U.S. v. Swiney Jr
| Decision Date | 12 August 1999 |
| Docket Number | 98-5343,98-5016,98-5012,98-5011,Nos. 97-6493,98-5019,98-5015,98-5018,98-5017,98-5341,s. 97-6493 |
| Citation | 203 F.3d 397 |
| Parties | (6th Cir. 2000) United States of America, Plaintiff-Appellee/Cross-Appellant(98-5019/5343), v. Andy L. Swiney, Jr.(97-6493); Georgia Belle Mullins, a/k/a Georgia B. Isaacs (98-5341), Defendants-Appellants/Cross-Appellees. United States of America, Plaintiff-Appellant, v. Randy Glenn Isaacs; Ronnie Wayne Isaacs; Juan Duran-Guzman; Vanessa Dale Booker; Wendy Messer; Michael David Guy; Nelson Millett, Defendants-Appellees. , and 98-5435 Argued and Submitted: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville; No. 97-00007--Thomas G. Hull, District Judge.
Dan R. Smith, ASSISTANT UNITED STATES ATTORNEY, Johnson City, Tennessee, for Appellants..
Clifton L. Corker, Johnson City, Tennessee, for Appellants.
William L. Ricker, RICKER LAW OFFICE, Greeneville, Tennessee, for Defendant-Appellee..
Laura D. Perry, PERRY & PERRY, Morristown, Tennessee, for Defendant-Appellee
C. Todd Chapman, KING & KING, Greeneville, Tennessee, for Defendant-Appellee
R.B. Baird III, LAW OFFICES OF R.B. BAIRD III, Rogersville, Tennessee, for Defendant-Appellee
Michael David Guy, Morgantown, West Virginia, pro se.
David L. Leonard, LEONARD & KERSHAW, Greeneville, Tennessee, for Defendant-Appellant/Cross-Appellee
Douglas L. Payne, Greeneville, Tennessee, for Defendant-Appellee, Messer
Before: NORRIS and SUHRHEINRICH, Circuit Judges; WEBER*, District Judge.
Defendants Georgia Belle Mullins and Andy Lee Swiney, two members of a heroin conspiracy, appeal on various grounds their jury convictions and sentences. The Government cross appeals Mullins' and Swiney's sentences. The Government also appeals the sentences of seven other Defendants who pleaded guilty to conspiracy to distribute heroin.1 The Government argues that all of the Defendants should have received a statutory mandatory minimum of twenty years pursuant to 21 U.S.C. § 841(b)(1)(C) and U.S.S.G. § 2D1.1(a) because a death resulted from the use of heroin that was distributed by members of the conspiracy. The district court found no proof linking these Defendants to the death, using a "critical proximate cause" inquiry. The Government contends that all of the Defendants should be held accountable for the death under the Pinkerton theory of vicarious liability.2
We reject the Government's theory of accountability because the scope of conduct for which a defendant can be held accountable under the Sentencing Guidelines is narrower than the conduct encompassed by conspiracy law. However, we agree that the district court misapplied the Sentencing Guidelines. We therefore REVERSE and REMAND for further proceedings.
On January 22, 1997, a grand jury returned a twenty-four count indictment charging twelve individuals with conspiracy to distribute heroin in Mountain City, Tennessee and related drug charges. Included were Defendants Michael Isaacs; his ex-wife Georgia Belle Mullins; their sons, Ronnie, Randy, Johnny, and Stevie Isaacs; Andy Lee Swiney; David Guy; Wendy Messer; Vanessa Booker; Nelson Millet; and Juan Duran-Guzman.
Nine defendants pleaded guilty to the conspiracy charge, of whom seven now appeal. A jury convicted Michael Isaacs, Swiney, and Mullins of conspiracy and related charges.
The Government proved at trial that Michael Isaacs, the leader of the conspiracy, Mullins, Ronnie Isaacs, Randy Isaacs, and Swiney arranged for members of the conspiracy to travel from Mountain City to Philadelphia, Pennsylvania to purchase heroin from Defendants Nelson Millett and Juan Duran-Guzman, for resale in Mountain City. Michael Isaacs would then give the heroin to his distributors. Generally, heroin customers would contact Mullins, who would have her sons Johnny Isaacs and Stevie Isaacs deliver the heroin.
Several of the pleading Defendants testified at the trial. Randy Isaacs, Guy, Booker, and Messer all attested to making trips to Philadelphia for Michael Isaacs to buy heroin for resale in Mountain City.
The Government also established that, as charged in Count 9 of the indictment, a death resulted from the conspiracy's sale of heroin. Chad Rankin testified that on September 14, 1996, he and his friend Kristopher Phillips traveled to Mountain City to buy heroin. Rankin indicated that he and Phillips bought five bags for $150. Both Phillips and Rankin used the heroin purchased, and Phillips died that night of a heroin overdose. Rankin testified that Johnny Isaacs sold them the heroin.
Michael Glenn Isaacs was convicted at trial of distributing heroin, aided and abetted by Johnny Isaacs. It is undisputed that Johnny's sale of heroin resulted in Phillips's death.
Ronnie Isaacs, Randy Isaacs, Guy, Messer, Booker, Duran-Guzman, and Millett each pleaded guilty to conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846. In return, the Government agreed to move at sentencing for the dismissal of the additional counts in the indictment. Each of the pleading Codefendants stipulated to an "agreed factual basis" outlining his or her role in the conspiracy as part of his or her plea agreement.
Each plea agreement acknowledged the statutory sentencing range from a five-year minimum to a forty-year maximum and recited a factual basis for the plea detailing the particular misconduct of each Defendant. The stipulated facts indicate that each Defendant knew that he or she was part of an agreement to distribute heroin. None of the plea agreements or agreed factual bases for these seven Defendants referred to the actual delivery of heroin to Kristopher Phillips or his death. None of the plea agreements referred to a mandatory minimum twenty years for a resulting death.
Neither the presentence reports of the pleading Defendants nor Swiney's and Mullin's presentence reports enhanced the sentences to reflect the death. The Government objected to each of the reports, contending that a death resulted from the use of heroin distributed by members of the conspiracy. In addendums to the presentence reports, the probation officer acknowledged that Phillips died of a heroin overdose during the course of the conspiracy, but determined that enhancements under U.S.S.G. § 2D1.1(a)(2) were not appropriate.
The district court held Johnny Isaacs responsible for Phillips' death under § 841(b)(1)(C) and § 2D1.1. The district court refused to impose the heightened base offense level for any of the other Defendants, however, finding no proof linking the heroin which caused Kristopher Phillips' death to any of these nine defendants.
The Government challenges this ruling as applied to all nine Defendants before this Court. Although Swiney and Mullins raise other issues in their respective appeals, we find them without merit and in no need of further discussion.
Several of the Defendants challenge the Government's right to appeal, claiming that the sentences imposed were within the district court's discretion and within the Guidelines. However, the Government has a limited right to appeal an otherwise final sentence if the sentence was imposed as a result of an incorrect application of the Sentencing Guidelines. See 18 U.S.C. § 3742(b).
We review a sentencing court's interpretation of the Sentencing Guidelines and sentencing statutes de novo and its factual findings for clear error. See United States v. Robinson, 167 F.3d 824, 830 (3d Cir. 1999 ), cert. denied, 120 S. Ct. 118 (1999); United States v. Flowers, 55 F.3d 218, 220 (6th Cir. 1995) United States v. Irvin, 2 F.3d 72, 76 (4th Cir. 1993).
All of the Defendants before this court were convicted of conspiracy under 21 U.S.C. § 846, which provides: "[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." Here, the object of the conspiracy was possession with the intent to distribute heroin. See 21 U.S.C. § 841(a)(1). Thus, under § 846, Defendants are subject to the same penalties as a person who actually violates § 841. See United States v. O'Brien, 52 F.3d 277, 278 (9th Cir. 1995); Irvin, 2 F.3d at 75; United States v. Montoya, 891 F.2d 1273, 1293 (7th Cir. 1989).
Section 841(b) prescribes the penalty for violations of § 841(a). The district court sentenced Johnny Isaacs under § 841(b)(1)(C). It provides that "if death or serious bodily injury results from the use of such substance" distributed in violation of § 841(a)(1), such person "shall be sentenced to a term of not less than twenty years or more than life." 21 U.S.C.A. § 841(b)(1)(C) (West 1999). Further, U.S.S.G. § 2D1.1(a)(2) assigns a base offense level of 38 "if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), or (b)(1)(C) . . .[and] death or seriously bodily injury resulted from the use of the substance . . . ." U.S.S.G.§ 2D1.1(a)(2) (1998).
The Government argues that under the Pinkerton doctrine all of the Defendants are responsible for Phillips' death. In Pinkerton v. United States, 328 U.S. 640 (1946), the Supreme Court held that a co-conspirator may be vicariously liable for the substantive offense committed by coconspirator if the act is done "in furtherance of the conspiracy" and is "reasonably foreseen as a necessary or natural consequence of the unlawful agreement." Id. at 647-48; United States v. Myers, 102 F.3d 227, 237 (6th Cir. 1996); see also Paul Marcus, Criminal Conspiracy Law: Time To Turn Back From An Ever Expanding Ever More Troubling Area, 1 Wm. & Mary Bill Rts. J. 1, 7 (1992) (...
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