U.S. v. Partee, s. 93-1448

• Decision Date: 03 August 1994
• Docket Number: Nos. 93-1448,93-1802,s. 93-1448
• Citation: 31 F.3d 529
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry K. PARTEE and Ellsworth Dismuke, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 529

31 F.3d 529

UNITED STATES of America, Plaintiff-Appellee, v. Jerry K. PARTEE and Ellsworth Dismuke, Defendants-Appellants.

Nos. 93-1448, 93-1802.

United States Court of Appeals Seventh Circuit.

Argued April 18, 1994.

Decided Aug. 3, 1994.

Barry R. Elden, Asst. U.S. Atty., Keith Syfert (argued), Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for U.S.

R. Craig Sahlstrom (argued), Rockford, IL, for Jerry K. Partee.

Barbara A. Leitner (argued), Marcia G. Shein, Miller & Shein, Atlanta, GA, for Ellsworth Dismuke.

Before CUMMINGS, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Jerry K. Partee pleaded guilty to possessing cocaine with intent to distribute. He was sentenced to 97 months in prison. He appeals his sentence claiming that the district court erred in giving him a two-level enhancement for obstruction of justice under U.S.S.G. Sec. 3C1.1 and in denying him a two-level reduction for acceptance of responsibility under U.S.S.G. Sec. 3E.1.1. Ellsworth Dismuke was convicted of conspiring to possess and distribute cocaine and possessing cocaine with intent to distribute. Dismuke was sentenced to 74 months in prison. He appeals his sentence, claiming that he was denied effective assistance of counsel at his sentencing hearing. We affirm Dismuke's sentence, but remand for resentencing of Partee.

I. Facts

On January 15, 1991, Ellsworth Dismuke purchased an airline ticket for a flight leaving that night from Chicago to Houston and returning to Chicago early the next morning. Later that day Jerry K. Partee drove Dismuke from their hometown of Rockford, Illinois to Chicago's O'Hare Airport. In route, their car broke down. After telephoning for help, they continued to O'Hare in a different car. Dismuke, who missed his earlier flight because of the delay, arranged to take a later flight to Houston. Once in Houston, a call was made from the house where Dismuke was staying to Partee's residence in Rockford. Numerous additional calls between these two residences were made that day. Dismuke then went to a Federal Express office and presented a "FedEx box" for overnight shipment to a "Jack Clark" at Partee's residence. Dismuke then flew back to Chicago and returned home to Rockford.

Suspicious that the package contained contraband, the Federal Express employee contacted her security department. Federal Express agents intercepted the package at its distribution site in Memphis and found that it contained a white powdery substance. A field test by a drug agent indicated that the substance was cocaine. The Drug Enforcement Administration ("DEA") in Chicago was notified and the package was transferred to DEA agents. The DEA conducted a lab test which verified that the package contained 1,754 grams of nearly pure cocaine.

After Dismuke returned to Rockford, he contacted Partee to see if Partee had received the cocaine. He had not. This triggered three calls from Partee to Federal Express, interspersed with calls back to Dismuke. That afternoon, a DEA agent posing as a Federal Express employee delivered to Partee's residence the original FedEx box containing a "look-alike" substance. Shortly after the delivery at Partee's residence the agents executed a search warrant. The agents found Partee in his kitchen attempting to call Dismuke. The package of the "look-alike" substance was cut open on the kitchen table.

Based on these events, Dismuke and Partee were charged in a five-count indictment. Count one of the indictment charged them with conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846; count two with possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1); counts three and four with traveling in interstate commerce in furtherance of the conspiracy in violation of 18 U.S.C. Sec. 1952(a)(3); and count five with using interstate commerce to further the conspiracy in violation of 18 U.S.C. Sec. 1952(a)(3).

Partee entered into a plea agreement with the government in which he pleaded guilty only to count two of the indictment and the government dismissed the remaining counts. Dismuke pleaded not guilty and proceeded to trial. Before trial, the government also dismissed counts three through five of the indictment against Dismuke. After Dismuke's trial began, the government obtained a court order immunizing Partee and directing him to testify at Dismuke's trial. Partee refused and was held in civil contempt. Even without Partee's testimony, the jury convicted Dismuke on counts one and two.

The court sentenced Partee to 97 months in prison, giving him a two-level enhancement for obstruction of justice under U.S.S.G. Sec. 3C1.1, and denying him a two-level reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1, because he refused to testify under a grant of immunity at Dismuke's trial. Partee appeals the enhancement and the denial of the reduction. Dismuke was sentenced to 74 months in prison. He appeals his sentence, claiming that he was denied effective assistance of counsel at his sentencing hearing because his attorney did not seek reductions for "aberrant behavior" and for "minor participation" in the offense.

II. Analysis

A. Partee's Appeal

1. Obstruction of justice.

The district court enhanced Partee's sentence by two levels for obstruction of justice under Section 3C1.1 of the Sentencing Guidelines. As a basis for this enhancement, the district court relied on Partee's refusal to testify under a grant of immunity at Dismuke's trial. Partee contends that the sentencing judge improperly imposed the two-level enhancement because his refusal to testify at his co-conspirator's trial was not an obstruction of justice for "the instant offense" as required under Section 3C1.1. We agree.

Section 3C1.1 of the Sentencing Guidelines provides that: "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels." This court has defined "the instant offense" to refer "solely to the offense of conviction." United States v. Polland, 994 F.2d 1262, 1269 (7th Cir.1993). See also, United States v. Gunning, 984 F.2d 1476, 1485 (7th Cir.1993) ("Sec. 3C1.1 provided for a two-level enhancement of the offense level if the defendant 'willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing' of the offense of conviction."). "Offense of conviction" in turn refers only to the " 'offense conduct charged in the count of the indictment or information of which the defendant was convicted.' " United States v. Rubin, 999 F.2d 194, 196 (7th Cir.1993) (quoting U.S.S.G. Sec. 1B1.2(a)). Accord, United States v. Jennings, 991 F.2d 725, 733 (11th Cir.1993) ("offense of conviction" refers "only to the conduct charged in the indictment for which the defendant was convicted"). "Offense of conviction" does not refer to a separate crime by someone else. See United States v. Haddad, 10 F.3d 1252, 1260-61 (7th Cir.1993) (obstruction enhancement requires the defendant to act with "specific intent 'to avoid responsibility' for the offense for which he was being tried"); Polland, 994 F.2d at 1269 ("section 3C1.1 does not contemplate enhancements for obstruction of justice if the relevant conduct impedes the investigation or prosecution of a separate crime"). Here, Partee's "offense of conviction" was possession of cocaine with intent to distribute. Partee's refusal to testify at Dismuke's trial had no impact on his possession conviction and, therefore, Partee did not attempt "to avoid responsibility for the offense for which he was being tried." See United States v. Haddad, 10 F.3d at 1266.

In United States v. Banks, 751 F.Supp. 1161, 1166 (M.D.Pa.1990), aff'd, 931 F.2d 52 (3d Cir.1991), the court followed this reasoning and concluded that an obstruction enhancement does not apply "where the defendant testifies untruthfully in the case of another defendant." The Second Circuit later adopted this view in United States v. Valdez, 16 F.3d 1324, 1336 (2d Cir.1994) quoting from Banks: " 'we are of the view that the term "instant offense" as used in the commentary and the guideline itself is probably limited to the offense or case against the defendant and does not encompass the case against [the codefendant]' " (quoting United States v. Banks, 751 F.Supp. at 1166). ¹

The government maintains that "instant offense" as used in the Guidelines should encompass not only the defendant's own proceedings but those of a co-conspirator. In support of its position the government cites cases which broadly define "instant offense." For example, in United States v. Bernaugh, 969 F.2d 858, 861 (10th Cir.1992), the court concluded that because the Guidelines provide that an " 'offense' may include the concerted criminal activity of multiple participants ... the section 3C1.1 enhancement applies where a defendant attempts to obstruct justice in a case closely related to his own, such as that of a codefendant." Accord, United States v. Acuna, 9 F.3d 1442, 1446 (9th Cir.1993). Similarly, in United States v. Morales, 977 F.2d 1330, 1331 (9th Cir.1992), the Ninth Circuit held that a defendant's refusal to testify at a co-conspirator's trial after an immunity order has been issued constitutes an obstruction of justice because the prosecutions of both conspirators involved "the same conduct."

In these cases, the Ninth and Tenth Circuits essentially define the term "instant offense" to include "relevant conduct." "Relevant conduct" includes

all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured or willfully caused by the defendant; and in the case of a jointly undertaken criminal activity, ... all reasonably foreseeable acts and omissions of others in...