Federal Circuits, 7th Cir. (May 07, 1990)
Docket number: 88-3257
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Mel S. Johnson, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.
Thomas M. Croke, Brookfield, Wis., for Willie L. Franklin.Thomas G. Halloran, Milwaukee, Wis., for Jerome Mann.John S. Schiro, Milwaukee, Wis., for Willie R. Anderson.Charles W. Giesen, Morris Berman, Giesen & Berman, Madison, Wis., for Andrea Y. Mann.Before CUMMINGS, COFFEY, and KANNE, Circuit Judges.KANNE, Circuit Judge.The May 1988 Grand Jury returned a seventeen count indictment against Willie Franklin, Jerome Mann, Willie Anderson, and Andrea Mann. The indictment charged one count of conspiracy to distribute cocaine, one count of conspiracy to launder currency, three cocaine distribution counts, four counts of possessing cocaine with intent to distribute, eight money laundering counts, and a series of forfeiture allegations. Each defendant eventually pleaded guilty to some of the counts he or she faced. After preparation of pre-sentence reports, the defendants were sentenced pursuant to the United States Sentencing Commission Guidelines (the "Guidelines"). Each defendant challenges the application of the Guidelines in his or her individual case. In addition, Willie Anderson contends that he was denied his right of allocution at his sentencing hearing. There are no common issues on appeal regarding these four defendants. Thus, we will separately consider the relevant facts and issues as they relate to each. For the reasons discussed below, we affirm the sentence of each defendant.Willie FranklinWillie Franklin was charged in six of the seventeen counts of the indictment. He pleaded guilty to one count of money laundering, in violation of 18 U.S.C. Sec . 1956(a)(1) and (2), and to three counts of possessing cocaine with intent to distribute, in violation of 21 U.S.C. Sec . 841(a)(1). The government dismissed the remaining two counts against Franklin in exchange for his guilty pleas. At the sentencing hearing, the district judge determined that Franklin's total offense level was 30 and that his Criminal History Category was II. Under those calculations, the applicable Guidelines sentencing range was 108 to 135 months. The judge concluded, however, that an upward departure from the Guideline range was warranted and sentenced Franklin to 148 months on each count, each to run concurrently with the others. The judge based the upward departure on the ground that Franklin continued to deal in cocaine while out on bond for the cocaine charge in this case.On appeal, Franklin does not contend the district judge relied on an improper ground to justify the upward departure. Rather, Franklin argues that his sentence, including the upward departure, is improper solely because the judge erred in computing the starting point for the departure, that is, Franklin's Guideline sentencing range. Specifically, Franklin argues that the judge erred in assigning him a total offense level of 30.The base offense level assigned to the offense of possessing cocaine with intent to distribute depends on the quantity of cocaine involved in the offense. Franklin's three counts of conviction for possessing cocaine with intent to distribute involved 98 grams of cocaine. Under Guideline Sec. 2D1.1(a)(3), possession of 50-99 grams of cocaine with intent to distribute translates into an offense level of 16. The district judge, however, did not calculate Franklin's offense level on the basis of the 98 grams of cocaine involved in Franklin's three counts of conviction. Rather, the judge calculated Franklin's offense level on the basis of the entire quantity of cocaine involved in all of the offenses alleged in the seventeen count indictment (4,106 grams). Based on the 4,106 grams of cocaine involved in the entire conspiracy, Franklin's three cocaine convictions translate into a total offense level of 30 under Sec. 2D1.1(a)(3).Franklin contends that the district judge erred in calculating his offense level on the basis of the total quantity of drugs in the seventeen count indictment rather than the amount of drugs involved in the three counts to which Franklin pleaded guilty. This court has previously considered and rejected this same argument. In United States v. White, 888 F.2d 490 (7th Cir.1989), we joined the Fourth, Fifth, Sixth, Eighth, and Eleventh Circuits in holding that in order to determine the offense level for a drug offense, Secs. 1B1.3(a)(2) and 3D1.2(d) of the Guidelines allow a court to aggregate the amounts of drugs from any acts that "were part of the same course of conduct or common scheme or plan as the offense of conviction" whether or not the defendant was charged or convicted of possessing or distributing these additional amounts. See White, 888 F.2d at 496-97 (interpreting Guidelines Secs. 1B1.3(a)(2) and 3D1.2); United States v. Ykema, 887 F.2d 697 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990); United States v. Allen, 886 F.2d 143 (8th Cir.1989); United States v. Williams, 880 F.2d 804 (4th Cir.1989); United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989); United States v. Taplette, 872 F.2d 101 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989). Since White, we have reaffirmed this principle in United States v. Salva, 894 F.2d 225, 230 (7th Cir.1990) and United States v. Voprail, 891 F.2d 155, 157 (7th Cir.1989).Franklin does not challenge the district court's finding that the other counts in the indictment are in fact "part of the same course of conduct or common scheme or plan" as the counts to which he pleaded guilty. Nor does Franklin contest the finding that the entire scheme involved 4,106 grams of cocaine. Since we see no reason to doubt those findings, the district judge correctly assigned Franklin an offense level of 30 on the basis of the entire 4,106 grams of cocaine involved in the seventeen count indictment.Jerome MannJerome Mann was charged in eleven of the seventeen counts of indictment. He pleaded guilty to four of those eleven counts--conspiracy to distribute cocaine in violation of 21 U.S.C. Sec . 846; conspiracy to launder currency in violation of 18 U.S.C. Sec . 371; money laundering in violation of 18 U.S.C. Sec . 1956(a)(1) and (2); and possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec . 841(a)(1). As part of the plea agreement, Mann also agreed to forfeit any interest he might have in any property alleged to be forfeitable to the United States in this case. In exchange for his pleas, the government dismissed the remaining seven counts against Mann.At the sentencing hearing, the district judge determined that Mann's total offense level was 33 and that his Criminal History Category was I. Under those calculations, the applicable Guidelines sentencing range was 135 to 168 months. The judge concluded, however, that an upward departure from the Guidelines was warranted because Mann became involved in a cocaine offense while out on bond for the cocaine offenses he was charged with in this case. On that basis, the judge sentenced Mann to 186 months in prison. Mann appeals the district court's computation of his total offense level and the upward departure from the Guideline range.Mann makes only one contention with regard to his offense level. Mann argues that the district judge erred because he declined to adopt the probation officer's recommendation to reduce Mann's offense level by two points for acceptance of responsibility. Guideline Sec. 3E1.1(a) provides that "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for the offense of conviction, reduce the offense level by 2 levels." That Guideline also states that while a guilty plea may provide some evidence of a defendant's acceptance of responsibility, the plea by itself does not entitle the defendant to a two point reduction. Guidelines Sec. 3E1.1(c) and Application Note 3. Mann concedes that his guilty plea alone does not require a finding of acceptance of responsibility. He argues, however, that his plea taken in addition to parts (c) and (e) of Application Note 1 to Sec. 3E1.1 illustrate that a two point reduction is appropriate in his case. Application Note 1 states that in determining whether a defendant qualifies for an acceptance of responsibility adjustment, a judge may consider: (c) "[v]oluntary and truthful admission to authorities of involvement in the offense and related conduct" and (e) "[v]oluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense." Mann argues that he was entitled to a two point reduction under part (c) because he made a truthful and complete statement to his probation officer admitting in detail his involvement in the charged offenses and in conduct not known to the government. In addition, Mann argues he is entitled to a reduction under part (e) because his agreement not to contest any interest he had in property alleged to be forfeitable assisted authorities in recovering the fruits and instrumentalities of the offense.Whether Mann accepted responsibility within the meaning of Sec. 3E1.1 is essentially a question of fact for the district court to resolve. United States v. Jordan, 890 F.2d 968, 972 (7th Cir.1989); United States v. White, 875 F.2d 427, 431 (4th Cir.1989). We will uphold a district court's factual findings in determining a sentence unless they are clearly erroneous. 18 U.S.C. Sec . 3742(e); Jordan, 890 F.2d at 972. Specifically, the commentary to Sec. 3E1.1 states that "[t]he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation." Application Note 5. The district judge found that Mann's acceptance of responsibility was untimely. Application Note 1(g) to Sec. 3E1.1 states that in determining whether a defendant qualifies for a two point reduction, a sentencing judge may appropriately consider "[t]he timeliness of the defendant's conduct in manifesting the acceptance of responsibility." The judge reasoned that Mann was not entitled to a two point reduction because he manifested acceptance of responsibility only after he was charged, pleaded guilty, and the government accumulated proof against him. The judge distinguished Mann from a defendant who comes in before charging, confesses his involvement in a crime, and voluntarily terminates that involvement.As trial approaches, a large majority of criminal defendants ultimately plead guilty and admit to their role in the charged offense in order to potentially help their disposition. We cannot say that the district judge had no foundation on which to conclude that Mann's guilty plea and truthful admissions arose more from Mann's practical concern to lessen his punishment than from any true remorse for his crimes. The same rationale applies to recovery of the fruits and instrumentalities of the crime at issue here. Mann did not voluntarily decide to turn over the money and automobiles subject to forfeiture in this case. The property was already seized and in the possession of the United States. In addition, the evidence strongly suggests that Mann had little or no chance to avoid forfeiture of his interest anyway. In short, it appears that Mann's agreement not to contest forfeiture was motivated more by Mann's concern to improve his potential disposition than by true remorse.Finally, and perhaps most importantly, the district judge found that Mann was not entitled to a two point reduction for acceptance of responsibility because Mann continued to deal in cocaine while out on bond in this case. While on bond, Mann was arrested and found to be carrying six packets of cocaine. In United States v. Jordan, we held that a district court properly declined to award a defendant a two point reduction for acceptance of responsibility because the defendant continued to pursue drug trafficking while he was free on bond waiting to be sentenced for a drug trafficking conviction. 890 F.2d at 974. The same reasoning applies here where Mann continued to deal in cocaine after he was charged but before he pleaded guilty and was sentenced. Mann's conduct while out on bond is opposite the type of conduct expected from someone who was truly remorseful about his crimes.Mann also contests the district court's upward departure from the Guidelines sentencing range. We review departures to determine whether the grounds relied on for departure were proper and whether the degree of departure was reasonable. United States v. Schmude, 901 F.2d 555, 558-59 (7th Cir.1990); Jordan, 890 F.2d at 974, 977. The district judge based the departure on the ground that Mann became involved in a cocaine incident while out on bond for the cocaine charges in this case. This was a proper ground on which to depart. Guideline Sec. 4A1.3 provides that a departure is permissible where "reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes....[s]uch information may include, but is not limited to, information concerning: (e) prior similar adult criminal conduct not resulting in a criminal conviction." In Jordan, we reasoned that a defendant's Criminal History Category did not adequately account for the possibility that the defendant would commit future offenses when the defendant continued to deal in cocaine while waiting to be sentenced for a cocaine conviction. 890 F.2d at 976-77. Here, as in Jordan, the district judge properly concluded that Mann's cocaine offense while out on bond for cocaine charges clearly indicates a potential to commit future crimes not accounted for in Mann's Criminal History Category.The degree of departure was also reasonable. The judge departed from a Guideline range of 135-168 months to a sentence of 186 months. Mann's Criminal History Category was I. The sentence Mann received was within a Guideline range that would have applied if Mann's Criminal History Category was II. When departing on the basis of inadequate Criminal History Category, a sentencing judge has broad discretion to determine what Criminal History Category most accurately reflects a defendant's actual criminal history. It was well within the discretion of the district judge to conclude that Mann's cocaine offense while out on bond for cocaine charges indicated that Mann's criminal history and propensity to commit future offenses resembled that of a Category II defendant rather than a Category I defendant.Willie AndersonWillie Anderson was charged in three of the seventeen counts of indictment. He pleaded guilty to one count of distributing cocaine in violation of 21 U.S.C. Sec . 841(a)(1). The government dismissed the remaining two counts against Anderson in exchange for his plea. At the sentencing hearing, the district judge determined that Anderson's total offense level was 10 and that his Criminal History Category was IV. Under those calculations, the Guidelines sentencing range was 15 to 21 months. The judge concluded, however, that an upward departure from the Guidelines was warranted and sentenced Anderson to 32 months imprisonment. Anderson makes two challenges to his sentence. First, he contends that the district judge violated Federal Rule of Criminal Procedure 32(a)(1)(C) because the judge failed to personally address Anderson and ask him whether he wished to make a statement on his own behalf in mitigation of sentence. Second, Anderson contends that the court erred in departing upward from the Guidelines sentencing range.Rule 32 of the Federal Rules of Criminal Procedure codifies the common law right of allocution--the defendant's right to personally speak before imposition of his sentence and to present any information in mitigation of punishment. Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961). In Green, the Supreme Court rejected the argument that merely affording defense counsel the opportunity to speak fulfills the role of Rule 32. The Court held that a sentencing judge must afford the opportunity personally to the defendant to speak on his own behalf. Id. at 304, 81 S.Ct. at 655. In 1966, Rule 32(a)(1) was amended to expressly incorporate the holding of Green. See Fed.R.Crim.P. 32, Notes of Advisory Committee on Rules; United States v. Coffey, 871 F.2d 39, 40 n. 2 (6th Cir.1989). Today, Rule 32(a)(1)(C) states that prior to sentencing, a court must "address the defendant personally and ask the defendant if the defendant wishes to make a statement in the defendant's own behalf and to present any information in mitigation of punishment."Prior to sentencing Anderson, the district judge asked: "All right. Mr. Rose (Anderson's attorney) and Mr. Anderson, do either or both of you have any statement that you want to make in mitigation of sentence that the court ought to consider in determining the appropriate sentence in this case?" Anderson's counsel made a presentation to the court and argued for a sentence in the lower range of the Guidelines. The court then asked Anderson's counsel to comment on a couple of concerns the court had. After Anderson's counsel addressed those concerns, the court addressed counsel for the government. Finally, the judge asked, "All right. Is there anything you want to state further, Mr. Rose?" Anderson's counsel added nothing further and the court proceeded to sentence Anderson.The record clearly indicates that the district judge addressed Anderson by name and asked Anderson if he had anything to say in mitigation of his sentence. Thus, this case differs from those in which a remand for resentencing was necessary because the judge did not address the defendant by name, see United States v. Van Drunen, 501 F.2d 1393, 1399 (7th Cir.), cert. denied,Try vLex for FREE for 3 days
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