U.S. v. Brumfield, 01-3752.

• Decision Date: 29 July 2002
• Docket Number: No. 01-4130.,No. 01-3752.,01-3752.,01-4130.
• Citation: 301 F.3d 724
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David H. BRUMFIELD and Luis L. Pena, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

301 F.3d 724

UNITED STATES of America, Plaintiff-Appellee, v. David H. BRUMFIELD and Luis L. Pena, Defendants-Appellants.

No. 01-3752.

No. 01-4130.

United States Court of Appeals, Seventh Circuit.

Argued May 15, 2002.

Decided July 29, 2002.

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John W. Vaudreuil, Jeffrey M. Anderson, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee in 01-3752, 01-4130.

T. Christopher Kelly, Kelly & Habermehl, Madison, WI, for Defendant-Appellant in 01-3752.

Krista Ralston, University of Wisconsin Law School, Madison, WI, for Defendant-Appellant in 01-4130.

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

RIPPLE, Circuit Judge.

A grand jury indicted David Brumfield and Luis Pena, among others, for involvement in a cocaine trafficking operation located in Dane County, Wisconsin. Mr. Brumfield ultimately reached an agreement with prosecutors and pleaded guilty to one count of distributing cocaine in violation of 21 U.S.C. § 841. The district court sentenced him to 137 months of imprisonment. Through separate negotiations, Mr. Pena also reached an agreement with the Government and pleaded guilty to one count of conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. The district court sentenced Mr. Pena to 151 months of imprisonment. In this consolidated appeal, both defendants raise challenges to their respective sentences. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

Between 1999 and 2000, a joint task force comprised of local, state and federal law enforcement personnel uncovered a drug trafficking organization centered around Wisconsin resident Carol Armstrong. More precisely, Armstrong distributed large quantities of cocaine with the assistance of friends and family members from her residence in Dane County, Wisconsin. According to investigators, Armstrong's associates in this enterprise included Mr. Pena, who was her common-law husband, and Mr. Brumfield, a family friend. Law enforcement personnel ultimately moved to halt the operation and eventually arrested, among others, Mr. Brumfield, Mr. Pena and Armstrong.

On February 22, 2001, a grand jury returned a multi-count superceding indictment against the members of Armstrong's organization, including Mr. Brumfield and Mr. Pena.¹ The indictment alleged that, on three separate occasions, Mr. Brumfield had violated 21 U.S.C. § 841(a)(1). In addition, the grand jury charged Mr. Brumfield as well as Mr. Pena with one count of conspiring to possess with intent to distribute a controlled substance, cocaine, in violation of 21 U.S.C. § 846.

A. Mr. Brumfield

On July 18, 2001, under the terms of a written plea agreement, Mr. Brumfield pleaded guilty to one count of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). In turn, the Government dismissed the remaining counts of the indictment against Mr. Brumfield. The terms of the plea agreement, however, stated: "The defendant understands that all relevant conduct as defined in U.S.S.G. § 1B1.3 will be considered by the sentencing judge in determining the appropriate guideline range and resulting sentence." R.115 at 2.

Soon after, a federal probation officer prepared a Presentence Investigation Report ("PSR"), documenting Mr. Brumfield's involvement in the Armstrong organization. According to the PSR, during different periods of 2000, Mr. Brumfield had agreed to distribute cocaine in the Madison, Wisconsin, area with Armstrong and other individuals. Specifically, from April through early August 2000, and again during the months of November and December 2000, Mr. Brumfield actively participated in this endeavor.² The PSR recommended holding Mr. Brumfield accountable for 42 grams of cocaine that one of his confederates, Patricia Waldrop, had sold to a confidential informant prior to August 2000. The document also advised that the court attribute to Mr. Brumfield roughly 1.1 kilograms of cocaine that Armstrong had sold or had arranged to sell to a government agent during November and December 2000. The PSR also noted that other members of the Armstrong organization had made numerous drug sales to informants between the months of August and December. The parole officer recommended averaging these drug sales "and attributing two months worth to Brumfield," yielding roughly an additional 92 grams of cocaine. Brumfield PSR ¶ 28. Finally, statements from Waldrop indicated that Mr. Brumfield dealt roughly one-half ounce of cocaine a day between April and mid-July 2000, producing another 1.3 kilograms of cocaine for which Mr. Brumfield was responsible. Totaling these quantities with sales Mr. Brumfield himself had made to government informants, the PSR recommended holding him accountable for 2.59 to 2.68 kilograms of cocaine.³ In reaching this conclusion, the PSR not only cited U.S.S.G. § 1B1.3, the entire relevant conduct guideline, but also quoted language from one specific subdivision of this provision, U.S.S.G. § 1B1.3(a)(1)(B).

On October 11, 2001, Mr. Brumfield appeared before the district court for his sentencing hearing. Through counsel, Mr. Brumfield renewed previous objections that he had made concerning the PSR's relevant conduct analysis. In particular, Mr. Brumfield challenged the reliability of Waldrop's statements concerning the span over which she observed him deal cocaine. In addition, he submitted that, upon renewing his association with Armstrong in November 2000, he lacked knowledge as to the scope of her drug enterprise. To bolster these contentions, Mr. Brumfield had Armstrong testify on his behalf during the sentencing hearing. During her testimony before the district court, Armstrong stated that Mr. Brumfield never sold cocaine on her behalf and that she, in fact, would not trust him to do so. Indeed, the witness proceeded to exculpate several additional members of her organization, including Mr. Pena and her children. Finally, in his closing remarks to the district court, Mr. Brumfield's counsel stated that, based upon his reading of the PSR, his client could only be held accountable for drug quantities within the ambit of U.S.S.G. § 1B1.3(a)(1)(B), the relevant conduct provision specifically quoted in the PSR.

In response to Mr. Brumfield's contentions concerning Patricia Waldrop, the Government called her to testify during the sentencing hearing. On direct examination, Waldrop reiterated her previous statements that, between April and mid-July 2000, she observed Mr. Brumfield deal one-half ounce of cocaine per day. However, when pressed on cross-examination concerning the date on which she first met Mr. Brumfield, Waldrop conceded that, although, to the best of her recollection, she met Mr. Brumfield in April, it was possible that she, in fact, met him in early May.

After considering the testimony and the parties' contentions, the district court adopted the guideline calculation set forth in the PSR and held Mr. Brumfield accountable for between 2.54 and 2.64 kilograms of cocaine.⁴ In reaching this conclusion, the district court discounted Armstrong's testimony, finding it "truly ludicrous." R.200 at 51. Rather, the district court emphasized that:

I just don't believe there's any basis on which to find that he wouldn't have been aware of the scope of the activity in which Ms. Armstrong and the others were engaged. I also find plenty of evidence to support the fact that he was very much a part of that activity. His own statements and Ms. Waldrop's statements make that clear.

R.200 at 52. On this basis and invoking U.S.S.G. § 1B1.3(a)(2)⁵ of the relevant conduct provision, the district court stated that, "[i]n calculating the offense conduct, I am holding you accountable for all acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." R.200 at 56. Coupling his base offense level with his criminal history category of VI, Mr. Brumfield confronted a sentencing range of 110 to 137 months of imprisonment. The district court imposed a 137-month sentence, finding that Mr. Brumfield posed a danger to the community.

B. Mr. Pena

During the summer of 2001, Mr. Pena reached a written plea agreement with the Government; he agreed to waive indictment and to plead guilty to a one-count criminal information filed with the district court on August 31, 2001. In particular, the information charged Mr. Pena with conspiring to possess with intent to distribute, and to distribute, cocaine in violation of 21 U.S.C. § 846. In addition, under the terms of the agreement, the Government undertook "to recommend that the defendant's relevant conduct involved between 300 and 400 grams of cocaine." R.135 at 2. This drug quantity reflected the amount of cocaine that Mr. Pena personally had handled.

Prior to sentencing, a probation officer prepared a PSR in Mr. Pena's case. The PSR recommended holding Mr. Pena accountable for 403 grams of cocaine; it also concluded that "[t]here is no information which suggests the defendant had either an aggravating role or mitigating role during his involvement in the offense." Pena PSR ¶ 64. Soon after, Mr. Pena, through counsel, challenged not only the calculation of drug quantity but also the decision recommending against a downward adjustment in his offense level. In particular, Mr. Pena submitted that he was entitled to a reduction in his base offense level because he played only a minimal or minor role in the offense within the meaning of U.S.S.G. § 3B1.2. Mr. Pena emphasized that he merely acted as a substitute, reluctantly distributing cocaine on Armstrong's behalf when she and other members of the organization were away from her residence. In addition, citing his age of sixty-one, his poor health and vulnerability to Armstrong, Mr. Pena also submitted that he was entitled to a downward departure from the...