U.S.A. v. Scanga, 99-3964

Decision Date21 August 2000
Docket NumberNo. 99-3964,99-3964
Citation225 F.3d 780
Parties(7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RALPH A. SCANGA, Defendant-Appellant
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Western District of Wisconsin. No. 99-CR-74-C-01--Barbara B. Crabb, Judge.

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Ralph Scanga pleaded guilty to attempting to possess with intent to distribute cocaine in violation of 21 U.S.C. sec.sec. 846 and 841(a)(1). In this direct criminal appeal challenging his sentence, Scanga contends that the amount of cocaine he personally used was miscalculated and thus the total quantity for which he was held responsible for distributing is incorrect. Alternatively, Scanga argues that his attorney's failure to object to the alleged miscalculation of the personal use amount constituted ineffective assistance of counsel in violation of the Sixth Amendment. We affirm.

In February 1999, Scanga met John Pickett and began receiving packages of cocaine sent by John Pickett's brother Lee, who lived in California. FBI agents received a tip in July 1999 that a Federal Express package containing cocaine would be sent to Scanga on the 14th of that month. The agents procured a warrant and intercepted the package, finding approximately .586 kilograms of cocaine. After removing the cocaine and reassembling the package, the agents sent the package to Scanga, who was arrested after picking it up.

Scanga pleaded guilty to the charge of attempting to possess cocaine with intent to distribute and a presentence report (PSR) was prepared. According to Scanga's version of the offense, which was attached to the PSR, he received six shipments of cocaine from Lee Pickett totaling just under three kilograms, although the author of the PSR recorded the number incorrectly as 2.39 kilograms. But in his version of the offense, Scanga made two statements regarding the percentage of this total amount of cocaine that he personally used. First, he states that his friend Dick Busse, whom Scanga owed almost $10,000, moved in with him for five weeks and that he and Busse "would smoke an ounce to two ounces of cocaine per week during that period of time." He then recounts, "I had close to three kilos of cocaine sent to me of which I sold approximately half. The rest I either used or paid off debts with in order to continue getting high myself." According to an interview with John Pickett, however, Scanga received six to eight packages from Lee Pickett in California, and each package weighed approximately 20 ounces. The author of the PSR noted that John Pickett's statements would place the amount of drugs attributable to Mr. Scanga at 3.4 to 4.5 kilograms. John Pickett did not say how much of the cocaine Scanga used, nor did any other person, besides Scanga, provide information about personal use.

The probation office initially recommended that Scanga be held responsible for more than 3.5 but less than 5 kilograms of cocaine. Although the author of the PSR cited several sources of information about the drug quantity but did not specifically tie the calculation to any of them, the author opined that Scanga's own account put him above 3.5 kilograms. This amount is based on the 2.39 kilograms that the PSR author had mistakenly thought Scanga reported in his statement, plus .65 kilograms for two deliveries that the PSR author believed Scanga had not mentioned, minus the .2835 kilograms that Scanga said he and Busse used during the five-week period. As Scanga now recognizes, however, the math is wrong, because 2.39 kilograms plus .65 kilograms yields just 2.965. In Scanga's objection to the PSR, he overlooked this math error. Instead, Scanga contended that the amount of drugs attributable to him should be reduced to between 2.0 and 3.5 kilograms of cocaine because, he alleged, (1) the PSR author twice-counted the amount of one delivery, (2) included a delivery for which Scanga had no involvement, and (3) failed to give "credit" for the amount of cocaine Scanga personally used. The probation office then revised its calculation and, in an addendum to the PSR, recommended that the least amount Scanga received was 3.4 kilograms. Again, however, the probation office recommended that Scanga personally used only .2835 kilograms of this total, which resulted in a final recommendation of 3.1 kilograms, a figure within the range of 2.0 and 3.5 kilograms advocated by Scanga in his objection to the PSR.

Scanga did not object to the PSR addendum either before or at the sentencing hearing. With respect to the guideline range, Scanga's counsel requested that the district court sentence Scanga in the low end of the range because, "with respect to relevant conduct, he was using a large percentage of [the cocaine]." Furthermore, defense counsel stated that the amount of cocaine Scanga used was "still accountable for relevant conduct, but in terms of being distributed . . . Mr. Scanga was addicted and was using a considerable amount." The district court ultimately adopted the guideline calculation of relevant conduct found in the PSR (more than 2.0 kilograms but less than 3.5 kilograms of cocaine). The court, after inclusion of a two- level upward adjustment for obstruction of justice and a three-level reduction for acceptance of responsibility, found Scanga's total offense level to be 27 with a criminal history level of two. This placed Scanga in a guideline range of 78 to 97 months. The court concluded that a sentence near the top of the...

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22 cases
  • U.S.A. v. Bjorkman
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • October 30, 2001
    ...conduct and that the drug amounts from those trips should be included in his relevant conduct calculation, see United States v. Scanga, 225 F.3d 780, 783-84 (7th Cir. 2000); Flores-Sandoval, 94 F.3d at 349-50, and by not raising the issue on D. Bjorkman Issue Bjorkman argues that the distri......
  • U.S. v. Knox
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • April 29, 2002
    ...conclusions of the presentence report. That representation waived any other theories related to the sentence. See United States v. Scanga, 225 F.3d 780, 783 (7th Cir.2000). Let us now go back to where counsel began. In what seems to have become an obligatory performance in every Anders brie......
  • Untied States v. Jackson, CAUSE NO.: 1:08-CR-38-TLS
    • United States
    • U.S. District Court — Northern District of Indiana
    • July 26, 2011
    ...judgment and effective trial strategy." Hays v. United States, 397 F.3d 564, 568 (7th Cir. 2006) (quoting United States v. Scanga, 225 F.3d 780, 783-84 (7th Cir. 2000)).a. Material Misrepresentation Regarding Plea and Sentencing Under Seventh Circuit precedent, "an attorney's 'mere inaccura......
  • U.S. v. Brown
    • United States
    • U.S. District Court — Northern District of Indiana
    • May 16, 2011
    ...judgment and effective trial strategy." Hays v. United States, 397 F.3d 564, 568 (7th Cir. 2006) (quoting United States v. Scanga, 225 F.3d 780, 783-84 (7th Cir. 2000)). The Defendant's arguments are directed at his counsel's advice that he was facing a mandatory minimum sentence of 10 year......
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