Opinion
Criminal Action No. 89-268
October 16, 1996.
Rob McWilliams, Asst. U.S. Attorney, Wheeling, WV, for plaintiff.
Geary Battistelli, Wheeling, WV, for defendant.
ORDER
Following a trial in the above-styled criminal action, the jury returned a verdict on September 11, 1990, finding the defendant, Charles Rancher, guilty of one count of conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1), as charged in the two-count Second Superseding Indictment. The defendant was sentenced on December 5, 1990, to a 160-month term of imprisonment, to be followed by a five-year period of supervised release.
On February 20, 1996, the defendant, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. The defendant urges that there is an unconstitutional variance between the allegations in the second superseding indictment and the government's proof at trial. Specifically, the defendant argues that the second superseding indictment charges offenses involving cocaine but that the government introduced evidence at trial of offenses involving cocaine base. It is further alleged that the defendant was ultimately sentenced for offenses involving cocaine base under the United States Sentencing Guidelines.
Pursuant to Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts, the petition has been considered, together with all other matters of record relating to the judgment under attack. The Court finds that the defendant is not entitled to the relief he seeks and that summary dismissal is appropriate.
The record suggests that the United States may have been initially confused about how to phrase the charging document in this case because, at the time of defendant's arrest, a bag containing quantities of cocaine and cocaine base was found underneath the defendant's body. The original Indictment charged the defendant with one count possession with intent to distribute cocaine and one count possession with intent to distribute cocaine base. Following a motion by the defendant to dismiss one of the two counts or elect which count to proceed under, the United States sought and received from the grand jury a Superseding Indictment which charged the defendant with one count of possession with intent to distribute cocaine. The United States subsequently sought and received from the grand jury a second superseding indictment which added a count charging conspiracy to possess with intent to distribute cocaine.
The defendant was a visitor in an apartment which was the subject of a search warrant. When the police entered the apartment, seventeen individuals were present. For security reasons, all of the occupants in the apartment were ordered to lay on the floor. When the defendant was rolled over and patted down, the bag was discovered under his body.
The defendant is entirely correct in his assertion that the second superseding indictment charged two offenses involving cocaine. The defendant is also accurate in his assertion that the evidence introduced at trial by the United States related to a conspiracy involving substantial quantities of cocaine base.
Any variance between an indictment and proof which does not modify the elements of the crime charged will not invalidate a conviction unless the variance affects the substantial rights of the accused. United States v. Odom, 736 F.2d 104, 118 (4th Cir. 1984). The test of substantiality is usually determined with reference to the two factors set forth in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935): the possibility of unfair surprise to the defendant and the potential for subsequent prosecution for the same crime. United States v. Quicksey, 525 F.2d 337, 341 (4th Cir. 1975).
Although the defendant raises an interesting point of law, the courts of appeals which have addressed the issue have rejected it. U.S. v. Pierce, 893 F.2d 669, 676 (5th Cir. 1990); U.S. v. Wiley, 29 F.3d 345, 352 (8th Cir. 1994); U.S. v. Cooper, 39 F.3d 167, 173 (7th Cir. 1994). Each of these courts of appeals questioned whether an actual variance existed, finding that cocaine base is merely an isomer of cocaine. Nevertheless, each presumed a variance and concluded that any variance did not affect substantial rights or cause actual prejudice and was, thus, plainly harmless.
Although the Court was unable to locate a published decision by the United States Court of Appeals for the Fourth Circuit addressing the issue, in a recent unpublished opinion, one panel favorably cited United States v. Pierce in concluding that evidence of distribution of cocaine powder was not at material variance with an indictment charging a conspiracy to distribute cocaine base. United States v. Lightner, Nos. 94-5540 and 94-5541, 1996 WL 295284 at *3 (4th Cir. June 5, 1996) (per curiam). [Opinion attached pursuant to Fourth Circuit Local Rule 36(c)].
Inasmuch as a fatal variance is not present, the defendant's separately stated sentencing issue must also be rejected. Moreover, under the United States Sentencing Guidelines, the concept of relevant conduct requires the Court to sentence the defendant on the basis of all acts and omissions engaged in by the defendant during the commission of the offense of conviction. Guideline § 1B1.3. The principles and limits of sentencing accountability are not always the same as the principles and limits of criminal liability. Application Note 1 to Guideline § 1B1.3. Accordingly, it is
A defendant need not be convicted of conduct constituting relevant conduct. United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994); United States v. Williams, 880 F.2d 804 (4th Cir. 1989); United States v. Nelson 6 F.3d 1049, 1057 (4th Cir. 1993).
ORDERED that defendant's Motion for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2255, be, and the same is hereby, DENIED. The Clerk shall strike this matter from the active docket of the Court. It is further
ORDERED that, if the defendant wishes to appeal the Order of this Court, he must file a Notice of Appeal with the Clerk of Court within sixty (60) days from the date of this Order. See, Rule 11, Rules Governing Section 2255 Proceedings in the United States District Courts, and Rule 4(a), Federal Rules of Appellate Procedure. It is further
ORDERED that the Clerk of Court shall send a certified copy of this Order to the defendant at his place of confinement and shall also send a courtesy copy of this Order and defendant's motion to the United States Attorney and to former defense counsel.
ATTACHMENT
87 F.3d 1309 (Table)
Unpublished Disposition
(Cite as: 87 F.3d 1309, 1996 WL 295284 (4th Cir. (N.C.)))
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
(The decision of the Court is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter.)