United States v. Brian A. Branch

195 F.3d 928, 1999 U.S. App. LEXIS 28112, 1999 WL 984390
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 28, 1999
Docket98-2793
StatusPublished
Cited by39 cases

This text of 195 F.3d 928 (United States v. Brian A. Branch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brian A. Branch, 195 F.3d 928, 1999 U.S. App. LEXIS 28112, 1999 WL 984390 (7th Cir. 1999).

Opinion

COFFEY, Circuit Judge.

Brian A. Branch (“Branch”) pleaded guilty to two counts of distributing “a mixture and substance containing cocaine base, commonly known as crack cocaine.” See 21 U.S.C. § 841(a)(1). Branch appeals his sentence, arguing that the district court erred in three of its sentencing determinations. Initially, he challenges the court’s finding that the substance he distributed was crack cocaine other than some other form of cocaine base. Secondly, he contends that the court erred by increasing his base offense level for obstruction of justice and thirdly, he argues that the court erred when it denied him a downward adjustment for acceptance of responsibility. We affirm.

I. BACKGROUND

Branch was the subject of a drug investigation undertaken by the Murphys-boro, Illinois, police as well as agents of the Federal Bureau of Investigation (“FBI”) and other federal agencies. With the aid of a confidential informant (“Cl”) who made controlled purchases, these law enforcement agencies undertook to investigate the distribution of crack in Mur-physboro. On December 8, 1997, Branch entered the Cl’s vehicle and sold the Cl cocaine weighing 0.4 gram. Two days later, Branch again entered the Cl’s vehicle — this time, Branch asked for the Cl’s help in retrieving his car from Missouri. As payment for the Cl’s assistance, Branch gave him two bags of cocaine; their contents weighed 1.5 grams and were worth approximately $350.

Branch was arrested almost a month later on January 5, 1998. Several days after his arrest, a grand jury in the South *931 ern District of Illinois returned an indictment which stated that on December 8, 1997, and December 10, 1997, Branch “did knowingly and intentionally distribute a mixture and substance containing cocaine base, commonly known as ‘crack cocaine,’ ” in violation of 21 U.S.C. § 841(a)(1). In March 1998, Branch entered a plea of guilty without a plea agreement to both counts. Before accepting the pleas, the trial judge confirmed in his own mind that Branch understood the implications of his guilty pleas. After he accepted the pleas, the judge set sentencing for June 16, 1998.

In the Presentence Investigation Report (“PSR”) filed with the court, the probation officer evaluated Branch’s relevant conduct and concluded that he was responsible for distributing between 5 and 20 grams of crack cocaine. She based this finding, in part, on information from interviews that investigating agents had conducted with the Cl and with a person known as Tanee-sha Mandley (“Mandley”), a cooperating source. The Cl advised the agents that he had purchased roughly 2.0 grams of crack cocaine from Branch since November 1997. Based on Mandle/s statement to agents that Branch sold her crack cocaine twice a week for at least six months, 1 the probation officer estimated that Branch sold a minimum of 4.8 grams of crack cocaine to Mandley. Because Branch’s offense level was based on his distribution of 5 to 20 grams of crack cocaine, the probation officer began from a base offense level of 26. See U.S.S.G. § 2Dl.l(a)(3), (c)(7), Note D to Drug Quantity Table. Beyond that, she recommended only one adjustment — a three-level reduction for Branch’s “clearly demonstrated” acceptance of responsibility. Thus, the PSR calculated Branch’s base offense level as 23, with a criminal history category III, and a sentencing range of 57 to 71 months.

Branch’s sentencing hearing occurred in two parts. The initial phase was held on June 16, 1998, and at that hearing Branch confirmed his pleas of guilty to the two counts listed in the indictment. He also answered “yes” when asked by the court if he had sold “crack” to Mandley. After these preliminary statements, the district court continued the hearing until July 7, 1998, because during the sentencing hearing Branch seemed to become confused. Despite prior confirmations of his plea at his change of plea hearing and earlier in the June 16 hearing, Branch began to object for the first time to the information set forth in the PSR regarding his relevant conduct. Two weeks after the postponement, Branch wrote a letter to the sentencing judge, in it stating that he distributed powder cocaine, not crack cocaine.

The day before the hearing resumed, Branch’s counsel filed his objections to the PSR. His two objections were as follows: 1) the probation officer erroneously attributed 5 to 20 grams of crack to him because that amount was derived from unreliable information from the Cl and from Mand-ley; and 2) the probation officer erroneously found that the substance he distributed qualified as “crack” as defined by the sentencing guidelines.

At the continuation of the sentencing hearing in July, both parties offered evidence. Branch reiterated his objections to the PSR, and decided to testify. The government offered the testimony of two veteran drug enforcement agents regarding Branch’s drug dealings. It also presented as three exhibits the plastic bags containing the cocaine that Branch had distributed to the Cl. Though not offered into evidence, a lab report, produced by an Illinois State Police Crime Lab forensic chemist, was referred to by both parties throughout the hearing. However, neither in these references nor anywhere else in the record, was there any mention of the quantity of cocaine base present in the cocaine Branch distributed.

*932 Branch admitted in his testimony that he had pleaded guilty to distributing “crack” cocaine. However, he explained that he thought he was pleading to charges of distributing an illegal substance and not to distributing a specific substance. He said that, although he did not know the chemical makeup of the substance he distributed, it was “supposed to be” powder cocaine. Nonetheless, he admitted that he thought the substance was some form of cocaine base, and not powder cocaine. Further, he acknowledged that laboratory analysis of the substance indicated that cocaine was present as the base. Branch described the form and appearance of the substance he distributed as “like powdery, like rock, like half and half.” He stated that when selling it he represented it as cocaine, and not as crack cocaine, to his buyers. But he acknowledged that crack cocaine can be ingested by smoking it, and he conceded that, if somebody approached him and asked for something to smoke, he would sell the buyer the same cocaine like that he was arrested for distributing. Finally, Branch testified that Mandley inaccurately told investigating agents that she bought crack cocaine from Branch during each week of the last six months of 1997. Branch stated that for nearly forty days during the last six months of 1997, he had been incarcerated in the county jail for offenses not related to this cocaine conviction.

The government called FBI agent Brenn H. Tallent (“Tallent”) and Sergeant Timothy Legere (“Legere”) of the Mur-physboro Police Department. Tallent was the case agent assigned to the investigation of Branch. He stated that he had worked on more than 100 crack cocaine cases, as well as on “numerous” cases dealing with powder cocaine. He testified that crack cocaine is typically a “hard, rock-like” substance.

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Bluebook (online)
195 F.3d 928, 1999 U.S. App. LEXIS 28112, 1999 WL 984390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brian-a-branch-ca7-1999.