Appeal from the United States District Court for the Southern District of Illinois. No. 05 CR 30027-David R. Herndon, Chief Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before CUDAHY, KANNE, and SYKES,Circuit Judges.
Jerry Strahan was convicted by a jury of conspiracy to distribute cocaine base and distribution of cocaine base and was sentenced to life in prison, the mandatory sentence based on his two prior felony drug convictions. See 21 U.S.C. § 841(b). Strahan appeals his convictions and sentence, arguing that the district court should have instructed the jury on his public-authority defense. He also challenges the sufficiency of the evidence against him and the constitutionality of the mandatory life term under the Sixth and Eighth Amendments.
We affirm. The evidence was insufficient to support a public-authority defense and easily sufficient to support the jury's verdict of guilty on both counts. Strahan's constitutional challenges to his sentence run contrary to Supreme Court caselaw. A mandatory-minimum sentence based on judge-found facts regarding prior felony drug convictions does not violate the Sixth Amendment, and a life term based on recidivism is not cruel and unusual punishment in violation of the Eighth Amendment.
Jerry Strahan delivered drugs for Johnny McCray Jr., who ran a drug-distribution operation out of a house on College Street in East St. Louis, Illinois. McCray Jr. sold mainly heroin and crack cocaine, and employed at least three others to help serve his customers: his father, Johnny McCray Sr.; Mitchell Brown; and Strahan. All three were drug users, and McCray Jr. paid them for their work in both drugs and money.
Strahan had been involved with this group as far back as 1996, when he was caught trying to buy drugs from a drug house run by the McCrays and Eugene Falls, a coconspirator. He was making drug deliveries for the group in 1999 when he was arrested again. This time he cooperated with the government. It was this prior association that led Deputy U.S. Marshal Tom Woods to ask Strahan in 2003 if he knew the whereabouts of McCray Sr. or Cortez McCray (Johnny McCray Sr.'s other son). Both were wanted on arrest warrants. Strahan later contacted Deputy Woods with information that led to the arrest of both McCrays, and he was put on Woods's payroll as a confidential informant.
The activity at the College Street residence soon drew the attention of other law-enforcement officials. Officer Brian Gimpel of the O'Fallon Police Department, who was deputized to the FBI, was approached by Richard Baker, a confidential informant, with information about the McCray drug operation on College Street. Officer Gimpel specialized in controlled purchases of narcotics and arranged for Baker to buy crack cocaine from Falls at the College Street house. Gimpel also used Joe Mitchell, another informant, to make multiple controlled drug buys at the College Street house. Each transaction was recorded using a device worn by Baker or Mitchell. On the strength of these recordings, Officer Gimpel obtained a search warrant for the McCray drug house.
Based on the evidence collected in the search, a grand jury returned an indictment charging both McCrays, Brown, Falls, and Strahan with conspiracy to distribute crack cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Strahan was also charged with violating 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) by distributing cocaine base on September 29, 2004. Because Strahan had two prior state convictions for delivery of controlled substances, the government filed notice pursuant to 21 U.S.C. § 851 that it would seek enhanced punishment under 21 U.S.C. § 841(b). All of the coconspirators, save Strahan, pleaded guilty to the charges, and the coconspirators agreed to testify against Strahan.
In advance of trial, Strahan gave notice pursuant to Rule 12.3 of the Federal Rules of Criminal Procedure that he intended to offer a "public authority" defense based on his interactions with Deputy Woods. In response the government denied that Strahan was acting pursuant to public authority when he committed the charged acts and notified Strahan and the district court that it would call Deputy Woods to testify in opposition to Strahan's public-authority defense.
At trial Deputy Woods testified that he "does not do controlled [drug] buys" and that his contact with Strahan was limited to obtaining information about the whereabouts of persons for whom there were active arrest warrants. Strahan took the stand and testified in his own defense; he admitted being a drug user but denied any involvement in the McCray drug conspiracy operated out of the College Street house. He said he knew Deputy Woods but denied giving him information about drug dealing at the College Street house. In response to a question about whether he thought he had authority to engage in the drug-trafficking activity alleged against him because Woods told him so, Strahan responded, "No, that's not correct, I wasn't doing what is alleged in this case."
At the close of evidence, Strahan asked the district court to issue a public-authority instruction to the jury, arguing that he believed he was authorized by Deputy Woods to sell narcotics. The court refused to do so. The judge noted Strahan's own testimony flatly denying any involvement in drug dealing and the complete lack of evidence that Woods ever led Strahan to believe he could distribute drugs as part of his role gathering information on the whereabouts of fugitives. The jury found Strahan guilty of both counts.
Because of Strahan's previous drug convictions, he was classified as a career offender under the sentencing guidelines, pushing his offense level to 37 and his criminal history category to VI. That yielded an advisory guidelines range of 360 months to life in prison for both counts. But because of Strahan's two previous convictions for state drug felonies, the statutory minimum for the conspiracy count was life in prison. 21 U.S.C. § 841(b). The court imposed a sentence of life on the conspiracy ...