9 F.3d 716 (8th Cir. 1993), 93-1360, United States v. Olness

Docket Nº:93-1360.
Citation:9 F.3d 716
Party Name:UNITED STATES of America, Appellee, v. Marilyn Mae OLNESS, also known Marilyn Mae Nix, also known as Marilyn Mae Thornell, Appellant.
Case Date:November 18, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 716

9 F.3d 716 (8th Cir. 1993)

UNITED STATES of America, Appellee,

v.

Marilyn Mae OLNESS, also known Marilyn Mae Nix, also known

as Marilyn Mae Thornell, Appellant.

No. 93-1360.

United States Court of Appeals, Eighth Circuit

November 18, 1993

        Submitted Aug. 10, 1993.

        Glenn P. Bruder, Minneapolis, MN, argued, for appellant.

        Andrew Stephen Dunne, Minneapolis, MN, argued (Francis X. Hermann and Andrew Dunne, on the brief), for appellee.

        Before JOHN R. GIBSON, MAGILL, and LOKEN, Circuit Judges.

        JOHN R. GIBSON, Circuit Judge.

        Marilyn Mae Olness appeals her conviction of conspiracy to possess with intent to distribute and to distribute cocaine base in violation of 21 U.S.C. Sec. 846 and 841(b)(1)(B) (1990) entered on a guilty plea. The only issue on appeal is the propriety of the imposition of a ten year mandatory minimum sentence under 21 U.S.C. Sec. 841(b)(1)(A)(iii). Olness argues that the indictment did not allege the specific amount of cocaine base involved in the conspiracy, and accordingly that the mandatory minimum sentence should not have been imposed. We affirm the judgment of the district court 1.

        Olness was charged in a seven-count indictment and pleaded guilty to Count I, conspiracy to possess with intent to distribute and to distribute cocaine base. Counts II through VII, containing individual transactions of distributing cocaine base, were dismissed, but she executed a written plea agreement acknowledging that a total of 63 grams of cocaine base were involved in Counts II through VII of the indictment which resulted in a base offense level of 32 under the applicable sentencing guideline.

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She and the government disagreed with respect to the applicability of the mandatory minimum ten year term of imprisonment. 2 Count I of the indictment did not allege any particular quantity involved in the conspiracy, and Olness argues that the district court was thus precluded from applying the mandatory minimum sentence. Rejecting her argument, the district court imposed the ten year mandatory minimum sentence.

        On appeal, Olness argues that the district court's imposition of the mandatory sentence was in error. She relies specifically on the dissenting opinion of Judge Bright in United States v. Wood, 834 F.2d 1382, 1390 (8th Cir.1987), as well as opinions from other circuits: United States v. Alvarez, 735 F.2d 461, 467-68 (11th Cir.1984); United States v. Crockett,...

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