U.S. v. Apple

• Decision Date: 21 April 1992
• Docket Number: Nos. 91-5329,91-5331,s. 91-5329
• Citation: 962 F.2d 335
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sherrie Tuggle APPLE, Defendant-Appellant, National Association of Criminal Defense Lawyers, Amicus Curiae. UNITED STATES of America, Plaintiff-Appellee, v. Stacy Nevin APPLE, a/k/a Dr. Stachel Pomme, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 335

962 F.2d 335

UNITED STATES of America, Plaintiff-Appellee, v. Sherrie Tuggle APPLE, Defendant-Appellant, National Association of Criminal Defense Lawyers, Amicus Curiae.

UNITED STATES of America, Plaintiff-Appellee, v. Stacy Nevin APPLE, a/k/a Dr. Stachel Pomme, Defendant-Appellant.

Nos. 91-5329, 91-5331.

United States Court of Appeals Fourth Circuit.

Argued Feb. 6, 1992.

Decided April 21, 1992.

John Kenneth Zwerling, Moffitt, Zwerling & Kemler, P.C., Alexandria, Va., argued for defendant-appellant Sherrie Apple.

Joshua R. Treem, Schulman & Treem, P.A., Baltimore, Md., argued for defendant-appellant Stacy Apple.

Christine Manuelian, Asst. U.S. Atty., Baltimore, Md., argued (Richard D. Bennett, U.S. Atty. on brief), for plaintiff-appellee.

Burton H. Shostak and Deborah J. Kerns, Moline, Ottsen, Mauze, Leggat & Shostak, St. Louis, Mo., on brief, for amicus curiae.

Before WIDENER, PHILLIPS, and MURNAGHAN, Circuit Judges.

OPINION

PHILLIPS, Circuit Judge:

Sherrie and Stacy Apple were convicted of multiple felony narcotics counts, including conspiracy to possess with intent to distribute five kilograms of cocaine. ¹ In an earlier appeal from the convictions, we affirmed Stacy's conviction, vacated Sherrie's conviction, remanded to the district court for further proceedings to determine whether illegal electronic surveillance evidence was used against her, and remanded both cases for resentencing ² because the district court had failed to make adequate factual findings to support the enhancement of their base offense levels under U.S.S.G. § 2D1.1(b)(1) for possession of a weapon during the commission of a drug offense. ³ United States v. Apple, 915 F.2d 899 (4th Cir.1990). The district court on remand reinstated the judgment of conviction against Sherrie after she conceded that her conviction was not tainted by illegal electronic surveillance evidence. The court then made factual findings to support the sentence enhancements of both Sherrie and Stacy under U.S.S.G. § 2D1.1(b)(1) for possession of four loaded handguns seized from the Apples' Maryland residence pursuant to a search warrant on August 14, 1987, and another loaded handgun seized in a warrant search of the Apples' New York City apartment on May 20, 1988. The sentences originally imposed on Stacy and Sherrie by the district court were then reinstated. In the present appeal, Sherrie argues that the district court at resentencing erred in finding itself precluded from considering evidence of her mitigating and rehabilitative conduct since the original sentencing, and Stacy argues that the court erred in enhancing his sentence under U.S.S.G. § 2D1.1(b)(1) because it was "clearly improbable" ⁴ that he possessed either the Maryland guns or the New York gun during the commission of the drug offenses of which he was convicted. ⁵ We affirm the judgments as to both defendants.

I

We first consider Sherrie's appeal.

When the district court originally sentenced Sherrie, it departed downward from the applicable Sentencing Guidelines range of 151 to 188 months and imposed a sentence of 84 months. The court departed downward to reflect Sherrie's diminished capacity, having found that she suffered from chronic depression and was a battered wife. At resentencing, Sherrie asked the district court to depart further downward based on evidence of her mitigating and rehabilitative conduct since the original sentencing. ⁶ The request was denied. The court felt that it was

much too late for consideration of any further departures or adjustments to the sentence previously imposed. This court was directed by the Fourth Circuit merely to consider the enhancement issue.

Moreover, the court cannot, under revised Rule 35 [of the Federal Rules of Criminal Procedure], consider matters which occurred after the earlier sentencing in deciding to reduce the sentence previously imposed....

J.A. at 173-74.

Sherrie argues that the district court erred in finding itself precluded from considering her mitigating and rehabilitative conduct since the original sentencing. In so arguing, Sherrie relies on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which held that a district court is not constitutionally precluded, when resentencing, from imposing a new sentence, whether greater or less than the original one, in light of subsequent events. Nothing in Pearce, however, requires the district court to consider subsequent events at resentencing, whether those events be mitigating or aggravating. Cf. United States v. Brick, 905 F.2d 1092, 1096 (7th Cir.1990) (declining to read the holding in Pearce that "the Constitution does not preclude a sentencing court from considering subsequent mitigating conduct" on resentencing as "prescribing the precise consideration of such conduct"). And as the district court was well aware, under revised Fed.R.Crim.P. 35, a sentencing court "shall correct a sentence that is determined on appeal ... to have been imposed as a result of an incorrect application of the sentencing guidelines ... upon remand of the case to the court ... for further sentencing proceedings if, after such proceedings, the court determines that the sentence was incorrect." Fed.R.Crim.P. 35(a). Aside from consideration of the electronic surveillance evidence issue, which turned out to be of no consequence, the only reason we remanded this case was for the court to reconsider the enhancement of the sentences imposed on the Apples for possessing a dangerous weapon during the commission of a drug offense. Apple, 915 F.2d at 915. Our remand instructions in Apple, insofar as they addressed the sentencing of Sherrie (and Stacy), concerned only the propriety of enhancements for weapon possession under U.S.S.G. § 2D1.1(b)(1), and to the extent that the sentences may have been incorrect, our sense was that they could have been so only with respect to the enhancements. The district court properly felt constrained, then, both by our remand instructions and by Fed.R.Crim.P. 35, to limit its reconsideration of the sentences to that alone which we indicated might have been incorrect--the weapon possession enhancements under U.S.S.G. § 2D1.1(b)(1). The district court undertook "further sentencing proceedings," as required by Rule 35 and our remand instructions, and found that the original sentences were correct. The evidence of Sherrie's mitigating and rehabilitative conduct was properly disregarded by the district court, for as that court found, this conduct was not relevant to what was potentially incorrect in the sentence the court originally imposed on Sherrie.

We also note that when Rule 35 was revised, all references to "reduction of sentence" were deleted, and the sentencing court's authority to lower a sentence previously imposed was limited to cases in which the Government files a motion with the court, within one year of the imposition of the sentence, requesting a lower sentence "to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense, in accordance with [the Sentencing Guidelines]." Fed.R.Crim.P. 35(b). A district court "no longer has the authority to reduce a sentence under other circumstances." United States v. Hallam, 723 F.Supp. 66, 70 (N.D.Ind.1989); see also 3 Charles A. Wright, Federal Practice and Procedure § 581 (1991) ("[t]here is no longer authority to reduce a sentence"); id. § 585.1 (amended Rule 35 "no longer authorizes reduction of sentence, the 'plea of leniency' that the old rule allowed").

The district court therefore did not err in addressing only the sentencing issue specifically identified in our mandate as that to be reconsidered--the enhancement for weapon possession under U.S.S.G. § 2D1.1(b)(1). ⁷

II

We next consider Stacy's appeal.

With respect to the weapon possession enhancement of the sentences under § 2D1.1(b)(1), we noted in our remand instructions that "if the court determines that it is not 'clearly improbable' that either or both appellants clearly possessed a weapon during the commission of an offense and that enhancement under § 2D1.1(b)(1) is still appropriate, the court should first make clear whether it is enhancing their respective sentences based on the New York gun or the Maryland guns." Apple, 915 F.2d at 915. The district court on remand made clear that it was enhancing the sentences it imposed on the Apples based on their possession of both the Maryland guns and the New York gun. Because of problems that remain for us on the record reflecting enhancement for possession of the Maryland guns, we pass the question whether the court's ruling on that issue was proper. ⁸ We conclude that in any event, the evidence of Stacy's possession of the New York gun was clearly sufficient to satisfy the conditions for enhancement under U.S.S.G. § 2D1.1(b)(1). The district court's finding to that effect and its resulting resentencing...