United States v. Ken Smith

929 F.2d 1453, 1991 U.S. App. LEXIS 4193, 1991 WL 33781

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 18, 1991
• Docket: 90-2029
• Status: Published

Opinions

MCWILLIAMS, Circuit Judge.

Ken Smith and two co-defendants, David Paul Gallegos and Albert Mirabal, were charged in the first count of a two-count indictment in the United States District Court for the District of New Mexico with conspiring from April 29, 1989, to May 18, 1989, to possess with an intent to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 18 U.S.C. § 2. In the second count, the three defendants were charged with the possession on May 18, 1989, of more than 100 kilograms of marijuana with an intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2.

As a result of a plea bargain, all three defendants pleaded guilty to a one-count information charging them with possession on May 15, 1989, of more than 50 kilograms of marijuana with an intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. By this appeal, Smith challenges the sentence imposed on him by the district court. By separate appeal, No. 90-2006, David Paul Gallegos has also challenged his sentence. Gallegos’ appeal was decided by this Court’s opinion filed on January 7, 1991, 922 F.2d 630. The third defendant, Albert Mirabal, has not appealed his sentence.

A rather detailed statement of the underlying chronology is necessary to place the various issues in focus. On May 18, 1989, Ken Smith and Albert Mirabal were arrested as they were in the process of selling 125 pounds of marijuana to undercover agents. Mirabal had been negotiating the sale for several weeks prior to May 18, 1989. Smith was Mirabal’s source of supply. Shortly before the arrest, agents followed Smith to Gallegos’ residence and observed Gallegos and Smith load a number of plastic bags into Smith’s vehicle from a shed located within Gallegos’ curtilage. Smith then drove to the scene of the purported sale, where he met with Mirabal and the undercover agents. At the time of the arrest of Mirabal and Smith, agents seized what amounted to 125 pounds of marijuana from Smith’s automobile. After the arrest, the agents proceeded to Gallegos’ residence where Gallegos was arrested. Armed with a search warrant, the agents searched Gallegos’ shed and seized an additional 189 pounds of marijuana.

The root of the present controversy is whether only the 125 pounds of marijuana taken from Smith’s automobile should be factored into the determination of Smith’s base offense level, or whether the 189 pounds of marijuana seized from Gallegos’ shed should also be considered. The amount of marijuana used in determining Smith’s base offense level significantly affects the resulting sentencing guideline range.

The base offense level where only 125 pounds of marijuana is involved is 20. United States Sentencing Comm’n, Guidelines Manual [hereinafter referred to as Guidelines] § 2D1.1. Since, as it is agreed, Smith was entitled to a 2-point reduction for his acceptance of responsibility, his net base offense level would be 18 if only the 125 pounds of marijuana found in his automobile is factored into the determination of his base offense level. Smith had no prior criminal record, and his criminal history category was therefore I. The sentencing guideline range for a person with a base offense level of 18 and a criminal history category of I is 27 to 33 months.

However, adding the 189 pounds of marijuana taken from the shed to the 125 pounds of marijuana would raise Smith’s base offense level to 26. Guidelines § 2D1.1. With the 2-point reduction, his net base offense level would become 24. The sentencing guideline range for a person with a base offense level of 24 and a criminal history category of I is 51 to 63 months.

Apparently, all three defendants were sentenced on December 15, 1989. It would appear that Mirabal was sentenced first. And it would also appear that the district court refused to follow the pre-sentence report’s recommendation to factor in the 189 pounds of marijuana taken from Gallegos’ shed in determining Mirabal’s base offense level. As indicated, Mirabal has not appealed his sentence.

Smith was sentenced next. Smith’s pre-sentence report also recommended the inclusion of the 189 pounds of marijuana taken from Gallegos’ shed in determining Smith’s base offense level. However, after listening to counsel’s objection, the district court refused to consider the 189 pounds of marijuana in calculating Smith’s base offense level. The district court then sentenced Smith to 30 months imprisonment.

Gallegos was the last to be sentenced. In his case, the district court determined to follow the pre-sentence report and considered the 189 pounds of marijuana taken from the shed in the determination of his base offense level. At this point, the district court apparently first realized that the pre-sentence report for both Gallegos and Smith indicated that the 189 pounds of marijuana taken from Gallegos’ shed actually belonged to Smith and had been stored by Smith in Gallegos’ shed with Gallegos’ permission. The district judge spoke as follows:

“Just a moment. See if Wendy York [Smith’s attorney] and Ken Smith are still around. I’m hearing some things here that affect or may relate to the sentence which I have imposed on Mr. Smith.”

Neither Smith nor his attorney was around. Smith was on bond and had been granted the right to voluntarily surrender at a later date to the authorities. Apparently, Smith and his attorney left the courthouse immediately after Smith’s sentencing and before Gallegos was sentenced.

On December 22, 1989, the district court held a second hearing in connection with Smith’s sentencing. Smith and his attorney were both present, as was the United States Attorney. At this hearing, the district judge stated that in determining Smith’s base offense level he had believed that Smith was not in any manner “connected” to the 189 pounds of marijuana taken from Gallegos’ shed and for that reason did not add the 189 pounds of marijuana to the 125 pounds of marijuana found in Smith’s automobile. The judge, incidentally, noted that although he had orally announced that Smith was sentenced to 30 months imprisonment, he had not reduced the orally imposed sentence to written judgment. The judge went on to say that moments after sentencing Smith — as he was about to sentence Gallegos — he suddenly realized that Smith’s pre-sentence report contained an admission by Smith that he was responsible for the marijuana taken from Gallegos’ shed. The judge also noted that Gallegos had testified at his sentencing hearing that the marijuana in his shed had been placed there by Smith. Hence, the judge indicated that he was now going to add the 189 pounds of marijuana taken from Gallegos’ shed to the 125 pounds of marijuana found in Smith’s automobile and resentence Smith accordingly.

With this turn of events, Smith’s counsel indicated that she was challenging the statement in Smith’s pre-sentence report that Smith had admitted that he was responsible for the 189 pounds of marijuana taken from Gallegos’ shed. The basis advanced for this challenge was that the probation officer who prepared the pre-sen-tence report had interviewed Smith at a time when Smith’s counsel was not present, and that she had previously requested that the probation department not interview Smith unless she was present. Counsel also challenged the use of Gallegos’ testimony to show Smith's connection to the 189 pounds of marijuana taken from Gallegos’ shed. The matter was at that point continued for an evidentiary hearing on these issues.

On February 1, 1990, there was a further hearing regarding the resentencing of Smith. At that hearing, defense counsel called as a witness the probation officer who prepared the pre-sentence report and who in the course of preparing the report had interviewed Smith on three separate occasions. He conceded that defense counsel was not present on any of these occasions, but stated that he was not aware that defense counsel had made any request that Smith not be interviewed unless she was present. The probation officer testified that Smith, when interviewed, more or less volunteered that he had placed the marijuana in Gallegos’ shed, and that Smith’s statement was not in response to a question. No other witness was called, although the prosecution offered a transcript of Gallegos’ testimony at his own sentencing hearing where he testified that it was Smith who brought the marijuana to his residence, and, with Gallegos’ permission, stored it in the shed. This transcript was received over objection.

Based on this testimony, the district court refused to strike from the pre-sen-tence report Smith’s admission that he was responsible for the marijuana taken from Gallegos’ shed. The court went on to observe that even if Smith’s admission in the pre-sentence report was in anywise “tainted” by his attorney’s alleged request to be present at any interview conducted by the probation office, Gallegos’ testimony was itself sufficient to tie Smith to the 189 pounds of marijuana taken from Gallegos’ shed.

Having made these findings, the district court determined that the aggregate amount of marijuana taken from Smith’s automobile and Gallegos’ shed placed Smith’s base offense level at 26, and with the 2-point reduction for acceptance of responsibility set his net base offense level at 24. As indicated, the sentencing guideline range for a person with a base offense level of 24 and a criminal history category of I is 51 to 63 months. The district court resentenced Smith to 56 months imprisonment.

I. Power to Resentence

Smith’s position is that the district judge had no power to resentence him on February 1, 1990, to 56 months imprisonment since the judge had previously orally sentenced him to 30 months imprisonment on December 15, 1989. At the hearing on December 22,1989, Smith’s counsel advised the court that she initially thought that the district court had the power to resentence Smith, but that after reading United States v. Villano, 816 F.2d 1448 (10th Cir. 1987), she came to the conclusion that the district court had no such power.

The district court thought Villano was distinguishable, as do we. Villano simply holds that a clear and unambiguous orally imposed sentence controls where the subsequently entered written sentence differs therefrom. Here, the orally imposed sentence was clear and unambiguous, but was predicated upon a misreading of the pre-sentence report. And, as the district court noted, the district court caught its misreading before entry of the written judgment. Hence, this is not a case where the orally imposed sentence differs from a subsequently entered written judgment.

The government’s position is that since Smith had not yet begun to serve the sentence imposed on him on December 15, 1989, the district court had the power to resentence him and correct its incorrect application of the guidelines. We agree.

In United States v. De Francesco, 449 U.S. 117, 134, 101 S.Ct. 426, 435-36, 66 L.Ed.2d 328 (1980), the Supreme Court stated that it is an “established practice” in federal courts that a sentencing judge may recall a defendant and increase his sentence, “at least (and we venture no comment as to this limitation) so long as he has not yet begun to serve that sentence,” and that such resentencing does not violate any double jeopardy principle. In line with De Francesco, this Court in United States v. Earley, 816 F.2d 1428, 1433 (10th Cir.1987) noted that De Francesco had recognized the “established federal practice” under which a sentencing judge can increase a defendant’s sentence as long as the defendant has not yet begun to serve the sentence first imposed. See also United States v. Lawson, 670 F.2d 923, 929 (10th Cir.1982); United States v. Preston, 634 F.2d 1285, 1294-95 (10th Cir.1980), cert, denied, 455 U.S. 1002, 102 S.Ct. 1634, 71 L.Ed.2d 869 (1982); and United States v. Davidson, 597 F.2d 230, 232-33 (10th Cir. 1979), cert, denied, 444 U.S. 861, 100 S.Ct. 127, 62 L.Ed.2d 83 (1979).

In Earley, this Court reasoned that “a sentence does not have immediate ‘finality,’ and the court has the power to make corrections or enhance or reduce the sentence for some interim period of time.” Earley, 816 F.2d at 1432. The federal rule sets “finality” where a convicted defendant crosses a “bright line” from the jurisdiction of the courts to executive custody. Id. at 1433. Hence, a criminal defendant whose sentence is appealable by the government under a statutory provision allowing for such an appeal, remains under the jurisdiction of the courts and can acquire no legitimate expectation in the finality of his original sentence, at least not until the time for appeal has expired. United States v. Jackson, 903 F.2d 1313, 1315 (10th Cir.1990) (citing De Francesco, 449 U.S. at 136, 101 S.Ct. at 437). An increase in the original sentence of such a defendant cannot be said to constitute an intrusion upon the values protected by the Fifth Amendment’s double jeopardy clause. Id.

When Smith was resentenced on February 1, 1990, he was still under the jurisdiction of the courts as he had not yet begun to serve the sentence imposed on him on December 15, 1989. Moreover, Smith had no legitimate expectation in the finality of his original sentence since that sentence was appealable by the government under a statutory provision and the time to appeal had not yet expired when he was resen-tenced. See 18 U.S.C. § 3742(b)(2) (“The government, ... may file a notice of appeal ... for review ... of an otherwise final sentence if the sentence was imposed as a result of an incorrect application of the sentencing guidelines_”); and Fed.R. App.P. 4(b) (“When an appeal by the government is authorized by statute, the notice of appeal shall be filed ... within 30 days after the entry of the judgment or order appealed from.”).

II. Pre-Sentence Report

Counsel claimed at the resentencing hearing that the statement attributed to Smith in the pre-sentence report that “he was responsible for placing the marijuana in the instant offense on Gallegos’ property” should have been stricken because Smith had been interviewed by the probation officer out of her presence.¹ In this regard, counsel stated that it was her “established practice” to request the probation department not to interview her clients unless she was present during the interview, and that in the instant case she had made such a request. In this latter connection, the record before us does not clearly identify the person in the probation department to whom counsel directed her request. In any event, an addendum to the pre-sen-tence report indicates that the probation officer who interviewed Smith was unaware of such a request by counsel, and he so testified at Smith’s resentencing hearing. Further, in the addendum to the pre-sentence report, the probation officer who prepared the report stated that “[t]he officer whom counsel claims to have given that instruction, denies that counsel made such a request.” Based on the record then before him, the district court refused to strike Smith’s admission in the pre-sentence report, and, on appeal, we are not inclined to disturb that ruling.²

III. Gallegos’ Testimony

In view of the fact that we have now held that the district court did not err in refusing to strike from the pre-sentence report Smith’s admission, we need not determine whether the district court acted improperly in considering, as an alternative ground for resentencing, the testimony of Gallegos given at his own sentencing hearing, at a time when neither Smith nor his counsel was present.³ However, under United States v. Beaulieu, 893 F.2d 1177 (10th Cir.1990), it would appear that the district court did not err.

In Beaulieu we said that “[cjlearly, a defendant at sentencing does not have an absolute right to confront witnesses whose information is made available to the court.” Id. at 1180 (citing United States v. Sunrhodes, 831 F.2d 1537, 1543 (10th Cir.1987)). We further stated that “[i]t is not a denial of due process for the trial judge, when determining sentence, to rely on evidence given by witnesses whom the defendant could neither confront nor cross-examine.” Id. at 1181 (quoting United States v. Carmona, 873 F.2d 569 (2nd Cir.1989)). See also United States v. Mays, 902 F.2d (10th Cir.1990); and United States v. Rutter, 897 F.2d 1558, 1563 (10th Cir.1990). See generally 18 U.S.C. § 3661 (“[N]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court ... may receive ... for the purposes of imposing an appropriate sentence.”); and Guidelines § 6A1.3 (“In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability_”).

IV. The 189 Pounds of Marijuana

Counsel contends that in any event it was improper for the district court to factor into Smith’s base offense level the 189 pounds of marijuana taken from Gallegos’ shed. In this regard, counsel argues that the information to which Smith pleaded guilty charged him with the possession with an intent to distribute more than 50 kilograms of marijuana, but that he did not plead guilty to the indictment, which charged him with the possession of more than 100 kilograms of marijuana with an intent to distribute. Further, counsel argues that there was nothing to indicate that the 189 pounds of marijuana taken from Gallegos’ shed was in anywise connected to the possession and attempted sale of the 125 pounds of marijuana. We do not agree.

In our view, the district court did not err in factoring into Smith’s base offense level the 189 pounds of marijuana seized from Gallegos’ shed. Guidelines § 1B1.3 provides that in determining a base offense level all acts and omissions aided and abetted by the defendant, as well as all acts which were part of the same course of conduct, should be considered. In the Commentary to that guideline is the statement that in a drug distribution case, quantities and types of drugs not specified in the charge with which defendant stands convicted are to be included in determining the base offense level “if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” Guidelines § 1B1.3, comment, at 1.19. Accord § 2D1.1, comment, (n. 12) (“Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level”). See also United States v. Preciado, No. 89-2147, slip op. (10th Cir. Aug. 6, 1990); United States v. Valle-Sanchez, 912 F.2d 424, 426 (10th Cir.1990); United States v. Harris, 903 F.2d 770, 778 (10th Cir.1990); and United States v. Ware, 897 F.2d 1538, 1542-43 (10th Cir.1990), cert. denied, — U.S. —, 110 S.Ct. 2629, 110 L.Ed.2d 649 (1990).

The district court was of the view that the 189 pounds of marijuana found in Gallegos’ shed was related to the crime to which Smith had pleaded guilty, namely, possession on May 15, 1989, of more than 50 kilograms of marijuana with an intent to distribute. We are not inclined to disturb this ruling. As of May 18, 1989, Gallegos had 314 pounds of marijuana stored in his shed by Smith. He and Smith loaded 125 pounds of that marijuana into Smith’s car and Smith and Miraba! then tried to sell the 125 pounds to undercover agents. Shortly after the aborted “sale,” which resulted in the arrest of Smith and Mirabal, Gallegos was arrested and the remaining marijuana in Gallegos’ shed, i.e., 189 pounds of marijuana, was seized. The possession of the 189 pounds of marijuana was part of the same course of conduct as the charge to which Smith pleaded guilty, i.e., possession on May 15, 1989, of more than 50 kilograms of marijuana with an intent to distribute. See United States v. Sailes, 872 F.2d 735, 737-39 (6th Cir.1989). See also United States v. Trujillo, 906 F.2d 1456, 1467-68 (10th Cir.1990) (citing Sailes, 872 F.2d at 737-39); United States v. Boyd, 901 F.2d 842, 844 (10th Cir.1990); United States v. Rutter, 897 F.2d 1558, 1561-63 (10th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990). We find no error in this regard.

Judgment affirmed.

1 . Defense counsel’s argument was that the probation officer failed to advise Smith during any of the interviews that his answers could be considered by the district judge in imposing his sentence. However, at the hearing in which Smith and the two co-defendants entered their guilty pleas, the district judge specifically stated that:

"The sentencing judge is required to take into account all conduct ... whether or not this is charged by the government.... [T]here is no limitation placed on the information that the sentencing judge can consider at the time of sentencing.... The court will consider all relevant conduct.... ”

2 . In United States v. Rogers, 899 F.2d 917, 919-20 (n. 7) (10th Cir.1990), this Court acknowledged the position taken by three circuits that a defendant does not have a Sixth Amendment right to be represented by counsel at a pre-sen-tence interview. See United States v. Jackson, 886 F.2d 838, 843-44 (7th Cir.1989); Brown v. Butler, 811 F.2d 938, 941 (5th Cir.1987); Baumann v. United States, 692 F.2d 565, 577-78 (9th Cir.1982). We then stated that we were in agreement with those circuits and held that "a routine post-conviction pre-sentence interview is not a 'critical stage' of the proceedings at which a defendant has a Sixth Amendment right to be represented by counsel.” Rogers, 899 F.2d at 919-20 (n. 7).

3 .Defense counsel first objected to the district court’s use of Gallegos' testimony to show Smith’s connection to the 189 pounds of marijuana at the December 22, 1989 hearing. Counsel stated that "if I had an opportunity to cross-examine Mr. Gallegos it would be fair game." Pursuant to this request, the district court scheduled an evidentiary hearing on February 1, 1990. However, Smith’s attorney failed to call Gallegos as a witness at this evidentiary hearing.