Federal Circuits, 7th Cir. (September 21, 1993)
Docket number: 92-1014,92-1019
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David E. Risley (argued), Rodger A. Heaton, Asst. U.S. Atty., Office of the U.S. Atty., Springfield, IL, for plaintiff-appellee.
J. Steven Beckett, Beckett & Crewell, Urbana, IL (argued), for David B. DuPont.Ronald J. Stone, Stratton, Dobbs & Nardulli, Springfield, IL (argued), for John G. Pitz.Before COFFEY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.COFFEY, Circuit Judge.Defendants David DuPont and John Pitz were charged in a one-count indictment with conspiracy to distribute five or more kilograms of cocaine in violation of 21 U.S.C. Secs . 846, 841(a)(1), and 841(b)(1)(A). DuPont pled guilty to the charge. DuPont's written plea agreement recognized that the parties disputed the scope of the conspiracy for which the defendant was liable for sentencing purposes. Pitz, the other defendant, was later charged by information with conspiring to distribute 500 or more grams of cocaine in violation of 21 U.S.C. Secs . 846, 841(a)(1), and 841(b)(1)(B)(ii). Pitz pleaded guilty to the conspiracy charge in the information alleging distribution of 500 or more grams of cocaine in exchange for dismissal of the conspiracy charge alleging distribution of five or more kilograms of cocaine contained in the indictment.The defendants appeal from the district court's application of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") in arriving at their sentences. Specifically, both defendants allege that the sentencing court clearly erred in (1) calculating the respective drug amounts attributable to each defendant under U.S.S.G. Sec. 2D1.4; (2) concluding that the defendants obstructed justice under U.S.S.G. Sec. 3C1.1; and (3) finding that the defendants were not entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1. In addition, Pitz alleges that the district court clearly erred in denying him a two-level reduction under U.S.S.G. Sec. 3B1.2 for his allegedly minor role in the offense. We affirm.I. BACKGROUNDThe defendants' cocaine distribution conspiracy originated with the visit of Chicago drug dealer Louis Isirov to an old drug customer in Carbondale, Illinois, during the Fall of 1988. During his visit, Isirov met Bruce Adelmann. Adelmann asked Isirov if he would supply him with cocaine on a consignment basis, and Isirov agreed. Adelmann thus became the initial Southern Illinois source of cocaine to others in the distribution chain, which included fellow college students David DuPont and John Pitz, and David Karr, Michael Rebeck, James Strauser, and Joseph Segobiano, residents of Springfield, Illinois.Adelmann fronted cocaine to DuPont, who in turn fronted the drug to Karr. Karr testified at the sentencing hearing that he had purchased approximately twenty-five ounces of cocaine from DuPont between May and December of 1988. In late 1988, DuPont fronted Karr four ounces of cocaine on two occasions. In November of 1988, DuPont, his girlfriend, Karr, and Segobiano traveled to Fort Lauderdale, Florida, to attend a soccer game. During their sojourn, Karr renewed his erstwhile romance with DuPont's girlfriend. Shortly thereafter, DuPont and Karr returned to Carbondale and at this time Karr unsuccessfully attempted to buy a quarter pound of cocaine from DuPont. DuPont allegedly refused to conduct the transaction because the deal was alarmingly large and DuPont was upset at Karr's romantic usurpation.Karr responded to DuPont's rebuff by bypassing DuPont in the distribution chain and began to purchase cocaine directly from Adelmann. Karr testified that he had to buy directly from Adelmann because Adelmann refused to supply cocaine to DuPont due to an outstanding drug debt. Karr stated that he wrote Adelmann a check for $1,200 to pay DuPont's drug debt and reopen the cocaine supply line. From December of 1988 to November of 1989, Karr purchased approximately seventy ounces of coke from Adelmann. DuPont then began to buy cocaine from Karr. In essence, Karr and DuPont switched places in the distribution chain.In November of 1989, Karr decided to bypass Adelmann in the distribution chain and began to buy his cocaine directly from Isirov in Chicago. During this same time period, Pitz and DuPont formed a partnership and distributed the cocaine purchased from Karr. Karr testified that he sold Pitz at least twenty-four ounces of cocaine that Pitz in turn distributed to Rebeck and others. Pitz testified that the Pitz-DuPont partnership purchased only four ounces of cocaine from Karr for redistribution to others. Pitz testified that the partnership had received one ounce of cocaine the week prior to Christmas 1989, one ounce the week of Christmas 1989, and two ounces on New Year's Eve of 1989. Two and one-half of the four ounces were distributed to Rebeck, three-fourths of an ounce were sold to others, and the remainder was kept for Pitz's and DuPont's personal use.After Karr was arrested, his cooperation with law enforcement officials led to Isirov's apprehension during a 1.7 kilogram cocaine transaction, as well as the arrest of Pitz and DuPont. Prior to the defendants' arrests, the conspiracy had distributed some 13.4 kilograms of cocaine. The probation office conducted a presentence investigation and concluded that under the Guidelines DuPont was responsible for distribution of 13.4 kilograms and Pitz was responsible for distribution of twenty-four ounces of cocaine.The defendants' sentencing hearings were held on November 8, 1991, and December 16, 1991, respectively. Prior to the initial sentencing hearing, defense counsel and the government had filed written objections to DuPont's and Pitz's presentence investigation reports (PSR's). DuPont and Pitz objected to the amounts of drugs individually attributed to each of them in their respective PSR's. DuPont maintained that he was responsible for less than five kilograms and Pitz alleged that he was only responsible for four ounces. Pitz also objected to the probation office's refusal to recommend a two- or four-level reduction for his minor or minimal role in the offense. DuPont asserted that he should receive a two-level reduction for being a minor participant in the conspiracy. The government joined in DuPont's claim that he was a minor participant, and filed an objection stating that DuPont was entitled to a two-level reduction in his offense level pursuant to U.S.S.G. Sec. 3B1.2(b).The district court agreed with DuPont's and the government's argument that DuPont played a minor role in the offense. The court thus gave DuPont a two-level reduction of his base offense level under U.S.S.G. Sec. 3B1.2(b) for his role as a minor participant in the offense. The court overruled all of the defendants' remaining objections to the PSR's. The district court also found that the defendants had perjured themselves during their sentencing hearings when testifying that they had distributed much smaller quantities of cocaine than was attributed to them in their PSR's. Accordingly, each defendant's base offense level was increased two levels pursuant to U.S.S.G. Sec. 3C1.1 for obstruction of justice. The court adopted the findings of the PSR and determined that based upon Pitz's adjusted offense level of 30 and his criminal history category of I, the Guideline range was 97 to 121 months imprisonment. Cross-referencing DuPont's adjusted offense level of 32 with his criminal history category of II yielded a sentencing range of 135 to 168 months imprisonment. The sentencing court granted the defendants' request that each of them receive the minimum sentence allowable. The court sentenced Pitz to 97 months of confinement, while sentencing DuPont to 135 months imprisonment.II. DISCUSSIONA. Calculation of the Drug AmountOn appeal, Pitz and DuPont argue that the district court erred in calculating the amount of cocaine attributable to them under the Guidelines. The sentencing court determines the quantity of drugs involved in an offense by a preponderance of evidence. United States v. Hughes, 970 F.2d 227, 237 (7th Cir.1992); United States v. Banks, 964 F.2d 687, 692 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 460, 121 L.Ed.2d 377 (1992). We review the sentencing court's factual determination of the amount of drugs involved in a conspiracy for clear error. United States v. Goines, 988 F.2d 750, 775 (7th Cir.1993); United States v. Campbell, 985 F.2d 341, 346 (7th Cir.1993) (citing United States v. Cochran, 955 F.2d 1116, 1124 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 470, 121 L.Ed.2d 368 (1992)). Each conspirator is responsible for the amount of cocaine he actually distributed as well as the amount involved reasonably foreseeable to him.1 Goines, 988 F.2d at 775; see also United States v. Tolson, 988 F.2d 1494, 1502 (7th Cir.1993). We defer to the sentencing court's credibility determinations because the presiding judge while listening to the witnesses' testimony is in the best position to observe, weigh, and evaluate a witness' verbal as well as nonverbal behavior. Tolson, 988 F.2d at 1497 (quoting Churchill v. Waters, 977 F.2d 1114, 1124 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2991, 125 L.Ed.2d 686 (1993)).1. Quantity Attributable to PitzFive witnesses testified as to the quantity of drugs attributable to Pitz at his sentencing hearing: Karr, Randy Mustread, Bruce Harmening, Bob Rutter, and Pitz. Karr testified that he had distributed a total of at least twenty-four ounces of cocaine to Pitz during thirty-five to forty transactions. Karr also testified that Pitz and Rutter had delivered sixty ounces of cocaine from Strauser's apartment to Karr's home. The court determined that Karr was the most credible witness concerning the amount of drugs attributable to Pitz.Pitz argues that the district court should have relied on his testimony rather than that of Karr. During his sentencing hearing, Pitz denied that he transported sixty kilograms, and alleged that he had only received a total of four ounces from Karr. Pitz also maintains that Rutter, who testified on Pitz's behalf, undermined Karr's testimony concerning the sixty-ounce transport when Rutter stated that he was unable to recall such a delivery. We are forced to disagree with Pitz's interpretation of Rutter's testimony, for he merely testified that he was high on drugs when he drove to Karr's home with Pitz and thus he was unable to recall whether he and Pitz transported sixty ounces of cocaine. Rutter did contradict Pitz's claim that he had distributed only four ounces of cocaine. When asked to describe Pitz's drug dealing, Rutter stated that Pitz had purchased cocaine from Karr in amounts of one-eighth of an ounce to an ounce over the course of a year and further that Pitz supplied four or five of his friends with cocaine during this same period of time. This allegation corroborated Karr's testimony that Pitz's drug dealing activities were not modest and that Karr had supplied him with well over four ounces of cocaine.Mustread, a cellmate of Pitz's, testified that Pitz had told him that he and DuPont were going to allege that they were only responsible for four ounces of cocaine when they were actually responsible for two kilograms. Deputy Marshall Harmening testified that all of Mustread's other statements as an informant concerning other criminal defendants had proven to be reliable. On cross-examination Pitz elicited concessions from Mustread that he not only had a substantial criminal history, that he had violated jail regulations, and further that he could benefit under Rule 35 for his assistance to the government by testifying about Pitz's incriminating statements. These concessions certainly fall short of precluding the trial court from deeming Mustread a more credible witness than Pitz.We have frequently held that the trial judge is in the best position to judge the credibility of witnesses who offer conflicting testimony concerning the quantity of drugs attributable to a defendant for purposes of sentencing. See United States v. Yanez, 985 F.2d 371, 378 (7th Cir.1993); United States v. Villasenor, 977 F.2d 331, 336 (7th Cir.1992); United States v. Osborne, 931 F.2d 1139, 1154 (7th Cir.1991). We are of the opinion that the sentencing court did not commit error in determining that Pitz was responsible for distribution of eighty-four ounces of cocaine.2. Quantity Attributable to DuPontFive witnesses testified as to the amount of cocaine attributable to DuPont. Karr testified that between May and December of 1988 he purchased approximately twenty-five ounces of cocaine from DuPont. Karr also testified that after he had bypassed DuPont as his drug source, DuPont and Pitz became lower-level distributors in the conspiracy. Karr revealed that on approximately thirty-five to forty occasions from February 1989 to February 1990 he had provided the Pitz-DuPont partnership with at least twenty-four ounces of cocaine.DuPont disputed Karr's characterization of his extensive and continual involvement in the conspiracy. DuPont testified that in 1988 he had only distributed six to twelve ounces of cocaine to Karr during approximately eight transactions, and that none of his transactions exceeded two ounces. Furthermore, DuPont maintained that he had withdrawn from the conspiracy after Karr became romantically involved with DuPont's girlfriend and attempted to buy a quarter pound of cocaine from DuPont in Carbondale. DuPont alleged that his and Pitz's 1989 cocaine purchases only totaled four ounces, virtually all of which was sold to one customer--Rebeck. DuPont also conceded that he was aware that Pitz made small cocaine purchases from Karr for his personal use. In sum, DuPont alleged that he was only responsible for purchases of but twelve to twenty ounces from his 1988 deals with Karr, and four to six ounces for the 1989 purchases.Joseph Segobiano, a co-conspirator who assisted Karr in distributing cocaine to the Pitz-DuPont partnership and other customers, contradicted DuPont's allegation that he had never distributed cocaine to Karr in 1988 in amounts greater than two ounces. Segobiano testified that he had accompanied Karr to Carbondale on three occasions to purchase cocaine from DuPont in 1988. Segobiano observed the cocaine being weighed in the first two transactions, and testified that each sale involved four ounces of cocaine. Segobiano did not observe the weighing in the third transaction, but stated that he believed that the third deal also involved four ounces of cocaine. Segobiano further testified that during the term of the Pitz-DuPont partnership, Karr used Pitz as a debt collector for money that Segobiano owed Karr.Special Agent John Schaefer of the Drug Enforcement Agency testified about a phone conversation that he had with Bruce Adelmann concerning with the quantity of cocaine that Adelmann had made available to DuPont in Carbondale. Adelmann informed Agent Schaefer that he had distributed between fourteen to twenty-three ounces of cocaine to DuPont. Adelmann could only recall the specifics of twelve of those transactions, which totaled sixteen ounces. Adelmann also stated that while he was in jail with DuPont, DuPont attempted to convince him that the amount of cocaine involved in the transactions was less than 500 grams. Had the district court concluded that DuPont was only responsible for less than 500 grams of cocaine, DuPont would have faced a mandatory minimum sentence of five years (60 months) rather than the minimum of 135 months under the Guidelines up to a maximum of 168 months.Michael Rebeck, who worked at a Springfield health club with DuPont, testified that he had purchased one-eighth ounce quantities of cocaine from DuPont two or three times a month over a period of several months beginning approximately in January of 1990. Rebeck further testified that he had purchased cocaine from DuPont's partner, Pitz, on a few occasions when DuPont was unable to make delivery of the drugs to his house. Rebeck stated that he also bought a quarter ounce of cocaine from Karr on one occasion when Karr visited the health club. Rebeck's testimony conflicted with Karr's claim that he had sold Rebeck four ounces of cocaine, but Rebeck also disputed DuPont's allegation that he was not purchasing cocaine from Karr through Pitz.As we noted in United States v. Edwards, 945 F.2d 1387, 1399 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1590, 118 L.Ed.2d 308 (1992), "[b]efore concluding that a given quantity of drugs was foreseeable for sentencing purposes, the district judge should make clear that he has considered the evidence of the individual defendant's agreement to join a conspiracy of the scope alleged by the government." See also Tolson, 988 F.2d at 1502-03; Goines, 988 F.2d at 775. The trial court did not commit clear error in finding Karr's version of DuPont's involvement in the conspiracy to be credible. DuPont was indisputably involved in the conspiracy from its inception and remained an active participant throughout its existence.The evidence presented at the sentencing hearing failed to support DuPont's claim that he withdrew from the conspiracy after he and Karr had a disagreement concerning the size of the cocaine transactions. DuPont alleged that he withdrew from the conspiracy in December of 1988 when he objected to the increasing size of Karr's drug purchases and had a dispute with Karr concerning Karr's romance with DuPont's girlfriend. Karr disputed DuPont's characterization of the change in their relationship. Karr testified that DuPont did not withdraw from the conspiracy in December of 1988; rather, DuPont simply changed roles in the criminal organization and bought drugs from Karr instead of selling cocaine to him. In United States v. Patel, 879 F.2d 292, 294 (7th Cir.1989), cert. denied,Try vLex for FREE for 3 days
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