United States v. Ridley

9 F. App'x 445
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 16, 2001
DocketNo. 00-5421
StatusPublished
Cited by1 cases

This text of 9 F. App'x 445 (United States v. Ridley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Ridley, 9 F. App'x 445 (6th Cir. 2001).

Opinion

PER CURIAM.

Defendant Carlos Ridley appeals his sentence after a guilty plea to (1) distributing cocaine powder in violation of 21 U.S.C. § 841(a)(1), and (2) distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1). Defendant argues that (1) the court erred in using relevant conduct to increase his sentence because there was no evidence that the alleged relevant conduct was part of a common scheme or plan. (2) the court violated Defendant’s Sixth Amendment right to be informed of the crimes with which he is charged by failing to provide notice that relevant conduct would be used to increase his sentence, and (3) the court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using the relevant conduct to sentence Defendant “past what he would have received” had he been sentenced solely for the conduct charged in the indictment. We AFFIRM Defendant’s sentence.

I.

On March 30, 1999, a confidential informant purchased 0.7 grams of cocaine from Defendant. The purchase was recorded by agents of the Joint State Drug Task Force and the F.B.I. On April 3, 1999, a confidential informant purchased 2.5 grams of crack cocaine from Defendant. This purchase was similarly recorded.

Defendant was arrested on October 14, 1999. He told F.B.I. agents that for six months in 1996 and 1997, he had acquired six to seven ounces of crack cocaine from Tarrent McLean and Basil Small. He also admitted that between April 1998 and June 1999, he had acquired approximately four to five ounces of crack cocaine from Ricky Howard.

Defendant pleaded guilty to both counts of the indictment. The Presentence Report (“PSR”) included as relevant conduct the six to seven ounces of crack purchased from McLean and Small in 1996-97. However, the PSR neglected to mention the four to five ounces of crack purchased from Ricky Howard in 1998-99. Under the PSR, Defendant’s total adjusted base offense level was 31, and his criminal history category was VI.

At sentencing, Defendant objected to the relevant conduct included in the PSR. In essence, he argued that the 1996-97 drug transactions were too remote to be included as relevant conduct under the sentencing guidelines, and that he was not provided notice that those transactions would be used against him. In response, the United States proposed that the 1996-97 drug transactions (amounting to six [447]*447ounces) be excluded as relevant conduct, but that the 1998-99 transactions (amounting to four ounces) be included. Defendant’s counsel agreed to the proposal: ‘Tour Honor, we agree that the relevant conduct does include the 4 ounces included in that.” Thus, Defendant’s total readjusted base offense level was 29, and his criminal history category remained at VI. Defendant was ultimately sentenced to 176 months of imprisonment.

II.

In reviewing a district court’s sentencing determinations, we will not reverse the district court’s findings of fact unless they are clearly erroneous. 18 U.S.C. § 3742(e); United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir.1991). Furthermore, we must give due deference to the court’s application of the guidelines to the facts. 18 U.S.C. § 3742(e). However, “[w]hether the facts found by the district court warrant the application of a particular guideline provision is a legal question and is to be reviewed de novo by the appellate court.” United States v. Partington, 21 F.3d 714, 717 (6th Cir.1994).

Ill

A.

Defendant first argues that the 1998-1999 drug transactions, in which he admitted involvement, were too remote to constitute relevant conduct under the Guidelines. Section lB1.3(a)(l) of the Guidelines defines relevant conduct to include “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant” that occurred “during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” U.S. Sentencing Guidelines Manual § lB1.3(a)(l) (1998). Relevant conduct also includes, with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts that were part of a “common scheme or plan” or the same “course of conduct” as the offense of conviction. USSG § lB1.3(a)(2). “Common scheme or plan” means that the offenses are connected by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi. USSG § 1B1.3, cmt. n. 9. “Same course of conduct” means that the offenses are sufficiently connected to be described as “a single episode, spree, or ongoing series of offenses.” Id. “The three factors relevant to determining whether offenses are sufficiently related to constitute the ‘same course of conduct’ include ‘the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses.’ ” United States v. Hill, 79 F.3d 1477, 1481-82 (6th Cir.1996) (quoting USSG § 1B1.3, cmt. n. 9). “The commentary requires courts to balance these factors such that ‘when one of [these] factors is absent, a stronger presence of at least one of the other factors is required.’ ” Id.

Specifically, Defendant maintains that “there is no proof that [Defendant] committed the relevant conduct in the course of the offense charged, the preparation of the offense, or the attempting to avoid detection or responsibility.” Defendant cites Hill, wherein we noted that when “‘illegal conduct does exist in “discrete, identifiable units” apart from the offense of conviction, the Guidelines anticipate a separate charge for such conduct.’ ” 79 F.3d at 1482 (quoting United States v. Hahn, 960 F.2d 903, 909 (9th Cir.1992)).

We reject Defendant’s argument. Because 21 U.S.C. § 841(a) defines a crime of a character for which USSG § 3D1.2(d) [448]*448would require grouping of multiple counts, the issue is whether the 1998-1999 drug transactions were part of either a “common scheme or plan” or the same “course of conduct” as the offenses of conviction. USSG § lB1.3(a)(2). The United States presented evidence that the 1998-1999 transactions all (1) involved distribution of powder cocaine and crack in Fayetteville. Tennessee, (2) originated from Ricky Howard, Defendant’s source, and (3) were related to a gang operating in Fayetteville known as the “Dawg Pound.” The 1998-1999 transactions were therefore part of the same “common scheme or plan” because they were connected to the offenses of conviction by the common factors of accomplices, purpose, and similar modus operandi

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