

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S. Tr. 31. The court did not specify the basis for its calculation, but the transcript

provides some guidance about the court’s likely rationale.

First, the court understood that Robertson was accountable under the guidelines

for quantities that he did not possess himself if they were possessed or distributed by

others in furtherance of the conspiracy and reasonably foreseeable to Robertson.

Although the government apparently declined to follow USSG § 1B1.3(a)(1), saying

that “we don’t in this district usually hold somebody” accountable for the acts of coconspirators,

S. Tr. 44, the court recognized that “conspiracy is an inchoate offense,”

and that the defendant “doesn’t actually have to touch it” if there is “an

agreement . . . to move that amount.” S. Tr. 16. Even where the parties stipulate to

certain facts or, as here, decline to follow the guidelines, the court is not bound by the

position of the parties and may calculate the guideline levels according to the law and

all relevant factors. See USSG § 6B1.4 & comment.

Second, the parties eventually agreed that the proper weight attributable to PCP

was 24.75 grams per ounce, not the 28.35 grams per ounce used by the probation

office. At one point during the hearing, the court understood the government to argue

that two eight-ounce containers from July 26 amounted to 453.6 grams, and three

eight-ounce containers from August 9 equaled 680.4 grams, for a total of 1.134

kilograms. S. Tr. 20. This calculation apparently was based on the probation office’s

assumption that one ounce of PCP weighs 28.35 grams. At other points in the

hearing, however, the parties agreed that 28.35 grams was not the proper conversion

ratio. S. Tr. 13. A forensic chemist testified at trial that after considering the density

of PCP, she concluded that an eight-ounce container of PCP weighed 198 grams, such

that one ounce of PCP weighed 24.75 grams. This conversion ratio is thus supported

by the record.

Third, Robertson’s position was that some of the transactions, including the

transaction involving a “ticket” discussed on July 22, involved two ounces of PCP.

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Robertson argued that Sorrells distributed eight-ounce quantities in the lemon and

lime juice bottles and two-ounce quantities in vanilla extract bottles. He urged that

when the record did not show clearly which quantity was involved in a particular

transaction, the court should find that Robertson received two ounces rather than

eight ounces. S. Tr. 27.

Having considered the record as a whole, we conclude that the district court did

not clearly err in holding Robertson accountable for one kilogram or more of PCP.

Robertson admits that there is sufficient evidence to show that he possessed three

eight-ounce containers, amounting to 594 grams of PCP, on August 9. The dispute

concerns whether there was sufficient evidence to support a finding that Robertson

was accountable for another 406 grams.

The record supports a finding that Robertson possessed 396 grams of PCP on

July 26. Recordings of intercepted telephone calls introduced at trial showed that

Robertson requested “at least two” “green jolly ranchers” or “green ones” from

Sorrells on July 26. Robertson emphasizes that the detective who witnessed the

transaction testified on cross-examination that Robertson received only one bottle,

but he later agreed on redirect examination that Robertson was obtaining “multiple

items” on July 26. Based on this inconsistent testimony and the recorded

conversation about a transaction involving “at least two” units, it was not clear error

for the court to find that Robertson obtained two bottles.

Robertson argues that because Sorrells dealt other drugs in addition to PCP, the

phrase “green jolly rancher” could have referred to something other than PCP. The

evidence showed, however, that Sorrells sold PCP in green lime juice bottles referred

to as “green tops.” Although Robertson did not use the phrase “green tops” in his call

to Sorrells on July 25, the court reasonably could infer that the terms “green jolly

ranchers” or “green ones” described the same green lime juice bottles or “green tops”

in which Sorrells sold eight-ounce quantities of PCP. When Robertson asked Sorrells

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for “green jolly ranchers” on July 25, Sorrells confirmed that Robertson was “talking

about the green ones,” and the woman from whom Robertson obtained these “green

ones” kept a supply of Sorrells’s PCP at her home. Witnesses also testified that the

phrase “green jolly rancher” did not refer to marijuana that Sorrells distributed. The

evidence therefore supported the court’s conclusion that Robertson obtained two

green lime juice bottles, each containing approximately 198 grams of PCP, on July

26.

With evidence that Robertson possessed 594 grams on August 9 and 396 grams

on July 26, the district court’s finding of one kilogram or more is supported if

Robertson is accountable for only ten more grams of PCP from the conspiracy. There

are at least two ready sources of that additional quantity. For one, Robertson

conceded in the district court that a coded transaction on July 22 that included

discussion of a “ticket” involved at least two ounces of PCP. Although the probation

office construed the “ticket” to mean an eight-ounce container of PCP, Robertson

argued that the court should find that the transaction involved only a two-ounce

vanilla extract container. S. Tr. 27. Accepting Robertson’s position, the July 22

transaction involved 49.50 grams, resulting in a total quantity of more than one

kilogram.

Alternatively, the intercepted conversations on July 25 and 26—the dates on

which Robertson arranged to receive two eight-ounce containers for himself—show

that Sorrells possessed with intent to distribute three more eight-ounce containers in

furtherance of the conspiracy. On July 25, Robertson told Sorrells that Robertson’s

partner wanted “three” of the “green ones,” and Sorrells said, “Alright, . . . I’ll be

ready.” On July 26, when Sorrells asked Robertson how many he “needed all

together,” Robertson replied that he needed “at least two” for himself and possibly

“three” for his “partner” if the partner was “still ready.” Sorrells answered, “Alright,

but you said two for you?” Based on this discussion, the record supports a finding

that Robertson knew or reasonably could have foreseen that Sorrells possessed with

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intent to distribute three additional eight-ounce quantities of PCP that would be

available for Robertson’s partner or some other customer. This quantity also would

support the district court’s finding that Robertson was accountable for a total of one

kilogram or more of PCP.

For these reasons, the district court did not clearly err in calculating a base

offense level of 30.

III.

Robertson next challenges the district court’s application of a two-level

increase for reckless endangerment during flight under USSG § 3C1.2. Section 3C1.2

calls for a two-level increase if a defendant “recklessly created a substantial risk of

death or serious bodily injury to another person in the course of fleeing from a law

enforcement officer.” Where, as here, a defendant’s base offense level is determined

by “the underlying offense from which the laundered funds were derived,” see USSG

§ 2S1.1(a)(1), an application note to § 2S1.1 provides that “application of any

Chapter Three adjustment shall be determined based on the offense covered by

[§ 2S1.1] (i.e., the laundering of criminally derived funds) and not on the underlying

offense from which the laundered funds were derived.” USSG § 2S1.1, comment.

(n.2(C)).

Relying on the application note, Robertson argues that an adjustment under

§ 3C1.2 applies only if the reckless endangerment relates to money laundering and

not to the underlying drug offense. He contends that his flight on August 9 related

only to his drug offense, and that the court therefore erred in applying the two-level

increase under § 3C1.2.

The guideline commentary provides that an adjustment under § 3C1.2 applies

if it is “based on” Robertson’s money laundering offense. In this case, the district

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court did not clearly err in finding that the adjustment applied under that standard.

The government’s evidence at trial showed that Robertson and Sorrells engaged in

a typical drug-fronting scheme involving money laundering: Sorrells advanced PCP

to dealers like Robertson on credit; the dealers would sell the drug and reinvest the

proceeds in future drug purchases. The drug trafficking and money laundering

conspiracies were therefore intertwined, so when Robertson fled, he was evading

apprehension for participating in both a money laundering conspiracy and a drug

trafficking conspiracy. Because Robertson fled from officers to avoid apprehension

for his money laundering offense, the district court properly applied a two-level

increase under § 3C1.2.

IV.

Robertson also contends that the district court’s 252-month sentence is

substantively unreasonable, but his argument is premised largely on an incorrect

assumption that the court erred in calculating the advisory guideline range. A

sentence within the advisory range is presumptively reasonable, and Robertson has

not identified compelling reasons why the district court abused its discretion in

following the recommended guideline range for the drug trafficking conspiracy.

As to the money laundering conspiracy, Robertson correctly points out that the

concurrent sentence of 252 months on that count of conviction exceeds the twentyyear

statutory maximum established by 18 U.S.C. § 1956(a)(1). We therefore vacate

the sentence on Count Two and remand with directions to limit the term of

imprisonment on that count to the statutory maximum of 240 months. See United

States v. Zoran, 682 F.3d 1060, 1065 n.7 (8th Cir. 2012); United States v. Hergott,

562 F.3d 968, 970-71 (8th Cir. 2009).

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V.

After counsel submitted an opening brief on Robertson’s behalf raising the

arguments described above, Robertson filed a motion for leave to file a supplemental

pro se brief with additional arguments. The clerk of court, without involvement by

any judge, entered an order granting this motion, and Robertson’s pro se brief was

entered on the docket. The government responded to the brief filed by counsel but

did not address the arguments raised in Robertson’s pro se brief.

It is longstanding Eighth Circuit policy that when a party is represented by

counsel, we will not accept pro se briefs for filing. United States v. Conklin, 750 F.3d

773, 775 (8th Cir. 2014); United States v. Martin, 59 F.3d 767, 768 n.2 (8th Cir.

1995); United States v. Payton, 918 F.2d 54, 56 n.2 (8th Cir. 1990). We therefore

vacate the clerk’s order granting leave to file a pro se brief and enforce our policy

against multiple filings. Robertson is not unfairly prejudiced by this action, because

the pro se brief was not filed until after counsel had selected the arguments to raise

on appeal and filed an opening brief. The motion for leave to file a pro se brief

should have been denied, and the effect of our vacating the previous order is no

different than a denial.

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For these reasons, Robertson’s convictions and the sentence on Count One are

affirmed, and the case is remanded for the limited purpose of reducing the sentence on Count Two to the statutory maximum of 240 months.