NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0341n.06 No. 09-5583 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. TOB Y TOB I AS SENTER, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU RT FOR THE EASTERN DI STRI CT OF TEN NESSEE

Be fore : MARTI

N and SUTTON , Circuit J udg es; GRAHAM, District Judge. * SUTTON, Circuit J udg e. A j u ry fo u n d Toby Senter g uilty of conspiring to distribute
coca ine. At sentenc ing, the district c ourt found that Senter joined the c onspiracy afte r at least two prior felony drug convictions, requiring a life sentenc e. Senter’s challeng es to the sufficie ncy of the evidenc e and to his sentenc e come up short, and ac cording ly we a ffirm.
I
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I n 2006, a fede ral-state drug task forc e lear ned that Senter might be selling drug s in t h e Knoxvi lle are a. I n ear ly 2007, age nts convince d Dustin I som, a known associate of Senter and a fellow trafficke r, t o work as a confidential informant. After I som made a controlled buy of 125.2 g rams of coca ine, a fede ral judge authorized a wireta p on Senter’s phones. T h e t as k forc e

The Honora

ble J ames L
. Gra

ham, Senior United States District J udg e for the S o u t h ern * District of Ohio, sitting by desig nation.No. 09-5583

United States v. Se nter interce pted several traff

icking -re lated conver sations betwee n Senter and sever al local deale rs, including Walter Holt, Todd Doug las and Keith Hicks, as well as Senter’s Atlanta supplier, Oswald Vy phuis.
I n Marc h 2007, Senter made a series of phone calls t o Vy phuis and arrang ed to buy t h ree and-a -half kilogr ams. The task forc e contac ted DEA ag ents in Atlanta who identified a silver Nissan Maxi ma linked to Senter parke d outside Vy phuis’s house. On April 4, 2007, Senter called Todd Doug las and told him he was making another trip to Atlanta. He offe red to take Doug las along and to g et him “two” on top of the kilogr ams of coca ine Senter would be buying. Trial Tr., Vol. I , at 142. The task forc e planned to a rre st Sente r once he made the trip, but their wireta p war rant expired on April 7th, leaving the investigation with “no ear s.” Id. at 149. On April 9th, the task forc e decide d to bring Senter in, and afte r one failed attempt and an hour-long car chase acr oss four counties, they
arr ested him.
A fede ral g rand jury indicted Senter, Doug la s , H olt and Hicks for conspiring to distribute five
or mor e k i l og rams of coca ine. See 21 U.S.C. §§ 841(a) (1), 846. Doug las, Holt and Hicks pled g uilty , and they all testified at Senter’s trial about the coca ine he had sold them, which came to over 100 kilogr ams. T h e j u ry fo u nd Senter g uilty
. At sentenc ing, the district court found that Senter enter ed the c onspiracy

afte r at lea st two felony

drugoffe nses and imposed a life sentenc e.

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United States v. Se nter I I
. Senter s t y l es his first argument as a challeng e to the sufficie ncy of the g overnme nt’s evidenc e. But the thrust of his claim is that the district court should have excluded as hear say cer tain “out-of- court stateme nts made by the coc onspirators.” Sente r B r. at 25. We ca nnot ag ree . Statements by coconspira tors made in f

urthera nce of a conspirac y

are not he arsa

y . Fe d. R. Evid. 801(d)(2) (E). To admit suc h evidenc e, the g overnme nt must establish (1) the exist ence of a conspirac y , (2) the defe ndant’s participation in it and (3) that the statement further ed the aim of the conspirac y . United States v. Damra , 621 F.3d 474, 492 (6th Cir. 2010)
. The g overnme nt must do
so by a preponde ranc e of the evidenc e, and the court may consider the statement itself in satisfying these require ments, though it must require “cor roborat[ ing]
. . . independe nt evidenc e” in doing so. United States v. Pay ne , 437 F.3d 540, 544 ( 6th Cir. 2006).
Senter does not challeng e the g overnme nt’s eff o rt s to meet these three require ments, expressly conce ding the first, see Senter Br
. at 27, and never addre ssing the other two. He instead argues that the g overnme nt did not prese nt independe nt evidenc e to corr oborate the content of some of the statements, namely the quantities o f d ru gs he sold. Nothing in the rules of evidenc e or the d ec isions of this Court, howeve r, require s independe nt evidenc e to bolster the fac tual asser t i o n s contained in a coconspirator’s statement. See Damra , 621 F.3d at 493 (the coconspirator rule does not require “conf

irmation of the contents of any one statement”)
. I n deter mining a statement’s admissibili ty , the distri ct court, as an evidentiar y g ateke eper , must demand independe nt evidenc e
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United States v. Se nter to meet the conspirac y , participation and further ance require ments. But in deter mining a statement’s weig h t , t h e jury fac es no such limit ation and may believe the statement (or disbelieve it) with or without corrobor ation.
Senter’s arg

ument, for wh at i t is worth, fails even on its own terms, as other evidenc e confirme d he traff

icked in larg e amounts of coca ine. Doug las, Holt and Hicks all g ave in -cour t, firsthand acc ounts of the drug s Senter sold them. Doug las testified that Senter agree d to g ive him eig hty
ounces (betwe en two and three kilogr ams) of coca ine “to sell at a thousand dollars a pop.” Trial Tr., Vol. I I , at 29. As Doug las’s partne r, Hicks explained, “[Senter] offe red [Douglas] a deal, 80 ounces of coca ine for $80,00[0] in return and then when t h ey m et the agree ment, when that was done, [Douglas] was supposed to g et some rea l low price s on some kilos.” Id. at 125. Holt testified that 50 kilogr ams was a “low estimate” for what Senter sold him in 2006 alone. Trial Tr., Vol. I I I , at 5. This testimony makes it difficult to de ny , or perha ps even question, that Senter sold larg e amounts of coca ine, and none of it involves hear say as eac h statement was “mad e b y the decla rant while testifying at the trial.” Fe d. R. Evid. 801(c)
. A rational juror could find bey ond a rea sonable doubt that Senter conspired to distribute at least five kilogr ams of coca ine. Jack son v. Virginia , 443 U.S. 307, 319 (1979).
Senter raises sever al challeng es to his life sentenc e, all unavailing
. The g overnme nt complied with 21 U.S.C. § 851, which sets out the proce dure for enhanc ing sentenc es i n drug

traff icking case s. The AUSA g ave Senter notice be fore trial that he intende d to seek a n enhanc ed sentenc e based on Senter’s prior felony drug convictions. See id. § 851(a) (1). The notice identified - 4 -No. 09-5583

United States v. Se nter
eac h offe nse, date of offe nse, court of conviction, docket number and date of sentenc ing. The district court asked Senter whether he conce ded or denied the prior convictions. See id. § 851(b). He denied them. Over the defendant’s written objections, the g overnme nt introduced Senter ’s par ole offic er
as a witness and submitt ed cer tified copies of the judgme nts. See id. § 851(c)
. The district court found that Senter had two or more prior convictions and imposed the life sentenc e. See id. § 851(d). The g overnme nt met eac h require ment of § 851.
Once the court made these finding s, it had no choice when it came to imposing this sentenc e. Congr ess require s a life sentenc e in this setting, see id. § 841(b)(1)(A) , and that is so despite the admonition i n 1 8 U. S.C. § 3553(a) that fede ral courts “shall i mpose a sentence sufficient, but not g reater than nece ssary , to comply with” the define d objectives of sentenc ing. On sever al occa sions, criminal defe ndants have asked us to conclude that § 3553(a) trumps mandatory mi n im u m s e ntence s, and eac h time we have answe red the same way : no. See, e.g. , United States v. W ettstain , 618 F.3d 577, 591–92 (6th Cir. 2010); United States v. Cec il , 615 F.3d 678, 695 ( 6th Cir. 2010).
Senter independe ntly makes a separ ate argument under § 841(b)( 1)(A)
. Three times in § 841(b), he points out, Congr ess said, “Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentenc e of any person” convicted under cer tain provisions. By o m itting t he same clause from § 841(b)( 1)(a ), S enter submits, Congr ess m eant to embra ce the Goldilocks sentenc ing principle of § 3553(a) for sentenc es under this subsection: not too long, not too short, just rig ht, see United States v. Pruitt , 502 F.3d 1154, 1175 (10th Cir. 2007) (McConnell, J ., concur ring ) (de scribing § 3553(a) but not § 841(b)(1)( a))
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United States v. Se nter Senter’s r eadingof the two provisions would g ive no eff ect to the phrase “mandatory term of life imprisonment” in § 841(b) (1)( A), pa rticularly the word “mandatory .” I t a lso w ould ignor e 18 U.S.C. § 3551, which say s that defe ndants must be sentenc ed acc ording to § 3553(a) , “[e]x cept
as otherwise specific ally provided.” I n § 841(b)( 1)(A) , Congr ess “spec ifically provided” that defe ndants like Senter would be sentenc ed to life imprisonment. Fur ther confirming the mandatory nature of this sentenc e is the vener able principle that “a specific provision
. . . controls ones of more g ener al application.” Bloate v. United States , __ U.S. __, 130 S. Ct. 1345, 1354 (2010). Section 3553(a) is the more g ener al of the two sentenc ing provisions, and as such it “will not be held to apply t o a matter specific ally dealt with” in § 841(b)( 1)(A)
. Bloate , 130 S. Ct. at 1354. Ag ai n s t t h i s backdr op, the rule of lenity adds nothing to Senter’s argument. The rule applies only if “ambiguity
o r u n ce rt aint y ” rema ins “at the end of the proce ss of construing what Congr ess has expressed.” Chapman v. United States , 500 U.S. 453, 463 (1 9 9 1 ). Be cause § 841(b)( 1)(A) unambig uously require s a life se ntence for Senter , one that is not subject to modification under § 3553( a), the re is no work for

the lenity canon to do.
Nor do United States v. Booke r , 543 U.S. 220 (2005), and Kimbrough v. United States , 552 U.S. 85 (2007), somehow m ak e § 8 41(b)( 1)(A) advisory
. Kimbrough , the l atter of the t wo cases, said as much, explaining that district courts rema in “constra ined b y t he mandatory minimum s Congr ess presc ribed in the 1 9 8 6 Ac t
. ” 5 52 U.S. at 108. And we have said the same thing. See United States v. W

hitehead , 415 F.3d 583, 590 ( 6th Cir. 2005).

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United States v. Se nter Nor does this mandatory life sentenc e violate the United States Constitution. I t is consistent with the Fifth Amendment’s g uara ntee of due proce ss, even though it “g ives the prosec utor a g reat deal of discretion.” United States v. Pruitt , 156 F.3d 638, 645 (6th Cir. 1998). I t doe s not de prive defe ndants of the equal protec tion of the laws. See United States v. W imbley , 553 F.3d 455, 463 (6th Cir. 2009). I t does not run afoul of the Eig hth Amendment’s prohibition ag ainst crue l and unusual punishments. United States v. Flowal , 163 F.3d 956, 963–64 (6th Cir. 1990)
. And it is consistent with W oodward v. North Carolina , 428 U.S. 280 (1976), and Lockett v. Ohio , 438 U.S. 586 (1978), which esta

blish procedur al re strictions for capital case s.
I I I
. For these re asons, we a ffirm.

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