Opinion
No. 00-40053-01-RDR.
January 8, 2001.
MEMORANDUM AND ORDER
On January 5, 2001, the court sentenced the defendant. The purpose of this memorandum and order is to memorialize the rulings made by the court during that hearing.
The defendant entered a plea of guilty to conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846. The defendant raised several objections to the presentence report.
AMOUNT OF METHAMPHETAMINE
The defendant objects to the amount of methamphetamine attributed to him by the probation office. The defendant contends that his offense level should be based on 1,499 grams of methamphetamine, the amount agreed to by the government in his plea agreement. The government agrees that the defendant's offense level should be based upon this amount. The probation office disagrees, contending that the appropriate amount is 1,970 grams. The probation office believes that the information provided by Sheila Cannon supports an offense level based upon this amount.
"The government has the burden of proving the quantity of drugs for sentencing purposes by a preponderance of the evidence." United States v. Ortiz, 993 F.2d 204, 207 (10th Cir. 1993). "The use of estimates is an acceptable method for calculating drug quantities, as long as the information upon which the estimates are based has a minimum indicia of reliability." United States v. Browning, 61 F.3d 752, 754 (10th Cir. 1995). When accepting a drug quantity estimate, a court must err on the side of caution. Ortiz, 993 F.2d at 208.
Having reviewed the information presented by the probation office, the court has determined that it must err on the side of caution. The court notes that the information provided by Ms. Cannon is only an estimate. The court is not persuaded that the amounts offered by her are entirely accurate. The court believes that the amount agreed to by the government provides a more accurate assessment of the drugs attributable to the defendant, at least when the court is required to err on the side of caution. Accordingly, the court finds that 1,499 grams of methamphetamine are attributable to the defendant. This determination means that the defendant's offense level begins at level 32.
ROLE IN THE OFFENSE
The defendant objects to a two-level upward adjustment for his role in the offense. He contends that he did not have management role in this offense. The government has agreed not to pursue an enhancement for the defendant's role in the offense. The probation office contends an enhancement under U.S.S.G. § 3B1.1(c) is appropriate. The probation office notes that the defendant recruited Ms. Cannon and provided her with directives during the course of the conspiracy.
Section 3B1.1 designates a two-level enhancement for a "defendant [who] was an organizer, leader, manager, or supervisor in any criminal activity other than [more extensive activities detailed in subsections (a) and (b)]." U.S.S.G. § 3B1.1(c). Under the guidelines commentary, "the defendant must have been the organizer, leader, manager, or supervisor of one or more participants" or, if he was not, he must have "exercised management responsibility over the property, assets, or activities of a criminal organization." Id., § 3B1.1, comment. (n. 2).
In determining whether this enhancement applies, the court should consider "the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others." Id., § 3B1 .1, comment. (n. 4). The Tenth Circuit has made clear that "the mere fact that a defendant distributed, delivered, or acted as a source of drugs, without more, `do[es] not constitute evidence of decision-making authority or control over a subordinate necessary to conclude [a defendant] was a supervisor or manager.'" United States v. Ivy, 83 F.3d 1266, 1292 (10th Cir. 1996) (quoting United States v. Roberts, 14 F.3d 502, 524 (10th Cir. 1993)).
Having carefully reviewed the information in the presentence report, the court is not persuaded that this enhancement should be applied. There is little question about the defendant's involvement in this offense, but the court does question his involvement as a manager or supervisor. Accordingly, the court shall not enhance the defendant's sentence pursuant to § 3B1.1(c).
MINIMUM AND MAXIMUM TERMS OF IMPRISONMENT
The defendant objects to the calculation of his statutory minimum term of imprisonment as ten years, and the maximum term of imprisonment as life. As pointed out by the government and the probation office, the application of U.S.S.G. § 5C1.2 eliminates the application of any statutory minimum here. Accordingly, the court shall deny defendant's objection as moot. The court intends to sentence the defendant within his guideline range.
The aforementioned decisions mean that the defendant's offense level is 27 with a criminal history category of I. Accordingly, the defendant's guideline range is 70 to 87 months.
IT IS SO ORDERED.