U.S. v. Anders, s. 89-5465

• Decision Date: 19 July 1990
• Docket Number: 89-5467,Nos. 89-5465,s. 89-5465
• Citation: 899 F.2d 570
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bonnie Sue ANDERS, Defendant-Appellant (89-5465) and Trumanda Weddle, Defendant-Appellant (89-5467).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 570

899 F.2d 570

UNITED STATES of America, Plaintiff-Appellee, v. Bonnie Sue ANDERS, Defendant-Appellant (89-5465) and Trumanda Weddle, Defendant-Appellant (89-5467).

Nos. 89-5465, 89-5467.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 4, 1989.

Decided April 4, 1990.

Rehearing Denied July 19, 1990.

Louis DeFalaise, U.S. Atty., Jane E. Graham, Asst. U.S. Atty. (argued), Lexington, Ky., for U.S.

Lee Fugate (argued), Clearwater, Fla., for Bonnie Sue Anders.

Edward H. Adair (argued), Williamsburg, Ky., for Trudie Weddle.

Before KEITH and NORRIS, Circuit Judges, and PECK, Senior Circuit Judge.

KEITH, Circuit Judge.

Defendant Bonnie Sue Anders ("Anders") appeals from the district court's judgment and commitment order charging her with possesion with intent to distribute a controlled substance and tax evasion. Both Anders and her daughter, defendant Trumanda (Trudie) Weddle ("Weddle") appeal from the district court's judgment and commitment order finding them guilty of intentionally using a telephone in facilitating the commission of a felony. For the reasons stated below, we AFFIRM the district court's judgments against Anders and Weddle.

I. FACTUAL BACKGROUND AND PROCEEDINGS

Jerry Allen LeQuire ("LeQuire") headed a drug smuggling organization which transported over eighty plane loads of cocaine from Colombia into the United States during 1982 and 1983. ¹ In January 1983, Anders was recruited into the organization to conduct electronic counter surveillance for LeQuire. ² Anders also assisted in transporting and laundering currency. On December 15, 1988, Anders was convicted, in the Middle District of Alabama, of racketeering to distribute controlled substances, in violation of 18 U.S.C. Sec. 1961(5). This conviction was predicated on Anders' activities in the LeQuire drug smuggling operation.

In early 1986, after LeQuire's arrest and conviction, Anders entered into a cocaine distribution association with LeQuire's former wife, Karla Espinal ("Espinal"). This cocaine distribution association remained active through May 1987. ³ Espinal was arrested on August 12, 1987, ⁴ at which time she cooperated with the government and provided information on Anders' role in the LeQuire drug smuggling organization, as well as other drug trafficking activities involving Anders between 1986 and 1987.

Espinal revealed that Anders and Hildreath Tester ("Tester"), a co-conspirator charged in the indictment at issue, had been distributing approximately a kilogram of cocaine every two months. Espinal learned from Anders that Willie C. "Dog" Henry, another defendant in this indictment, was the operation's principal distributor. Espinal informed the government that she had purchased cocaine from Anders and Tester.

Given the information provided by Espinal and independently developed by law enforcement authorities, the government obtained a wire interception order for electronic surveillance of Anders' home telephone in Corbin, Kentucky. The wire interception coupled with physical surveillance established that Anders and Tester were regularly distributing cocaine and marijuana through Willie C. "Dog" Henry, Lana Dale Barton (Anders' sister) and Trumanda Weddle--the other defendants listed in the indictment. Weddle participated in the conspiracy by transmitting communications among the co-conspirators.

On March 12, 1988, FBI agents conducted a surreptitious entry and search of storage unit 415 at the Foothills Storage Center in Maryville, Tennessee. Prior surveillance of the storage unit had established that the conspirators were using it to house cocaine. Upon conducting the search, the agents found triple beam scales, other scales suitable for weighing marijuana, ziplock plastic bags, and 981 grams of 91% pure cocaine.

On April 6, 1988, Anders, Weddle and their co-defendants were charged in a nine count indictment. Both Weddle and Anders were charged in the first two counts with possession with intent to distribute 981 grams of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1), and conspiracy to distribute 981 grams of cocaine, in violation of 21 U.S.C. Sec. 846. Anders was charged in Counts 4, 5, and 6 with using a telephone to facilitate a drug felony, in violation of 21 U.S.C. Sec. 843(b) as well as Counts 8 and 9 charging her with additional cocaine distributions, in violation of 21 U.S.C. Sec. 841(a)(1). Weddle was charged in Counts 6 and 7 with using a telephone to facilitate a drug felony, in violation of 21 U.S.C. Sec. 843(b).

On January 20, 1989, Anders and Weddle entered guilty pleas pursuant to their respective agreements. Anders pled guilty to a superceding information charging her with conspiracy to distribute 981 grams of cocaine and one count of tax evasion. Weddle pled guilty to Count 6 of the indictment charging her with the use of a telephone to facilitate a cocaine transaction.

The plea agreements for both Anders and Weddle set forth the maximum penalty for the charges to which they pled. Each plea agreement required that the defendant admit to all facts alleged in the charge to which the plea was being entered. The plea agreements specifically provided that there was no agreement between the parties as to the appropriate sentence. By signing the plea agreements, both Anders and Weddle indicated that they understood that the government would apprise the court of the total offense behavior, including the total amount of controlled substance involved. Both pleas were accepted subject to the presentence reports which were made available for disclosure on March 2, 1989. Anders and Weddle raised objections to the presentence reports.

A. Presentence Guideline Calculations and Recommendations

1. Anders

The probation officer concluded that Anders maintained a sophisticated leadership role in her drug organization and that she had several connections for distributing drugs in Southeast and Central Kentucky. She frequently cautioned others in the organization not to reveal much over the phone, and insulated herself from being linked to the storage location. Evidence showed that Anders and Tester were partners who shared equally in the cost and profits from their sale of drugs.

An offense involving 981 grams of cocaine, in violation of 21 U.S.C. Sec. 846, qualifies for a base offense level of 26. ⁵ See The United States Sentencing Commission Guidelines Manual (hereinafter "Guidelines") Secs. 3D1.4, 2D1.1(a)(3) (1989). Where a defendant, through the offense behavior, could be described as an organizer, leader, manager or supervisor, the base level is increased by two levels. Id. at Sec. 3B1.1(c). Anders' adjusted offense level was calculated at 28. Since Anders admitted responsibility for the crime, the offense level was reduced by two, for a final offense level of 26. See id. at Sec. 3E1.1(a).

Although Anders has an extensive criminal history, all of her convictions were not included in the calculation as she was without representation in some cases. After tabulating the convictions, Anders was classified as a Level I offender. The sentencing table prescribed a guideline sentence of 63 to 78 months. In the presentence report, the probation officer listed factors that may warrant a departure from the Guidelines. The probation officer did not recommend departure from the Guidelines, but indicated that "[t]here are extensive aggravating factors regarding the overall offense behavior of defendant Anders." Sentencing Recommendation at 1. The probation officer recommended the maximum Guideline term of 78 months on Count one, 48 months to run consecutively on Count two, and five years supervised release.

2. Weddle

The probation officer determined that Weddle was well acquainted with her mother's activities and was quite capable of advising others, in her mother's absence, of Anders' whereabouts and intentions. Frequently, Weddle received or relayed messages from one conspirator to another in a manner evincing her overall understanding of the conspiracy. The Guidelines prescribe a base offense level of 12 for the use of a communication facility in committing a drug offense, in violation of 21 U.S.C. Sec. 843(b). See Guidelines, Sec. 2D1.6. The probation officer did not adjust Weddle's guideline range for her role in the offense. Weddle admitted her responsibility in the crime; therefore the offense level was reduced by two for a final offense level of 10. See id. Sec. 3E1.1(a).

Weddle had several federal criminal convictions and numerous state convictions. Since the state court convictions are not calculated in the Guidelines, Weddle was classified as a Level II offender. The sentencing table prescribed a sentence of 8 to 14 months incarceration. The probation officer, however, found considerable aggravating circumstances warranting departure; therefore, she recommended a term of 46 months incarceration and one year supervised release.

B. Sentencing

At the sentencing hearing, held on March 31, 1989, Anders' counsel was concerned about the presentence report as it disclosed factors that might warrant an upward departure from the Guideline range. ⁶ Anders' counsel maintained that the plea agreement was conditioned upon his client receiving a sentence within the Guidelines. He argued that the court should specifically state whether it was going to depart from the Guidelines based upon the information in the presentence report. Counsel for Anders contended that if the court expressed an intent to depart from the Guidelines, then he would move for either appointment of new counsel, a resentencing hearing, or a motion to withdraw Anders' plea. The district court was puzzled by counsel's argument: "I don't see anything in the plea agreement about departures or what the sentence will be, other than the maximum sentence, is there? I mean have I missed something in there?" Joint Appendix, Volume II at 22. ⁷ The court reminded counsel that at the arraignment, Anders was advised that the court had the...