U.S. v. Schaefer, s. 95-2836
| Decision Date | 03 March 1997 |
| Docket Number | 96-1319,Nos. 95-2836,s. 95-2836 |
| Citation | 107 F.3d 1280 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John R. SCHAEFER and Charles A. Schaefer, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Michael C. Carr, Amanda A. Robertson, Office of the United States Attorney, Benton, IL, Thomas Leggans (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee in No. 95-2836.
Amanda A. Robertson, Office of the United States Attorney, Benton, IL, Thomas Leggans (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee in No. 96-1319.
Nancy Schaefer, Schaefer, Rosenwein & Fleming, Chicago, IL, Scott Kamin, Chicago, IL, for Defendant-Appellant in No. 95-2836.
Frederick J. Hess (argued), Lewis, Rice & Fingersh, L.C., Belleville, IL, for Defendant-Appellant in No. 96-1319.
Before POSNER, Chief Judge, COFFEY and KANNE, Circuit Judges.
John Schaefer and his brother Charles Schaefer were engaged in a conspiracy to distribute narcotics in southern Illinois. Both were arrested and charged with one count of conspiracy to distribute and possess with intent to distribute cocaine, and one count of conspiracy to distribute and possess with intent to distribute marijuana. See 21 U.S.C.A. §§ 841(a)(1), 846 (West 1981 & Supp.1996). John pled guilty to both counts, and was sentenced to 97 months' imprisonment, while his brother Charles pled guilty to the marijuana count, and was sentenced to 84 months of confinement. The government dropped the cocaine count. Both Schaefers appeal their sentences.
In January 1993, John Schaefer began to purchase marijuana and cocaine from John Tappe ("Tappe"). John had organized a conspiracy beginning on or around December 1992 to distribute this marijuana and cocaine throughout southern Illinois. Shortly thereafter, his brother Chuck Schaefer joined him. During the course of their drug dealings, Tappe supplied John with approximately 500 pounds of marijuana, and approximately 1 1/2 kilograms of cocaine. Much of the marijuana was stored in the woods near a "stash" house in a rural area, where Charles and Marty Boling, another member of the conspiracy, lived. Charles delivered most of the 500 pounds of marijuana acquired by John to the dealers John was supplying.
On March 23, 1993, John was arrested by Illinois State Police and charged with possession with intent to deliver marijuana. He was convicted by a jury, and sentenced to seven years' incarceration on the state charge. After John was imprisoned on the state charge, his brother Charles assumed John's position in the conspiracy, and began purchasing marijuana directly from Tappe. Shortly thereafter, Charles was arrested on two Illinois state narcotics charges, and sentenced to 30 months' imprisonment. At the time of his sentencing (February 2, 1996) on the federal charge at issue here, Charles was on release from prison on the Illinois state charges having served 11 months.
Prior to entering prison on the Illinois charges, Charles turned over approximately $18,400 in narcotics proceeds to Larry Burman ("Burman"), another member of the conspiracy. The bulk of this money (approximately $15,400) represented sales of drugs that had been "fronted" by Tappe to Charles. Charles directed Burman to deliver the money to Tappe in payment for the fronted narcotics.
John while in prison learned of the $18,400, and contacted James Meredith ("Meredith"), another dealer whose drug source was also Tappe. John asked Meredith to come to southern Illinois to pick up the $15,400 owed to Tappe. At this time, John, while in prison, also contacted Burman, and requested that Burman deliver the $15,400 to Meredith. Jenny Schaefer, wife of John, accompanied Meredith to meet Burman, and Burman ultimately gave the $15,400 to Meredith, and turned $1,000 over to Jenny Schaefer. In his instructions to Meredith, John also directed Meredith to reinvest the remaining $2,000 of the $18,400 into the drug operation to continue the conspiracy.
At his sentencing, John claimed that he directed these deliveries because, after he learned that Tappe had not been paid the $15,400, he was fearful that Tappe might retaliate against his family. The government asserted that it was John's intent to further the conspiracy by directing Meredith to use the extra money ($2,000) to purchase more narcotics. During a meeting between Meredith, then working for the government, and John, who was confined as a result of his state sentence, Meredith reported that John had, in addition to directing Meredith to use the extra money to purchase narcotics, also told him that he (John) knew of dealers other than Tappe should he find difficulty in finding supply sources. 1 The district judge concluded that the Sentencing Guidelines required that John's federal sentence run consecutive to his state sentence, since he had acted in furtherance of the conspiracy while confined by directing delivery of the $18,400 from Burman to Meredith, as well as ordering that $1,000 of the drug proceeds be turned over to his wife. Thus, the trial judge sentenced John Schaefer to an additional 97 months' imprisonment on the federal charge, to run consecutive to his state charge.
During his sentencing hearing, Charles Schaefer testified to his own involvement in the conspiracy and challenged the government's claim that he was involved in the purchase and distribution of over 100 kilograms of marijuana, stating that the total amount of marijuana with which he had been involved was about 131 pounds, well under 100 kilograms. 2 His testimony was contradicted by the testimony of FBI Agent Ron Bratcher, who testified that, based upon his interview with John Schaefer, John had told him that most of the 500 pounds of marijuana that he received from Tappe had been distributed by Charles.
As part of Charles' plea arrangement, the government agreed to and did recommend a three-level reduction in his criminal offense level because of his acceptance of responsibility. The district court disagreed and concluded that Charles had attempted to "minimize" his role in the conspiracy and had testified untruthfully. Based upon this finding, the district court refused to grant Charles any reduction for acceptance of responsibility, and imposed a sentence of 84 months' imprisonment. The district court also rejected Charles Schaefer's argument that he should receive credit for the 11 months he had previously served on the state narcotics charges. 3
On appeal, John Schaefer argues that his case should be remanded for resentencing because the district judge erroneously believed the Sentencing Guidelines gave him no discretion to order that his federal sentence run concurrent with his state sentence. Charles Schaefer argues that the district judge erred in not crediting him with his previously-served 11 month state sentence on related narcotics distribution charges toward the 84 month federal sentence he received. Charles also challenges the district court's refusal to grant him a three-level offense reduction for acceptance of responsibility.
Prior to John's sentencing, the government objected to a recommendation in the presentence report (PSR) that his sentence run concurrent with the state sentence he was then serving. The recommendation in the PSR was based on the fact that the state conviction and sentence had been imposed for the delivery of marijuana that was part and parcel of the same drug conspiracy for which he was being sentenced in the federal case. The PSR recommended concurrent sentencing under § 5G1.3(b) of the Guidelines, which provides that when a defendant is subject to an "undischarged term of imprisonment" for an offense that has "been fully taken into account in the determination of the offense level for the instant offense," the sentence for the instant offense is to run concurrent with the undischarged term of imprisonment.
The government objected to the PSR and argued that § 5G1.3(a) should apply. Subsection 5G1.3(a) provides that, where the instant offense "was committed while the defendant was serving a term of imprisonment," the sentence for the instant offense is to be served consecutive to the undischarged sentence. The government based its argument for the applicability of subsection (a) on the fact that John Schaefer, by calling Meredith and Burman from prison and directing Burman to deliver the $18,400 to Meredith, acted in furtherance of the conspiracy while he was in prison for the state narcotics conviction, and on the fact that subsection (b), by its terms, only applies "if subsection (a) does not apply." 4
The issue presented by the parties to the court was whether, for purposes of application of subsection (a), the fact that the state offense for which John Schaefer was serving his "undischarged term of imprisonment" when he "committed" the federal offense was related to the federal offense, precluded the applicability of subsection (a). In other words, the question before the district court was whether subsection (a) applied where the prior offense and the instant offense were related. The district court determined that, since nothing in subsection (a) stated that subsection (a) was inapplicable when the offenses were related, it applied notwithstanding the fact that the offenses were related.
More important for our purposes, the trial judge also articulated his belief that his discretion was limited by subsection (a) to the imposition of a consecutive sentence. John Schaefer has argued in his brief as well as at oral argument that the district court erroneously believed that the language in subsection (a) that the court "shall" order consecutive sentences meant that it had no discretion to order that his sentence be served...
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