940 F.2d 1141 (8th Cir. 1991), 90-5270, United States v. Hammer

Docket Nº:90-5270.
Citation:940 F.2d 1141
Party Name:UNITED STATES of America, Appellee, v. Vicki Lou HAMMER, Appellant.
Case Date:July 23, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1141

940 F.2d 1141 (8th Cir. 1991)

UNITED STATES of America, Appellee,


Vicki Lou HAMMER, Appellant.

No. 90-5270.

United States Court of Appeals, Eighth Circuit

July 23, 1991

Submitted Feb. 13, 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.


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.

Page 1142

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.

-------------------------------------------------------------------------- | | | PLUKEY DUKE DEFENDANTS WHO WENT TO TRIAL | |---------------------|----------------------------------------------------| | | | Probable | | Defendant | Sentence | Time Served2 | |---------------------|--------------------------|-------------------------| | Plukey Duke | 3 life terms | Same | |---------------------|--------------------------|-------------------------| | Ralph Nunn | 25.0 yrs. | 21.4 yrs. | |---------------------|--------------------------|-------------------------| | Doris Admon | 20.0 yrs. | 17.2 yrs. | |---------------------|--------------------------|-------------------------| | Shawn Regan | 19.6 yrs. | 16.8 yrs. | |---------------------|--------------------------|-------------------------| | Kevin Beal | 16.3 yrs. | 14.0 yrs. | |---------------------|--------------------------|-------------------------| | Vicki Hammer | 15.7 yrs. | 13.5 yrs. | |---------------------|--------------------------|-------------------------| | Serena Nunn | 15.7 yrs. | 13.5 yrs. | |---------------------|--------------------------|-------------------------| | Kim Willis | 15.7 yrs. | 13.5 yrs. | |---------------------|--------------------------|-------------------------| | Walter Hughes | 15.0 yrs. | 12.9 yrs. | ---------------------|--------------------------|-------------------------

Page 1143

-------------------------------------------------------------------------- | PLUKEY DUKE DEFENDANTS WHO PLED GUILTY AND TESTIFIED | | AT ONE OR MORE OF THE DUKE TRIALS. | |---------------------|--------------------------|-------------------------| | | | Probable | | Defendant | Sentence | Time Served | |---------------------|--------------------------|-------------------------| | David Youmans | 12.6 yrs. | 10.8 yrs. | |---------------------|--------------------------|-------------------------| | Ramon Hutchinson | 9.0 yrs. |...

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