U.S. v. Artley

• Decision Date: 05 June 2007
• Docket Number: No. 05-2220.,No. 05-2127.,05-2127.,05-2220.
• Citation: 489 F.3d 813
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin ARTLEY and Jerry McCoy, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

489 F.3d 813

UNITED STATES of America, Plaintiff-Appellee, v. Marvin ARTLEY and Jerry McCoy, Defendants-Appellants.

No. 05-2127.

No. 05-2220.

United States Court of Appeals, Seventh Circuit.

Argued October 17, 2006.

Decided June 5, 2007.

Jeffrey M. Anderson (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

T. Christopher Kelly (argued), Kelly & Habermehl, Madison, WI, Richard H. Parsons, Kent V. Anderson (argued), Office of Federal Public Defender, Peoria, IL, for Defendants-Appellants.

Before EASTERBROOK, Chief Judge, and BAUER and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

Jerry McCoy and Marvin Artley pleaded guilty to drug-related offenses in violation of 21 U.S.C. §§ 846 and 841(a)(1), respectively. The district court sentenced McCoy to 328 months' imprisonment and imposed a fine of $50,000 and sentenced Artley to 125 months' imprisonment. On appeal, the defendants raise several challenges to their sentences, arguing that the district court improperly based its drug-quantity calculation and sentencing enhancements on speculative and unreliable evidence, that their sentences disproportionately punish their relevant conduct, and that their sentences are unreasonable. McCoy also contends that the government breached its plea agreement with him by failing to move for a reduced sentence in light of his cooperation and that the district court erred by fining him $50,000. We affirm both sentences.

I. Background

In early 2000, the Wisconsin Department of Justice, the Dane County Narcotics and Gang Task Force, and the Drug Enforcement Administration began conducting a joint investigation of McCoy's suspected drug-trafficking operation. During the course of the investigation, agents gathered information and collected evidence through confidential informants, controlled buys of cocaine, witness statements, financial records, surveillance, and searches. One confidential informant ("CI") reported to agents that he/she had purchased one to two ounces of cocaine from McCoy every two to three weeks between the fall of 2002 and March of 2004. The agents then used this CI to conduct six controlled buys between April 2004 and October 2004. McCoy participated in each of the buys, selling 309.64 grams of cocaine to the CI. During four of the controlled buys, Artley assisted McCoy in distributing 193.32 grams of cocaine.

McCoy and Artley were arrested and, on October 28, 2004, charged in a seven-count indictment with conspiracy to possess and/or distribute cocaine and distributing cocaine. Both defendants pleaded guilty pursuant to written plea agreements. McCoy pleaded guilty to one conspiracy count; Artley pleaded guilty to one distribution count.

The probation officer prepared each defendant's Presentence Investigation Report (PSR), using the 2004 Sentencing Guidelines. The PSRs included the following statements taken from the defendants' drug associates:

• Aaron McCarroll told agents that he had received three ounces of cocaine base from McCoy in the summer of 1998. McCarroll also told agents that between the summer of 1998 and the summer of 2000, he had observed McCoy deliver a quarter ounce "8-ball" of cocaine to Damon Glen seven or eight times; two to six quarter ounce "8-balls" of cocaine to Maurice Cerro seven to ten times; an ounce of cocaine to Randall Springen approximately seven times; and four ounces of cocaine to Adderrazzak Laiti twice.

• Courtney Westfall, who later married McCoy, told investigators that she had observed a pile of cocaine at McCoy's office that she estimated to be ten inches by twelve inches by six inches located next to a box of small plastic bags and two bottles of vitamin B-12. Westfall identified Emanuel Whitfield, Antwon Berry, and Keith Maggitt as McCoy's drug-trafficking associates.

• David Mitchell told agents that he had sold cocaine for McCoy and that, from the Fall of 1999 to January 2001, he had purchased approximately five kilograms of cocaine from McCoy. He also had observed nine ounces of cocaine at McCoy's apartment and identified Whitfield, Berry, Maggitt, and McCarroll as McCoy's drug-trafficking associates.

• Zandra Hagberg told agents that she had spent time at McCoy's business and had helped him with his bookkeeping. She had learned that McCoy's hotdog business was a cover for his drug-trafficking business and estimated that McCoy sold one-quarter to one-half a kilogram of cocaine every week from his office in late 1999 and early 2000. Hagberg also had observed McCoy cut raw cocaine, put the cocaine in bags, and distribute cocaine from his residence.

• Darryl Franklin told agents that, from December 1999 to March 2000, he had purchased eight to ten kilograms of cocaine from Whitfield at McCoy's office. He stated that McCoy was present during several of those transactions.

• Catherine Verriden told agents that she had purchased an "8-ball" of cocaine from McCoy and his associates every week or two between October 2002 and May 2003. Verriden stated that she had purchased the cocaine at Artley's Fish Hatchery Road residence.

• William McCoy told investigators that Jerry McCoy sold cocaine. On July 26, 2003, Madison police investigated a homicide of one Adrian Bowdry at Artley's residence. Artley, Jerry McCoy, William McCoy, and Nicole Conteras were all present during the shooting. William McCoy told investigators that, prior to the shooting, he had observed his brother with approximately a half a kilogram of cocaine in Artley's living room. Jerry McCoy told investigators that the half a kilogram of cocaine belonged to William McCoy. During the search of the residence, investigators recovered two firearms, nine millimeter cartridge casings, live ammunition, drug paraphernalia, small plastic bags, a scale, rubber gloves with cocaine residue, and Inositol. Investigators also recovered a cereal box outside of Artley's apartment complex containing 38.6 ounces of cocaine.

• Alicia Smith told agents that she had met McCoy in 2001, and shortly thereafter, began buying cocaine from him that she would later resell in smaller quantities. Smith first bought an ounce from McCoy. For the next six months, she purchased a half ounce of cocaine from McCoy every two weeks. She then started buying four-and-a-half ounces from McCoy every two weeks for two months. Smith also stated that, prior to the shooting of Bowdry, she bought cocaine from McCoy at Artley's residence five to eight times. She did not say how much cocaine she purchased during the transactions at Artley's residence, but she did state that Artley was present during approximately half of those transactions. Smith told agents that she obtained a kilogram of cocaine from McCoy seven to ten times from September 2003 to December 2003. Smith also said that she had delivered cocaine for McCoy to Verriden, Whitfield, and Montrell Savage.

• Savage told investigators that McCoy was buying between one and two kilograms of cocaine a month and then cutting the cocaine to make three or four kilograms before reselling it.

• A second confidential informant told agents that, in April of 2004, he had received four ounces of cocaine base, a kilogram of cocaine, and two pounds of marijuana from McCoy.

A. McCoy's PSR and Sentencing Hearing

McCoy's PSR determined that he was responsible for conspiring with Artley and others to possess and/or distribute at least 15 kilograms but not more than 50 kilograms of cocaine. The PSR recommended applying a two-level enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), for possession of a dangerous weapon in a place where drugs were present, and a four-level enhancement, pursuant to U.S.S.G. § 3B1.1(a), for being an organizer or leader of a criminal activity involving five or more participants. McCoy filed a written objection to the PSR, challenging the inclusion of the uncharged drug amounts and the leader/organizer enhancement. McCoy complained that the hearsay statements taken from his former drug associates and family members unfairly increased his culpability from 309.64 grams of cocaine, which was the amount seized during the controlled buys, to an uncharged, collateral amount of between 15 and 50 kilograms of cocaine.

At sentencing, McCoy did not call a single witness to dispute the statements contained in the PSR. In determining McCoy's relevant conduct, the district court stated that it had considered the 309.64 grams of cocaine seized during the controlled buys, the 38.6 ounces of cocaine that agents recovered outside of Artley's apartment after the shooting of Adrian Bowdry, and the cocaine packaging that agents found in the trash at McCoy's residence. The district court also relied on statements from the PSR made by Mitchell, Franklin, Hagberg, McCarroll, Smith, Savage, Verriden, and the confidential informants in calculating McCoy's relevant conduct. The district court concluded that a reasonable estimate of the cocaine quantities distributed by McCoy fell well within the range of at least 15 but not more than 50 kilograms of cocaine.

After determining McCoy's relevant conduct, the district court calculated McCoy's advisory sentencing guideline range. The calculations started with a base offense level of 34, according to § 2D1.1(c)(3), because the offense involved at least 15 but less than 50 kilograms of cocaine. The district court added two additional levels, finding that McCoy was involved in a jointly undertaken criminal activity with Artley and others in which firearms were possessed. The district court also applied a four-level enhancement to McCoy's base level because it found that he had acted as the leader of an extensive criminal activity that involved five or more participants. After applying a three-level credit for acceptance of responsibility, the district court calculated that McCoy's total offense level was 37. Based on an offense level of 37, and a criminal history category of IV, the district court determined that the...