United States v. Rogers

921 F.2d 975, 1990 U.S. App. LEXIS 4278, 1990 WL 187845
CourtCourt of Appeals for the Tenth Circuit
DecidedMarch 26, 1990
DocketNo. 88-2926
StatusPublished
Cited by85 cases

This text of 921 F.2d 975 (United States v. Rogers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Rogers, 921 F.2d 975, 1990 U.S. App. LEXIS 4278, 1990 WL 187845 (10th Cir. 1990).

Opinion

STEPHEN H. ANDERSON, Circuit Judge.

Appellant, Donald Rogers, was found guilty by a jury and convicted of one count each of engaging in racketeering activities and conspiracy to participate in such activities in violation of 18 U.S.C. §§ 1961, 1962(c) and (d), possession of heroin with intent to distribute, conspiracy to possess heroin with intent to distribute, and interstate travel to facilitate the conspiracy in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846, 18 U.S.C. § 1952(a)(3), and 18 U.S.C. § 2. The district court determined the sentencing guideline 1 range for the most serious offenses to be 151 to 188 months, and sentenced Rogers to concurrent prison terms of 156 months for four of the counts and a concurrent term of 60 months on the remaining count, followed by five years’ supervised released.

On appeal, Rogers contends that his Fifth Amendment privilege against self-incrimination was violated when he was not given a Miranda2 warning at the beginning of or during his presentence interview by a probation officer following trial. He also contends that his right to a speedy trial was violated, and that the district court abused its discretion when it denied Rogers’ motion for severance. We affirm.

I. ADMISSIONS DURING PRESENTENCE INTERVIEW

Following Rogers’ trial, the court ordered the U.S. Probation Office to prepare a presentence report, and briefly discussed that process in advance with Rogers' counsel, in Rogers’ presence, after the jury was [977]*977discharged. See R.Vol. XV at 1078. U.S. Probation Officer Deraid T. Riggs prepared the report, and interviewed Rogers as a routine part of the process. During the interview Rogers admitted to trafficking in twenty-four ounces of heroin within the charged enterprise, rather than the five ounces specified in the indictment against him. R.Vol. XVI at 2, 10-12, 17; R.Supp. Vol. II, Tab 520, Count 27. There is a dispute as to what quantity was proved at trial. According to Rogers, the only reason he admitted to the twenty-four ounces was his belief that the admission was required as part of his acceptance of responsibility in order to obtain the two-point reduction in his base offense level allowed by the U.S.S.G. § 3E1.1.3

In his initial draft of the presentence report, Riggs attributed to Rogers the entire thirty kilograms of heroin possessed and distributed by the drug ring as a whole, and calculated a base offense level based on that amount. When Rogers’ counsel objected, see R.Vol. XVI at 2-4, Riggs revised the report and calculated the base offense level using the twenty-four ounces to which Rogers had admitted.4 The quantity was multiplied by seven to refleet the number of times it could be “cut” for street distribution.5 The probation officer’s use of the twenty-four ounces to which Rogers admitted in his interview, instead of the five ounces mentioned at one part of the indictment potentially increased Rogers’ sentence by four years, even after the two-point downward adjustment in the offense level which Rogers was allowed for accepting responsibility.6 The district court accepted the classifications recommended in the presentence report and imposed them for sentencing purposes.

Rogers now contends that his Fifth Amendment privilege against self-incrimination was violated in this process, in two ways: first, by a perceived requirement under § 3E1.1 that he further incriminate himself, or be “punished” by not receiving the two-point reduction, and second, by the probation officer’s failure to give him a Miranda warning regarding the consequences of any admissions. He states:

“For the sake of receiving a reduction of two levels, the Appellant incriminated himself from a base level of 24 to a base level of 32. Thus Appellant unwittingly placed himself in a ‘damned-if-you-do and damned-if-you-don’t’ position. It is this dilemma which Appellant contends has violated his Fifth Amendment privilege against self-incrimination.
[978]*978... Where the probation office extracts incriminating information without warning the defendant of the consequences, the confession should not be considered voluntary. The information obtained should not be used to enhance the defendant’s sentence as was done here. Appellant would submit that in the coercive setting of a probation department interview, a defendant is entitled to Miranda warnings and the presence of counsel.”7

Principal Brief of Defendant/Appellant at 8, 11-12.

Rogers’ argument faces two hurdles at the outset. First, in the proceedings below Rogers did not specifically object on constitutional grounds to the use of his admissions, although he complained about unfairness. R.Vol. XVI, pp. 10-12. Thus, our review is limited to plain error, or the exercise of supervisory power. See Newman v. United States, 817 F.2d 635, 637 n. 3 (10th Cir.1987); United States v. Cheama, 783 F.2d 165, 168 (10th Cir.1986).

Second, it is highly disputed whether Rogers admitted anything in his presen-tence interview which had not already been proved at trial. The district court specifically found, at the time of sentencing, that “the trial testimony would have permitted commencing with a base offense level of 34; and if Mr. Rogers was candid and open and helpful after trial, in my opinion he would not have elevated himself from some lesser level to that. So I certainly agree, in this case I don’t believe that there’s been any adverse effect by virtue of the candor which resulted in deduction of two offense levels based upon acceptance of responsibility.” R.Vol. XVI at 17. The district court’s fact findings to the evidence must be accepted on appeal unless they are clearly erroneous. 18 U.S.C. § 3742(d).

However, in its brief on appeal, the government has not identified the evidence at trial which established that Rogers trafficked in twenty-four ounces of heroin, and our review of the record has failed to identify any direct evidence to that effect. There is, of course, substantial evidence with respect to the existence of a conspiracy, a large drug organization, and very substantial amounts of heroin in which the organization trafficked. But, at another point in the sentencing hearing the district court expressly rejected the government’s argument that Rogers should be held accountable for amounts of heroin distributed by the conspiracy as a whole, stating:

“Now, there is, of course, a basis for your presentation to the Court, Mr. Win-tory, but it’s largely a circumstantial basis. We know that Lisa was active, we know that she accompanied her husband, we know the relationship to Mrs. Robinson, but we really don’t know precisely what was said among them or what Mr.

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Bluebook (online)
921 F.2d 975, 1990 U.S. App. LEXIS 4278, 1990 WL 187845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rogers-ca10-1990.