U.S. v. Colon, 607

• Decision Date: 18 May 1990
• Docket Number: D,No. 607,607
• Citation: 905 F.2d 580
• Parties: UNITED STATES of America, Appellee, v. Luis COLON, a/k/a "Louie," John Wilks, a/k/a "Anthony Smith," a/k/a "Smitty," Theofanis Papathanasion, a/k/a "Theodoros Papadopoulos," Christopher Spivey, and Frederick Jackson, Defendants. Appeal of Luis COLON, a/k/a "Louie," Defendant-Appellant. ocket 89-1249.
• Court: U.S. Court of Appeals — Second Circuit

Page 580

905 F.2d 580

UNITED STATES of America, Appellee, v. Luis COLON, a/k/a "Louie," John Wilks, a/k/a "Anthony Smith," a/k/a "Smitty," Theofanis Papathanasion a/k/a "Theodoros Papadopoulos," Christopher Spivey, and Frederick Jackson Defendants Appeal of Luis COLON, a/k/a "Louie," Defendant-Appellant.

No. 607, Docket 89-1249.

United States Court of Appeals Second Circuit.

Argued Jan. 4, 1990.

Decided May 18, 1990.

Leonard J. Levenson, New York City, for defendant-appellant.

Patrick J. Fitzgerald, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., Samuel W. Seymour, Asst. U.S. Atty., New York City, on the brief), for appellee.

Before KEARSE and WINTER, Circuit Judges, and LEVAL, ^* District Judge.

WINTER, Circuit Judge:

This appeal raises questions concerning the United States Sentencing Guidelines ("U.S.S.G."), promulgated by the United States Sentencing Commission ("the Commission") under the authority of the Sentencing Reform Act of 1984, 18 U.S.C. Sec. 3551 et seq. (1988). Luis Colon appeals from a judgment of conviction entered after his plea of guilty to ten counts of a sixteen-count indictment charging violations of federal narcotics laws in the operation of a heroin distribution scheme. Count One charged that Colon and four others conspired to distribute, and to possess with intent to distribute, heroin, in violation of 21 U.S.C. Sec. 846. Counts Two, Three, Four, Five, Seven, Eight, Eleven and Thirteen charged Colon with distributing heroin within 1000 feet of a school on eight occasions in the spring of 1988, in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(C), and 845a(a). Count Sixteen charged him with possession of heroin with intent to distribute, in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(C).

Judge Walker, who had previously held the Guidelines to be unconstitutional and therefore did not consider them binding, originally gave Colon a fifteen-year sentence. Upon remand for resentencing under the Guidelines in light of Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), Judge Walker departed upward from the applicable Guidelines range of 57 to 71 months and again imposed a sentence of fifteen years on each count, to run concurrently. Colon argues that the upward departure was error because it was based on matters already accounted for by the Commission in setting the range. He also argues that statements made by him to the probation officer who prepared his presentence report, upon which the district court relied, should have been suppressed because they were offered without counsel being present and without advice regarding his right to remain silent. Because Judge Walker treated Colon's uncharged drug sales which he found to be part of the same scheme or plan as a ground for a discretionary upward departure instead of factoring them in the base offense level, we remand for resentencing.

BACKGROUND

The instant prosecution arose out of an investigation of heroin distribution in the Hell's Kitchen neighborhood of Manhattan. Beginning in March 1988, undercover New A superseding indictment charged Colon in ten of its sixteen counts. Colon entered pleas of guilty to all ten counts on July 14, 1988. Before sentencing, a probation officer interviewed Colon in the course of preparing the presentence report. In that interview Colon stated that he had supported himself largely by selling drugs on a consignment basis. He reported that he purchased 100 glassine envelopes of heroin every two or three days and used twenty of the envelopes to support his own addiction, the remaining 80 being sold for profit. It appears that Colon was neither represented by counsel at the interview nor advised of his right to remain silent before answering the probation officer's questions. Although Colon's counsel may be presumed to have known that the interview would occur after the plea of guilty, there is no indication that counsel made any request to be included. Moreover, the objection to reliance upon Colon's statements to the probation officer for purposes of sentencing was not raised in the district court but was made for the first time on appeal.

York City police officers made several purchases of small amounts of heroin from Colon and others working with him. Colon personally made eight of these sales, involving eighty glassine envelopes with a total weight of approximately 4 grams. All eight of the transactions were conducted within 1000 feet of a school, in violation of 21 U.S.C. Sec. 845a(a). When Colon was arrested on May 12, 1988, he was found to be in possession of another 89 glassine envelopes of heroin. The total amount of heroin either purchased or seized from Colon by officers was some 8.1 grams.

Colon appeared for his first sentencing before Judge Walker on October 11, 1988. The judge indicated that he had previously held the Guidelines unconstitutional. He stated, however, that he did "refer to them for purposes of whatever general guidance they may provide." Judge Walker then explained that Colon's supervisory position in the heroin ring, his continuous drug trading, and his history of other serious crimes required a sentence of fifteen years' imprisonment on each count, the terms to run concurrently. The sentence also included twelve years' supervised release on each count and a $500 special assessment, representing a $50 assessment on each count of conviction.

Before Colon's appeal could be argued, the Supreme Court upheld the constitutionality of the Sentencing Guidelines in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Colon and the government thereafter agreed to a remand to Judge Walker for resentencing under the Guidelines, on the understanding that Colon preserved his right to appeal, under 18 U.S.C. Sec. 3742, from the newly imposed sentence. ¹

Colon appeared for resentencing on May 11, 1989. Judge Walker deemed the original presentence report and all previous submissions as resubmitted. Colon was given a base offense level of 16. This figure was arrived at, first, by grouping all the counts together pursuant to U.S.S.G. Sec. 3D1.2(d), which requires grouping of all counts and acts where "the offense level is determined largely on the basis of ... the quantity of a substance involved." U.S.S.G. Sec. 3D1.2(d) (June 15, 1988). The Guidelines section covering all ten of Colon's counts of conviction is U.S.S.G. Sec. 2D1.1(a)(3) (Oct.1987) (drug quantity provision). Offenses treated under that section are specifically included in Section 3D1.2(d)'s list of conduct categories to be grouped.

Because the eight sales charged to Colon were all made within 1000 feet of a school, in violation of the "schoolyard statute," 21 U.S.C. Sec. 845a(a) (1988), the quantities of heroin there involved were counted twice pursuant to U.S.S.G. Sec. 2D1.3(a)(2)(b). Accordingly, although the actual quantity of heroin bought or seized from Colon was 8.1 grams, the doubling of the schoolyard sales made the quantity near 12 grams for purposes of sentencing. That quantity produced, as indicated above, the base offense Four points were added to the base offense level to reflect Colon's position as an "organizer or leader of a criminal activity that involved five or more participants." U.S.S.G. Sec. 3B1.1(a) (Oct.1987). Two points then were deducted for his free admission of his involvement in the crimes charged. U.S.S.G. Sec. 3E1.1(a) (Jan. 15, 1988) (reduction for "affirmative acceptance of personal responsibility" for criminal conduct). After these adjustments, Colon's offense level was 18. With a criminal history category of VI, ² see U.S.S.G. Sec. 4A1.1 (Oct.1987) (criminal history), the applicable sentencing range for that offense level was 57 to 71 months. U.S.S.G. Ch. 5, Part A (Oct.1987) (sentencing table).

level of 16. See U.S.S.G. Sec. 2D1.1 (Oct.1987) (drug quantity table indicating base offense level of 16 for 10 to 19 grams of heroin).

In a letter to Judge Walker dated April 3, 1989, the government urged an upward departure from the Guidelines range because the quantities charged in the indictment did not include quantities of drugs Colon admitted to selling in the presentence interview and therefore understated the gravity of Colon's offenses. Another ground urged by the government was the "mere happenstance" that Colon's conviction for a 1987 stabbing of his common-law wife, see supra note 2, had occurred subsequent to the conduct involved in the instant indictment. Had it occurred prior to that conduct, the government argued, Colon would be treated as a career offender under the Guidelines, see U.S.S.G. Sec. 4B1.1 (Jan. 15, 1988), inflating his sentencing range to 324 to 405 months (roughly 27 to 34 years).

After argument, Judge Walker departed upward from the Guidelines range, imposing the same sentence that he had imposed in October: 15 years' imprisonment on each count, to run concurrently; 12 years of supervised release; and $500 in special assessments, representing $50 on each count.

In the course of remarks following argument from counsel, the district judge suggested various grounds for the departure. First, he noted that "the defendant ran a street operation employing several workers.... [He] was the marketing and promotion director in effect for his area. He controlled and directed an organization dedicated to the sale of heroin." The judge also described him as "a street manager for a retail heroin organization."

Judge Walker also noted that the sentencing range under the Guidelines was determined on the basis only of quantities charged in the indictment--those either seized or purchased during the investigation by officers--and did not take into account the full amount of heroin sold by Colon and his coconspirators to others. He then undertook to estimate the rough volume Colon might have trafficked in, using as one factor in that calculation Colon's description of his...