Opinion
No. 01-40122-01-SAC
January 24, 2003.
RULING ON OBJECTIONS TO PRESENTENCE REPORT
Charged with seven counts of trafficking in cocaine base, the defendant Willie David West pleaded guilty to counts five and six which charged him with distribution of cocaine base to undercover agents on June 28, 2000, and August 17, 2000. By the terms of the plea agreement, the parties agreed that the available evidence establishes the total amount of cocaine base attributable to the defendant as offense conduct and relevant conduct is 16.47 grams corresponding to a base offense level of 26. The government also agreed to recommend that the defendant receive the maximum adjustment for acceptance of responsibility and to not oppose the defendant's eligibility for the safety valve provided he met the required criteria.
The Presentence Report ("PSR") recommends a base offense level of 28 without any adjustments for acceptance of responsibility or safety valve. Based on a criminal history category of one, the applicable sentencing guideline range is 78 to 97 months.
The defendant submitted three objections to the PSR and, in support of them, filed a sentencing memorandum and argued at the hearing. Rather than simply standing on the terms of the plea agreement, the government also submitted objections, filed a sentencing memorandum and at the hearing argued positions that echo and expand upon the defendant's challenges to the legal and factual conclusions in the PSR. Having reviewed all of the materials properly submitted for its consideration, the court submits the following as its ruling on the pending objections to the PSR.
OBJECTION No. 1: The parties object to the PSR's recommendation against the defendant receiving a three-level reduction for acceptance of responsibility. The parties point to the defendant's timely plea to two of the seven counts in the indictment whereby he admitted his guilt to the elements of those offenses. The defendant explains that his problems while on pretrial release are more indicative of his addiction than any refusal to accept responsibility for the crimes of conviction. The government characterizes the defendant's pretrial release violations as "minor" and just a reflection of his dislike for being arrested and prosecuted in federal court.
Ruling: As stated in application note three to U.S.S.G. § 3E1.1, the entry of a guilty plea prior to trial combined with truthfully admitting the conduct comprising the offense of conviction constitute significant evidence of the defendant's acceptance of responsibility. Application Note 3 also recognizes that "this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility." The defendant bears the burden of proving entitlement to an adjustment for acceptance of responsibility. See United States v. Wach, 907 F.2d 1038, 1040 (10th Cir. 1990).
The court is aware that a defendant's guilty plea does not entitle him to this adjustment as a matter of right and that the appellate courts have upheld the denial of this adjustment when a defendant continues to use drugs or engages in other improper conduct while on pretrial release. It would be well within this court's discretion to deny this adjustment based on the defendant's repeated use of drugs and his other serious misconduct during pretrial release that is plainly inconsistent with acceptance of responsibility. The parties should know that while the government may agree to recommend this adjustment, the court is left to question what weight to afford this recommendation when the defendant's conduct on pretrial release is of this repeated nature of seriousness and when the Tenth Circuit case law is relatively clear on this issue, see, e.g., United States v. Gilmore, 166 F.3d 348, 1998 WL 811637 (10th Cir. Nov. 24, 1998); United States v. Hawley, 93 F.3d 682, 689 (10th Cir. 1996). It has been and continues to be this court's policy to give proper deference to the parties' plea agreement whenever legally and factually appropriate. Recognizing the importance of plea agreements and the rather extensive agreement reached in this case, the court exercises its discretion and sustains the parties' objection. Thus, the defendant is given a three-point adjustment for acceptance of responsibility.
OBJECTION No. 2: The parties object to the PSR's recommendation that 21.05 grams of cocaine base be attributed to the defendant, rather than the 16.47 grams set forth in the plea agreement. They object that the 1.92 grams of cocaine base found in the hotel room on January 25, 2001, and the cocaine base (3.65 grams gross weight) found in the rental truck on February 16, 2001, are not part of the same course of conduct or common scheme or plan as the offenses of conviction. They argue that these latter events occurred more than 16 months after the last date of conviction charged in the indictment and that they lack any common factors such as victims, accomplices, purpose, or modus operandi. They further contend that the latter events do not involve any documented sales and that they only show the defendant in proximity to the cocaine base. The government doubts that the evidence is sufficient to prove by a preponderance that the defendant possessed the drugs found on January 25th and February 16th. The government also takes the position that these latter two events are not relevant conduct because the defendant did not make hand-to-hand sales of cocaine base as was done in the offenses of conviction. Finally, both parties argue that the PSR erroneously reports the net weight of the cocaine base seized on February 16, 2001, was 3.65 grams when the KBI report shows the net weight was actually 1.33 grams. Though they concede that the KBI report shows a net weight for only five of the ten individual packages, the parties argue the court should not draw any conclusions as to the net weight of the other five packages even if the KBI chemist says it is reasonable to estimate the net weight of the other five as 1.33 grams. Ruling: Under § 2D1.1, "[t]he 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), and the "evidence relied upon must possess a minimum indicia of reliability." United States v. Cruz Camacho, 137 F.3d 1220, 1225 (10th Cir. 1998). In his sentencing memorandum and at the hearing, the defendant objected "factually and legally" to being held accountable for more than the 16.47 grams set forth in the plea agreement. At the hearing, the government indicated that the defendant's objection was sufficient to prevent the court from relying on the facts as stated in the PSR in making the necessary findings for relevant conduct. The government also argued in favor of the defendant's objection and did not introduce any evidence in proof of the contested relevant conduct amounts.
At the sentencing hearing, the parties conceded the time span is only five or six months and not sixteen months.
At the hearing, the government said the court should not make any "leap of logic" about the net weight of the other five packages, particularly when the amount of drugs is so critical in determining the length of the defendant's sentence.
At the hearing, the court inquired of the government how an evidentiary record was to be developed when the government joins the defendant in an objection. The government said it could call the probation officer and ask about the investigative reports used in preparing the PSR or it could introduce the investigative reports that were relevant to the matters in dispute.
The Sentencing Guidelines "permit a court to consider all `relevant conduct' when determining the base offense level for someone convicted of an offense." United States v. Asch, 207 F.3d 1238, 1243 (10th Cir. 2000) (citations omitted). Under U.S.S.G. § 1B1.3(a)(2), offenses which are groupable under U.S.S.G. § 3D1.2(d) are part of a defendant's relevant conduct if they are part of the same course of conduct or common scheme or plan as the count of conviction. United States v. Moore, 130 F.3d 1414, 1416 (10th Cir. 1997); see United States v. Taylor, 97 F.3d 1360, 1363 (10th Cir. 1996) (The three prerequisites for § 1B1.3(a)(2) are: (1) the other offense involves conduct described in §§ 1B1.3(a)(1)(A) or (B), (2) the other "offense must be the type of offense that, if the defendant had been convicted of both offenses, would require grouping with the offense of conviction for sentencing purposes under U.S.S.G. § 3D1.2(d)," and (3) the other "offense must have been `part of the same course of conduct or common scheme or plan.'"). In short, the government must prove that (1) the defendant committed the other offenses in questions; (2) grouping is required for these offenses under § 3D1.2(d); and (3) the other offenses are part of the same course of conduct or common scheme or plan. There is no question that grouping is required here. The issues remaining for decision are whether the government will be able to prove by a preponderance of the evidence that the defendant committed the other offenses and that these drug offenses are part of the same course of conduct or common scheme or plan as the offense of conviction.
As the parties apparently agree that the defendant's objection keeps the court from relying on statements appearing in the PSR concerning relevant conduct and as the government has sided with the defendant and chosen not to introduce any evidence on this issue, the court is without any evidence of record on which to base relevant conduct findings. The court sustains the defendant's objection as the government has failed to carry its burden of proving facts necessary to sustain a finding of relevant conduct.
Other than stating its willingness to introduce the probation officer's testimony and/or investigative reports, the government did not introduce the same. The burden of proving drug amounts and relevant conduct rests with the government whether or not the court invites the government to carry its burden. The government here chose not to carry its burden.
OBJECTION NO. 3: The defendant requests a two-level reduction under the Safety Valve provision of U.S.S.G. § 5C1.2.
Ruling: The PSR indicates that the government did not advise the PSR writer whether the defendant "has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." Without this representation from the government, the PSR writer had no basis for recommending a safety valve reduction.
In its recent sentencing memorandum and at the sentencing hearing, the government represents that the defendant has complied with § 5C1.2(a)(5). Based on these representations that the defendant has complied with this requirement for the safety valve, the court sustains the parties' objection and gives the defendant a two-level reduction.
Based on the above rulings to the parties' objections, the defendant's total offense level is 21, and the applicable sentencing guideline range is 37 to 46 months. The sentencing in this case will occur January 29, 2003, on at 3:30 p.m.
IT IS THEREFORE ORDERED that this filing shall constitute the court's findings and determinations of the controverted matters and unresolved objections to the PSR pursuant to Rule 32(i)(3) of the Federal Rules of Criminal Procedure;