U.S. v. Brick, 89-2283
| Decision Date | 26 June 1990 |
| Docket Number | No. 89-2283,89-2283 |
| Citation | 905 F.2d 1092 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John J. BRICK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John W. Vaudreuil, Asst. U.S. Atty., Madison, Wis., for plaintiff-appellee.
John J. Brick, pro se.
David L. Mandell, Deborah Stahl, Madison, Wis., for defendant-appellant.
Before CUDAHY and COFFEY, Circuit Judges, and SHARP, District Judge. 1
John J. Brick was convicted by a jury of three counts of violating 21 U.S.C. Sec. 841(a)(1), and 18 U.S.C. Sec. 2. The offenses occurred after the effective date of the United States Sentencing Commission Guidelines ("Guidelines"). The district court granted Brick's motion declaring the Guidelines unconstitutional and sentenced him under pre-Guidelines law. Thereafter, the United States Supreme Court held the Guidelines constitutional in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Brick then was resentenced under the Guidelines pursuant to order of this court.
Brick now appeals his new sentence under the Guidelines. He argues that the district court in resentencing him refused to consider certain mitigating conduct and his cooperation with the authorities, both of which occurred after his first sentencing. He also contends that the order of restitution is arbitrary and maintains that he is entitled to a two-level reduction under the Guidelines as a minor participant. We affirm in part but remand to the district court for a new order of restitution.
Officer Lee Glamm of the Eau Claire Police Department in Wisconsin initiated an undercover narcotics operation in January, 1987. Officer Glamm posed as a university student and had contact with Brick several times between September, 1987, and January, 1988.
On January 3, 1988, Officer Glamm met Brick and Jonathan Voigt at a truck stop near Hudson, Wisconsin. Brick had arranged this meeting in a prior telephone conversation with Officer Glamm. At the truck stop, Officer Glamm met Brick in the restaurant and was introduced to Voigt. After the meeting, the agent returned to his vehicle and Brick and Voigt returned to their vehicle. At their vehicle, Voigt gave Brick a quarter ounce of cocaine to sell to Officer Glamm. Brick then walked to Glamm's vehicle and sold Glamm the cocaine for $580. Brick then returned to his vehicle and gave Voigt the money, and Voigt in turn gave Brick $80.
On January 8, 1988, Officer Glamm and undercover agent Gary Smith met Brick and Voigt at the same truck stop. Once again, this meeting was arranged in a prior telephone conversation between Brick and Officer Glamm. At the truck stop, Brick walked into the restaurant alone to meet Glamm and Smith. The three men then walked outside to meet Voigt at the vehicle driven by Brick and Voigt. This time Voigt sold the agents approximately one and a quarter ounces of cocaine for $2,550. Brick received $250 for his part in this transaction.
On January 11, 1988, Officer Glamm and Agent Smith met Brick and Voigt at the same truck stop. This meeting had been arranged in a prior telephone conversation between Agent Smith and Voigt. As with the second transaction, Brick entered the restaurant alone to meet Glamm and Smith. The three men then walked outside to meet Voigt. This transaction was conducted in the agents' vehicle, and Voigt sold the agents eight ounces of cocaine for $12,800. Thereafter, Brick and Voigt were arrested.
Brick was indicted on three counts of distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1), and 18 U.S.C. Sec. 2. 2 A jury returned a verdict of guilty on all three counts. Prior to his jury trial, Brick filed a motion with the district court to declare the Guidelines unconstitutional. Prior to sentencing, the district court granted that motion.
On July 20, 1988, Brick was sentenced under pre-Guidelines law to 48 months on each count, to be served concurrently, followed by 3 years of supervised release. The district court did not order restitution. Thereafter, the United States Supreme Court declared the Guidelines constitutional in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). In light of Mistretta, Brick filed a motion to be resentenced under the Guidelines. On June 9, 1989, Brick was resentenced by the district court. The court utilized the presentence report that was originally prepared for the first sentencing. That report calculated Brick's sentence under the Guidelines.
In the presentence report, the probation officer recommended a base offense level of 20 based on a total drug quantity of 268.92 grams of cocaine. The base offense level was not adjusted for Brick's role in the offense. Brick was given a two-level reduction for acceptance of responsibility. His criminal history category placed him in Criminal History Category III. Thus, his guideline imprisonment range was calculated at 33-41 months. The probation officer also recommended that Brick pay $2,305 in restitution.
At the resentencing, Brick's counsel argued that Brick was less culpable and should receive a two-level reduction as a minor participant. Defense counsel also argued that the district court should consider Brick's cooperation in the prosecution and conviction of another drug dealer, his good adjustment to prison life, his completion of a chemical awareness program, and his remorse for his actions. It is undisputed that all of this mitigating conduct occurred after the first sentencing. In light of the mitigating conduct, defense counsel requested that the district court impose a sentence not exceeding the sentence that Voigt received.
The government agreed that the district court should consider the mitigating conduct that occurred after the first sentencing, including Brick's cooperation in the prosecution and conviction of the drug dealer. The government, however, did not file a 5K1.1 motion under the Guidelines. The government then argued that Brick and Voigt were equally culpable and that a two-level reduction as a minor participant was not warranted. The government lastly informed the court that it did not object to a downward departure from the guideline range in order to keep Brick's sentence consistent with Voigt's sentence.
The district court informed the parties that it was structuring Brick's sentence so that it would be comparable to the sentence he initially received on July 20, 1988. The court noted that the sentence would be slightly less than the original sentence but would include an order of restitution (the first sentence did not include restitution). The court also noted that it sought to tailor Brick's sentence so that it would be comparable to Voigt's sentence. The court, though, did observe a major distinction between Brick and Voigt--Brick was on probation at the time he committed the present offenses. 3
The district court then accepted the guideline calculations in the presentence report and sentenced Brick to 34 months, the low-end of the applicable guideline range, and to a 3 year term of supervised release. The court also ordered Brick to pay $2,550 in restitution to the Eau Claire Police Department and $750 in restitution to the Wisconsin Division of Criminal Investigation, for a total of $3,300 in restitution.
We first address the role in offense issue since it affects Brick's guideline range. As will become apparent, the issue regarding the district court's refusal to consider Brick's mitigating conduct cannot be resolved without first determining Brick's guideline range, see section B, infra. Brick argues that the district court improperly denied him a two-level reduction as a "minor participant" under section 3B1.2(b) of the Guidelines.
The standard for reviewing district court findings and determinations under section 3B1.2 is clear error. United States v. Miller, 891 F.2d 1265, 1270-71 (7th Cir.1989); see also United States v. Tholl, 895 F.2d 1178, 1186 (7th Cir.1990). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Thus, if the most that Brick can show is that the record permits more than one conclusion on this issue, there is no clear error.
In determining whether Brick is a minor participant, the Guidelines provide that "a minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal." U.S.S.G. Sec. 3B1.2, comment. (n.3). Additionally, the decision on whether to grant the reduction "involves a determination that is heavily dependent upon the facts of the particular case." U.S.S.G. Sec. 3B1.2, comment. (backg'd.). The Guidelines also recognize that many offenses are committed by a single individual or by individuals of roughly equal culpability and that in such a case, no one should receive the two-level reduction. U.S.S.G. Sec. 3B1.4, comment. See also United States v. Tetzlaff, 896 F.2d 1071, 1074 (7th Cir.1990).
The district judge here stated that the court was "accepting the guideline calculations that the Probation Office had computed." Resentencing Transcript, June 9, 1989, ("Resentencing") at 13. We believe it is reasonable to presume then that the district court adopted the probation officer's findings that Brick was not a "minor participant" within the meaning of section 3B1.2(b). The probation officer found that although Voigt supplied the cocaine, the transactions could not have taken place without the assistance of Brick. Indeed, the evidence at trial indicates that Brick did arrange by telephone the first and second transaction. Moreover, Brick conducted the first transaction and was the contact person in the second and third transaction. In the last...
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