United States v. Battle

• Decision Date: 12 February 2013
• Docket Number: No. 12–3005.,12–3005.
• Citation: 706 F.3d 1313
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Shawn BATTLE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

706 F.3d 1313

UNITED STATES of America, Plaintiff–Appellee,

v.Shawn BATTLE, Defendant–Appellant.

No. 12–3005.

United States Court of Appeals, Tenth Circuit.

Feb. 12, 2013.

Melody Evans (Cyd Gilman with her on the briefs), Office of the Federal Public Defender, District of Kansas, Topeka, KS, for the Defendant–Appellant.

James A. Brown (Barry R. Grissom with him on the brief), Office of the United States Attorney, District of Kansas, Topeka, KS, for the Plaintiff–Appellee.

Before LUCERO, MURPHY, and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

Shawn Battle filed a motion for sentence reduction under 18 U.S.C. § 3582(c)(2) following Amendments 750 and 759 to the United States Sentencing Guidelines, which retroactively adjusted Battle's advisory Guidelines range. U.S.S.G. app. C, amends. 750 & 759. The district court granted the motion in part, granting a two-level reduction rather than the four-level reduction Battle requested. Although the court found at Battle's first sentencing that he was responsible for more than 1.5 kilograms of crack cocaine, the court did not make a specific quantity finding. At resentencing, the court held that Battle was responsible for 3.4 kilograms. We reject Battle's argument that the district court was barred from engaging in supplemental calculations of drug quantity in the § 3582(c)(2) proceeding. However, we agree that the record of the original sentencing, including the district court's prior findings, does not support the attribution of 3.4 kilograms to Battle. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for resentencing.

I

In 1997, a jury convicted Shawn Battle of conspiracy to possess with intent to distribute 50 grams or more of cocaine base. Using the 1997 version of the Guidelines, Battle's Presentence Investigation Report (“PSR”) calculated a base level of 38, determining that “at least 1.5 kilograms of cocaine base is directly attributable to [Battle].” In support of this determination, the PSR included the following paragraphs:

43. The investigative reports indicate Terrance Canteen made admission to distributing between 4 and 5 kilograms of cocaine base during his involvement in the conspiracy. Terrance Canteen estimated that he and James Culp sold 200 pieces of crack every 2 to 3 days over the course of the conspiracy. However, he related that approximately every other month, he, Shawn Battle, Anthony Timmons, Derek Burgess, and James Culp would return to the New York area where they would remain for approximately one month. The U.S. Probation Office has used Mr. Canteen's most conservative estimate as to his entry into this conspiracy, which was approximately March, 1995, although there is information to show he was in Junction City, Kansas in 1994 or possibly 1993. Based on the defendant's statements that he was absent from distributing crack cocaine approximately half of the time, he would have been actively distributing crack cocaine for approximately 40 weeks during this conspiracy. Based on Mr. Canteen's admission as to how much he distributed (200 pieces at a weight of .10 grams per piece), on average of 2 to 3 times per week over the course of the entire conspiracy, Mr. Canteen and Mr. Culp were responsible for transacting approximately 1.6 kilograms of cocaine base (crack cocaine).

44. In determining the appropriate offense level, the U.S. Probation Office has reviewed the investigative reports and court testimony presented at trial of the codefendants in this case to establish the amount of drugs attributable to the defendant.

45. Based on Shera Jackson's and Anthony Timmons' reports of distributing approximately 2 to 3 kilograms of cocaine base over the course of the conspiracy, the U.S. Probation Office believes that at least 1.5 kilograms of cocaine base is directly attributable to the defendant.

46. Shera Johnson reported distributing 60 rocks of cocaine on average of 2 to 3 times per week, over the course of the conspiracy (156 weeks). A conservative estimate of one (1) rock of cocaine is .10 grams; multiplied by 150 (which represents the scope of the conspiracy), it reflects Ms. Johnson distributed approximately 1.8 kilograms of cocaine base. Ms. Johnson was being supplied the cocaine base by Shawn Battle, Anthony Timmons, Terrance Canteen, and James Culp.

At the time of Battle's original sentencing, 1.5 kilograms of crack or more incurred the highest base offense level under the Guidelines.

The PSR recommended that Battle be sentenced with a total offense level of 44 and a criminal history category of III, resulting in a Guidelines range of life imprisonment. Battle objected to the PSR, including its drug quantity calculation, arguing that some co-conspirators' testimony was unreliable, pointing to inconsistencies among co-conspirators' estimates, disputing the length of time during which he was a member of the conspiracy, and noting that some of the quantities discussed in the PSR were duplicative. In response, the U.S. Probation Office pointed out that it used conservative estimates of drug quantity and concluded that despite Battle's objections, his “base offense level would not change, due to all estimates exceeding 1.5 kilograms.”

At Battle's 1998 sentencing hearing, the district court concluded that although Battle's counsel had done their best to challenge the drug quantity attributable to Battle, it could not “attribute less than 1.5 kilograms of crack cocaine to the defendant without doing serious violence to the facts in th[e] case.” Because Battle was found to be the head of a conspiracy to distribute crack cocaine, and during the course of the conspiracy, well over 1.5 kilograms of crack cocaine was actually distributed, such amount was foreseeable to Battle in his role as organizer or leader. In short, said the court,

[A]lthough the members of the conspiracy did not keep meticulous records of the amount of their crack cocaine sales, it is clear from the number of persons participating in the scheme, the extensive utilization of the tools of the trade used to distribute the crack, and the admissions of the defendant's coconspirators that several kilograms of crack cocaine were actually distributed during the life of this conspiracy.

Although the district court concluded that Battle's base offense level was properly calculated, it reduced the total offense level to 42 and the criminal history category to II, which yielded a Guidelines range of 360 months' to life imprisonment. Battle was sentenced to 360 months' imprisonment.

In a written order, the district court formally adopted the PSR except where specifically noted, concluding that the PSR “accurately calculates the amount of crack cocaine attributable” to Battle:

Based upon the evidence heard by this court at trial, the court is lead to the inescapable conclusion that well over 1.5 kilograms of crack cocaine was distributed by this conspiracy and that this amount was foreseeable to Shawn Battle as the head of that conspiracy. Thereforethe full 1.5 kilograms is properly attributed to the defendant.

First, the volume of drugs calculated in the [PSR] is consistent with the testimony of the defendant's coconspirators who testified at trial. From that evidence alone it is absolutely clear that persons operating at the defendant's direction or in concert with the defendant and other coconspirators were distributing substantial amounts of crack cocaine during the life of the conspiracy. Anthony Timmons, Shera Johnson and Terrance Canteen each admitted that they had personally been involved in the distribution of over 1.5 kilograms while a member of this conspiracy. Even without adding those amounts together, well over 1.5 kilograms of crack cocaine was distributed in this case. Second, the number of persons in the conspiracy, and the time, money and resources, such as telephones, pagers and apartments, used in distributing drugs circumstantially corroborates the court's conclusion that well over 1.5 kilograms of crack cocaine (the highest quantity considered in the guidelines and the [sic] consequently the highest base offense level) was distributed through the defendant's narcotics network. Third, the observations and information collected by law enforcement officers independently corroborates the sizeable volume of crack cocaine distributed by the defendant or his cohorts.

In short, the defendant's extensive criminal enterprise distributed substantial amounts of crack cocaine—well in excess of 1.5 kilograms—over a several year period.

Battle appealed his conviction and sentence. We affirmed. See United States v. Battle, 1999 U.S.App. LEXIS 18366 (10th Cir. Aug. 6, 1999) (unpublished). He was denied habeas relief. See United States v. Battle, 2002 U.S. Dist. LEXIS 25073 (D.Kan. Oct. 24, 2002) (unpublished).

In December 2011, Battle filed an unopposed motion under 18 U.S.C. § 3582(c)(2) seeking to reduce his sentence based on the retroactive amendment of the crack cocaine Guidelines. See U.S.S.G. app. C, amends. 750 & 759. Under the amended Guidelines, a finding that Battle was responsible for 1.5 kilograms of crack would correspond to a revised base offense level of 34 and a Guidelines range of 262 to 327 months. SeeU.S.S.G. § 2D1.1(c)(3). Battle argued that the court should find him eligible for a reduced sentence based on the 1.5 kilograms figure.

The district court rejected this argument. It concluded that the record did not sustain Battle's arguments for a single and determinative drug-quantity finding by the court, and determined that “the court's general findings of drug quantity and the evidence of record support additional calculations necessary for applying the guideline amendments involved in this § 3582(c) proceeding.” Noting that the PSR did not purport to calculate and recommend a finding as to the total quantity of drugs, the court pointed out that the PSR merely “settle[d] on recommendations sufficient to meet the highest...