U.S. v. Osborne

• Decision Date: 06 June 1991
• Docket Number: Nos. 89-1182,89-1367 and 89-1678,s. 89-1182
• Citation: 931 F.2d 1139
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William J. OSBORNE, Thomas E. Hanna and Joseph Urbano, Jr., also known as Toby Urbano, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1139

931 F.2d 1139

UNITED STATES of America, Plaintiff-Appellee, v. William J. OSBORNE, Thomas E. Hanna and Joseph Urbano, Jr., also known as Toby Urbano, Defendants-Appellants.

Nos. 89-1182, 89-1367 and 89-1678.

United States Court of Appeals,

Seventh Circuit.

Argued April 4, 1990.

Decided April 22, 1991.

Rehearing Denied June 6, 1991.

Joseph R. Wall, Asst. U.S. Atty., Milwaukee, Wis., for U.S.

Mark A. Schroeder, Consigny, Andrews, Hemming & Grant, Janesville, Wis., for William J. Osborne.

Daniel W. Hildebrand, Ross & Stevens, Madison, Wis., for Thomas E. Hanna.

Joseph R. Lopez, Chicago, Ill., for Joseph Urbano, Jr. aka Toby Urbano.

Before WOOD, Jr., and COFFEY, Circuit Judges, and NOLAND, Senior District Judge. ^*

COFFEY, Circuit Judge.

Defendants Thomas E. Hanna, William J. Osborne, and Joseph Urbano after entering into plea agreements were convicted of violations of federal narcotics laws. The defendants were convicted of one count of conspiracy to possess cocaine with intent to distribute under 21 U.S.C. Secs. 841(a)(1), 846 and 18 U.S.C. Sec. 2 and the defendant Hanna was also convicted of one count of possession of cocaine with intent to distribute under 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. ¹ Each of the defendants appeal their

sentences, while the defendant Osborne also appeals his conviction alleging that the government breached the plea agreement. We affirm.

I. FACTUAL BACKGROUND

From September 1, 1987 to February 1, 1988, defendant Hanna, a Florida resident, supplied cocaine to the defendant, Osborne, in Wisconsin, and Osborne then resold quantities of the cocaine while retaining enough for his personal use. During the same period of time Urbano and Osborne transported cocaine between Florida and Wisconsin. ²

In January of 1988, Hanna instructed Urbano to transport seven ounces of cocaine to Wisconsin and instructed that he conceal this cocaine in his crotch area while flying from Florida to Chicago, Illinois. Urbano distributed four ounces of this cocaine to Osborne, two ounces to co-conspirator Anthony Sciano and one ounce to another co-conspirator Randy Carroll.

On February 14, 1988, Osborne and Hanna flew from Florida to Chicago's O'Hare Airport, with Osborne carrying cocaine. Osborne and Hanna were met at the airport by Osborne's girlfriend, co-conspirator Debra Bauer and a confidential informant of the Wisconsin Department of Justice. Osborne, Hanna, Bauer and the confidential informant travelled via automobile from the airport to Wisconsin and, after the automobile crossed the Wisconsin border, Wisconsin state agents stopped the car and arrested the occupants, Osborne, Hanna and Bauer. Nine ounces (255.15 grams) of fifty percent pure cocaine (transported from Florida) were found in four plastic bags in Bauer's purse. In addition, Hanna's briefcase, seized during the search, contained ledgers of past drug transactions.

Following his arrest, Hanna, while released on bond, contacted one Randy Carroll, a former co-conspirator, and advised him that he would continue to supply him with cocaine. ³ Shortly thereafter, on March 23, 1988, Hanna traveled from Florida to an unspecified location in northern Illinois, sold Carroll an ounce of cocaine, and discussed arrangements for future cocaine sales. A week later, on the 30th of March, Hanna met with Carroll at co-conspirator Sciano's bar, gave Carroll one ounce of cocaine and received $650 in cash owed from an earlier cocaine delivery. Following this sale, Hanna was arrested and the marked "buy money" was confiscated from his person.

II. ISSUES PRESENTED

The parties' appeals present the following issues: (1) Are the Sentencing Guidelines applicable to Osborne and Urbano's convictions, considering that the conspiracy commenced prior to the effective date of the Guidelines and continued thereafter; (2) was the trial court's action in imposing a term of supervised release in addition to Osborne's prison sentence and fine for conspiracy under the former version of 21 U.S.C. Sec. 846 proper; (3) did the district court's procedure conform to Section 6A1.3(b) of the Guidelines, in sentencing Osborne, when it allegedly failed to provide the defendant with tentative findings of facts; (4) was the trial court's finding that Osborne was responsible for 630 grams of cocaine proper in calculating his sentence under the Sentencing Guidelines; (5) did the district court err in granting a two level enhancement under Section 3C1.1 of the Sentencing Guidelines based upon Osborne's obstruction of justice; (6) did the district court err in denying a two level reduction to each of the defendants, Hanna and Urbano, under Section 3E1.1 of the Sentencing Guidelines based upon their failure to accept responsibility for their conduct; (7) did the district court err in denying Urbano either a four level reduction under Section 3B1.2(a) of the Guidelines as a "minimal" participant in the criminal

operation or a two level reduction under Section 3B1.2(b) of the Guidelines as a "minor" participant in the criminal activity; (8) did the trial court properly classify Urbano's criminal history under Category II; and (9) did the government breach its plea agreement with Osborne when it recommended that his sentence be adjusted upward for obstruction of justice and that he be classified in Criminal History Category III rather than Category I?

III. APPLICABILITY OF THE SENTENCING GUIDELINES

Osborne and Urbano, sentenced under the Sentencing Guidelines, contend that the Guidelines should not apply to sentencing for their criminal activity that commenced prior to November 1, 1987, even though the conspiracy continued after that date. ⁴ Their briefs also contend that application of the Guidelines would be in violation of the Constitution's Ex Post Facto Clause because it commenced prior to November 1, 1987.

In United States v. Fazio, 914 F.2d 950, 959 (7th Cir.1990), we held that:

"Although this circuit has not yet had occasion to consider whether the Guidelines applied to a defendant whose offense begins before the effective date of the Guidelines but continues beyond the effective date of the Guidelines, the other circuits that have considered the issue unanimously have concluded that application of the Guidelines in such a case does not violate the ex post facto clause. We see no reason to deviate from the reasoning of these circuits on this issue. Thus we conclude that the district court did not err in sentencing Mr. Fazio under the Federal Sentencing Guidelines."

(Footnotes omitted). Fazio states that it was the intention of Congress in adopting the Sentencing Guidelines that they apply to convictions for criminal conduct that began prior to the effective date of the Guidelines and continued after that date, and that this application was consistent with the Ex Post Facto Clause of the United States Constitution. See also United States v. McKenzie, 922 F.2d 1323, 1328 (7th Cir.1991) (No violation of Ex Post Facto Clause in application of Sentencing Guidelines to conduct that commenced prior to the Sentencing Guidelines' effective date and continued thereafter). Thus, the trial court's use of the Guidelines in imposition of sentence upon Osborne and Urbano, where the conspiracy commenced prior to the effective date of the Guidelines and continued thereafter, was appropriate.

IV. SUPERVISED RELEASE

Osborne argues that the trial court improperly sentenced him to a term of supervised release upon the completion of his prison confinement, relying upon the United States Supreme Court's decision in Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980), where the Court held that the terms of the federal narcotics conspiracy statute, 21 U.S.C. Sec. 846, then in effect did not permit a sentencing court to impose a "special parole term" in addition to imprisonment. The Bifulco Court reasoned that "special parole" did not come within the framework of the language "imprisonment or fine or both" contained in the applicable text of 21 U.S.C. Sec. 846. See Bifulco, 447 U.S. at 388, 100 S.Ct. at 2252. Osborne contends that application of the reasoning in Bifulco also requires a conclusion that a term of supervisory release is neither imprisonment nor a fine and, thus, may not be imposed under the language of 21 U.S.C. Sec. 846 that applied both to Bifulco and to Osborne's case. ⁵

In Montoya we recognized that the terms of 21 U.S.C. Sec. 846, that apply to Osborne's sentencing, did not expressly authorize special penalty provisions: "Where a conspiracy statute fails to make reference to special penalty provisions such as mandatory minimum periods of incarceration, the special penalties may not be imposed for convictions under the conspiracy statute." Montoya, 891 F.2d at 1293. See also United States v. McNeese, 901 F.2d 585, 602-03 (7th Cir.1990) (mandatory minimum sentences inapplicable under pre-amendment 21 U.S.C. Sec. 846).

Although the text of 21 U.S.C. Sec. 846 applicable to Osborne's sentencing did not explicitly permit a term of supervised release, it also did not forbid the imposition of supervised release. This point is significant as 18 U.S.C. Sec. 3583, ⁶ authorizes the district court to impose a term of supervised release in sentencing for any felony or misdemeanor conviction where a defendant receives a term of imprisonment. 18 U.S.C. Sec. 3583(a) reads:

"Inclusion of a term of supervised release after imprisonment

(a) In general.--The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment, except that the court shall include as a part of the sentence a requirement that the defendant be placed on a term of supervised release if such a term is required by statute."

As we held in Section III, supra, Osborne's conviction involved felonious conduct occurring after ...