U.S. v. Buggs

• Decision Date: 18 May 1990
• Docket Number: No. 89-2130,89-2130
• Citation: 904 F.2d 1070
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl Leslie BUGGS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1070

904 F.2d 1070

UNITED STATES of America, Plaintiff-Appellee, v. Carl Leslie BUGGS, Defendant-Appellant.

No. 89-2130.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 27, 1990.

Decided May 18, 1990.

Thomas O. Plouff, Asst. U.S. Atty., South Bend, Ind., Andrew B. Baker, Asst. U.S. Atty., Hammond, Ind., Rick L. Jancha, Asst. U.S. Atty., South Bend, Ind., for the U.S.

Scott L. King, King & Meyer, Gary, Ind., for Carl L. Buggs.

Before FLAUM, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

A jury found the defendant, Carl Buggs, guilty of several narcotics and firearm offenses. Mr. Buggs was sentenced to four concurrent terms of nine years imprisonment on the drug charges, a concurrent term of nine years for possession of a firearm by a convicted felon, and a consecutive five year term for using or carrying a firearm in relation to a drug offense. Mr. Buggs challenges the convictions and the sentence imposed. We affirm.

I BACKGROUND

A. Facts

Early in 1988, Carl Buggs traveled to Indianapolis, Indiana and met with a man named William Perry. Mr. Buggs proposed establishing a narcotics distribution operation in which he would provide Mr. Perry with cocaine and heroin. Under the defendant's plan, Mr. Perry would sell the drugs, retain forty per cent of the profits, and deliver the remaining sixty per cent to the defendant. Mr. Buggs returned to Indianapolis in late spring of 1988 to discuss the details of his plan with Mr. Perry.

Unknown to Mr. Buggs, William Perry was a confidential informant for the Marion County Police Department. Following Mr. Buggs' second trip to Indianapolis, Mr. Perry contacted Officer John T. Jones of the Metropolitan Drug Task Force. On June 16, 1988, Mr. Perry and Officer Jones traveled to a house in South Bend, Indiana, to purchase heroin from Mr. Buggs. Before leaving Indianapolis, Mr. Perry was searched by Task Force personnel in accordance with standard procedure. Mr. Perry did not possess any narcotics, although prior to the search he showed Officer Jones a foil package containing lactose. ¹ Mr. Perry had purchased the powder at a pharmacy for use in his undercover role as a drug dealer, and had brought the package with him to satisfy Mr. Buggs' request that he supply a cutting agent.

Officer Jones and Mr. Perry met with officers from the South Bend Police Department and agents from the Drug Enforcement Administration (DEA) and coordinated They continued to wait for the heroin to be delivered while Mr. Buggs measured out the cocaine into individual packets. As time passed and the heroin still had not arrived, Mr. Buggs appeared to become nervous. He made a telephone call, then left Officer Jones and Mr. Perry and went into a bedroom. He returned carrying a large pistol, which he placed on the sofa next to him, and continued to package the cocaine. Mr. Perry believed the gun was a .357 magnum; Officer Jones described the weapon as a Smith and Wesson .357 magnum, the same type of firearm he carried.

                surveillance.  They then proceeded to Mr. Buggs' house.  Mr. Buggs informed them that the heroin had not yet arrived.  While they waited in the living room for the drugs to be delivered, Mr. Buggs produced what appeared to be two to three ounces of cocaine and asked whether anyone "wanted a snort."    Tr. at 106.  Officer Jones refused the offer, although Mr. Perry and Mr. Buggs both ingested a small amount.  Mr. Perry, who was familiar with the effects of cocaine, testified that the substance he and Mr. Buggs ingested was in fact cocaine
                

A man introduced as Chester finally arrived with the heroin. He handed Mr. Buggs a package wrapped in foil, then he, Mr. Buggs, and Mr. Perry went into a bedroom; Officer Jones remained in the living room. Mr. Buggs used a baseball bat to break up the hard pieces of dark brown heroin in the foil packet, then mixed some ² of it with the powder Mr. Perry had brought. Familiar with the effects of heroin, Mr. Perry ingested a small amount of the dark brown substance and ascertained that it was in fact heroin. Based upon the agreement they had reached for the purchase of half an ounce of heroin, Mr. Perry paid Mr. Buggs $250 in cash, leaving $350 owing, and received a small package. They discussed arrangements for a second transaction, and Mr. Buggs agreed to provide three to seven ounces of heroin at $800 per ounce. ³ Officer Jones and Mr. Perry then left, having purchased what was later analyzed to be 9.95 grams of 1.2% heroin.

On June 30, 1988, Officer Jones and Mr. Perry returned to Mr. Buggs' house in South Bend. Mr. Perry again was searched before leaving Indianapolis. Surveillance was coordinated with the police and DEA before Officer Jones and Mr. Perry proceeded to the house. They eventually met with Mr. Buggs, who informed them that they would have to wait several hours for the heroin. Following a series of telephone calls, Mr. Buggs advised Officer Jones and Mr. Perry that the heroin had been "overcut" and therefore was unsalable. Tr. at 118-19. Mr. Buggs nevertheless assured them that he could obtain the heroin he had negotiated to sell. Officer Jones gave Mr. Buggs $1500 in marked bills as a partial payment for an expected four to six ounces of heroin, and Mr. Buggs stated that he would be able to get the drugs that afternoon. He instructed Officer Jones and Mr. Perry to call his house later in the day for details. Officer Jones and Mr. Perry left and rejoined the surveillance officers.

Approximately three hours later, a helicopter surveillance team observed two individuals drive away from Mr. Buggs' house. The helicopter followed the car out of the South Bend city limits to the Hammond/Gary, Indiana area. In South Bend, meanwhile, Mr. Perry made several telephone calls to Mr. Buggs' residence as Mr. Buggs had instructed. He placed the calls in the presence of the ground surveillance team and spoke with Mr. Buggs' fiancee each time. During their last conversation, Mr. Perry learned that Mr. Buggs had been unable to obtain the heroin but would be returning to South Bend shortly with a substitute. Part of the ground surveillance team waited to intercept Mr. Buggs' vehicle in case he returned to South Bend by the same route he had taken out of the South Bend police curbed the car and ordered the occupants, Chester and Mr. Buggs, to step out. Mr. Buggs was carrying a significant amount of cash, including the $1500 in marked bills given to him by Officer Jones. No weapons were found either in the car or on its passengers, although quantities of drugs were recovered. Four plastic bags of marijuana were found, two in the front of the car, one on Chester, and one on Mr. Buggs. The bag recovered from Mr. Buggs also contained an amount of rock cocaine as well as thirty-two packets of powdered cocaine. Laboratory tests revealed that the officers seized a total of 4.22 grams of 86% cocaine, 27.18 grams of 94% cocaine, and 12.59 grams of marijuana.

city. When Mr. Buggs passed the surveillance team, one of the officers requested that the vehicle be stopped.

The facts recited above were established at trial. The government also called an agent from the Bureau of Alcohol, Tobacco, and Firearms, who testified that Smith and Wesson handguns are manufactured in Springfield, Massachusetts. He also testified that a .357 magnum is a revolver and that no revolvers are manufactured within Indiana's borders. In addition, Officer Jones testified that a Smith and Wesson .357 magnum is "a weapon that will or is designed to or may be readily converted to expel a projectile by the action of an explosive." Tr. at 123.

Following deliberations, the jury found Mr. Buggs guilty of (1) possession with the intent to distribute heroin on June 16, 1988, (2) possession with the intent to distribute cocaine on June 16, 1988, (3) possession with the intent to distribute cocaine on June 30, 1988, (4) conspiracy to distribute and possess with the intent to distribute heroin, (5) possession of a firearm by a convicted felon, and (6) using or carrying a firearm during and in relation to a narcotics offense.

B. Sentencing

Mr. Buggs argued that the total amount of heroin or its equivalent involved in the case, upon which his sentence was based, had been calculated incorrectly. Following an evidentiary hearing, the district court accepted the total weight recommended in the presentence report. The court concluded that the amount of heroin involved in the June 16 transaction was the negotiated amount (one half ounce or 14.175 grams) rather than the amount actually sold (9.95 grams). The court also determined that it could consider the heroin Officer Jones and Mr. Perry negotiated to purchase on June 30 because the negotiated sale was relevant conduct in furtherance of the drug conspiracy. The court concluded that the negotiated amount was 4 ounces and therefore added 113.4 grams of heroin to the total quantity involved in the case.

Based on the drug equivalency tables appended to section 2D1.1 of the sentencing guidelines, the district court determined the heroin equivalent of the cocaine and marijuana Mr. Buggs possessed on June 16 and June 30, 1988. With respect to the cocaine possessed on June 16, the court took a conservative view. Officer Jones estimated that Mr. Buggs had two to three ounces; the court found that the quantity involved was two ounces, which is equivalent to 11.34 grams of heroin. See Guidelines Sec. 2D1.1, Drug Equivalency Tables. The heroin equivalent of the marijuana and cocaine Mr. Buggs was carrying when arrested on June 30 was 6.201 grams. Based on these findings, the court calculated that the total amount of heroin (or its equivalent) involved in the case was approximately 144 grams. ⁴ Under the applicable sentencing guidelines, Mr. Buggs' conduct was punishable by 92 to 115 months imprisonment. ⁵ The court imposed concurrent nine

year prison terms (108 months) for the narcotics offenses. Mr. Buggs also was...