U.S. v. Smith

• Decision Date: 18 March 1991
• Docket Number: No. 90-2029,90-2029
• Citation: 929 F.2d 1453
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ken SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1453

929 F.2d 1453

UNITED STATES of America, Plaintiff-Appellee, v. Ken SMITH, Defendant-Appellant.

No. 90-2029.

United States Court of Appeals, Tenth Circuit.

March 18, 1991.

David Williams, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and James D. Tierney, Asst. U.S. Atty., with him, on the brief), Albuquerque, N.M., for plaintiff-appellee.

Wendy E. York, Albuquerque, N.M., for defendant-appellant.

Before McKAY, TACHA, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Ken Smith and two co-defendants, David Paul Gallegos and Albert Mirabal, were charged in the first count of a two-count indictment in the United States District Court for the District of New Mexico with conspiring from April 29, 1989, to May 18, 1989, to possess with an intent to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), 846, and 18 U.S.C. Sec. 2. In the second count, the three defendants were charged with the possession on May 18, 1989, of more than 100 kilograms of marijuana with an intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B) and 18 U.S.C. Sec. 2.

As a result of a plea bargain, all three defendants pleaded guilty to a one-count information charging them with possession on May 15, 1989, of more than 50 kilograms of marijuana with an intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C), and 18 U.S.C. Sec. 2. By this appeal, Smith challenges the sentence imposed on him by the district court. By separate appeal, No. 90-2006, David Paul Gallegos has also challenged his sentence. Gallegos' appeal was decided by this Court's opinion filed on January 7, 1991, 922 F.2d 630. The third defendant, Albert Mirabal, has not appealed his sentence.

A rather detailed statement of the underlying chronology is necessary to place the various issues in focus. On May 18, 1989, Ken Smith and Albert Mirabal were arrested as they were in the process of selling 125 pounds of marijuana to undercover agents. Mirabal had been negotiating the sale for several weeks prior to May 18, 1989. Smith was Mirabal's source of supply. Shortly before the arrest, agents followed Smith to Gallegos' residence and observed Gallegos and Smith load a number of plastic bags into Smith's vehicle from a shed located within Gallegos' curtilage. Smith then drove to the scene of the purported sale, where he met with Mirabal and the undercover agents. At the time of the arrest of Mirabal and Smith, agents seized what amounted to 125 pounds of marijuana from Smith's automobile. After the arrest, the agents proceeded to Gallegos' residence where Gallegos was arrested. Armed with a search warrant, the agents searched Gallegos' shed and seized an additional 189 pounds of marijuana.

The root of the present controversy is whether only the 125 pounds of marijuana taken from Smith's automobile should be factored into the determination of Smith's base offense level, or whether the 189 pounds of marijuana seized from Gallegos' shed should also be considered. The amount of marijuana used in determining Smith's base offense level significantly affects the resulting sentencing guideline range.

The base offense level where only 125 pounds of marijuana is involved is 20. United States Sentencing Comm'n, Guidelines Manual [hereinafter referred to as Guidelines] Sec. 2D1.1. Since, as it is agreed, Smith was entitled to a 2-point reduction for his acceptance of responsibility, his net base offense level would be 18 if only the 125 pounds of marijuana found in his automobile is factored into the determination of his base offense level. Smith had no prior criminal record, and his criminal history category was therefore I. The sentencing guideline range for a person with a base offense level of 18 and a criminal history category of I is 27 to 33 months.

However, adding the 189 pounds of marijuana taken from the shed to the 125 pounds of marijuana would raise Smith's base offense level to 26. Guidelines Sec. 2D1.1. With the 2-point reduction, his net base offense level would become 24. The sentencing guideline range for a person with a base offense level of 24 and a criminal history category of I is 51 to 63 months.

Apparently, all three defendants were sentenced on December 15, 1989. It would appear that Mirabal was sentenced first. And it would also appear that the district court refused to follow the pre-sentence report's recommendation to factor in the 189 pounds of marijuana taken from Gallegos' shed in determining Mirabal's base offense level. As indicated, Mirabal has not appealed his sentence.

Smith was sentenced next. Smith's pre-sentence report also recommended the inclusion of the 189 pounds of marijuana taken from Gallegos' shed in determining Smith's base offense level. However, after listening to counsel's objection, the district court refused to consider the 189 pounds of marijuana in calculating Smith's base offense level. The district court then sentenced Smith to 30 months imprisonment.

Gallegos was the last to be sentenced. In his case, the district court determined to follow the pre-sentence report and considered the 189 pounds of marijuana taken from the shed in the determination of his base offense level. At this point, the district court apparently first realized that the pre-sentence report for both Gallegos and Smith indicated that the 189 pounds of marijuana taken from Gallegos' shed actually belonged to Smith and had been stored by Smith in Gallegos' shed with Gallegos' permission. The district judge spoke as follows:

"Just a moment. See if Wendy York [Smith's attorney] and Ken Smith are still around. I'm hearing some things here that affect or may relate to the sentence which I have imposed on Mr. Smith."

Neither Smith nor his attorney was around. Smith was on bond and had been granted the right to voluntarily surrender at a later date to the authorities. Apparently, Smith and his attorney left the courthouse immediately after Smith's sentencing and before Gallegos was sentenced.

On December 22, 1989, the district court held a second hearing in connection with Smith's sentencing. Smith and his attorney were both present, as was the United States Attorney. At this hearing, the district judge stated that in determining Smith's base offense level he had believed that Smith was not in any manner "connected" to the 189 pounds of marijuana taken from Gallegos' shed and for that reason did not add the 189 pounds of marijuana to the 125 pounds of marijuana found in Smith's automobile. The judge, incidentally, noted that although he had orally announced that Smith was sentenced to 30 months imprisonment, he had not reduced the orally imposed sentence to written judgment. The judge went on to say that moments after sentencing Smith--as he was about to sentence Gallegos--he suddenly realized that Smith's pre-sentence report contained an admission by Smith that he was responsible for the marijuana taken from Gallegos' shed. The judge also noted that Gallegos had testified at his sentencing hearing that the marijuana in his shed had been placed there by Smith. Hence, the judge indicated that he was now going to add the 189 pounds of marijuana taken from Gallegos' shed to the 125 pounds of marijuana found in Smith's automobile and resentence Smith accordingly.

With this turn of events, Smith's counsel indicated that she was challenging the statement in Smith's pre-sentence report that Smith had admitted that he was responsible for the 189 pounds of marijuana taken from Gallegos' shed. The basis advanced for this challenge was that the probation officer who prepared the pre-sentence report had interviewed Smith at a time when Smith's counsel was not present, and that she had previously requested that the probation department not interview Smith unless she was present. Counsel also challenged the use of Gallegos' testimony to show Smith's connection to the 189 pounds of marijuana taken from Gallegos' shed. The matter was at that point continued for an evidentiary hearing on these issues.

On February 1, 1990, there was a further hearing regarding the resentencing of Smith. At that hearing, defense counsel called as a witness the probation officer who prepared the pre-sentence report and who in the course of preparing the report had interviewed Smith on three separate occasions. He conceded that defense counsel was not present on any of these occasions, but stated that he was not aware that defense counsel had made any request that Smith not be interviewed unless she was present. The probation officer testified that Smith, when interviewed, more or less volunteered that he had placed the marijuana in Gallegos' shed, and that Smith's statement was not in response to a question. No other witness was called, although the prosecution offered a transcript of Gallegos' testimony at his own sentencing hearing where he testified that it was Smith who brought the marijuana to his residence, and, with Gallegos' permission, stored it in the shed. This transcript was received over objection.

Based on this testimony, the district court refused to strike from the pre-sentence report Smith's admission that he was responsible for the marijuana taken from Gallegos' shed. The court went on to observe that even if Smith's admission in the pre-sentence report was in anywise "tainted" by his attorney's alleged request to be present at any interview conducted by the probation office, Gallegos' testimony was itself sufficient to tie Smith to the 189 pounds of marijuana taken from Gallegos' shed.

Having made these findings, the district court determined that the aggregate amount of marijuana taken from Smith's automobile and Gallegos' shed placed Smith's base offense level at 26, and with the 2-point reduction for acceptance of responsibility set his net base offense level at 24. As indicated, the sentencing guideline range for a person with a base offense level of 24...