U.S. v. Engleman, 89-5145

• Citation: 916 F.2d 182
• Decision Date: 25 October 1990
• Docket Number: No. 89-5145,89-5145
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lewis Mayer ENGLEMAN, a/k/a Joe, a/k/a Joseph Clements, a/k/a Elliott Epstein, a/k/a Joseph Alexander, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 182

916 F.2d 182

UNITED STATES of America, Plaintiff-Appellee, v. Lewis Mayer ENGLEMAN, a/k/a Joe, a/k/a Joseph Clements a/k/a Elliott Epstein, a/k/a Joseph Alexander Defendant-Appellant.

No. 89-5145.

United States Court of Appeals Fourth Circuit.

Argued Feb. 7, 1990.

Decided Oct. 17, 1990.

As Amended Oct. 25, 1990.

Howard L. Cardin, Cardin & Gitomer, P.A., Baltimore, Md., for defendant-appellant.

Glenda Gay Gordon, Asst. U.S. Atty., Baltimore, Md., argued (Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief), for plaintiff-appellee.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

WIDENER, Circuit Judge:

Lewis Mayer Engleman was charged in a three-count indictment with conspiring to distribute cocaine in violation of 21 U.S.C. Sec. 846; possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1); and distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Engleman pleaded guilty to the three counts in a superseding indictment. He appeals from his sentence, not his conviction.

The evidence discloses that Engleman became involved in the conspiracy in February of 1987. Engleman, a resident of Florida, was stranded in the Inner Harbor area of Baltimore in a snowstorm. In the hotel where he was staying, he met a man named Glen Dean who, upon learning Engleman was from Florida, brought up the subject of cocaine. Engleman led Dean to believe that he could supply Dean with cocaine. Engleman obtained Dean's telephone number and called after returning to Florida to arrange a prospective cocaine transaction in Baltimore.

Dean received cocaine from Engleman packaged in Marlboro cigarette packages wrapped in cellophane with a Florida tax seal apparently intact. Engleman told Dean he packaged the cocaine himself. Engleman also distributed cocaine to several other coconspirators. Engleman usually flew from Florida to Baltimore where he would stay in a hotel in the Inner Harbor area. He would call his distributors to come get the cocaine. Thus, the conspiracy continued from February of 1987 until Engleman's arrest April 9, 1988.

During sentencing, there was a dispute about the amount of cocaine involved in the conspiracy. The district court did not determine exactly how much cocaine was involved. The probation officer's report found 17.383 kilograms. Engleman argued the amount was about 13.7 kilograms. A base offense level of 32 is the Guidelines level for offenses involving between 5 and 14.9 kgs of cocaine. On the other hand, a base level of 34 is appropriate for offenses involving between 15 kgs and 49.9 kgs. Drug Quantity Table Sec. 2D1.1 (effective until November 1, 1989). The district court did not determine the amount of cocaine involved, but assigned a base offense level of 33, splitting the difference between levels 32 and 34.

Engleman's sentencing level thus started with a base level of 33. Two levels were subtracted because he accepted responsibility for his actions. Finally, three levels were added back because of his conduct as a manager or supervisor in the conspiracy. As noted, Engleman appeals from his sentencing.

On appeal, he contends that the Sentencing Guidelines are unconstitutional because they do not provide for trial by jury in the determination of facts affecting his sentence and also because proof beyond a reasonable doubt is not required. ¹ He also argues that the Guidelines do not apply to his case because the conspiracy he is charged with straddled their effective date. Third, he asserts that the court erred in interpolating between two base levels instead of making a specific finding of how much cocaine was involved. Finally, he argues that the district court's finding that he played a supervisory or managerial role in the offense was not supported by a preponderance of the evidence. We find error only in the district court's decision not to ascertain the amount of cocaine involved and for interpolating between the two levels. Accordingly, we affirm in part and vacate and remand in part.

Engleman argues that because the amount of cocaine involved forces the judge to assign a predetermined base level which, in turn, allocates the range of his sentence, the specific amount of cocaine involved in the offense is a fact question that must be found beyond a reasonable doubt. In addition, he argues that determination of the amount is a task for a jury.

With regard to the standard of proof to be applied in sentencing, this court, relying on the analysis of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), reasoned that because the quantity of drugs goes to the question of the sentence rather than guilt, the government need only prove the quantity by a preponderance of evidence. United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990). In keeping with Powell, we hold that during sentencing it is appropriate, and not a violation of due process, for the lower court to consider an amount of cocaine that is established by a preponderance of evidence. In addition, because the quantity of drugs only goes to the sentence rather than guilt, trial by jury as to that fact is not required. See McMillan, supra, 477 U.S. at 93, 106 S.Ct. at 2420; see also Gov't of Virgin Islands v. Castillo, 550 F.2d 850, 855 (3d Cir.1977); 3 C. Wright, Federal Practice and Procedure Sec. 512, at p. 10 (1982).

Engleman also claims the district court erred by departing upward three levels for the role he played in the offense, that of a manager or supervisor of the conspiracy. He argues that because the court stated that he did not meet the literal definition of a manager or supervisor, the finding was not supported by a preponderance of evidence. However, upon a read ing of the proceedings in context, it is apparent that the court was not deciding whether to increase at all but whether to increase three levels or four (as an organizer or leader) for the role Engleman played in the offense. See Guidelines Sec. 3B1.1. The district court stated:

I would think that in a way one could read these guidelines and say the only think [sic] I could increase is by a level of 4 because you were not, in my judgment, a manager or supervisor.

I think what you were was a supplier who was engaged in significant organizational activities, who did, to some extent, directly control conduct which occurred--and for the record, I will say that there is a find [sic] of fact that I think the Timothy Johnston incident ² establishes that.... I think a fair reading of the facts has to be that you had some role in what happened, in directing what happened.

Certainly, simply the use of the aliases, the trips, the packaging, one cannot help but find on the facts, in my judgment, any responsible fact-finder, that you did organizational work.... I think you were not simply...