127 F.3d 725 (8th Cir. 1997), 97-1441, United States v. Wong

Docket Nº:97-1441WM.
Citation:127 F.3d 725
Party Name:UNITED STATES of America, Appellant, v. Bing WONG, also known as Randy Shaw, also known as James Benson, also known as Mark Johnson; Peter L. Moore; and William Andre Mitchell, Appellees.
Case Date:October 14, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
FREE EXCERPT

Page 725

127 F.3d 725 (8th Cir. 1997)

UNITED STATES of America, Appellant,

v.

Bing WONG, also known as Randy Shaw, also known as James

Benson, also known as Mark Johnson; Peter L.

Moore; and William Andre Mitchell, Appellees.

No. 97-1441WM.

United States Court of Appeals, Eighth Circuit

October 14, 1997

Submitted Sept. 8, 1997.

Page 726

D. Michael Green, Kansas City, MO, argued (Stephen L. Hill, Jr., on the brief), for appellant.

Glenn E. Bradford, Kansas City, MO (Edward F. Walsh, IV, Kansas City, MO, on the brief), for appellees.

Before RICHARD S. ARNOLD, Chief Judge, HEANEY and BEAM, Circuit Judges.

RICHARD S. ARNOLD, Chief Judge.

In this case the Government appeals the sentences imposed on three defendants following guilty pleas for drug-related crimes. We reverse the sentences imposed by the District Court and remand the case for resentencing. The reasons given by the District Court for departing below the Guidelines--for example, that the cost of imprisonment for long periods of time is too high--are insufficient in law.

I.

Bing Wong, Peter L. Moore, and William A. Mitchell were named with six other codefendants in a ten-count indictment returned on April 11, 1995, charging them with violations of federal narcotics laws. In November 1995, Wong, Moore, and Mitchell each pleaded guilty to Count Two of the indictment, which charged a conspiracy to distribute cocaine and cocaine base ("crack") in violation of 21 U.S.C. § 846 (1994).

The Government and Wong agreed that Wong's base offense level under the federal Sentencing Guidelines, based upon the amount of "crack" cocaine involved, would be Level 38, with a four-level enhancement added under U.S.S.G. § 3B1.1 because Wong was the leader of a criminal organization comprised of five people or more. See

Page 727

U.S.S.G. § 3B1.1(a). Wong and the Government also agreed that Wong would receive a three-level downward adjustment for acceptance of responsibility, bringing his final offense level to 39. The Government and Moore agreed that Moore's offense level under the Sentencing Guidelines would be Level 38, and that Moore would receive a decrease of three levels for acceptance of responsibility. Likewise, under Mitchell's plea agreement, Mitchell's base offense level was 38, and he was entitled to a three-level downward adjustment for acceptance of responsibility.

The District Court held a sentencing hearing for the three defendants on December 17, 1996. At the hearing, each defendant stipulated to the amount of "crack" attributable to him for purposes of the Sentencing Guidelines. Wong stipulated to responsibility for 30 kilograms of "crack"; Moore stipulated to 30 kilograms; and Mitchell stipulated to 20 kilograms. Wong objected to being placed in Criminal History Category III, but his objection was overruled by the District Court. Because Wong's base offense level was 39 and his Criminal History Category was III, he qualified for 324 to 405 months of imprisonment under the Sentencing Guidelines. Moore and Mitchell were each found by the District Court to qualify for a reduction of their sentences under the five-part "safety valve" test of 18 U.S.C. § 3553(f) (1994), therefore reducing their offense levels to 33...

To continue reading

FREE SIGN UP