U.S. v. Hammer, 90-5270

• Decision Date: 23 July 1991
• Docket Number: No. 90-5270,90-5270
• Citation: 940 F.2d 1141
• Parties: UNITED STATES of America, Appellee, v. Vicki Lou HAMMER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1141

940 F.2d 1141

UNITED STATES of America, Appellee, v. Vicki Lou HAMMER, Appellant.

No. 90-5270.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1991.

Decided July 23, 1991.

David L. Warg, Minneapolis, Minn., for appellant.

Jon M. Hopeman, argued (Jerome G. Arnold, Jon M. Hopeman and Denise Reilly, on brief), Minneapolis, Minn., for appellee.

Before FAGG and BEAM, Circuit Judges, and HEANEY, Senior Circuit Judge.

PER CURIAM.

Vicki Lou Hammer appeals from her conviction and 188-month sentence for conspiracy to possess with intent to distribute cocaine from 1984 to May 18, 1989, in violation of 21 U.S.C. Sec. 846 (1988). Hammer was an important participant in the conspiracy to distribute cocaine in the Twin Cities headed by Ralph "Plukey" Duke. Five co-conspirators who made deals with the government testified at her trial (which was separate from that of several of the conspirators, including Duke, who were tried together) that she made many cross-country trips transporting cocaine by car, allowed her house in St. Paul to be used as a storage place and distribution center for drugs, and personally organized transactions and made deliveries. Despite this testimony, Hammer argues that the evidence was insufficient to support her conviction. She claims, incredibly, that she never knew Duke was involved with drugs and that her seeming acts of participation were merely instances of her innocent association with drug dealers. In addition, Hammer argues that the district court misapplied the relevant-conduct provision of the sentencing guidelines. See U.S.S.G. Sec. 1B1.3(a). She argues that the evidence does not prove that she conspired to possess the particular amounts used by the district court in calculating her base offense level. Our review of the record, however, convinces us otherwise. To this extent, Hammer's argument merely restates her sufficiency argument. Because we find no error, our recitation of the strong evidence against Hammer would have no precedential value. The judgment of the district court is affirmed. See 8th Cir.R. 47B.

HEANEY, Senior Circuit Judge, concurring.

I concur. The evidence was clearly sufficient to sustain Vicki Lou Hammer's conviction for conspiracy to possess and distribute five kilograms or more of cocaine from 1984 to 1988. The record also supports the 188-month guideline sentence imposed--the sentence was based on trial evidence which established that Hammer transported and stored fifty or more kilograms of cocaine as a part of a conspiracy with Ralph ("Plukey") Duke. See U.S.S.G. Sec. 2D1.1(c)(4).

I write separately to highlight several concerns that I have with the sentencing guidelines and their application in the Plukey Duke cases. These cases involved twenty-four defendants, the vast majority of whom were convicted of drug trafficking crimes. From my review of the record, it is clear that there is a great disparity in sentence length among defendants with similar degrees of involvement in the drug ring. The sentencing disparity results not from decisions made by the district judge, but from charging decisions and plea bargains made by the prosecutor. Moreover, some charging practices violate a defendant's right to due process. I turn first to the issue of disparity.

1. The Proportionality of the Sentences. The sentences imposed on drug traffickers in the Plukey Duke cases illustrate that sentencing disparity continues to exist under the guidelines, that defendants who go to trial pay a heavy premium for their choice, and that the prosecutor largely determines the sentence of the defendant by deciding who to charge, what to charge, and when to charge. ¹ To illustrate these points, I initially present the following tables. Note that the defendants who pled guilty all received shorter sentences than those who went to trial.

The guidelines anticipate that persons who plead guilty can expect to receive somewhat shorter sentences. This goal is to be achieved through the operation of a two-level reduction for acceptance of responsibility and downward departures for substantial assistance. See U.S.S.G. Secs. 3E1.1 and 5K1.1; see also 18 U.S.C. Sec. 3553(b) and U.S.S.G. Sec. 5K2.0 (court may impose a sentence outside the guidelines range if it finds there exists a mitigating circumstance "of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines."). It was anticipated by Congress, however, that the adjustments were to be on the record for everyone to see. Moreover, the Department of Justice assured Congress and the public that pleas of guilty were to reflect the seriousness of the crimes committed. In many of these cases, however, neither condition was met. Individual cases flesh out this point and underscore the power of the prosecutor to control the sentence imposed. Consider first the case of Marvin McCaleb.

Marvin McCaleb

Marvin McCaleb was Plukey Duke's partner in the drug conspiracy. He and Plukey Duke imported to Minnesota about twenty-five kilograms of cocaine a week during a four- to six-month period during 1988. The pair split the profits equally; McCaleb estimated his share was between $650,000 and $1,000,000.

McCaleb had been convicted of manslaughter at age 18 in 1978, of rape by force in 1979, and of possessing two grams of cocaine with intent to sell in 1989. McCaleb admitted he had dealt drugs for four years and at times had moved 200 to 500 kilograms of cocaine a month.

McCaleb was arrested in California on December 28, 1988 for his role in the Plukey Duke drug conspiracy. Thereafter, he entered into a plea agreement with the federal authorities in Los Angeles. McCaleb promised he would aid the government in apprehending persons who sold narcotics and would testify against those persons. In return, the government agreed that if McCaleb pled guilty to conspiring to distribute eighteen kilograms of cocaine, it would dismiss an additional count which charged McCaleb with distributing twenty-five kilograms of cocaine. The government also promised it would recommend a preguidelines sentence of five to forty years for the California offenses. McCaleb would be eligible for parole after serving one-third of that sentence. See 18 U.S.C. Sec. 4205(a) (1982) (repealed effective Nov. 1, 1987 by Pub.L. No. 98-473, tit. II, Secs. 218(a)(5), 235, 98 Stat. 2027, 2031 (Oct. 12, 1984)). In addition, the United States Attorney's office in Minnesota agreed that it would not bring any additional charges in Minnesota. Had McCaleb been charged in Minnesota, he would have been subject to a guidelines sentence of at least twenty-seven years even if no upward adjustments were made for being a leader or organizer. ³

McCaleb and Plukey Duke were the two major players in this drug conspiracy. Both distributed large amounts of cocaine for a long period of time. Although he has no prior criminal history, Plukey Duke will serve two life sentences for his crimes. In contrast, McCaleb has an extensive criminal history but will be subject to, at most, a forty-year preguidelines sentence. Because McCaleb cooperated with the government by testifying against Plukey Duke, Vicki Hammer, and other defendants, he is unlikely to receive the maximum possible forty-year sentence.

The United States District Court for the District of Minnesota had no role in determining whether McCaleb would be charged in Minnesota. That decision was made only by the United States Attorney, and no Minnesota guilty plea will ever be entered by McCaleb in this case. As a result, the statistics compiled by the Sentencing Commission will never show the disparity wrought here by the government's favorable treatment of McCaleb or in countless similar cases throughout the country. ⁴ I well understand that the government must offer a benefit in order to get cooperation from offenders. This practice, however, results in substantial disparities among similarly situated offenders. The Sentencing Commission's statistics never measure such gross disparities and thus present only an illusion of precision and accuracy.

I also understand that the prosecutor needs broad charging discretion. I cannot agree, however, that this authority should be without limit under a guidelines system of sentencing. Because there is no oversight on charging decisions, McCaleb, a major participant, may well serve less time than anyone other than the very minor participants. This is wrong. The court and the public should be aware of what is being done in McCaleb's case and others like it.

McCaleb is not the only major participant who escaped a severe sentence. The case of Loren Duke also illustrates how the prosecutor's charging decisions affect the sentence imposed.

Loren Duke

Loren Duke is a 23-year old nephew of Plukey Duke with one prior burglary conviction. Loren Duke was heavily involved in the drug distribution ring. He frequently acted as a drug courier and was involved in the purchase and delivery of more than thirty-five kilograms of cocaine. Loren Duke was originally charged with: (1) aiding and abetting an attempt to possess twenty kilograms of cocaine; and (2) conspiring to distribute more than five kilograms of cocaine. He conceded at trial that if he had been convicted on the above charges, he would have been subject to a guidelines sentence of twenty-three years.

The United States Attorney, however, offered Loren Duke a favorable plea bargain. It provided that the two counts in the indictment would be dropped in exchange for a plea to an information charging a violation of the "drug house" statute, 21 U.S.C. Sec. 856(a)(1). This statute makes it unlawful to knowingly maintain a place for the purpose of manufacturing, distributing, or using any controlled substance. No mandatory minimum sentence is required for a violation of the "drug house" statute. Its offense level is 16 under the guidelines compared to an offense level of...