39 F.3d 428 (3rd Cir. 1994), 93-5578, United States v. Raven

Docket Nº:93-5578.
Citation:39 F.3d 428
Party Name:UNITED STATES of America v. Donald RAVEN, Appellant.
Case Date:October 31, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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39 F.3d 428 (3rd Cir. 1994)

UNITED STATES of America

v.

Donald RAVEN, Appellant.

No. 93-5578.

United States Court of Appeals, Third Circuit

October 31, 1994

Argued May 12, 1994.

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Mary Ann Mullaney (argued), Office of the Federal Public Defender, Camden, NJ, for appellant.

Edna B. Axelrod, Glenn J. Moramarco (argued), Office of U.S. Atty., Newark, NJ, for appellee.

Before: BECKER and LEWIS, Circuit Judges, and POLLAK, District Judge [*].

OPINION OF THE COURT

LEWIS, Circuit Judge.

Appellant Donald Raven pleaded guilty to conspiracy to import heroin into the United States from Thailand in violation of 21 U.S.C. Sec. 963. On appeal, he challenges the sentence imposed by the district court. We will affirm in most respects, and remand only for resentencing.

I.

In early 1993, Raven's grocery business was experiencing financial difficulty. Hoping to save his business, Raven tried to contact Tunde Amosa Taju, a friend who had once helped Raven find work as a drug courier. Raven had previously transported heroin from Thailand to the United States as a courier, and he sought to make some money this time by either recruiting couriers for Taju or acting as a courier again himself.

When Raven tried to telephone Taju at his home, he was unaware that Taju had been arrested on drug charges and was in jail. Nor did he know or suspect that Taju was cooperating with the government. Upon learning of Raven's call, Taju informed the Drug Enforcement Administration ("DEA") that Raven had tried to contact him. The DEA directed Taju to solicit Raven's services as a courier and to persuade Raven to find other couriers to assist Taju in importing heroin into the United States. Taju was also instructed to set up a meeting between himself, Raven and DEA Special Agent Gregory Hilton.

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Taju did as he was told. In mid-February, 1993, at a hotel in Newark, New Jersey, Taju introduced Hilton to Raven as someone seeking drug couriers to import heroin from Bangkok, Thailand, into the United States. During this meeting, Raven said that he wanted to help Taju and Hilton and explained his previous involvement in drug importation. He also produced his passport and the passport of Denise Ramirez, whom he had recruited to act as an additional courier.

Approximately two weeks later, Raven and Ramirez met with Hilton and Taju at a diner in Elizabeth, New Jersey. Hilton produced an itinerary of the proposed trip to Bangkok from New York City and agreed to supply Raven and Ramirez with airplane tickets and expense money to use during their trip. Hilton told Raven that he wanted to import a minimum of three to four kilograms of heroin, which would be hidden in the lining of two or three suitcases. Hilton further commented that "it would not be worth the trip if we didn't bring back at least four kilograms" (Appendix ("App.") at 50), and Taju said that two or three suitcases would hold up to eight and one-half kilograms of heroin. Raven responded that he would retrieve whatever amount of heroin Hilton wanted.

Approximately a week later, Raven and Hilton met again, this time in a hotel parking lot in Newark. At this meeting, Hilton told Raven that his Thailand supplier now wanted to export as much as eight kilograms of heroin. Raven continued to express his willingness to assist, stating that he could supply additional couriers and reiterating that he would bring back into the United States whatever quantity of heroin Hilton requested. Hilton later testified that Raven specifically agreed at this meeting to transport eight kilograms of heroin from Thailand to the United States at this meeting.

Shortly thereafter, in a conversation on the telephone, Hilton advised Raven that the supplier in Bangkok had again increased the amount of heroin they wanted transported. According to Hilton, Raven agreed this time to transport what would amount to up to twelve kilograms of heroin.

The final meeting between Raven, Ramirez and Hilton was scheduled to take place at a hotel in Elizabeth, where Raven and Ramirez were going to pick up their airplane tickets and advance money. Upon entering the hotel, Raven and Ramirez were arrested. In a post-arrest statement, Raven said that he was going to the Orient to pick up heroin and that he expected to make approximately $60,000 for his efforts. Raven and Ramirez were charged with conspiracy to import eight kilograms of heroin in violation of 21 U.S.C. Sec. 963.

Raven pleaded guilty to a superseding information charging him with conspiracy to import an unspecified amount of heroin in violation of 21 U.S.C. Sec. 963. The plea and superseding information came about because although the parties agreed that Raven had violated 21 U.S.C. Sec. 963, they disagreed as to the weight of the heroin for which he should bear responsibility. In their plea agreement, the parties requested that the court determine at sentencing the weight to be used in calculating Raven's offense level pursuant to United States Sentencing Guidelines ("Guidelines") section 2D1.1.

At the sentencing hearing, the district court correctly noted that Raven's base offense level would be the same--34--if he was found responsible for any amount between three and ten kilograms of heroin. See Guidelines Secs. 2D1.1(a)(3) and (c)(5). Next, the district court found that, based on the negotiations that had occurred, Raven should be held responsible for "three to four" kilograms of heroin for purposes of sentencing. This determination gave Raven a base offense level of 34, which was adjusted downward to 31 for acceptance of responsibility. Raven's criminal history category placed him in a sentencing range that would have been between 108 and 135 months, but the court recognized that Congress had provided that defendants convicted of a violation involving more than one kilogram of heroin face a mandatory minimum sentence of ten years (see 21 U.S.C. Sec. 960(b)(1)(A)), making Raven's adjusted Guideline range 120 to 135 months. The court sentenced Raven to 120 months imprisonment, and this appeal followed.

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We have jurisdiction under 18 U.S.C. Sec. 3742.

II.

Raven advances three challenges to the district court's sentencing decision: (1) the district court erred in failing to properly apply Application Note 12 to Guideline section 2D1.1 in determining Raven's offense level; (2) the district court erred in refusing to depart downward on the ground that Raven was the victim of "sentencing entrapment"; and (3) the district court erred in finding that Raven was predisposed to import three to four kilograms of heroin. Only his first claim requires extended discussion.

A.

Raven's primary contention on appeal concerns the district court's quantification of the amount of drugs to be attributed to him for sentencing purposes in what was obviously an uncompleted narcotics trafficking arrangement. Under the Guidelines, the offense level used to determine a sentence for a drug offense is based initially upon the weight of the controlled substance for which the defendant is held accountable. See generally Guidelines Secs. 2D1.1 et seq. Application Note 12 to section 2D1.1 provides, in pertinent part:

In an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution is used to calculate that amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing.

Guidelines Sec. 2D1.1, Application Note 12 ("Note 12") (emphasis added). It is the meaning of this Note--and especially its final sentence, italicized above--that forms the core of Raven's dispute with the government and the district court. Raven contends that the district court erred in applying Note 12, and that this error resulted in an incorrect base level for his offense. We have jurisdiction to review this claim because Raven "allege[s] the district court committed legal (...) errors when imposing [his] sentence." United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir.1991).

  1. The parties agree that in cases involving uncompleted drug distributions, the government generally bears the burden of proving the weight of drugs under negotiation, just as it bears the burden of proving the weight of drugs at issue in any drug sentencing proceeding. See United States v. McCutchen, 992 F.2d 22, 25 (3d Cir.1993). The parties disagree, however, about which party bears the burden of proving the applicability of the final sentence of Note 12, which addresses whether a defendant intended to produce and was reasonably capable of producing the negotiated amount of drugs. Resolving this issue requires two distinct inquiries. First, what is the nature of the burden--does the party with the burden have to demonstrate both intent and capability (or their lack), or is it sufficient to demonstrate either intent or capability (or, again, their lack)? Second, who has the burden--the government or the defendant?

    Although we have not directly addressed these questions, 1 they have generated a surprising

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    variety of responses among our sister circuits. 2 Not only have the courts of appeals split, 3 but some have been unable to establish a consistent application of Note 12 even among panels. 4 And a panel of the Second Circuit has recently taken the extraordinary

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    step of rejecting the note's language, finding that it "obscured" the government's obligation in every drug conspiracy case involving unconsummated transactions to...

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