U.S. v. Wagner, s. 90-2737

• Decision Date: 17 June 1993
• Docket Number: 90-2738 and 90-2739,Nos. 90-2737,s. 90-2737
• Citation: 996 F.2d 906
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Lewis WAGNER, Michael T. Wagner, and Scott A. Sine, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 906

996 F.2d 906

UNITED STATES of America, Plaintiff-Appellee, v. John Lewis WAGNER, Michael T. Wagner, and Scott A. Sine Defendants-Appellants.

Nos. 90-2737, 90-2738 and 90-2739.

United States Court of Appeals Seventh Circuit.

Argued April 6, 1993.

Decided June 17, 1993.

Frederick J. Hess, U.S. Atty., Ralph M. Friederich, Asst. U.S. Atty. (argued), Crim. Div., Fairview Heights, IL, for U.S.

William J. Rapp, Cincinnati, OH (argued), for John L. Wagner.

Lynn A. Hirschfeld, Chicago, IL (argued), for Michael T. Wagner.

Jerry B. Kurz (argued), Kathryn Hall, Hall & Kurz, Chicago, IL, for Scott A. Sine.

Before CUDAHY and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

In this direct criminal appeal, John Lewis Wagner ("John"), Michael T. Wagner ("Michael") and Scott A. Sine ("Sine") challenge the validity of their guilty pleas and sentences for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdiction to decide this appeal pursuant to 28 U.S.C. §§ 1291, 1294 and 18 U.S.C. § 3742. We affirm the validity of the guilty pleas and John and Michael's sentences. However, we vacate Sine's sentence and remand for a specific finding on how much cocaine should be attributed to him. Furthermore, we dismiss without prejudice the ineffective assistance of counsel claims.

I.

A. The Conspiracy.

Before he had completed serving his most recent term of imprisonment, John Wagner was making big plans for his future. He confided to cellmate Peter Brown that he intended to become the top drug dealer in southern Illinois. Upon his release from the Menard Correctional Center in January 1987, John began to implement his plan. After contacting a childhood friend, Robert Griebe, John got cocaine from his brother Michael Wagner, who lived near Chicago. With Griebe's aid, John brought cocaine to southern Illinois where he "fronted" it to others to sell for him. When Brown was released from prison, he became involved in the conspiracy, using cocaine and becoming heavily indebted to John.

The John Wagner organization continued, following the same pattern. People would become involved for six months at a time, get heavily into debt and then move on. Sine entered the conspiracy sometime around March, 1988. He obtained cocaine from John and sold it to others in smaller amounts. Sine also went along on at least one trip to Michael's to obtain cocaine. In December 1988, Michael moved to Arkansas. Before he moved, Michael found another supplier in the Chicago area to furnish John with cocaine.

B. The Indictment and Plea.

As a result of a DEA investigation, John, Michael, Steve Wagner (brother to John and Michael), Scott Sine, Ricky Alsip, Michael Hanley, Charles Walsh and Robert Griebe were all charged by indictment with conspiracy to distribute in excess of five kilograms of cocaine. Alsip, Walsh and John were also charged with various counts of distributing cocaine. John, Michael, Hanley and Sine all changed their pleas to guilty on the conspiracy charge at a change of plea hearing.

According to the informal agreement reached between the defendants and the government, no additional cocaine or marijuana charges arising from these facts would be brought against the defendants. Also, the one distribution count pending against John would be dismissed. Their pleas did not specify the amount of cocaine involved in the conspiracy. The indictment charged the defendants with conspiring to distribute in excess of five kilograms of cocaine. However, pursuant their agreement with the government, each defendant pled guilty only to the conspiracy and not to a specific amount of cocaine. At the sentencing hearing each defendant would therefore have an opportunity to present evidence and argue how much cocaine actually should have been attributed to him. The parties agreed that the district court would then make a finding on the amount of cocaine and sentence each defendant on the basis of that finding.

At the change of plea hearing the district court asked all the defendants their age and educational backgrounds. The district court then asked the defendants individually about whether they could read, write and understand English; whether they had any problem understanding him; whether they were under the care of a doctor or psychiatrist for any disease, mental disability or ailment; whether they were taking any medication; and whether now or in the past they had been addicted to any type of narcotics. ¹

The district court then informed the defendants of the consequences of entering a guilty plea. Specifically, the court advised them that the offense falls under the Sentencing Guidelines and that any sentence would depend on the amount of drugs attributed to the defendant which he could not compute until the sentencing hearing. (Pl. Tr. 13). ² The court expressly noted that the punishment could range up to life imprisonment, and a fine up to $4,000,000 could be assessed. The court also stated that if a defendant were sentenced to a term of imprisonment, the term would be followed by a period of five years' supervised release. Finally, the district court informed the defendants that:

[O]n a charge involving at least five kilograms, there would be a minimum sentence of ten years. If it is less than five kilograms, and your involvement being in the conspiracy with less than five kilograms but more than 500 grams, then the sentence would be a minimum of five years. So, you know, I mean to put it in every day vernacular, we're talking about some substantial time of imprisonment here of all of you. I wanted to advise you of that.

(Pl. Tr. 13).

The court asked each defendant whether he understood that he did not have to plead guilty and that he was entitled to a jury trial, where he could confront witnesses against him and request witnesses on his own behalf. Later, the district court informed the defendants that they had a right to remain silent "during the course of this." (Pl. Tr. 17). However, the district court did not explicitly mention Fifth Amendment rights in the context of a jury trial.

C. Sentencing Hearing.

At the sentencing hearing, Brown testified that he made four or five trips north to pick up cocaine. Griebe testified that he made seven or eight trips to Chicago and obtained one kilogram of cocaine on each trip. He also recalled that Sine accompanied him on one of these trips and that Michael had made three or four trips from Chicago, delivering one kilogram of cocaine per trip. (Sen. Tr. 89). Alsip testified that he received a total of 4 kilograms of cocaine from John. Walsh testified that he had seen Michael deliver 5 kilograms to John in a red toolbox.

DEA Special Agent John Yacup gave the most extensive testimony at the sentencing hearing. Based on interviews and proffers with co-conspirators and informants, Yacup testified regarding his calculations of the amount of cocaine. Yacup testified that Michael had made 25 to 50 trips to Southern Illinois to deliver cocaine. The amounts of cocaine delivered on these trips ranged from pounds, half pounds to kilogram quantities. He also testified that Mike Hanley had sold between two and three kilograms. (Sen. Tr. 249). John's ex-wife told Yacup that she recalled counting money in amounts of $100,000 on three different occasions. Yacup also testified that Steve recalled stashing $500,000. (Sen. Tr. 252-53). Finally, Yacup testified that John made approximately 50 trips north for cocaine. (Sen. Tr. 285). Yacup cut short proffers ³ from John and Michael because he did not think they were providing complete and truthful information.

Based on the 8 kilograms Griebe reported, the 20-50 deliveries by Michael, the 5 kilograms Walsh testified Michael had in the toolbox, the 2 kilograms by Hanley and the 2 kilograms by Brown, the district court determined that the amount of cocaine involved in the conspiracy was greater than 15 kilograms. The district court denied John's and Michael's requests for a two-level reduction for acceptance of responsibility pursuant to United States Sentencing Guideline § 3E1.1. The district court also enhanced John's base level offense by four pursuant to Sentencing Guideline § 3B1.1 for being an organizer or leader in the conspiracy. The district court granted Sine's request for a two-level decrease for acceptance of responsibility. The district court did not ask each defendant if he had an opportunity to read the Presentence Investigation Report (PSI). However, all three defendants, through counsel, filed objections to their PSIs. (R. 197, 201, 204).

John Wagner's sentencing range was 292 to 365 months, and the district court sentenced him to 292 months because it found that this was adequate punishment for John's involvement. Michael's range was 188 to 235 months. The district court sentenced him to 210 months because he was the principal supplier of the cocaine, although he was not the head of the conspiracy. Sine's range was 121 to 151 months' imprisonment. The district court sentenced Sine to 151 months' imprisonment because although it had given Sine a two-level reduction for acceptance of responsibility, the court stated that it had doubts as to whether Sine had really accepted responsibility. The district court noted that 151 months was the low end of the range had the reduction not been granted.

On appeal, we address six issues raised by defendants. All three defendants challenge the validity of their guilty pleas and argue that the pleas should be set aside for the district court's failure to comply with Federal Rule of Criminal Procedure 11. They also dispute the district court's finding that the conspiracy involved 15 to 50 kilograms of cocaine. All three challenge their sentences on the basis that the district court either erroneously adjusted or refused to adjust their base offense level. They also argue that because the district court did not strictly...