U.S. v. Barry, 90-3251

• Decision Date: 29 August 1991
• Docket Number: No. 90-3251,90-3251
• Citation: 938 F.2d 1327
• Parties: , 60 USLW 2139 UNITED STATES of America, v. Marion S. BARRY, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1327

938 F.2d 1327 291 U.S.App.D.C. 68, 60 USLW 2139 UNITED STATES of America,
v.
Marion S. BARRY, Jr., Appellant. No. 90-3251. United States Court of Appeals,
District of Columbia Circuit. Argued April 30, 1991.
Decided July 12, 1991.
Rehearing and Rehearing En Banc
Denied Aug. 29, 1991.

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R. Kenneth Mundy, Washington, D.C., and William M. Kunstler, New York City, with whom Alan Dershowitz, was on the brief, Cambridge, Mass., for appellant.

Elizabeth Trosman, Asst. U.S. Atty., Dept. of Justice, with whom Jay B. Stephens,

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U.S. Atty., John R. Fisher, Judith E. Retchin and Richard W. Roberts, Asst. U.S. Attys., Dept. of Justice, were on the brief, Washington, D.C., for appellee.

Before WALD, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Appellant Marion S. Barry ("Barry" or "appellant") was indicted on May 10, 1990, while he was Mayor of the District of Columbia, and charged with one count of conspiracy to possess cocaine in violation of 21 U.S.C. Secs. 846, 844(a), three counts of making false declarations to a grand jury in violation of 18 U.S.C. Sec. 1623, and ten counts of possession of cocaine in violation of 21 U.S.C. Sec. 844(a). ¹ After a trial that lasted almost two months, a jury convicted Barry on August 10, 1990, of one count of possession of cocaine. ² The district court subsequently sentenced Barry to six months in prison, to be followed by a one-year term of supervised release, and imposed a $5,000 fine. Barry now appeals both his conviction and his sentence. For the reasons discussed below, we affirm his conviction but remand for resentencing.

I. CHALLENGE TO THE CONVICTION

Barry contends that his conviction violated due process because there was a variance between the indictment and the government's proof at trial. In particular, Barry claims that the district court should have granted his motion for judgment of acquittal because the government failed to prove with certainty that he possessed cocaine on the dates specified in the indictment: "[b]etween on or about November 7, 1989 and on or about November 10, 1989." Indictment, Count 12. Although a variance between the facts stated in the indictment and the evidence introduced at trial could require a judgment of acquittal if it prejudiced the defendant by depriving him "of notice of the details of the charge against him and protection against reprosecution," Gaither v. United States, 413 F.2d 1061, 1072 (D.C.Cir.1969), we do not believe a variance occurred in this case. Cf. Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962); Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935).

Barry's claims revolve around the uncertainty in the testimony of Doris Crenshaw, the only government witness to the count of which Barry was convicted. Crenshaw testified that she visited Washington, D.C. and stayed at the Mayflower Hotel on three separate occasions in September, October, and November, 1989. Although she thought that Barry used cocaine with her at her hotel room on November 10, 1989, the last day of the November trip, she could not state conclusively that this occurred during her November trip rather than during the September or October trips. Thus, Barry concludes, there was a variance between the date specified in the indictment and the date established by the evidence admitted at the trial.

The problem with this argument is that it ignores other evidence in the record which indicates that Barry did possess cocaine with Crenshaw on November 10, 1989, the date specified in the indictment. Although at trial she could not recall the date on which the offense occurred, Crenshaw admitted that she had previously told the investigators and the grand jury that it occurred during the November trip. She was certain, moreover, that the offense occurred when Barry stopped by her room at the Mayflower in mid-morning of the last day of her trip as she was packing to go to the airport. In addition, Barry's phone records show that Crenshaw called at 9:00 a.m. on November 10, 1989, and left

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a message for him to call her "right away" at the Mayflower. Finally, Crenshaw testified that she thought the offense occurred on a weekend because Barry was dressed in casual clothes. Although none of the days that she stayed at the Mayflower in September, October, or November of 1989 were weekend days, the district court took judicial notice of the fact that November 10, 1989, a Friday, was Veterans' Day, a federal and District of Columbia holiday.

Viewing this evidence in the light most favorable to the government and giving the government the benefit of all legitimate inferences, see United States v. Eniola, 893 F.2d 383, 389 (D.C.Cir.1990), there was more than enough evidence from which the jury could have found that the offense occurred on November 10, 1989. ³ We are thus unable to conclude that there was a variance between the indictment and the proof at trial, and we affirm the district court's denial of the motion for judgment of acquittal.

II. CHALLENGES TO THE SENTENCE

Barry also raises several challenges to his sentence. In particular, Barry claims that: (1) the district court was biased against him; (2) the court violated Federal Rule of Criminal Procedure 32(c) by failing to give him and his counsel ten days to review the presentence report prior to sentencing; (3) the court erroneously enhanced the sentence two levels on the ground that Barry obstructed the administration of justice within the meaning of Sentencing Guidelines Sec. 3C1.1; and (4) in imposing a sentence at the upper end of the applicable guidelines range, the court relied on unfounded assumptions that Barry disappointed the community and gave "aid, comfort, and encouragement to the drug culture at large." For the reasons discussed below, we do not believe that the district court exhibited impermissible bias against Barry or that it relied on unfounded assumptions that Barry disappointed the community. Nevertheless, we remand for resentencing because the district court failed to specify the applicable guidelines range and the court's factual findings do not support the conclusion that Barry obstructed the administration of justice within the meaning of Sentencing Guidelines Sec. 3C1.1.

A. Application of the Guidelines

The district court's failure to explain how it was applying the Sentencing Guidelines has complicated our review of appellant's challenges to the propriety of the sentence awarded in this case. In fact, the government and appellant vigorously disagree about whether the district court sentenced appellant under guidelines level six, which provides for prison sentences of zero to six months, or level eight, which provides for prison sentences of two to eight months. See United States Sentencing Commission, Guidelines Manual, Sentencing Table (Nov.1989). After reading the district court's sentencing memorandum, we, too, are not entirely certain about what the district court thought the appropriate guidelines level was.

To determine the appropriate sentence under the Sentencing Guidelines, the district court must first determine two things: (1) the relevant offense level for the offense(s) committed by the defendant, and (2) the defendant's criminal history. See U.S.S.G. Sentencing Table, comment. (n.1) (1989). The relevant offense level is the sum of the base offense level for the offense(s) committed by the defendant and any enhancements or deductions based on the vulnerability or identity of the victim, the defendant's role in the offense, the defendant's willingness to accept responsibility for his wrongdoing, and/or the defendant's attempts to obstruct the investigation or prosecution of the offense. See U.S.S.G. Ch. 2, Ch. 3. With the offense level and the criminal history, the court can ascertain, from the Sentencing Table, the relevant guidelines range in months of imprisonment.

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The court may then impose a sentence within the guidelines range or, if it "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines," the court may depart from the guidelines and impose a sentence outside the guidelines range. 18 U.S.C. Sec. 3553(b). In this case, the court did not clearly explain how it went through this process.

First, the district court did not identify what it believed to be the relevant base offense level. We assume that the court found that the base offense level was six, because the presentence report correctly stated that Sentencing Guidelines Sec. 2D2.1 provides a base offense level of six for possession of cocaine and both parties agree that it is the relevant base offense level. Nevertheless, we think it imperative that district courts state what the appropriate base level is to avoid any uncertainty on appeal. See United States v. Williams, 891 F.2d 921, 924 (D.C.Cir.1989).

Second, and more important in this case, the court did not specifically state whether it decided to award any enhancements or reductions to the base offense level, or whether it decided to depart from the relevant Sentencing Guidelines range. This latter error created the confusion about which guidelines range the court actually applied in this case. Appellant and the government agree that the court enhanced the sentence by two levels pursuant to Sentencing Guidelines Sec. 3C1.1 because it found that appellant attempted to obstruct the administration of justice. They also agree that the court denied the government's request for an additional two-level enhancement for abuse of a position of public trust under Sec. 3B1.3; instead, they contend, the court considered appellant's public position under Sec. 1B1.4 in deciding which sentence to impose within the applicable guidelines range. ⁴ They...