Opinion
No. 00-40024-15-SAC
October 8, 2002
MEMORANDUM AND ORDER
On February 19, 2002, the defendant Wittenmyer pleaded guilty to count forty-seven of the indictment that charged her with use of a communications facility to facilitate distribution of methamphetamine. Pursuant to the plea agreement, the government said it would recommend a three-level adjustment for acceptance of responsibility and would not oppose application of the safety valve provision if the probation office recommended it. The Presentence Report ("PSR") recommends a base offense level of 24, less 3 points for acceptance of responsibility, for a total offense level of 21. With a criminal history category of one, the defendant is facing a sentencing guideline range of 37 to 46 months. The government's sentencing memorandum argues three unresolved objections, and the defendant's sentencing memorandum focuses principally on two unresolved objections. The defendant also has filed a motion for downward departure. (Dk. 1641).
DEFENDANT'S OBJECTION NO. 1 and GOVERNMENT'S OBJECTIONS NOS. 1 AND 2.
The defendant objects that ¶¶ 79 and 81 of the PSR erroneously hold her accountable for 42 grams of methamphetamine based on her receipt of 1/8 ounce quantities of methamphetamine every two weeks for approximately six months during the course of the conspiracy. Prior to the hearing, the defendant argued she received only 1/8 gram amounts of a methamphetamine mixture, as this was the most she could afford or was given. At the close of the evidentiary hearing portion of her sentencing, the defendant argued she received approximately 1/4 gram of a methamphetamine mixture each week from June through the middle of October of 2000 and may have received similar amounts once in November and another time in late December or early January of the next year. The defendant argues the estimates used in the PSR are not supported by the evidence as the Wrights virtually stopped manufacturing and selling methamphetamine after the traffic stop in January. The defendant concludes that the evidence only supports a base offense level of 16. The defendant also objects to the base offense level calculation in ¶ 81 that is determined from this relevant conduct.
The government objects that the PSR fails to give a complete factual basis of the defendant's relevant conduct and specifically fails to discuss the relevant conduct supported by the statements and grand jury testimony of Tracy Wright. The government asks the court to use of one of three methods for estimating relevant conduct, all of which result in a guideline sentence that exceeds the statutory maximum sentence. The government wants the defendant to be held accountable for one-half of the methamphetamine attributed to Lori George or 177 grams, for 42 grams of actual methamphetamine based on the PSR's calculation after taking into consideration the 96% purity of the methamphetamine seized from the defendant's residence, or for over two hundred pounds of actual methamphetamine based on what the entire conspiracy produced over a substantial period of time. The government argues the court should employ this last method as being amply supported by the record. Ruling: Under § 2D1.1, "the Government has the burden of proving the quantity of drugs by a preponderance of the evidence." United States v. Gigley, 213 F.3d 509, 518 (10th Cir. 2000). "When the actual drugs underlying a drug quantity determination are not seized, the trial court may rely upon an estimate to establish the defendant's guideline offense level, so long as the information relied upon has some basis of support in the facts of the particular case, and bears sufficient indicia of reliability." United States v. Ruiz-Castro, 92 F.3d 1519, 1534 (10th Cir. 1996) (quotations omitted). Drug quantity determinations may be "based on a variety of circumstances, so long as they have some basis of support in the facts of the particular case." United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995) (quotation omitted), cert. denied, 516 U.S. 1081 (1996). "[T]he need to estimate drug quantities at times is not a license to calculate drug quantities by guesswork." United States v. Richards, 27 F.3d 465, 469 (10th Cir. 1994) (quotation omitted). The court in choosing between several plausible estimates, none of which is more likely correct than the another, "must err on the side of caution." Id. "When a defendant objects to a fact in a presentence report, the government must prove that fact at a sentencing hearing by a preponderance of the evidence." United States v. Shinault, 147 F.3d 1266, 1278 (10th Cir.) (citing United States v. Easterling, 921 F.2d 1073, 1078 (10th Cir. 1990), cert. denied, 500 U.S. 937 (1991)), cert. denied, 525 U.S. 988 (1998).
The court would note that the government did not object to Lori George's PSR which did not use this conspiracy-wide method of estimating drug quantity but used only those amounts which Ms. George purchased from Ms. Wright.
On this issue, the parties presented the testimony of Special Agent Rob Ryan, Lori George, Shanne O'Hearon, Tracy Wright, and Veliea Wittenmyer. Agent Ryan testified as to the physical evidence found at the defendant's residence and offered his opinion as to whether Ms. Wittenmyer distributed methamphetamine based on that physical evidence. Ms. George testified that she acquired methamphetamine from Tracy Wright, regularly shared some part of it with Ms. Wittenmyer for a period of months beginning in the summer of 1999, and only occasionally shared methamphetamine with Veliea after this first period and until their arrest in March of 2000, and described the defendant as principally a user and possibly a distributer of methamphetamine. A former boyfriend who lived with Ms. Wittenmyer from October of 1999 through September of 2000, Mr. O'Hearon testified that he did not receive drugs from or take drugs with Veliea and had not witnessed Veliea ever taking drugs. Ms. Wright testified that she understood Ms. George would give one-half of the methamphetamine received from Wright to Ms. Wittenmyer and that Ms. Wright had sold Ms. George as much as one ounce to as little as one-half gram of methamphetamine but typically sold her an eight-ball or 3.75 grams once a week for at least one year or even two years. Finally, Ms. Wittenmyer testified that she used approximately one-fourth gram of methamphetamine each week for four months beginning in June of 1999, that she stopped using methamphetamine regularly in the middle of October but that she used it on at least two other occasions in November and December or January. Ms. Wittenmyer denied selling or distributing the methamphetamine that she received from Ms. George. The court concludes that the above testimony is conflicting in several material respects and that the physical evidence does not fully corroborate the testimony of any one of the witnesses.
Finding that the testimony from these witnesses supports several plausible estimates of drug quantities, the court shall err on the side of caution and rely primarily on those plausible estimates to which the defendant testified. Though the physical evidence found at the defendant's residence may be indicative of some small-scale distribution activities, this evidence does not support the large amounts of methamphetamine to which Tracy Wright testified. The physical evidence of .39 grams of methamphetamine of 96% purity found at the defendant's home does corroborate Tracy Wright's testimony that she provided Ms. George with methamphetamine that had not been diluted with cut. This also would explain why the defendant would have niacinamide cut in order to dilute the methamphetamine for her own personal use and/or for distribution of small amounts of methamphetamine to support her habit. Ms. Wittenmyer's testimony about her infrequent use after October is entirely consistent with that offered by her former boyfriend, and his testimony is not subject to the obvious concerns of bias or prejudice present with the other witnesses. Ms. Wittenmyer's testimony is generally consistent with Ms. George's testimony concerning the period of frequent use, the unavailability of methamphetamine late 1999 and early 2000, and the small amounts of methamphetamine actually being given Veliea. Taking twenty weeks (June through the second week of October) plus an additional two weeks (November and January) and multiplying this by one-fourth gram, the court calculates 5.5 grams. Adding the .39 grams found in the defendant's residence, the court arrives at 5.89 grams of methamphetamine. The court concludes this is 5.89 grams of actual methamphetamine based on the purity of the methamphetamine found at Ms. Wittenmyer's home and further supported by the testimony of Ms. Wright and by some of the testimony of Ms. George. This finding of relevant conduct results in a base offense level of twenty pursuant to U.S.S.G. § 2D1.1(c)(10).
GOVERNMENT'S OBJECTION NO. 3: The government here objects to the defendant receiving a reduction for acceptance of responsibility or for the safety valve provision. The government argues that the defendant has falsely denied both the offense conduct and the relevant conduct in this case. Specifically, the government maintains that the defendant has denied distributing any drugs despite the physical evidence consistent with such activities being found in her house.
Ruling: To qualify for a reduction under § 3E1.1(b), the defendant must prove by a preponderance of the evidence that she is entitled to the additional reduction. See United States v. Patron-Montano, 223 F.3d 1184, 1189 (10th Cir. 2000). As stated at U.S.S.G. § 3E1.1, cmt. n. 3, a defendant who pleads guilty is not entitled to an acceptance of responsibility reduction as a "matter of right." United States v. Hawley, 93 F.3d 682, 689 (10th Cir . 1996). The Tenth Circuit recently summarized the law when a defendant fails to admit relevant conduct or falsely denies the same:
Admittedly, a defendant's failure to admit relevant conduct beyond the offense of conviction does not render him ineligible to receive the acceptance of responsibility decrease. See United States v. Contreras, 59 F.3d 1038, 1040-41 (10th Cir. 1995). The district court, however, is allowed to consider whether the defendant truthfully admitted or did not falsely deny relevant conduct for which he is accountable under § 1B1.3 of the sentencing guidelines. See U.S.S.G. § 3E1.1, comment. (n. 1(a)). . . . Thus, a defendant's truthful admission of relevant conduct can provide support for the § 3E1.1 decrease. Similarly, when a defendant lies about relevant conduct, the lie can be the basis for denying the § 3E1.1 decrease.
United States v. Patron-Montano, 223 F.3d at 1190.
Rather than just not admitting her relevant conduct, the defendant in making her objections to the quantity estimates in the PSR arguably has denied relevant conduct. The physical evidence found at the defendant's home certainly is consistent with at least limited distribution activities. Notwithstanding these circumstances, the court will overrule the government's objection for several reasons. First, the defendant's current position regarding this relevant conduct now is the same as she took at the time of the change of plea hearing. During that hearing, the government did not inform the court or the defendant that because of her representations and because of the evidence in its possession, the government believed that it was no longer bound by the plea agreement to recommend a full adjustment for acceptance of responsibility. Second, the government takes the position that it would withdraw its objection to this adjustment should the court decide to hold the defendant accountable for all the relevant conduct proffered by the government. Using the most plausible conservative estimate, the court believes it has held the defendant accountable for the relevant conduct that the reliable and credible evidence of record sustains. Finally, the court in its discretion believes the defendant's actions in admitting the essential elements of her offense and in admitting her purchases of methamphetamine through Lori George comes sufficiently close to accepting responsibility as to warrant this three-point reduction. What the defendant may have done with the smaller amounts of methamphetamine for which she has been held accountable does not affect the court's relevant conduct determination.
The court fails to see the logic in the government's position that the defendant's behavior is consistent with acceptance of responsibility only if the court holds her accountable for all relevant conduct being argued by the government.
DEFENDANT'S OBJECTION NO. 2: The defendant objects to ¶¶ 79 and 85 in denying her a four-level reduction for minimal participant pursuant to U.S.S.G. § 3B1.2. The defendant argues she obtained methamphetamine for her personal use only and her involvement in using the telephone on February 11, 2000, can be considered minimal.
Ruling: Section 3B1.2 of the Sentencing Guidelines provides for a four level decrease for one who is found to have been a "minimal " participant. This provision gives a court the "discretion to grant a base offense level reduction if it finds a defendant is less culpable relative to other participants in a given offense." United States v. Santistevan, 39 F.3d 250, 254 (10th Cir. 1994). "[I]t is the defendant's burden to establish by a preponderance of the evidence that he or she is entitled to an offense reduction." United States v. Ayers, 84 F.3d 382, 383 (10th Cir. 1996). The determination whether a defendant is entitled to such a reduction is "heavily dependent upon the facts of the particular case." U.S.S.G. § 3B1.2 background.
As the application notes to U.S.S.G. § 3B1.2(a) reflect, a minimal role adjustment is limited to those defendants who are among the least culpable in the concerted activity, and indicators supporting this adjustment include "the defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others." U.S.S.G. § 3B1.2 comment.(n. 1). The commentary also suggests that the downward adjustment should be used infrequently. See U.S.S.G. § 3B1.2(a) note 2.
The court finds that the defendant has not carried her burden of proving she is entitled to this role in the offense reduction. This case is one where a reduction "ordinarily is not warranted," because the defendant received a lower offense level by being convicted of an offense significantly less serious than may have been warranted by her actual criminal conduct. See U.S.S.G. § 3B1.2, comment. (n. 4). The court agrees with the government that the defendant's limited role in the conspiracy is properly accounted for in her conviction on using a telephone to facilitate distribution of methamphetamine. This offense carries a statutory maximum term of imprisonment of 48 months and no mandatory minimum term both of which are far less than what other more culpable co-defendants have faced at sentencing. The defendant's evidence simply is not persuasive in showing that a role reduction is warranted considering these circumstances.
DEFENDANT'S MOTION FOR DOWNWARD DEPARTURE
In her sentencing memorandum, the defendant sought to supplement the facts concerning her son's learning disability. More recently, the defendant filed a motion for downward departure arguing extraordinary family circumstances pursuant to U.S.S.G. § 5H1.6. In her motion, the defendant argues that her son, who is currently a sixth grade student and attends public schools in Riverton, Kansas, pursuant to an Individualized Educational Plan, has a serious learning disability marked by an inability or limited ability to read, memory retention problems, and limited math skills. The defendant notes that despite receiving intensive special educational assistance at school, her son has an average I.Q. with significant learning disabilities. The defendant describes her daily efforts at assisting her son with his learning disabilities as demanding and crucial to her son's progress. If imprisoned, her son will reside with his father, who the defendant describes as abusive and, at best, an absentee father.
Ruling: It is the defendant's burden to prove she is entitled to a downward departure. United States v. Archuleta, 128 F.3d 1446, 1449 (10th Cir. 1997). A district court may depart from the applicable guideline range if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b).
Under the Guidelines, "family circumstances and responsibilities are a permissible but discouraged factor." United States v. Gauvin, 173 F.3d 798, 807 (10th Cir.) (citing U.S.S.G. § 5H1.6), cert. denied, 528 U.S. 906 (1999). On the basis of family circumstances, a court may depart only if these circumstances are "`present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.'" Id. (quoting Koon v. United States, 518 U.S. 81, 94 (1996)). The Tenth Circuit in Gauvin recently considered the question of "what family circumstances are exceptional to a degree more than those in the heartland cases?" and came to the conclusion that it was impossible to arrive "at sensible distinctions" between the facts presented in the different cases which are relevant in a family circumstances inquiry. Id. at 807 n. 1. Rather, such determinations are left to the discretion of the sentencing judge who by reason of his position and experience is best situated to make such decisions, so long as the judge explains the basis for his finding of extraordinary circumstances and the record affords sufficient facts for a departure.
The court is not persuaded that the defendant's period of incarceration here would have an effect on the defendant's son "beyond the disruption to family and parental relationships that would be present in the usual case. See United States v. Rodriguez-Velarde, 127 F.3d 966, 968-69 (10th Cir. 1997). When the defendant has been the principal provider for a child, the defendant's incarceration can be expected to create financial and emotional strain on the child. For that matter, the court expects that the defendant's frequent use of methamphetamine during 1999 may have caused problems of a similar nature for herself and for her son and quite likely hampered her ability to provide thoughtful care and attention to her son while she was under the influence of drugs. The defendant's incarceration will not prevent the defendant's son from receiving the individualized public education benefits currently being provided him. From what has been presented, the court understands that the public school's efforts have been significant and measurably successful in working with the defendant's son's learning disabilities. The court has no reason to question that the defendant's support and guidance with her son's homework has contributed positively to the public school's efforts. The court is not persuaded that the evidence provides a reasonable basis to question whether another person, such as Hayden's father, sister, grandparent or other relative, could provide sufficient help and support with Hayden's homework.
The court appreciates that the defendant's relationship with her son is special and that up to now the son's father has not demonstrated the same level care and attention for his son as the defendant has. Even so, the court accepts Mr. Wittenmyer's statement and belief that he is willing and capable of providing adequate care and support for Hayden. If that does not prove true, then the adequacy of Hayden's care during the defendant's incarceration should be addressed through the state court system. The court understands that the defendant's mother is 59 years old and a registered nurse who lives within a relatively short driving distance of Riverton. The defendant can look to the ongoing and nearby presence of her extended family to monitor and assure that proper parental care is given her son. In sum, the court denies the defendant's motion for downward departure as it finds that the defendant's family circumstances are not so extraordinary as to take this case outside of the heartland cases.
As a result of the above rulings, the defendant's base offense level is 20 less 3 levels for acceptance of responsibility for a total offense level of 17. Using a criminal history category of I, the defendant's guideline range is 24 to 30 months. The sentencing in this case will occur on October 24, 2002, at 2:00 p.m.
IT IS THEREFORE ORDERED that this filing shall constitute the written of the court's findings and determinations of the controverted matters and unresolved objections to the presentence report pursuant to Rule 32(c)(1) of the Federal Rules of Criminal Procedure;
IT IS FURTHER ORDERED that the court denies the defendant's motion for a downward departure (Dk. 1641).
Dated this 8th day of October, 2002, Topeka, Kansas.