U.S. v. Carmack, s. 96-1568
| Decision Date | 15 November 1996 |
| Docket Number | Nos. 96-1568,s. 96-1568 |
| Citation | 100 F.3d 1271 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL L. CARMACK, SR., and PATRICIA A. BESSE, Defendants-Appellants. & 96-2226 |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Illinois, No. 95-CR-30012 PER, Paul E. Riley, Sr., Judge.
Suzanne M. Wissmann (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for U.S.
John R. Abell (argued), Belleville, IL, for Michael L. Carmack.
Terence Niehoff (argued), St. Louis, MO, for Patricia A. Besse.
Before CUMMINGS, EASTERBROOK, and EVANS, Circuit Judges.
Two members of a drug operation pleaded guilty to a count in an indictment charging conspiracy to distribute marijuana. Only their sentences are at issue. Michael Carmack, who is here voluntarily, appeals the amount of marijuana attributed to his conduct. Patricia Besse is here involuntarily as the government appeals the district court's refusal to add a 2-point enhancement to her total offense level for possession of a firearm.
The conspiracy was headed by a man named Charles Trione, who obtained marijuana in Tucson and distributed it in Las Vegas and southwest Illinois. Carmack obtained marijuana from Trione and sold it in southwest Illinois. Besse was a courier and seller in the Trione conspiracy. When the dust settled, Carmack was sentenced to a term of 151 months, while Besse drew a term of 46 months. We first turn our attention to Carmack's appeal.
Having just said that we'll focus first on Carmack's appeal, it may seem odd that we start with an observation about Besse, but we think a point is worth making. The amount of drugs--marijuana in this case--attributed to a defendant is vitally important under the federal sentencing guidelines. And when the amount is high, and other factors make a defendant eligible for treatment as a career offender, the importance of the total takes on heightened significance. Here's why. Besse, as we shall see, agreed with the government that her relevant conduct involved 800 pounds of marijuana. Yet even if she loses this appeal, her sentence will only move from 46 months to a point in a range of 60 to 71 months (actually the guideline range is 57 to 71 months but she must get at least 60 because a statutory minimum controls). Carmack, on the other hand, was found--after a sentencing battle--to be responsible for only 25 percent of Besse's marijuana total, and this earned him his term of 151 months. If he can get his relevant conduct down from 200 pounds to anything less than 110, his sentence will top out at 60 months. So Carmack's sentence then would be in the neighborhood of Besse's sentence (if she loses here) despite the fact that his prior record is awful and hers is spotless. Strange things happen when applying the federal sentencing guidelines. So now, true to our previous word and without further ado, we go to Carmack's appeal. Excuse us if what we are about to say gets a little long, but a detailed review is necessary in cases like this.
The presentence report tagged Carmack with a criminal history category of VI, which he does not dispute. The report concluded that Carmack's relevant conduct involved approximately 200 pounds (90.72 kilograms) of marijuana. The report also said Carmack deserved career offender status which, with the estimated amount of marijuana involved, put his total offense level under the sentencing guidelines at 32. A 3-point reduction for acceptance of responsibility netted a guideline range of 151 to 188 months. A subsequent addendum to the presentence report indicated that Carmack attempted to obstruct justice by trying to intimidate one of the witnesses at his sentencing hearing so it urged that Carmack not get the 3-point reduction. Instead it said he should receive a 2-point enhancement for obstruction, increasing the guideline range to 262 to 327 months.1
At Carmack's sentencing hearing, which extended over three days (not unusual under the guidelines but almost unheard of under the old law), various members of the conspiracy testified regarding the amount of marijuana they supplied to Carmack or saw him possess. Earl Wolff, a coconspirator, testified that he sold Carmack a couple quarter-pounds of marijuana in 1988 or 1989 and that, at Trione's direction, he regularly supplied Carmack with pound amounts on approximately a weekly basis from May until October 1992. Wolff estimated that he supplied Carmack with between 20-30 pounds of marijuana.
Trione testified that he sold Carmack marijuana from May 1992 to July 1994. Carmack first purchased quarter-pound amounts, but then graduated to full pounds. Twice during the summer of 1994, Trione also sold Carmack five-pound packages, charging between $1,400 and $1,600 per pound. Trione said he personally sold Carmack between 30 and 50 pounds of marijuana, but that he knew Wolff and Marilyn Sexton supplied Carmack with marijuana when Trione was out of town, which occurred frequently.
Sexton, Trione's ex-wife, testified she sold Carmack a pound of marijuana twice and that Carmack's girl friend, Janelle Chester, picked up quarter-pounds for Carmack on several occasions. Sexton also said Carmack and Chester dropped money off on a few occasions for Sexton to give to Trione. According to Sexton, Trione told her Carmack stored marijuana for him and that he sold Carmack about 200 pounds of marijuana.
Mark Schmidt stored marijuana for Trione in a mobile home he rented from Trione. Schmidt testified that during the summer of 1994 Carmack came to the mobile home and picked up a five-pound package of marijuana Trione had left with Schmidt to give to Carmack. A few weeks later, Schmidt saw Trione and Carmack leaving Schmidt's trailer; Carmack held a package similar to the five-pound package that Schmidt had given him.
Drugs attributed to a defendant as relevant conduct under the guidelines must be proven to exist by a preponderance of the evidence. Carmack concedes that the testimony of Wolff (supplying Carmack with 20-30 pounds of marijuana), Trione (supplying Carmack with up to 50 pounds), Sexton (supplying Carmack with approximately 6 1/4 pounds), and Schmidt (supplying 5 pounds to Carmack and seeing Carmack holding another 5 pounds) meets the preponderance standard but that, at the most, the government has proved no more than 96 1/4 pounds attributable to Carmack's conduct. This concession however, doesn't really lay a glove on Carmack for, as we said, his goal is to keep his total under 110 pounds. Which brings us to Norman Monroe, a fellow Carmack would like to forget.
Monroe testified that he has known Carmack for 40 years. After losing contact around 1967, Monroe and Carmack reconnected in 1989, when Monroe began buying marijuana from Carmack for personal use. During 1991, Monroe said he began selling marijuana as well. He purchased marijuana from Carmack in quarter-pound amounts and sold his supply within about one or two weeks. Monroe quit selling marijuana when his house was raided by police on October 23, 1993. During the raid, police seized one quarter-pound of marijuana that Monroe said he purchased from Carmack.
After the raid, Monroe became a police informant. He testified that Carmack dropped off a quarter-pound of marijuana at Monroe's house on November 9, 1993, at a time when Monroe was wearing a tape recorder. Monroe turned the marijuana over to investigating agents. On another occasion when Monroe was wired, Carmack took Monroe to a place Trione owned in southern Illinois and acknowledged on tape during the trip that he had owed Trione about $10,000 but that the debt had been repaid.
Monroe testified he was aware that Carmack sold marijuana to Monroe's brother, who would buy quarter-pound amounts every week or two. Monroe indicated that Carmack's girl friend sold marijuana for Carmack. And, according to Monroe, he saw 20 to 30 pounds of marijuana at Carmack's farm in New Athens, Illinois, a couple of times and once had seen about 50 pounds of marijuana in Carmack's shed in Belleville, Illinois.
Monroe said he accompanied Carmack on visits to Trione's home in Las Vegas. After one trip Carmack brought back two pounds of marijuana. Monroe not only knew that Trione was Carmack's main source, but that Sexton also provided marijuana to Carmack.
Monroe also knew inside information about Carmack. For instance, he knew Carmack had been arrested for having a gun and had given the police a false name. Carmack's counsel stipulated at the sentencing hearing that a tip from Monroe was the sole source for federal prosecution of Carmack on a separate federal "felon in possession" charge.
Monroe's stint as an informant ended in February 1994, after authorities provided him with recording equipment and $1,100 to make a drug purchase from a fellow named James Pierce. Monroe ran off with the buy money. He said he saw Carmack at Pierce's house and became scared because he believed Carmack knew Monroe was a snitch. He then spent the money on crack cocaine for his own use. Monroe was convicted of theft of the money but was not charged with selling marijuana as part of the Trione conspiracy.
During cross-examination, when confronted with inconsistencies with prior testimony regarding the timing of certain activities, Monroe admitted he had a hard time remembering dates and that "my doctor says your mind is foggy for a while, you know, but I'm doing my best." He admitted that he drank alcohol every day for about 35 years, including during the time of the conspiracy. Some of his testimony conflicted with that of Trione, Wolff, and another witness (Bobby Lee Carmack) regarding the dates of Carmack's participation in the conspiracy and whether Carmack stored marijuana for Trione.
The Drug Enforcement Agency agent who monitored the conspiracy, ...
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