United States v. John G. Pitz and David Dupont

2 F.3d 723
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 21, 1993
Docket92-1014, 92-1019
StatusPublished
Cited by79 cases

This text of 2 F.3d 723 (United States v. John G. Pitz and David Dupont) 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. John G. Pitz and David Dupont, 2 F.3d 723 (7th Cir. 1993).

Opinion

COFFEY, Circuit Judge.

Defendants David DuPont and John Pitz were charged in a one-count indictment with conspiracy to distribute five or more kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). DuPont pled guilty to the charge. DuPont’s written plea agreement recognized that the parties disputed the scope of the conspiracy for which the defendant was liable for sentencing purposes. Pitz, the other defendant, was later charged by information with conspiring to distribute 500 or more grams of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(l)(B)(ii). Pitz pleaded guilty to the conspiracy charge in the information alleging distribution of 500 or more grams of cocaine in exchange for dismissal of the conspiracy charge alleging distribution of five or more kilograms of cocaine contained in the indictment.

The defendants appeal from the district court’s application of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) in arriving at their sentences. Specifically, both defendants allege that the sentencing court clearly erred in (1) calculating the respective drug amounts attributable to each defendant under U.S.S.G. § 2D1.4; (2) concluding that the defendants obstructed justice under U.S.S.G. § 3C1.1; and (3) finding that the defendants were not entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. In addition, Pitz alleges that the district court clearly erred in denying him a two-level reduction under U.S.S.G. § 3B1.2 for his allegedly minor role in the offense. We affirm.

I. BACKGROUND

The defendants’ cocaine distribution conspiracy originated with the visit of Chicago drug dealer Louis Isirov to an old drug customer in Carbondale, Illinois, during the Fall of 1988. During his visit, Isirov met Bruce Adelmann. Adelmann asked Isirov if he would supply him with cocaine on a consignment basis, and Isirov agreed. Adelmann thus became. the initial Southern Illinois source of cocaine to others in the distribution chain, which included fellow college students David DuPont and John Pitz, and David Karr, Michael Rebeck, James Strauser, and Joseph Segobiano, residents of Springfield, Illinois.

Adelmann fronted cocaine to DuPont, who in turn fronted the drug to Karr. Karr testified at the sentencing hearing that he had purchased approximately twenty-five ounces of cocaine from DuPont between May and December of 1988. In late 1988, DuPont fronted Karr four ounces of cocaine on two occasions. In November of 1988, DuPont, his girlfriend, Karr, and Segobiano traveled to Fort Lauderdale, Florida, to attend a soccer game. During their sojourn, Karr renewed his erstwhile romance with DuPont’s girlfriend. Shortly thereafter, DuPont and Karr returned to Carbondale and at this time Karr unsuccessfully attempted to buy a quarter pound of cocaine from DuPont. DuPont allegedly refused to conduct the transaction because the deal was alarmingly large and DuPont was upset at Karr’s romantic usurpation.

Karr responded to DuPont’s rebuff by bypassing DuPont in the distribution chain and began to purchase cocaine directly from Adelmann. Karr testified that he had to buy directly from Adelmann because Adelmann refused to supply cocaine to DuPont due to *726 an outstanding drug debt. Karr stated that he wrote Adelmann a cheek for $1,200 to pay DuPont’s drug debt and reopen the cocaine supply line. From December of 1988 to November of 1989, Karr purchased approximately seventy ounces of coke from Adel-mann. DuPont then began to buy cocaine from Karr. In essence, Karr and DuPont switched places in the distribution chain.

In November of 1989, Karr decided to bypass Adelmann in the distribution chain and began to buy his cocaine directly from Isirov in Chicago. During this same time period, Pitz and DuPont formed a partnership and distributed the cocaine purchased from Karr. Karr testified that he sold Pitz at least twenty-four ounces of cocaine that Pitz in turn distributed to Rebeck and others. Pitz testified that the Pitz-DuPont partnership purchased only four ounces of cocaine from Karr for redistribution to others. Pitz testified that the partnership had received one ounce of cocaine the week prior to Christmas 1989, one ounce the week of Christmas 1989, and two ounces on New Year’s Eve of 1989. Two and one-half of the four ounces were distributed to Rebeck, three-fourths of an ounce were sold to others, and the remainder was kept for Pitz’s and DuPont’s personal use.

After Karr was arrested, his cooperation with law enforcement officials led to Isirov’s apprehension during a 1.7 kilogram cocaine transaction, as well as the arrest of Pitz and DuPont. Prior to the defendants’ arrests, the conspiracy had distributed some 13.4 kilograms of cocaine. The probation office conducted a presentence investigation and concluded that under the Guidelines DuPont was responsible for distribution of 13.4 kilograms and Pitz was responsible for distribution of twenty-four ounces of cocaine.

The defendants’ sentencing hearings were held on November 8,1991, and December 16, 1991, respectively. Prior to the initial sentencing hearing, defense counsel and the government had filed written objections to DuPont’s and Pitz’s presentence investigation reports (PSR’s). DuPont and Pitz objected to the amounts of drugs individually attributed to each of them in their respective PSR’s. DuPont maintained that he was responsible for less than five kilograms and Pitz alleged that he was only responsible for four ounces. Pitz also objected to the probation office’s refusal to recommend a two- or four-level reduction for his minor or minimal role in the offense. DuPont asserted that he should receive a two-level reduction for being a minor participant in the conspiracy. The government joined in DuPont’s claim that he was a minor participant, and filed an objection stating that DuPont was entitled to a two-level reduction in his offense level pursuant to U.S.S.G. § 3B1.2(b).

The district court agreed with DuPont’s and the government’s argument that DuPont played a minor role in the offense. The court thus gave DuPont a two-level reduction of his base offense level under U.S.S.G. § 3B1.2(b) for his role as a minor participant in the offense. The court overruled all of the defendants’ remaining objections to the PSR’s. The district court also found that the defendants had perjured themselves during their sentencing hearings when testifying that they had distributed much smaller quantities of cocaine than was attributed to them in their PSR’s. Accordingly, each defendant’s base offense level was increased two levels pursuant to U.S.S.G. § 3C1.1 for obstruction of justice. The court adopted the findings of the PSR and determined that based upon Pitz’s adjusted offense level of 30 and his criminal history category of I, the Guideline range was 97 to 121 months imprisonment.

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Bluebook (online)
2 F.3d 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-g-pitz-and-david-dupont-ca7-1993.