United States v. Gary Wyche

741 F.3d 1284, 408 U.S. App. D.C. 229, 2014 WL 340998, 2014 U.S. App. LEXIS 1883
CourtCourt of Appeals for the D.C. Circuit
DecidedJanuary 31, 2014
Docket12-3034, 12-3058
StatusPublished
Cited by30 cases

This text of 741 F.3d 1284 (United States v. Gary Wyche) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. 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. Gary Wyche, 741 F.3d 1284, 408 U.S. App. D.C. 229, 2014 WL 340998, 2014 U.S. App. LEXIS 1883 (D.C. Cir. 2014).

Opinions

Opinion for the Court filed by Circuit Judge HENDERSON.

Opinion concurring in part and dissenting in part filed by Circuit Judge SRINIVASAN.

KAREN LeCRAFT HENDERSON, Circuit Judge:

In 1989, Appellants Gary Wyche (Wyche) and Richard Smith (Smith) were convicted of drug and firearms offenses for their participation in a Washington, D.C., drug distribution ring. The district court sentenced them to life in prison. In 2008, Wyche and Smith moved for sentence reductions after amendments to the United States Sentencing Guidelines (Sentencing Guidelines) lowered the sentencing ranges for cocaine base crimes. The district court granted Smith’s motion but did not then rule on Wyche’s motion. Wyche and Smith subsequently filed resentencing motions in 2011 after the United States Sentencing Commission (Sentencing Commission) once again lowered the sentencing ranges for cocaine base offenses. On May 21, 2012, the district court denied Smith’s most recent resentencing motion and both of Wyche’s motions, concluding that neither was eligible for a sentence reduction under the amended guidelines. We affirm.

I. Background

A. Gary Wyche

In 1989, Wyche was arrested and charged with multiple narcotics and firearm offenses resulting from his involvement .in a drug conspiracy operating in Washington, D.C. On July 17, 1989, a jury convicted Wyche on six counts of a twenty-three count indictment1: conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a), 846 (Count One); conspiracy to carry and use firearms during and in relation to drug trafficking offenses in violation of 18 U.S.C. §§ 371, 924(c) (Count Three); use of juveniles in drug trafficking in violation of 21 U.S.C. § 845b (1988) (Count Four); assault with a dangerous weapon in violation of D.C.Code § 22-502 (1981) (Count Thirteen); use of a firearm in aid of drug trafficking in violation of 18 U.S.C. § 924(c) (Count Fourteen); and possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) (Count Fifteen).

Following trial, the United States Probation Office prepared a presentence report (PSR) for the district court. The PSR indicated that the conspiracy began as early as January 1987, with Michael Palmer, Tony Flow and Anthony Watson selling cocaine base as partners in various Washington, D.C., neighborhoods. According to the PSR, which relied on trial testimony, sometime after December 1, 1987, Wyche acted as Flow’s right-hand man in the conspiracy and continued to do so until at least June 1988, when Flow was killed. The PSR indicated that after Flow’s death, Wyche continued to participate in the conspiracy through September 1988.2 Regarding the conspiracy’s distributed drug quantity, the PSR stated that “testimony indicated the [conspiracy] to be selling two pounds of cocaine base every [1288]*1288two to three days” and “bringing in approximately one pound of cocaine base every two or three days.” PSR ¶ 17, United States v. Wyche, Crim. No. 89-0036-05 (D.D.C. Aug. 21, 1989) (Sealed Appendix (SA) 40). “Projecting a conservative estimate from testimony at trial,” the PSR continued, “the U.S. Attorney’s Office indicated that the group distributed in excess of 150 kilograms of cocaine base from January 1987 until July 1988.” Id.

At the original October 18, 1989 sentencing hearing, the district court found that Wyche was “a principal member of the ... conspiracy” and “a major participant in all the activities of the ... conspiracy, including the distribution of 100 to 200 kilos of crack in the District of Columbia.” Sentencing Hr’g Tr. 2-3 (Wyche Sentencing Tr.), United States v. Wyche, Crim. No. 89-0036-05 (D.D.C. Oct. 18, 1989) (Appendix for Appellants (AA) Tab 2 at 2-3). “On the basis of the distribution of crack alone, over 500 grams,” the district court assigned Wyche the then-highest base offense level of 36, as 500 grams or more of cocaine base triggered that offense level under the Sentencing Guidelines. Id. at 4 (AA Tab 2 at 4); see U.S. SENTENCING Guidelines Manual (U.S.S.G.) § 2Dl.l(a)(3)(tbl.) (1988). The district court added a three-level enhancement because Wyche played a managerial role in the conspiracy, a two-level increase for the conspiracy’s restraint of a victim during the period in which Wyche was involved and a two-level enhancement for possession of a firearm by a felon, making the offense level 43. With a total offense level of 43 and a criminal history category of 5, Wyche’s guideline range was life imprisonment. The district court sentenced Wyche to life in prison plus a consecutive five-year term based on his conviction of unlawful use of a firearm in aid of drug trafficking. See 18 U.S.C. § 924(c).

Wyche appealed his convictions following sentencing and we affirmed. United States v. Harris, 959 F.2d 246, 264 (D.C.Cir.1992), abrogated on other ground by United States v. Stewart, 246 F.3d 728 (D.C.Cir.2001). We did, however, remand to the district court for resentencing, concluding that “verification of the correct drug amount” was necessary because language in Wyche’s PSR indicated that Wyche may have been responsible for only 250 grams of cocaine base, which would not have triggered a base offense level of 36. Id. at 264-65. We also determined that the district court erred by imposing a two-level increase for possession of a firearm during a drug conspiracy. Id. at 266-67. We affirmed the two-level enhancement for the conspiracy’s restraint of a victim and the three-level enhancement for Wyche’s managerial role in the conspiracy. Id. at 265-66. With respect to the district court’s conclusion that Wyche “was a major participant in all the activities of the ... conspiracy, including the distribution of 100 to 200 kilos of crack,” we concluded that the finding was not clearly erroneous. Id. at 266 (quotation marks omitted).

On remand, the Probation Office prepared a revision of the original PSR (Revised PSR). The Revised PSR, dated July 15, 1992, stated that Wyche was “Tony Flow’s right hand man, and that Mr. Wyche had a number of individuals who were working for him.” Mem. 1 (Revised PSR), United States v. Wyche, Crim. No. 89-0036-05 (D.D.C. July 15, 1992) (SA 59). Although the Revised PSR did not indicate precisely when Wyche joined the conspiracy, it concluded that Wyche actively participated until September 1988. It also clarified the original PSR’s drug quantity finding:

[Tjestimony at the trial indicate[d] that the organization received at least two pounds of cocaine base a week (453.6 [1289]*1289grams per pound or 907.2 grams per week) from January 1987 to September of 1988.

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741 F.3d 1284, 408 U.S. App. D.C. 229, 2014 WL 340998, 2014 U.S. App. LEXIS 1883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gary-wyche-cadc-2014.