U.S. v. Moon
| Citation | 926 F.2d 204 |
| Decision Date | 15 February 1991 |
| Docket Number | No. 923,D,923 |
| Parties | UNITED STATES of America, Appellee, v. Ralph MOON, Defendant-Appellant. ocket 90-1375. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
John G. Duncan, Asst. U.S. Atty. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., Syracuse, N.Y., on the brief), for appellee.
Adina Schwartz, The Legal Aid Soc., Federal Defender Services Unit, New York City, on the brief, for defendant-appellant.
Before KEARSE, WINTER, and ALTIMARI, Circuit Judges.
Defendant Ralph Moon appeals from a judgment of conviction entered in the United States District Court for the Northern District of New York, Howard G. Munson, Judge, following his plea of guilty to conspiring in violation of 21 U.S.C. Sec. 846 (1988) to distribute approximately four pounds of marijuana and one kilogram of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988). He was sentenced principally to a 48-month term of imprisonment. On appeal, Moon contends that the district court erred in its application of the United States Sentencing Guidelines ("Guidelines") because (1) the Probation Department, in calculating Moon's base offense level, attributed to him double the appropriate quantity of cocaine, and (2) the court erroneously believed that one of the conspiracies of which Moon was convicted carried a five-year minimum prison term. For the reasons below, we find merit in both contentions, and we vacate the judgment of conviction and remand for resentencing.
Moon and six others were indicted in April 1988 on several counts of drug trafficking, including one count of conspiracy from May 30, 1987, to December 31, 1987, to distribute marijuana (count 1), and one count of conspiracy from December 1, 1987, to March 30, 1988, to distribute cocaine (count 5). Moon, named in all seven counts of the indictment, pleaded guilty to counts 1 and 5 and agreed to cooperate with the government. He testified at the trial of the only defendant not to plead guilty, Alfred Labat. The evidence that emerged at the trial of Labat, whose conviction of the count 5 conspiracy was affirmed on appeal, see United States v. Labat In the spring of 1987, Moon made several sales of small quantities of cocaine and marijuana to New York State police officer James Mathews, who was working undercover with the Federal Bureau of Investigation. In December 1987, Moon had several telephone conversations with Labat, who lived in Florida, with respect to the latter's efforts to obtain one-to-two kilograms of cocaine to sell to Moon at $17,000 to $18,000 per kilo.
05 F.2d 18 (2d Cir.1990), was as follows.
On January 15, 1988, Mathews told Moon he was interested in purchasing one kilogram of cocaine. Moon suggested that they go to Florida to buy the cocaine from Labat for $18,000. After conferring with unindicted coconspirator Joseph Ray, Moon suggested as an alternative that Mathews could obtain the kilogram of cocaine from Ray for $30,000. Mathews did not immediately choose or reject either option.
On January 18, 1988, Moon received a call from Labat who offered to try to obtain one kilogram of cocaine and deliver it to Moon in New York for $22,000. During the next two days, Moon relayed this offer to Mathews, and Ray renewed his offer to provide a kilo for $30,000. Thereafter, "Ray decided to obtain the cocaine for sale to Mathews from another source at a lower price," United States v. Labat, 905 F.2d at 21, and on January 22, Ray purchased one kilo of cocaine from codefendant Randy Dentel; on January 29, Moon and Ray sold that kilogram to Mathews for $30,000. Moon did not thereafter pursue matters with Labat. The arrests and indictment soon followed.
Following Labat's trial, the Probation Department prepared for the court a presentence report ("PSR") for the sentencing of Moon. Noting that it presented only an "abbreviated overview" of Moon's activities because the court was aware of Moon's extensive testimony at Labat's trial (PSR p 10), the PSR described Moon's role in the cocaine conspiracy as follows:
Moon was heard negotiating to purchase one to two kilos of cocaine from Alfred Labat.... Moon had planned to obtain the cocaine from Labat for sale to Ray. Moon commits [sic ] to a one kilo deal in December 1987 at a price of $17,000 to $18,000.... In late December the deal was put on hold as Ray, Moon's partner, could not raise the money to complete the sale.
Nevertheless, in mid-January 1988, Moon tells Labat he wants to purchase one kilogram of cocaine within the next three to eight days.... In a conversation three days later Labat advises Moon he will be able to obtain the cocaine and he makes arrangements with Moon to fly up to meet with him and then rendezvous for the actual transaction....
According to the prosecutor, Moon's deal to obtain a kilo of cocaine from Labat was never consumated [sic ] because, through simultaneous negotiations with another supplier (Randy Dentel), Moon and Ray were able to arrange to buy cocaine at a better price.
(Id. pp 16-18.)
With respect to the offense-level computation, the PSR concluded that Moon's offenses involved approximately two kilograms of cocaine:
As for his known cocaine dealing, Moon was involved in three precursory sales involving 31.24 grams of cocaine. Additionally, he sold 998.2 grams of cocaine on January 29, 1988 and investigators [sic ] reports and wiretaps confirm he committed to the purchase of a kilogram of cocaine from Alfred Labat in mid-January 1988 although the deal apparently never took place. The total amount of cocaine involved is 2,029.44 grams....
(Id. p 24.) Based on two kilograms of cocaine, plus the amounts of marijuana involved, the PSR concluded that Moon's base offense level was 28. Moon's total offense level, after an upward adjustment for his role in the offenses and a downward adjustment for his acceptance of responsibility, was also 28.
Under the Guidelines, the total imprisonment range for level 28 was 78-97 months.
The PSR noted that a departure from the Guidelines might be warranted by the substantial assistance Moon had provided at the Labat trial and by his willingness to testify at other trials, which "[u]ndoubtedly" had caused other codefendants to plead guilty. (Id. p 53.)
Throughout the district court proceedings involving Moon, it was assumed that the minimum term of imprisonment required by Sec. 846 for the count 5 conspiracy was five years. See 21 U.S.C. Sec. 841(b)(1)(B) (), and id. Sec. 846 (). The plea agreement stated that Moon faced a minimum prison term of five years, and it stated that the government would move for a downward departure pursuant to 18 U.S.C. Sec. 3553(e) (1988). That section states, in pertinent part, as follows:
(e) Limited authority to impose a sentence below a statutory minimum.--Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.
The PSR likewise noted that the government would move for a downward departure pursuant to this section. (PSR p 54.)
At the sentencing hearing, the court, noting that the Guidelines called for incarceration for 78-97 months and that the Probation Department had recommended a sentence of 60 months, stated that in the court's view, a larger downward departure was warranted. It stated that
in imposing this sentence [the court] departs from the guidelines and imposes a sentence below the guidelines in accordance with 5-K-1.1 of the Sentencing Guideline Act 18 United States Code 3553(E) on motion of the Government.
(Sentencing Transcript 8.)
The court sentenced Moon to, inter alia, a period of 48 months' imprisonment.
On appeal, Moon contends (1) that the court erred in accepting the PSR's conclusion that his base offense level should be calculated on the basis of two kilograms of cocaine, and (2) that the five-year minimum sentence provision of Sec. 846 did not apply to him because his conduct preceded the date of the amendment making that minimum applicable to conspiracy offenses. He urges that his sentence be vacated and the case be remanded to the district court for resentencing on the proper basis. The government argues (a) that Moon has waived his present contentions because they were not raised in the district court, (b) that his challenge to the quantification of the cocaine lacks merit, and (c) that given the substantial downward departure by the court to 48 months, Moon was not prejudiced by the erroneous assumption that he faced a statutory minimum of five years. For the reasons below, we agree with Moon's contentions and remand for resentencing.
Although the extent of a downward departure from the range of imprisonment prescribed by the Guidelines is not generally reviewable on appeal, an appeal does lie where a sentencing decision is based on a "demonstrable error of law." United States v. Colon, 884 F.2d 1550, 1553 (2d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989). As with other contentions raised on appeal, the defendant must normally present his argument to the district court in order to preserve the contention for review on appeal. See, e.g., United States v. Tillem, 906 F.2d 814, 827 (2d Cir.1990) (severance); United States v. Irabor, 894 F.2d 554, 555 (2d Cir.1990) (Guidelines contention); United States v. Carson, 702 F.2d 351, 369 (2d Cir.) (objection to evidence), cert. denied, 462 U.S. ...
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