U.S. v. Bush, 94-6381

• Decision Date: 15 November 1995
• Docket Number: No. 94-6381,94-6381
• Citation: 70 F.3d 557
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. FLOYD CORNELIUS BUSH, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 557

70 F.3d 557

64 USLW 2383

UNITED STATES of America, Plaintiff-Appellee, v. FLOYD CORNELIUS BUSH, III, Defendant-Appellant.

No. 94-6381.

United States Court of Appeals Tenth Circuit.

Nov. 15, 1995.

Submitted on the briefs. ^*

Rozia McKinney-Foster, United States Attorney, and Leslie M. Maye, Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Michael G. Katz, Federal Public Defender, and Jenine Jensen, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Before BRORBY, BARRETT and LOGAN, Circuit Judges.

BRORBY, Circuit Judge.

Floyd Cornelius Bush, III pled guilty to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 841(a) and 21 U.S.C. Sec. 846. He now contends the district judge committed plain error by attributing 7.5 kilograms of cocaine base to him for sentencing purposes because it is unclear from the record whether the object of the conspiracy to which he pled guilty was to distribute cocaine base, cocaine powder, or both. According to Mr. Bush, our recent decision in United States v. Pace, 981 F.2d 1123 (10th Cir.1992), cert. denied, 507 U.S. 966, 113 S.Ct. 1401, 122 L.Ed.2d 774 (1993), requires that we either remand his case to the district court for resentencing using the base offense level for 7.5 kilograms of cocaine powder or, if the government does not consent to resentencing, that we allow him to withdraw his guilty plea and proceed to trial. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a) and affirm.

The government filed a criminal complaint charging Mr. Bush and four others with one count of conspiracy "to possess with intent to distribute and to distribute cocaine base." Mr. Bush then signed a plea agreement stating, among other things, he would plead guilty to the charge alleged in the complaint and assist the government in prosecuting the remaining defendants. The plea agreement also contained a provision stating Mr. Bush acknowledged "[a]t the signing of this Plea Agreement, the Government was aware of approximately 5-15 kilograms of cocaine base, as to" him. (Emphasis added.)

A grand jury then returned a twenty-nine-count indictment charging Mr. Bush and eleven other individuals with various crimes committed during the course of a six-year conspiracy to distribute cocaine in the Musgrave Addition area of Oklahoma City. Count 1 of the indictment alleged Mr. Bush and others had conspired to distribute "cocaine (powder) and/or cocaine base (crack)." The indictment specifically alleged Mr. Bush (1) "distributed cocaine and/or cocaine base," (2) "used binoculars and/or walkie-talkies to conduct counter-surveillance for law enforcement and to assist during cocaine base (crack) transactions," (3) "possessed firearms and/or guns to protect the cocaine (powder) and/or cocaine base (crack) during transportation [of] the drugs while they were in their possession before distribution, during distributions of cocaine (powder) and/or cocaine base (crack)," and (4) "assist[ed] in the counting of monies during cocaine (powder) and/or cocaine base (crack) transactions."

Mr. Bush filed a petition to enter a plea of guilty to count 1 of the indictment, in which he admitted he "was involved with others in the distribution of cocaine." ¹ At the change of plea hearing, the government reiterated "at the time of the signing of the plea agreement, the government was aware [of] between five and 15 kilograms of cocaine base that would be attributable to" Mr. Bush, and both Mr. Bush and his counsel agreed this "state[d] [their] full understanding of [the] agreement." (Emphasis added.) In addition, Mr. Bush responded "Yes" in open court to the following questions regarding the factual basis of his plea: "Mr. Bush, from on or about the middle part of 1988 until sometime in 1993, did you agree with Timothy Johnson, Kevin Johnson, Charles Watson and others to distribute crack cocaine here in Oklahoma City?"; "As part of your agreement, did you assist Timothy Johnson and others by doing counter-surveillance of the area to where the crack was being sold?"; "Did you do it knowing that there was a cocaine base selling operation going on and that you were assisting that operation by doing the surveillance?" (Emphasis added.) The district court also warned Mr. Bush although the government had agreed "only five to 15 kilograms of cocaine base " were attributable to him, "that's not binding on the probation office or on me for the final determination of sentence." (Emphasis added.) The district court accepted Mr. Bush's guilty plea and later entered a judgment against him for one count of "Conspiracy to distribute cocaine (powder) and/or cocaine base (crack)."

Mr. Bush testified at the consolidated trial of five of his alleged coconspirators. He spoke in detail about his and the five defendants' six-year effort to distribute cocaine base in the Musgrave Addition area of Oklahoma City. He testified that in 1988 he began selling approximately one gram of crack cocaine three times per week for Morris Johnson, one of the other individuals charged in the indictment. By the summer of 1988, Mr. Bush had begun selling two grams three times per week. Mr. Bush stopped selling crack cocaine around Thanksgiving of 1988, but resumed selling two grams three times per week for about three months during the summer of 1989. Mr. Bush began selling the same amount of crack cocaine between the beginning of 1990 and the beginning of 1992. Mr. Bush obtained a new supplier in the beginning of 1992, Morris Johnson's brother Timothy Johnson, another individual charged in the indictment. Mr. Bush sold about two grams of crack cocaine four times per week for Timothy Johnson until Thanksgiving of 1992. He started selling crack cocaine again in the beginning of 1993, but stopped later that year.

Mr. Bush also bought a .45 caliber Ruger and a nine-millimeter Glock with money Timothy Johnson had given him. Timothy Johnson wanted the weapons for protection "[f]rom people trying to rob him and drive-bys," but he could not buy them himself because he was on probation. Charles Watson and Ronnie Johnson were later arrested in Arizona with the .45 caliber Ruger and one-half kilogram of cocaine they were transporting from Los Angeles to Oklahoma City for Timothy Johnson. Mr. Bush also admitted he was present every day from noon to midnight at a house from which Timothy Johnson sold crack cocaine, and he "assisted in these transactions." This assistance included taking turns serving the people who drove up in cars looking to buy crack cocaine. Many of the transactions Mr. Bush "assisted on" involved one-half ounce or more of crack cocaine. Mr. Bush also admitted he helped count the money Timothy Johnson got from selling crack cocaine.

The jury convicted each of the five individuals against whom Mr. Bush testified. Prior to Mr. Bush's sentencing hearing on October 4, 1994, the government filed an in camera motion for a downward departure. U.S.S.G. Sec. 5K1.1. Mr. Bush's presentence report attributed 7.5 kilograms of crack cocaine to him, yielding a base offense level of 40. U.S.S.G. Sec. 2D1.1. The presentence report also recommended a two-point increase for possession of a dangerous weapon, U.S.S.G. Sec. 2D1.1(b), and a three-point decrease for acceptance of responsibility, U.S.S.G. Secs. 3E1.1(a) and 3E1.1(b), for a total offense level of 39 and a sentencing range of 292 to 365 months in criminal history category II. ² Neither Mr. Bush nor his counsel objected to any part of the presentence report. The district court granted the government's motion for a downward departure and sentenced Mr. Bush to 10 years imprisonment.

I

Mr. Bush contends because "[n]either the petition to enter a guilty plea, nor the plea agreement, nor the factual basis presented at the guilty plea hearing adequately specify" whether the object of the conspiracy was to distribute cocaine base, cocaine powder, or both, the district court erred by calculating his base offense level on the assumption the object of the conspiracy was to distribute cocaine base. ³ He relies primarily on our recent decision in United States v. Pace, 981 F.2d 1123 (10th Cir.1992), cert. denied, 507 U.S. 966, 113 S.Ct. 1401, 122 L.Ed.2d 774 (1993). In Pace, we joined several other circuits in holding if a jury returns a general verdict which does not specify the object of a conspiracy, the defendant must be sentenced on the basis of the objective yielding the lowest offense level, and it is plain error for the district court to sentence the defendant on the basis of any other objective. Id. at 1128-30. Mr. Bush contends there is no principled distinction between a jury verdict which does not specify the object of a conspiracy and a guilty plea which does not specify the object of a conspiracy, and our analysis in Pace applies equally to both situations. We agree. Applying Pace to this context, we conclude if it is impossible to determine with a reasonable degree of certainty, either based on the indictment, the plea agreement, the petition for entry of a guilty plea, the colloquy at the change of plea hearing, the sentencing hearing, or some other part of the record, whether he intended to plead guilty to conspiring to distribute cocaine base, cocaine powder, or both, we must order the sentence to be vacated and direct the district court to resentence the defendant on the basis of the objective yielding the lowest offense level, or, if the government does not consent to resentencing, we must allow the defendant to withdraw his guilty plea and proceed to trial.

The United States Sentencing Guidelines, however, support a different result. U.S.S.G. Sec. 1B1.2(d) provides: "A conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant...