U.S. v. Atkinson

• Decision Date: 30 November 1992
• Docket Number: Nos. 91-3399,91-3411,s. 91-3399
• Citation: 979 F.2d 1219
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Claude H. ATKINSON and Jerry D. Montgomery, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1219

979 F.2d 1219

UNITED STATES of America, Plaintiff-Appellee, v. Claude H. ATKINSON and Jerry D. Montgomery, Defendants-Appellants.

Nos. 91-3399, 91-3411.

United States Court of Appeals Seventh Circuit.

Argued May 27, 1992.

Decided Nov. 16, 1992.

As Amended Nov. 30, 1992.

Donna Eide (argued), Office of the U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Robert C. Perry (argued) and Jack F. Crawford (argued), Indianapolis, Ind., for defendants-appellants.

Before BAUER, Chief Judge, RIPPLE, Circuit Judge, and WOOD, Jr., Senior Circuit Judge.

RIPPLE, Circuit Judge.

On September 5, 1991, Claude Atkinson and Jerry Montgomery pled guilty to one count of conspiracy to manufacture, manufacturing, and possessing with intent to distribute more than 1000 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 846. Mr. Atkinson also pled guilty to a single count of structuring currency transactions in order to avoid reporting requirements in violation of 31 U.S.C. § 5324(3). Mr. Atkinson was sentenced to twenty-five years' imprisonment on the conspiracy count and five years, to run concurrently, on the money laundering. Mr. Montgomery was sentenced to eight years' imprisonment and five years' supervised release on the conspiracy count. Both defendants appeal their sentences. ¹ For the reasons that follow, we vacate Mr. Atkinson's sentence and remand for resentencing, but we affirm Mr. Montgomery's sentence.

I BACKGROUND

On August 21, 1990, the defendants were charged initially and they pled not guilty. A three-count indictment was filed against them on September 19, 1990, followed by a superseding indictment that added a count against Mr. Atkinson for structuring the currency transaction to avoid reporting. In addition, on December 14, 1990, the government filed an information alleging that Mr. Atkinson had two prior felony convictions and seeking, pursuant to 21 U.S.C. § 841(b)(1)(A), enhancement of the mandatory minimum sentence.

Both defendants expressed their desire to change their pleas, and on May 13, 1991, the government and Mr. Montgomery filed a Final Plea Agreement providing that Mr. Montgomery would plead guilty to Count I (conspiracy to manufacture marijuana) and that the government would dismiss the balance of the counts. As part of this arrangement, Mr. Montgomery agreed to cooperate with the government in its investigations. In exchange for this cooperation, the government agreed to file a motion pursuant to U.S.S.G. § 5K1.1 (Substantial Assistance to Authorities), requesting a downward departure from the Guidelines range. The parties also agreed on a sentencing cap of eleven years pursuant to Fed.R.Crim.P. 11(e)(1)(C). ²

On July 15, 1991, the government and Mr. Atkinson filed a Final Plea Agreement providing that he would plead guilty to Count I (conspiracy to manufacture marijuana) and Count IV (currency structuring) and the government would dismiss the other counts. Mr. Atkinson agreed to cooperate with the government in its investigations in exchange for the government's commitment to file a motion under U.S.S.G. § 5K1.1 requesting a downward departure At the change of plea hearing, the district court heard the factual basis for the charges. Drug Enforcement Agency (DEA) Special Agent Alter testified under oath that, on March 18, 1990, Mr. Montgomery was arrested and a subsequent search recovered about two pounds of marijuana and $13,000.00. (Change of Plea Hearing Tr. at 38). DEA agents searched his residence and found land contract documents ³ and receipts for the purchase of farm equipment; Mr. Atkinson's name appeared on some of the documents. Because Mr. Atkinson had previously been involved in a land contract purchase of a farm in order to grow marijuana, the DEA began surveillance of him. (Id. at 39). The investigation led them to a farm that Mr. Atkinson was buying on land contract in Green County, where the agents found thousands of marijuana seedlings being grown. The seedlings were interplanted with corn. (Id. at 40). Mr. Atkinson had been photographed in the marijuana fields, and on two occasions agents thought they saw Mr. Montgomery at the farm. (Id. at 41-42). Pursuant to a search warrant, the agents searched the farm on August 22, 1990, and they found approximately 10,000 marijuana plants. Mr. Atkinson and Mr. Montgomery were subsequently arrested.

                from the Guidelines range.   The parties also arrived at a sentencing cap of thirty-five years pursuant to Fed.R.Crim.P. 11(e)(1)(C).   In addition, the government agreed to dismiss the information alleging two prior drug convictions
                

Internal Revenue Service Special Agent James Hinkle testified that in January 1990 two corporations had been formed in Indianapolis, Indiana: one was named Investment Holding, Inc., with incorporators Arno Zepp and Charles Peters, and the other was named Land Holdings, Inc., with Tim Bolden as incorporator. (Id. at 45-46). In February 1990, five non-interest-bearing bank accounts had been opened in the name of Investment Holding, Inc. and two accounts in the name of Land Holdings, Inc. (Id. at 46). No taxpayer identification numbers were furnished. Between February 9 and March 10, 1990, forty-three deposits of $2,000.00 each had been made to the accounts, totalling $86,000.00. (Id.). Records pertaining to each of the accounts were found at Mr. Atkinson's residences and in his automobile. (Id. at 47). Mr. Atkinson later admitted that he had set up the accounts and conducted the transactions in such a way as to avoid the requirement of IRS reporting. (Id.).

On September 27, 1991, Mr. Atkinson was sentenced on the basis of a total offense level of 36 and a Criminal History Category of VI, which yields an incarceration range of 324 to 405 months. (Appeal Record at 28). The court noted that a cap of thirty-five years had been agreed to and that the government had requested a Guideline § 5K1.1 downward departure. The judge imposed a sentence of twenty-five years on Count I and five years on Count IV to run concurrently. A special assessment of $100.00 was imposed.

Mr. Montgomery was also sentenced on September 27, 1991, after the court took into consideration the Presentence Report, the government's Guideline § 5K1.1 motion, and a letter from Mr. Montgomery's mother. The court determined the Guidelines range to be 151 to 188 months and that the Guidelines called for a five-year period of supervised release. The defense made no objections. The court also took into consideration the plea agreement that provided for a cap of eleven years. Mr. Montgomery was sentenced to eight years' incarceration followed by five years' supervised release; he was also ordered to pay a special assessment of $50.00.

II DISCUSSION

Pursuant to the jurisdiction granted this court under the Sentencing Reform Act, we review sentences for errors of law and for misapplications of the Sentencing Guidelines. See 18 U.S.C. § 3742(a) and (b). A sentencing judge's findings of fact at a sentencing hearing are reviewed only for clear error. United States v. Miller, 891 F.2d 1265, 1269 (7th Cir.1989) (citing United States v. Agyemang, 876 F.2d 1264, 1271 (7th Cir.1989)). Determination of the quantity of drugs for sentencing purposes is a factual inquiry subject to the clearly erroneous standard. United States v. Centracchio, 977 F.2d 1061, 1065 (7th Cir.1992). The court's interpretation of Sentencing Guidelines language is reviewed de novo. United States v. Kosth, 943 F.2d 798, 800 (7th Cir.1991). However, where, as here, objections are raised to the sentencing procedures that were not raised at the time of sentencing, waiver results, United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991), and we shall reverse only if plain error has occurred. Id. (citing United States v. White, 903 F.2d 457, 466 (7th Cir.1990)).

A. Claude Atkinson

The government originally filed an information alleging that Mr. Atkinson had two prior felony convictions which, pursuant to 21 U.S.C. § 841(b), mandated a life sentence without release in the event of his conviction for any offenses charged in the indictment. ⁴ The government agreed to dismiss this information as part of the plea agreement. Nevertheless, the presentence report indicated that Mr. Atkinson qualified under the Guidelines as a career offender. See U.S.S.G. § 4B1.1. This section of the Guidelines provides that a person may be considered a career offender if he was at least eighteen years old when charged, if the charged crime is either one of violence or one that involves a "controlled substance offense," as that term is defined in U.S.S.G. § 4B1.2, ⁵ and if he has at least two prior felony convictions for either a crime of violence or "a controlled substance offense." If all of these conditions are met, the offender's conduct is then characterized as falling into Criminal History Category VI. At sentencing, the district court and the parties proceeded on the assumption that U.S.S.G. § 4B1.1 was applicable. Now the government concedes that one of the felonies upon which it relied involves nothing more than the possession of a controlled substance and does not entail the "intent to manufacture, import, export, distribute, or dispense" as required by U.S.S.G. § 4B1.2. See Young v. United States, 936 F.2d 533, 536-37 (11th Cir.1991) (noting that § 4B1.2 requires drug trafficking crimes).

While the parties do not dispute that the starting point for the calculation was established in error, they disagree about the proper course that should be followed to correct the miscalculation. The government now argues that the parties arrived at the cap of thirty-five years after dismissing the information because of the assumption that Mr. Atkinson's conduct fell into Criminal History Category VI. The government maintains that it should be clear from the terms of the plea agreement that, but for the assumption that Mr. Atkinson fell into Category VI, it would not have dismissed...