United States v. Lawrence

47 F.3d 1559, 1995 WL 93874
Court of Appeals for the Eleventh Circuit·Decided March 23, 1995·No. Nos. 92-6687, 92-6688 and 92-6704·Published·Cited by 126 cases

Opinion

TJOFLAT, Chief Judge:

Appellants Patrick McQueen, Dwight Gregory Lawrence, and Samuel Williams challenge their sentences for distributing, or aiding, and abetting the distribution of, cocaine base, commonly known as “crack,” in violation of 21 U.S.C. § 841(a)(1) (1988) and 18 U.S.C. § 2 (1988).1 Each appellant ar[1561]*1561gues that the district court erred in attributing over 500 grams of cocaine base to him for sentencing purposes. Because the sentencing records do not establish the facts required to support the sentences, we vacate each appellant’s sentence and remand the cases to the district court for further proceedings.2

I.

A.

On March 31, 1992, a federal grand jury-returned a twenty-six count indictment against appellants and sixteen others. The indictment resulted from a Montgomery, Alabama police investigation of cocaine base trafficking taking place in front of 3855 April Street in Montgomery. The first count charged all nineteen defendants with conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846 (1988). Specifically, count one charged that:

Beginning on or about the 1st day of August, 1991, and continuing to on or about the date of this indictment [March 31, 1992], ... the defendants ... did knowingly and intentionally combine, conspire, confederate and agree together with each other and with divers other persons ... [t]o knowingly and intentionally possess with intent to distribute, and to distribute cocaine base ... in violation of [21 U.S.C. § 841(a)(1) ], all in violation of [21 U.S.C. § 846].

The next twenty-five counts charged various defendants with distributing, and aiding and abetting the distribution of, cocaine base.3

The appellants initially pled not guilty; their trial, and the trial of their codefendants, was set to begin on June 1. On that day, before the trial began, the appellants changed their pleas. .Each pled guilty to a single substantive count in exchange for dismissal of the other counts against him; Lawrence pled guilty to count three; Williams to count eighteen; and McQueen to count twenty-three. At their Rule 11 hearings, each appellant admitted facts sufficient to support his guilty plea. Lawrence testified that, on [1562]*1562January 17, 1992, he was in the vicinity of 3855 April Street in the company of code-fendants listed in count three and that he assisted in flagging down vehicles and setting up sales of cocaine base. Williams testified that, on February 4, 1992, he was in the vicinity of 3855 April Street and that he possessed and sold cocaine base in that area. McQueen testified that, on February 7, 1992, he was in the vicinity of 3855 April Street, that on that day he was in the company of a codefendant, and that he and that codefend-ant sold cocaine base to a confidential informant.4

A probation officer prepared a Presen-tence Report (“PSR”) for each appellant. The three PSRs are identical in many respects. Paragraphs thirty-five through thirty-eight of each PSR set forth a general recitation of background facts, all of which came from the prosecutor’s office:

35. In January 1992, the Montgomery Police Department, Narcotics and Intelligence Bureau, [began] an investigation into the alleged cocaine base trafficking activities, specifically in the 3800 block of April Street in Montgomery, Alabama.-...
36. In January 1992, the Montgomery Police Department, Narcotics and Intelligence Bureau set up surveillance, using video and audio equipment. During the investigation, information was developed indicating that Virginia Gantt was the organizer of the illegal activities occurring at 3855 April Street_ Wallace McCree was indicated as a supervisor.
37. Those defendants working under the direction and supervision of Virginia Gantt and Wallace McCree [included Lawrence, Williams, McQueen, and nine others]. At least seven of Gantt’s runners also sold drugs for [Carl Edward] Hudson....
38. During the course of the investigation into this drug trafficking operation, law enforcement agents conducted numerous controlled buys of cocaine base yielding in excess of thirty-six grams of the illegal substance....

Paragraphs thirty-nine through forty-one of each PSR set forth the probation officer’s method of calculating the quantity of cocaine base attributable to each defendant:

39. Based upon the observations of the Montgomery Police Department, Narcotics and Intelligence Bureau, during the period of surveillance of the activities in the 3800 block of April Street, Montgomery, Alabama, drug sales were conducted at any time of the day, day or night, any day of the week and throughout the year. On January 17, 1992, videotaped surveillance was conducted in the vicinity of 3855 April Street. Corporal B.J. McCullough, who operated the equipment, has determined that 66 drug transactions could be seen on the videotapes. The approximate time length of the tapes from January 17, 1992, is four hours.
40. Based upon the number of “rocks” seized or purchased during the course of this investigation and the weight of all the drugs seized or purchased, the United States Attorney’s Office has determined the average rock sold in the vicinity weighed .19 grams. Consequently, approximately 12.5 grams were sold on any given day (66 x .19 = 12.5).
41. Count I of the indictment covers a time frame of 224 days. When this number of days is multiplied by 12.5 grams per day, the amount of crack sold is 2.8 kilograms.

(Emphasis added.) Finally, paragraph 47 stated:

47. According to the drug quantity table at U.S.S.G. § 2Dl.l(c), a base offense level of 38 is assigned to cases involving at least 1.5 kilograms but less than 5 kilograms of cocaine base.

As the above numbered paragraphs indicate, the probation officer estimated the amount of [1563]*1563cocaine base attributable to each appellant by: (1) assuming that the same number of cocaine base transactions that took place during a total of four hours on January 17 (sixty-six) took place on every day of the conspiracy; (2) approximating the weight of cocaine base sold in each of those transactions (0.19 grams per transaction); and (3) assuming that each appellant was involved in the conspiracy during the entire time period covered by count one of the indictment (224 days).5 Using this method, the probation officer attributed 2.8 kilograms of cocaine base to each appellant (66 x 0.19 x 224) and assigned each a base offense level of 38.

Each appellant sent the probation officer a written response to his PSR in which he objected to the probation officer’s method of calculating the quantity of cocaine base attributable to him.

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United States v. Lawrence, 47 F.3d 1559, 1995 WL 93874 (11th Cir. 1995).

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