United States v. John P. Davern

970 F.2d 1490, 1992 WL 167526

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 21, 1992
• Docket: 90-3681
• Status: Published

Opinions

KENNEDY, Circuit Judge.

This case requires us to decide the Sentencing Guidelines to be applied where the defendant negotiated and paid for a half kilogram of cocaine but actually received only 85 grams. We hold that the amount negotiated for should determine defendant’s sentence, and we AFFIRM the District Court.

I.

In November 1989, defendant agreed to purchase 500 grams of cocaine for $10,500 from an undercover FBI drug enforcement agent. The agent actually transferred to defendant a plastic bag weighing 1,070 grams which contained a small plastic bag of cocaine weighing 85 grams enclosed in a 985 gram mixture of plaster of Paris.

Defendant was charged with and pleaded guilty to possession with intent to distribute an unspecified quantity of cocaine in violation of 21 U.S.C. § 841(a)(1). The District Court held hearings to determine whether defendant should be sentenced under the Guidelines for 85 grams, the amount defendant actually possessed, the 500 grams he attempted to buy, or 1,070 grams, the weight of the package including the plaster of Paris.¹ The District Court adopted the recommendation of the presen-tence report and imposed a 51-month sentence based on a quantity of at least 500 grams adjusted for acceptance of responsibility.

The issue presented on appeal was whether defendant should be sentenced only for the 85 grams of cocaine actually possessed. A panel of the Court (Merritt, C.J., and Jones, J. with Kennedy, J. concurring in part and dissenting in part) reversed. United States v. Davern, 937 F.2d 1041 (6th Cir.1991) (vacated). The majority held that courts should take a “flexible approach to the guidelines” by “consider[ing] the facts in light of qualitative standards [set forth in 18 U.S.C. § 3553(a)] designed to insure punishment ‘not greater than necessary.’ ” The majority stated that a court was not required to follow the Guidelines when “the parties present a legitimate aggravating or mitigating circumstance ... not adequately taken into consideration” by the Guidelines. In such cases, the majority held, the Guidelines are general principles to be considered “in light of the principles of sentencing outlined in § 3553(a).” On the narrow issue presented for review, the panel agreed that the weight of the plaster of Paris should not be included when calculating the base offense level. The majority determined that defendant’s sentence should be based on the 85 grams of cocaine he actually possessed. The majority found that the Guidelines are not clear on the question of how to consider a quantity of drugs a defendant attempted to purchase when in fact he actually possessed a lesser amount. The majority considered this situation one such “aggravating circumstance” to be weighed by a district court in sentencing.

The panel’s opinion was vacated by a vote to rehear the case en banc. Following rehearing en banc, we AFFIRM the District Court.

II.

The government conceded in its rehearing en banc brief that the weight of the plaster of Paris was not to be considered, and therefore that issue is no longer before the Court.²

III.

Defendant argues that a district court has the discretion to disregard the Guideline range in cases where the range is out of proportion to 18 U.S.C. § 3553(a)’s directive that a court “impose a sentence sufficient, but not greater than necessary to comply” with the purposes of sentencing. Defendant suggests that the district court may impose a sentence considering only the factors mentioned in 18 U.S.C. § 3553(a)(2). We disagree because we find that the Guidelines are a sentencing imperative. 18 U.S.C. § 3553(b) states:

The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. (Emphasis added.)³

Subsection (a)(4) provides that in determining the particular sentence to be imposed, the court shall consider

the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(1) and that are in effect on the date the defendant is sentenced.

Our conclusion that a Guideline sentence is mandatory and that departure is justified only as stated in section 3553(b) is supported by the Supreme Court’s statement in Burns v. United States, — U.S. —, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). There the Court stated:

The only circumstance in which the district court can disregard the mechanical dictates of the Guidelines is when it finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines-. 18 U.S.C. § 3553(b).

Id. at -, 111 S.Ct. at 2184-85.

We believe that a district court must first determine a Guideline sentence, and then must consider whether there is an “aggravating or mitigating circumstance,” that is, one not taken into account in setting the Guideline sentence. Until the judge has determined a sentence under the Guidelines, it seems impossible to determine whether the mitigating or aggravating circumstance had in fact been taken into account in promulgating those specific Guidelines.

Defendant argues that the fact that he negotiated to purchase, although never possessed, 500 grams is a mitigating circumstance not considered by the Guidelines that the District Court should have taken into account. We disagree because we find that the Guidelines specifically provide for this situation.

Section 2D1.1 is the Guideline section that sets forth the base offense levels for drug offenses. Application Note 12 to section 2D1.1 makes clear that the specific quantity of drugs mentioned in the indictment is not controlling. That note states:

If the offense involved negotiation to traffic in a controlled substance, see Application Note 1 of the Commentary to § 2D1.4.

If we turn then to Application Note 1, we find that it provides:

If the defendant is convicted of an .offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount.

Although that note is located under a heading “Attempts and Conspiracies,” as the Fifth Circuit points out in United States v. Garcia, 889 F.2d 1454 (5th Cir. 1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990), its application is not limited to attempts and conspiracies. The Fifth Circuit notes that section 2D1.1 specifically directs the sentencing court to note if, as in this case, the offense of conviction involves “negotiation to traffic.” In Garcia, the defendant was convicted of distributing eight ounces of cocaine. He had negotiated to sell sixteen ounces to a DEA agent, but ultimately delivered only eight ounces to the agent. The evidence showed that the defendant was capable of producing sixteen ounces. The court traced the Guidelines from Application Note 11⁴ of § 2D1.1 to Application Note 1 of § 2D1.4, and held that the District Court appropriately had used the sixteen ounces to determine the offense level.

■ Returning to section 2D1.1, we find that Application Note 12 also permits us to analyze this case under the relevant conduct provision of the Guidelines. Application Note 12 states:

Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See § 1B1.3(a)(2) (Relevant Conduct).

Section 1B1.3(a)(2) requires a base offense level to be determined on the basis of “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction” if the offenses are “of a character for which section 3D1.2(d) would require grouping of multiple counts.” Section 3D1.2(d) requires grouping of drug offenses. The law in this Circuit is clear that a base offense level is determined by the amount of drugs included in the defendant’s relevant conduct, not just amounts in the offense of conviction or charged in the indictment. See e.g., United States v. Ykema, 887 F.2d 697 (6th Cir.1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990); United States v. Smith, 887 F.2d 104 (6th Cir.1989); United States v. Sailes, 872 F.2d 735 (6th Cir.1989); United States v. Perez, 871 F.2d 45 (6th Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989).

The defendant argues that the relevant conduct provision is ambiguous and does not indicate that conceptually distinct crimes should be combined. The defendant argues that section 1B1.3 does not specifically state that unconvicted conspiracy or distribution offenses should be joined with a possession offense. We believe that section 1B1.3 does permit an unconvicted attempt or conspiracy to be considered as relevant conduct to a possession offense because section lB1.3(a)(2) expressly states that the entire course of conduct, common scheme or plan shall be considered. The fact that attempts and conspiracies are inchoate crimes and therefore “not of the same character” as a substantive possession offense is immaterial so long as the conduct was part of the same course of conduct, common scheme or plan.⁵ Defendant’s attempt to purchase 500 grams of cocaine was clearly part of the same course of conduct or common scheme or plan as defendant’s possession of the cocaine actually delivered to him.

In United States v. White, 888 F.2d 490 (7th Cir.1989), the Seventh Circuit considered a case very similar to the instant ease. Customs officials intercepted two packages addressed to the defendant and found that each contained hollowed-out magazines filled with cocaine base. They turned the packages over to the DEA, which removed 300 grams of the cocaine base, left 1.88 grams in one of the packages, and added sugar to make up the bulk. They delivered one package to defendant's post office box, and arrested him later in the day after he had picked up the package. The district court sentenced defendant based on the 1.88 grams he actually possessed. The Seventh Circuit reversed. The court held that because section 1B1.3(a)(2) calls for inclusion of all amounts that were part of the same course of conduct, the entire amount of cocaine base should have been considered in finding the base offense level. The court found that the defendant’s course of conduct was receiving the packages of cocaine base. It was merely fortuitous that the defendant received only 1.88 grams. Had the package slipped through customs or had the DEA not removed most of the drug, the entire amount would have arrived. The court found that “[t]he nature and seriousness of White’s conduct is the same no matter how much of the cocaine the DEA took out.” The court held that the defendant’s sentence must be based on the total amount in the packages when they entered the country.

The court further noted that although the defendant did not succeed in possessing 302 grams, that amount must be included because section 2D1.4(a) requires that the offense level for an attempt to commit a drug offense is the same as if the object of the attempt had been completed. The court noted that it is irrelevant that defendant was not convicted of attempt because “[t]he Guidelines treat success and failure, conviction and no conviction, alike in drug cases, so long as the amounts are ascertainable.” Id. at 499.

We agree with the logic of the Seventh Circuit. The seriousness of defendant’s unlawful conduct is neither increased nor decreased by what happened to be in the package. Here, it is simply fortuitous that defendant actually possessed only 85 grams of cocaine rather than the 500 grams he sought and believed he had purchased.⁶

IV.

Accordingly, we AFFIRM the defendant’s sentence.

1 . Under the Guidelines, the base offense level for an amount of cocaine less than 100 grams is 16 with a range of 21-27 months. For an amount of cocaine between 500 grams and 2 kilograms, the base offense level is 26 with a range of 63-78 months. U.S.S.G. § 2Dl.l(c).

2 . We note that the Supreme Court in Chapman v. United States, — U.S. —, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), stated that weights of containers and packaging materials are not included in calculating a sentence because these items are "not mixed or otherwise combined with the drug.” Id. at —, 111 S.Ct. at 1926.

3 . The remaining language of section 3553(b) provides:

In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.

4 . At the time Garcia was decided, Application Note 11 contained the same language as Application Note 12 does today. The Guidelines were amended on November 1, 1989 and the relevant language was moved to Application Note 12.

5 . For offenses after November 1, 1991, it is clear that offenses proscribed by different statutory provisions may be grouped under section 3D 1.2 and that an uncharged attempted possession would be grouped with a possession conviction. See U.S.S.G. § 1B1.3, comment, (n. 2). This new commentary, however, is not controlling in the instant case because it was not in effect on the date defendant was sentenced. 18 U.S.C. § 3553(a)(5).

6 . The dissent argues that the relevant conduct provisions of the Guidelines are not authorized by the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq. and 28 U.S.C. §§ 991-98, and specifically that they violate the language of 28 U.S.C. § 994(1). We disagree with both propositions.

We note first that the issues discussed by the dissent were not raised by defendant. Amicus curiae does argue that the Sentencing Commission has misinterpreted its enabling legislation, so we respond briefly.

Section 994(c)(2) authorizes the Sentencing Commission to consider "the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense.” The Guidelines accomplish this through the relevant conduct provisions. Certainly the circumstances of defendant’s offense include the fact that defendant negotiated to purchase 500 grams of cocaine. It is through section IB 1.3 that these circumstances are taken into consideration in determining defendant's sentence. Further, we read 28 U.S.C. § 994(1) to apply to the appropriateness of penalties only in cases of multiple convictions. If section 994(1) is limited to multiple convictions it is simply inapplicable to relevant conduct considerations. There is nothing in this section that forecloses taking relevant conduct into account as to each conviction.

The dissent’s second issue is that the relevant conduct provisions violate due process because a defendant, when he pleads guilty, has no notice of the extent to which his sentence may be enhanced by additional criminal conduct for which he is not charged. The essence of this argument is that a defendant who is not told that his prior related conduct may be used to enhance his present sentence, or who cannot determine how much it will be enhanced, has not made his plea knowingly and voluntarily. In this case defendant has not sought to set aside his guilty plea and thus has not challenged the voluntariness of his plea. The issue is not before us.

The balance of the dissent argues that prosecutors have too much discretion in determining what relevant conduct will be presented to the court for consideration in sentencing a defendant. There are no allegations that prosecutors have been inventing relevant conduct where none exists. The only discretion prosecutors may have is to fail to reveal relevant conduct to the probation officer. Although this may be a concern, it seems closely related to the discretion given to prosecutors generally to determine which offenses they will charge. There can be no claim in this case that the prosecutor deceived the court with regard to relevant conduct. This general policy concern seems best left to a case where it has some implication, or to the legislative branch.