UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
TYRONE JONES A/K/A BERNARD ELDER, AND TED GREEN A/K/A BE BOP, DEFENDANTS-APPELLANTS
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A conspiracy conviction merges into a Continuing Criminal Enterprise (CCE) conviction when the conspiracy serves as the predicate act for the CCE based on the same criminal agreement. However, substantive narcotics distribution convictions do not merge.
Appellants Jones and Green were convicted of various drug offenses, including engaging in a Continuing Criminal Enterprise (CCE). Jones argued that hi…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Continuing Criminal Enterprise (Cce) Statute (21 U.S.C. § 848) cases and more on FLexlaw
PER CURIAM:
This case is a direct criminal appeal. The appellant Tyrone Jones (“Jones”) was convicted of one count of engaging in a Confirming Criminal Enterprise (“CCE”) in violation of 21 U.S.C. § 848, one count of conspiring to distribute cocaine in violation of 21 U.S.C. § 846, and three counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). The appellant Ted Green (“Green”) was convicted of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. This Court’s jurisdiction arises under 28 U.S.C. § 1291.
With respect to Green’s conviction, the decision of the District Court is affirmed. See 11th CIR.R. 36-1. With respect to Jones’ CCE conviction, the decision of the District Court is affirmed. See 11th CIR.R. 36-1.
Jones has raised one issue on appeal worthy of more exacting scrutiny. He claims that the actions underlying the conspiracy and distribution convictions serve as the predicate acts for purposes of the CCE conviction.1 Thus, he argues that the distribution and conspiracy convictions are lesser included offenses that cannot survive review under the double jeopardy clause protection from multiple punishments.2
Regarding the conspiracy conviction, Jones is correct. The Supreme Court and this Circuit have held that when a conspiracy serves as the predicate act for a CCE conviction based upon the same criminal agreement, the conspiracy conviction merges into the CCE conviction. See Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) (plurality opinion); United States v. Boldin, 772 F. 2d 719, 730-31 (11th Cir.1985), modified, 779 F. 2d 618 (11th Cir.1986), cert. den., 475 U.S. 1048, 106 S.Ct. 1269, 89 L.Ed.2d 577 (1986), cert. den., 475 U.S. 1098, 106 S.Ct. 1498, 89 L.Ed.2d 899 (1986), cert. den., 475 U.S. 1110, 106 S.Ct. 1520, 89 L.Ed.2d 917 (1986), later proceeding, 818 F. 2d 771 (11th Cir.1987). Because the actions underlying the conspiracy conviction also serve as a predicate act for the CCE conviction arising from the same criminal agreement, Jones’ conspiracy conviction must be vacated.
The same cannot be said of the distribution counts. Once again, both the Supreme Court and this Circuit have spoken to the issue. When the predicate act is a substantive violation of the narcotics laws, as distribution is, the substantive violation does not merge into the CCE count. See United States v. Garrett, 727 F. 2d 1003 (11th Cir.1984), aff'd, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); Boldin, 772 F. 2d at 730-31; see also United States v. Erwin, 793 F. 2d 656, 669 (5th Cir.1986).
The decision of the District Court as to the distribution convictions is AFFIRMED. However, we VACATE the conviction for conspiracy and REMAND to the District Court for resentencing.
. A conviction for engaging in a continuing criminal enterprise requires proof of a violation of the federal narcotics laws committed as part of a continuing series of at least three such violations perpetrated in concert with at least five other persons for whom the defendant acted as an organizer, supervisor, or manager, and that the defendant derived substantial income from the activity. The three narcotics violations serve as predicate acts. See 21 U.S.C. § 848.
. Jones did not present the merger issue to the District Court. However, in this Circuit, the rule "that appellate courts should not consider issues raised for the first time on appeal. ... can give way when a pure question of law is involved and a refusal to consider it would result in a miscarriage of justice.” Martinez v. Mathews, 544 F. 2d 1233, 1237 (5th Cir.1976); see United States v. Southern Fabricating Co., Inc., 764 F. 2d 780, 781-82 (11th Cir.1985). We believe this exception applicable to this case. Additionally, Jones did not specifically enumerate merger as a separate issue in his appellate brief to this Court. However, the brief plainly argues the issue.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
United States v. Frank Church, 955 F.2d 688 (11th Cir. 1992)…ntent to distribute. Coppola's conviction on Count Six, possessing cocaine with intent to distribute, was also a CCE predicate but cannot be vacated because a substantive conviction does not merge with a CCE conviction. See United States v. Jones, 918 F. 2d 909, 910-11 (11th Cir.1990). . Eight co-defendants, Alexander Biscuiti, Charles Brown, Sharon Conte, Carlos DeBiase, Benjamin Edelstein, Harold Rodovich, Arthur Randall Sanders, and William Wotocek, pled guilty. One co-defendant, Juan DeBiase, remaine…
-
United States v. Shmuel David, 940 F.2d 722 (1st Cir. 1991)…es, 471 U.S. 773, 795, 105 S.Ct. 2407, 2419, 85 L.Ed.2d 764 (1985)). Thus, the Double Jeopardy Clause does not prohibit conviction and sentence on both a CCE and a count charging an underlying substantive act. See id.; accord United States v. Jones, 918 F. 2d 909, 911 (11th Cir.1990) (per curiam); United States v. Jefferson, 782 F. 2d 697, 701 (7th Cir.1986). We see no need to revisit this issue or to indulge in a rote repetition of the rationale supporting our conclusions.10 It suffices to say that, for th…
-
United States v. Reed, 980 F.2d 1568 (11th Cir. 1993)…t of section 848.” Boldin, 772 F. 2d at 731. If the conspiracy serves as the predicate act for the CCE conviction and both crimes are “based upon the same criminal agreement, the conspiracy merges into the CCE conviction.” United States v. Jones, 918 F. 2d 909, 910 (11th Cir.1990) (citing Jeffers and Boldin)', see also Brantley, 733 F. 2d at 1436. Consequently, in a situation where a defendant is simultaneously tried and convicted of CCE and conspiracy to import, the conspiracy conviction and sentence mu…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Garrett v. United States, 471 U.S. 773 (U.S. 1985)
- Jeffers v. United States, 432 U.S. 137 (U.S. 1977)
- Martinez v. Mathews, 544 F.2d 1233 (5th Cir. 1976)
- United States v. Garrett, 727 F.2d 1003 (11th Cir. 1984)
- United States v. Erwin, 793 F.2d 656 (5th Cir. 1986)
- United States v. Boldin, 772 F.2d 719 (11th Cir. 1985)
- Merriweather v. United States, 475 U.S. 1098 (U.S. 1986)
- Schell v. United States, 475 U.S. 1098 (U.S. 1986)
- Pecic v. United States, 475 U.S. 1110 (U.S. 1986)
- Weinstein v. United States, 475 U.S. 1110 (U.S. 1986)