37 F.3d 1210 (7th Cir. 1994), 93-2170, United States v. Phillips

Docket Nº:93-2170, 93-3352.
Citation:37 F.3d 1210
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Steven D. PHILLIPS and Willie B. Meredith, Jr., Defendants-Appellants.
Case Date:October 06, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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37 F.3d 1210 (7th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Steven D. PHILLIPS and Willie B. Meredith, Jr., Defendants-Appellants.

Nos. 93-2170, 93-3352.

United States Court of Appeals, Seventh Circuit

October 6, 1994

Argued April 12, 1994.

Rehearing Denied Feb. 2, 1995.

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[Copyrighted Material Omitted]

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Thomas Edward Leggans, Office of U.S. Atty., Crim. Div., Fairview Heights, IL (argued), Michael C. Carr, Asst. U.S. Atty., Benton, IL, for U.S.

John D. Long, Patrick Moloney Long (argued), Chicago, IL, for Steven D. Phillips.

Samuel G. Beggs, Harrisburg, IL (argued), for Willie B. Meredith, Jr.

Before WOOD, Jr., COFFEY, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Tyrone A. Johnson, Willie B. Meredith, Jr., Anson Young, Stacy Shipp, and Steven Phillips were all charged with conspiring to distribute more than five kilograms of cocaine in Jefferson County, Illinois. Only two of the five defendants, Willie B. Meredith and Steven Phillips, are parties to this consolidated appeal.

Most of the factual circumstances of this conspiracy are immaterial for our purposes. In a nutshell, Tyrone Johnson operated a discotheque called the Steppin Out Disco. He hired Steven Phillips to manage the disco, and Willie Meredith as a security officer. The Steppin Out Disco was also the site of Johnson's cocaine business. Johnson stored drugs and large amounts of cash at the disco. Drugs were distributed to purchasers from the bar and from a drive-through window at the establishment.

In addition to his duties as disco manager, Phillips also carried a gun and sometimes delivered cocaine to Meredith and others. Meredith was likewise involved in Johnson's cocaine business. Meredith was not only security officer for the disco: he also acted as an "enforcer" for the cocaine distribution conspiracy. Meredith carried a gun and enforced the collection of drug debts and unpaid loans owed to Tyrone Johnson.

Meredith and Phillips both pled guilty to Count Five of the indictment. Both entered into plea agreements in which they consented to cooperate with the government. The government agreed, pursuant to U.S.S.G. Sec. 1B1.8, that it would not use incriminating evidence supplied by the defendants under the plea agreements at sentencing to increase their guideline ranges. Presentence reports were prepared on each of the two defendants, and each was sentenced at a separate sentencing hearing. We now consider in turn Meredith's and Phillips' arguments on appeal.

Willie Meredith

Because Willie Meredith was convicted of conspiring to distribute cocaine, the district court calculated Meredith's base offense level under U.S.S.G. Sec. 2D1.1. Section 2D1.1 specifies a base offense level of 32 for a defendant responsible for at least 5 but less than 15 kilograms of cocaine. The district court increased Meredith's base offense level of 32 by 2 points for having a firearm during the commission of his offense, but reduced his offense level by 2 points for acceptance of responsibility. The district court concluded that, with a criminal history category of 3, Meredith's guideline sentence range was 151

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to 188 months. The court sentenced Meredith at the top of the sentencing range, to 188 months imprisonment.

Meredith contends that the district court erroneously sentenced him on the basis of responsibility for more than 5 but less than 15 kilograms of cocaine. He first claims that the district court erred by attributing to him amounts of cocaine that the conspiracy distributed before his involvement, amounts which were not reasonably foreseeable to him. In a related argument, he alleges that the district court failed to make its cocaine quantity findings with sufficient specificity.

The district court's determination of the amount of cocaine reasonably foreseeable to Meredith is a factual determination, which we will reverse only if clearly erroneous. United States v. Wagner, 996 F.2d 906, 913 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 720, 126 L.Ed.2d 685 (1994). However, "[b]ecause the quantities of drugs are so important to sentencing in a narcotics case, the court must make an explicit finding as to the calculation of drug quantity and offense level and how it arrived at the sentence." Id. (citing United States v. Leichtnam, 948 F.2d 370 (7th Cir.1991)).

At Meredith's three-day sentencing hearing, the government offered evidence of the amount of drugs involved in the conspiracy through FBI Special Agent Isaac Bratcher. Prior to the hearing, Bratcher was asked to summarize his reports and interviews with individuals involved in the case and to calculate the amounts of cocaine that the conspiracy dealt.

Bratcher prepared a one-page chart outlining the amounts of cocaine alleged to have been brought into the conspiracy for distribution. 1 This one-page chart was eventually admitted as the government's Exhibit 5. Bratcher concluded in the chart that the conspiracy had distributed 7,915 grams of cocaine.

The government relied almost entirely upon Bratcher's Exhibit 5 chart and his accompanying testimony at the sentencing hearing to establish the amount of cocaine for which Meredith was to be sentenced. The Exhibit 5 chart contained 12 separate quantities of cocaine witnesses alleged members of the conspiracy possessed for distribution, ranging in time from February/March of 1991 to early January 1992. 2

The district court found that, upon reviewing the Exhibit 5 chart, the total of the entries amounted to a quantity "certainly more than five kilograms." The court specifically excluded one entry from the chart--Item 4, dated April 1991, in the amount of 500 grams--because there was some question as to whether that 500 gram quantity was duplicative of a 2,000 gram quantity reflected in a preceding entry on the chart. Because the remaining entries of the chart added up to a total of 7,415 grams, the district court correctly concluded that "even leaving that out, you still have more than five kilograms."

We believe that the district court made a sufficiently specific finding of the amount of cocaine the conspiracy distributed. See Wagner, 996 F.2d at 913. Additionally, our review of the record indicates that, having excluded Item 4, the district court did not rely on repetitive or unreliable testimony; therefore, the court's determination was not clearly erroneous. See id.

In determining the quantity of drugs upon which a defendant is to be sentenced under section 2D1.1, however, a district court

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may not automatically deem the defendant responsible for all drug quantities that have passed through a conspiracy. Instead, the district court must take into account only the "relevant conduct" of the defendant. U.S.S.G. Sec. 1B1.3 (Nov. 1992). In United States v. Guerrero, 894 F.2d 261 (7th Cir.1990), we stated that "a defendant who pleads guilty to a conspiracy charge is held accountable, for purposes of determining his relevant conduct and the applicable guideline range, for all drug transactions that he was aware of or that he should have reasonably foreseen." Id. at 266; see also Wagner, 996 F.2d at 913. "Reasonable foreseeability is the divining rod of the relevant conduct sentencing provision." United States v. DePriest, 6 F.3d 1201, 1212 (7th Cir.1993).

In United States v. Edwards, 945 F.2d 1387 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1590, 118 L.Ed.2d 308 (1992), we explained that

conduct of co-conspirators--even past conduct--can be considered 'reasonably foreseeable' to a particular defendant if that defendant has demonstrated a substantial degree of commitment to the conspiracy's objectives, either through his words or his conduct. Of particular importance in determining the level of...

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