United States v. Wrenn

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit

                                 ____________________



        No. 94-2089



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                    JOSEPH WRENN,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                 Stahl, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
                                     ____________________



                              and Lynch, Circuit Judge.
                                         _____________

                                 ____________________


Robert  L. Sheketoff, with  whom Sheketoff  & Homan  was on brief,
            ____________________             __________________

        for appellant.

            Dina Michael  Chaitowitz, Assistant  United States Attorney,  with
            ________________________

        whom Donald K.  Stern, United States Attorney,  was on brief, for  the
             ________________

        United States.



                                 ____________________



                                  September 25, 1995

                                 ____________________



LYNCH, Circuit Judge.  After  pleading  guilty   to
                      LYNCH, Circuit Judge.
                             _____________



            both  conspiring and  attempting  to possess  with intent  to



            distribute more than  5 kilograms of cocaine  in violation of



            21 U.S.C.   846, the defendant Joseph Wrenn was sentenced  to



            the statutory  minimum of  10 years  prescribed by  21 U.S.C.



              841(b)(1)(A)(ii).   At  issue  here  is the  meaning  of  a



            provision in  the Violent  Crime Control and  Law Enforcement



            Act of  1994  (the "Act"),  18  U.S.C.   3553(f),  which,  in



            certain circumstances,  gives  the trial  court authority  to



            impose  a  sentence  shorter  than  the  otherwise  mandatory



            minimum sentence.



                      Wrenn  argues that  the  district  court  erred  in



            finding he was not entitled  under the Act to a  reduction of



            the 10  year mandatory minimum  sentence he received  for his



            drug convictions.  We reject Wrenn's contentions that  he has



            complied with  the Act's requirement that  he "has truthfully



            provided to the Government  all information and evidence [he]



            has  concerning the offense or offenses that were part of the



            same course of conduct or of a common scheme or plan . . . ."



            18  U.S.C.     3553(f)(5).     He  says  he   has  done   so,



            unintentionally to be sure,  by unwittingly being recorded by



            an undercover agent while  discussing his plans to distribute



            cocaine,  conversations  which  became  the  source   of  the



            indictment  against him.   He  also says  he  has done  so by



            admitting  the  government's allegations  in  the context  of


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pleading  guilty  to  the  charges against  him.    Believing



            Congress did  not intend the topsy-turvy  result suggested by



            Wrenn, we reject his arguments and affirm.



                      Section   3553(f)   provides   some   relief   from



            statutorily-imposed  mandatory  minimum  sentences where  the



            defendant demonstrates:



                      (1)  the  defendant  does  not  have  more  than  1

                           criminal  history  point, as  determined under

                           the sentencing guidelines; 



                      (2)  the defendant did not use violence or credible

                           threats of  violence or  possess a  firearm or

                           other  dangerous  weapon  (or  induce  another

                           participant to  do so) in connection  with the

                           offense;



                      (3)  the offense did not result in death or serious

                           bodily injury to any person;



                      (4)  the  defendant was  not an  organizer, leader,

                           manager,  or  supervisor  of  others   in  the

                           offense,  as  determined under  the sentencing

                           guidelines and was not engaged in a continuing

                           criminal  enterprise, as defined  in 21 U.S.C.

                           848; and



                      (5)  not  later than  the  time of  the  sentencing

                           hearing, the defendant has truthfully provided

                           to the Government all information and evidence

                           the  defendant has  concerning the  offense or

                           offenses that were part  of the same course of

                           conduct or of a common scheme or plan, but the

                           fact  that the  defendant has  no relevant  or

                           useful  other information  to provide  or that

                           the  Government   is  already  aware   of  the

                           information shall not preclude a determination

                           by the court  that the defendant has  complied

                           with this requirement.



            18 U.S.C.   3553(f).



                      The  drug trade  operated  out  of federal  prisons



            provides  the factual  backdrop of  this case.   Wrenn's  co-


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defendant,  Joseph  Burke, while  incarcerated at  the United



            States Penitentiary at Lewisburg, asked a fellow inmate if he



            could provide  Wrenn with a  large supply of  cocaine, saying



            Wrenn was a cocaine distributor in Massachusetts.  The  other



            inmate became  a cooperating witness  and turned to  the FBI,



            which,   in  turn,   provided  an   undercover  agent/cocaine



            supplier.   The  agent, the  cooperating witness,  Burke, and



            Wrenn met in the  visiting area of the penitentiary.  In that



            and another  meeting,  which were  both tape-recorded,  Wrenn



            described himself as a large-scale cocaine trafficker looking



            for a new source of supply.  Wrenn said that he and Burke saw



            opportunities  to  expand  their business  because  of recent



            federal   indictments   of   individuals    in   Charlestown,



            Massachusetts.



                      It is  those tape-recorded discussions    conducted



            before Wrenn actually made  the buy and was arrested    which



            form the factual  basis for  his claim that  he provided  the



            government   with  all  of  the  information  concerning  his



            criminal conduct contemplated by 18 U.S.C   3553(f)(5).



                      Wrenn presents  the issue  on appeal  as concerning



            interpretation of  the phrase "offense or  offenses that were



            part of the  same course of  conduct or of  a common plan  or



            scheme" in  subsection (f)(5),  and contends that  the phrase



            refers only to offenses charged in the indictment, as opposed



            to all criminal activity in which the defendant engaged.  But


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there  is,  as the  government  urges, a  threshold  issue of



            whether  "the  defendant  has  truthfully  provided   to  the
                                                       ________



            Government  all   information  and  evidence   the  defendant



            has. . . ."  18 U.S.C.   3553(f)(5) (emphasis added).  Review



            of this issue of statutory interpretation is plenary.  United
                                                                   ______



            States  v. Holmquist, 36 F.3d 154, 158 (1st Cir. 1994), cert.
            ______     _________                                    _____



            denied, 115 S. Ct. 1797 (1995).
            ______



                      Wrenn   argues   that   he   has   "provided"  such



            information, albeit inadvertently, in his taped conversations



            setting up the  drug deal.   He argues  additionally that  in



            admitting to  the facts  presented by the  government in  the



            guilty  plea   hearing,  he  again  fulfilled  the  statute's



            requirements.  To make  him sit down with the  government and



            say again what he has twice  said before would, he argues, be



            nonsensical.   But the interpretation Wrenn  urges would lead



            to  absurd consequences.    Surely, Congress  could not  have



            intended that the very commission  of a criminal offense,  if



            recorded  by a  government agent,  would protect  a defendant



            from  the  mandatory minimum  sentence for  that crime.   Nor



            could  Congress have  intended that  entry  of a  guilty plea



            would  provide such  protection.   As the  Supreme Court  has



            said, "We need  not leave  our common sense  at the  doorstep



            when we interpret  a statute."  Price  Waterhouse v. Hopkins,
                                            _________________    _______



            490 U.S. 228, 241 (1989).


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Whatever   the  scope   of  the   "information  and



            evidence"  that a defendant must provide to take advantage of



            section 3553(f)(5),  we   hold  that  a   defendant  has  not



            "provided" to the government such information and evidence if



            the sole manner in which  the claimed disclosure occurred was



            through  conversations   conducted  in  furtherance   of  the



            defendant's  criminal  conduct  which happened  to  be  tape-



            recorded by the government as part of its investigation.  Cf.
                                                                      ___



            United  States v. Rodriguez, 60 F.3d 193, 196 (5th Cir. 1995)
            ______________    _________



            (provision  of  information  to  probation  officer  is   not



            provision of  information to  the government for  purposes of



            section 3553(f)(5)).   Nor does it suffice  for the defendant



            to  accede to  the government's  allegations during  colloquy



            with  the court  at  the plea  hearing.   Section  3553(f)(5)



            contemplates  an  affirmative  act  of cooperation  with  the



            government no later  than the time of the sentencing hearing.



            Here, Wrenn did not cooperate,  as his counsel emphasized  to



            the  court at  the sentencing  hearing.   And when  the court



            offered to postpone sentencing so Wrenn  could make a proffer



            to  the government  for  purposes  of section 3553(f)(5),  he



            refused.



                      Even  taking  the defendant's  argument on  its own



            terms,  we reject  also  the factual  premise  from which  it



            proceeds.  Wrenn did  not provide the government with  all of
                                                                   ___



            the information and evidence he had concerning the very crime


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to which he pleaded guilty.  To give but one  example, in his



            taped conversations  he claimed  to have numbers  of reliable



            customers to whom he supplied cocaine, but he supplied nary a



            name to the government.



                      Finally, the government urges us to decide here the



            scope  of the phrase "offense  or offenses that  were part of



            the same course of  conduct or of  a common scheme or  plan."



            18  U.S.C.    3553(f)(5).     We  note  that  the  Sentencing



            Commission  amended the  Guidelines to  conform with  the Act



            after  sentence  was  imposed in  this  case.   See  U.S.S.G.
                                                            ___



              5C1.2 (Nov. 1994).   Application note 3 to    5C1.2 defines



            the phrase highlighted by the government to mean "the offense



            of conviction  and all relevant conduct."   U.S.S.G.   5C1.2,



            comment.  (n.3).   Apart  from  making  this observation,  we



            decline the government's invitation, believing  the matter is



            better  left to  a  case where  a  fuller resolution  of  the



            question is necessary.



                      The sentence is affirmed.
                                      ________


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