U.S. v. Windham

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 10, 1993
• Docket: 92-8479
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 92-8479 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HAROLD WAYNE WINDHAM,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas W 91 CR 101 4 _________________________________________________________________ May 7, 1993

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Appellant Harold Wayne Windham was sentenced to 130

months imprisonment and other punishment after he pled guilty to

one count of possession of amphetamine. On appeal, he challenges

three facets of the district court's sentencing decision. We have

reviewed each of them and find no reversible error.

Windham first contends that the district court erred in

sentencing him based on relevant conduct that consisted of

distribution of amphetamine in quantities ranging from 500 to 2,000

grams. He argues that the PSR and testimony at his sentencing

hearing were "confused and overlapping" in regard to the quantity of drugs with which he had been associated. He particularly

challenges the statements that confidential informant #21 was

reported to have made, linking him to a number of multiple-ounce

deliveries to Judy Copeland Jones in the fall, 1991. He asserts

that confidential informant #21 was not credible, because the

district court discounted his statement that on one occasion,

Windham possessed a firearm in a briefcase.

The quantity of drugs attributable to a defendant in

connection with sentencing is shielded by the clearly erroneous

standard on review. As Windham's brief acknowledges, the court was

entitled to consider any sentencing information so long as it had

"sufficient indicia of reliability to support its probable

accuracy." United States v. Michael, 894 F.2d 1457, 1461-62 (5th

Cir. 1990). In this case, the investigating officer testified that

several confidential informants with good histories of reliability

had linked Windham and his common-law wife Lynn Waller Rogers to

purchases of multi-ounce quantities of speed from co-defendant

Royals and regular distributions to Greg Schrader, Sam Reyes and

Judy Copeland Jones in various ounce quantities. Rogers and

Windham lived together, and two searches of their apartment

conducted by the police on separate occasions confirmed their

cohabitation and the presence of drug-related paraphernalia that

was open and obvious. In challenging the credibility of

confidential informant #21 because of the district court's

rejection of an enhancement for possession of a gun, Windham

overlooks a salient fact. The district court rejected the gun

2 enhancement because this passing reference was not fixed in time,

was apparently a couple of years old, and was not corroborated by

any other statements in the PSR. The district court's choice not

to credit the gun enhancement statements but to otherwise credit

the information provided by confidential informant #21 was not

clearly erroneous. In short, sufficient indicia of reliability

accompanied the district court's finding of the quantity of drugs

with which Windham had been associated.

Windham next contends that the court erred by refusing to

grant a two-level reduction in his base offense level for being a

"minor participant." As this court has said, because most offenses

are committed by participants of roughly equal culpability, "it is

intended that [this type of adjustment] will be used infrequently."

United States v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir.

1989). The district court's finding of participant status enjoys

the protection of the clearly erroneous rule. United States v.

Hewin, 877 F.2d 3, 4 (5th Cir. 1989). Windham's attempt to portray

himself as a less culpable participant in distributing amphetamine

than his common law wife is unpersuasive. The PSR characterized

them as partners in distribution. It would have taken much

stronger evidence and argument than Windham has presented to

persuade us that although he lived with Rogers throughout the

period of the investigation in an apartment where drug-dealing was

obvious, and although he was identified as Rogers' distributor, he

is somehow less culpable than she. The district court was not

clearly erroneous.

3 Windham finally objects to the district court's refusal

to grant him a two-level reduction for acceptance of

responsibility. Although he admitted possession of 9/10ths of a

gram of amphetamine on the date on which he was arrested, he

refused to comment on or take responsibility for previous dealings

in drugs. Under the Sentencing Guidelines interpretation then

applicable in this court, Windham was required to accept

responsibility not only for the offense of conviction but for all

his "relevant criminal conduct." United States v. Alfaro, 919 F.2d

962, 968 (5th Cir. 1990). The Sentencing Guideline has been

amended in the way that Windham advocates, but that amendment did

not become effective until November 1, 1992, well after Windham's

offense, prosecution, guilty plea and sentencing. U.S.S.G. § 3E1.1

note 1(a). Although a split in the circuits concerning

interpretation of the acceptance of responsibility guideline

prompted this amendment, we are bound by our prior circuit

precedent, and we see no reason to revisit this issue en banc.

Further, we agree with the holding, if not all of the reasoning of

our brethren on the Second Circuit that guidelines changes ought

not generally be applied to cases in which the defendant was

sentenced by the district court before the amendment took effect.

United States v. Colon, 961 F.2d 41 (2d Cir. 1992).

The sentencing determination of the district court is

AFFIRMED.