U.S. v. Colon

• Decision Date: 06 September 1989
• Docket Number: No. 1354,D,1354
• Citation: 884 F.2d 1550
• Parties: UNITED STATES of America, Appellee, v. Luis COLON, a/k/a "Louie," John Wilks, a/k/a "Anthony Smith," a/k/a "Smitty," Theofanis Papathanasion, a/k/a "Theodoros Papadopoulos," Christopher Spivey and Frederick Jackson, Defendants. Appeal of Theofanis PAPATHANASION, a/k/a "Theodoros Papadopoulos," Defendant. ocket 89-1141.
• Court: U.S. Court of Appeals — Second Circuit

Page 1550

884 F.2d 1550

UNITED STATES of America, Appellee, v. Luis COLON, a/k/a "Louie," John Wilks, a/k/a "Anthony Smith," a/k/a "Smitty," Theofanis Papathanasion a/k/a "Theodoros Papadopoulos," Christopher Spivey and Frederick Jackson Defendants Appeal of Theofanis PAPATHANASION, a/k/a "Theodoros Papadopoulos," Defendant.

No. 1354, Docket 89-1141.

United States Court of Appeals Second Circuit.

Argued July 19, 1989.

Decided Sept. 6, 1989.

Roger Bennet Adler, New York City, for defendant.

Patrick J. Fitzgerald, Asst. U.S. Atty., S.D.N.Y., New York City (Benito Romano, U.S. Atty., for the S.D.N.Y., Vincent L. Briccetti, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before WINTER and MAHONEY, Circuit Judges, and RE, ^* Judge.

WINTER, Circuit Judge:

This appeal raises questions concerning the application of the Sentencing Guidelines and appellate review under the Sentencing Reform Act of 1984 (as amended), 18 U.S.C. Sec. 3551 et seq. and 28 U.S.C. Sec. 991 et seq. Theofanis Papathanasion appeals from a sentence of eighteen months' imprisonment and three years' supervised release imposed after his guilty plea to a charge of distributing heroin within one thousand feet of a public school in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(C), and 845a(a), and 18 U.S.C. Sec. 2. Appellant Theofanis Papathanasion claims that Judge Walker erred in failing to reduce his offense level from 11 to 7 because he was a "minimal participant" in the offense under Section 3B1.2(a) of the Sentencing Guidelines promulgated by the United States Sentencing Commission pursuant to 28 U.S.C. Sec. 994(a). Alternatively, he claims that his offense level was 9 because he was a "minor participant" under Section 3B1.2(b) of the Guidelines. We affirm on those claims. He also asserts that it was error not to depart downward from the sentencing range stipulated by the Guidelines in light of this heroin addiction and the amount of drugs involved. We hold that the discretionary failure to depart downward is not appealable and dismiss.

BACKGROUND

In March 1988, the New York City Police Narcotics Task Force began an investigation of heroin distribution in the Hell's Kitchen neighborhood of Manhattan. The surveillance lasted several months and culminated in the arrests of Papathanasion and several confederates: Luis Colon, John Wilks, Christopher Spivey and Frederick Jackson. Papathanasion was named in three counts of a sixteen-count indictment. Count One charged him and the others with a conspiracy to distribute, and to possess with intent to distribute, heroin. Count Six charged Papathanasion with the distribution of two glassine envelopes of heroin on April 20, 1988. Count Nine charged him and Wilks with a similar distribution of two envelopes on May 3, 1988.

Papathanasion pleaded guilty to Count Nine. The presentence report prepared by the United States Probation Office assigned him an adjusted offense level of 11 and a criminal history category of IV, establishing a sentencing range of eighteen to twenty-four months. On February 21, 1989, Judge Walker sentenced him to a term of eighteen months in prison and three years' supervised release.

DISCUSSION

Papathanasion asserts two claims of error based on Guidelines Section 3B1.2. ¹ First, he argues that he should have received an offense level reduction of four levels, from 11 to 7, because he was a "minimal participant" under Section 3B1.2(a) in the heroin distribution scheme. In support, he claims to have played only a limited role in the May 3, 1988 drug transaction underlying the count to which he pleaded guilty. Because he handled neither drugs nor money in the exchange but merely directed the buyer, an undercover officer, to Wilks for the sale, Papathanasion claims he was merely "steering" business to Wilks and was thus only minimally involved.

The Commentary to Guidelines Sec. 3B1.2 states that that Section "is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group" and offers adjustment for only those whose conduct "makes [them] substantially less culpable than the average participant." It also notes that "lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others" is an indicator of minimal participation.

We believe that a "steerer" cannot be considered a "minimal participant" in the rather typical heroin distribution scheme involved here. "Steerers" play an important role in street-level drug transactions, directing buyers to sellers in circumstances in which the sellers attempt to conceal themselves from casual observation. Without "steerers," buyers would either find it difficult to locate sellers or sellers would have to risk exposure to public view. Papathanasion admits to playing this role in the distribution scheme. Moreover, when approached by the undercover officer and asked where "Louie" could be found, he suggested, without further prompting, that Wilks was Louie's associate and had heroin for sale. This demonstrated his knowledge of the scheme and of the activities of other participants. Papathanasion was thus hardly "substantially less culpable" than the average member of the ring.

Alternatively, Papathanasion argues that he was a "minor participant" under Guidelines Sec. 3B1.2(b), thus reducing his offense level 11 to 9. We need not address this claim. Judge Walker noted at the sentencing that an eighteen-month term would still be within the Guidelines range after a two-level reduction and that he would impose the same sentence under a computation treating Papathanasion as a "minor participant." Where the sentencing court arrives at a sentence that is permissible for both the adjudicated level and a claimed reduced level and where the court indicates that a reduction in offense level would not affect the sentence determination, an appellate court need not address the merits of the claimed reduction. See United States v. Bermingham, 855 F.2d 925, 931 (2d Cir.1988).

Papathanasion also asserts that Judge Walker erred when he declined to depart downward from the 18-24 month sentencing range in consideration of his drug addiction and the relatively small amount of drugs involved. We do not reach the merits of this claim because a decision not to depart from the applicable Guidelines range is not appealable.

Prior to passage of the Sentencing Reform Act, appellate review of sentences was unavailable unless they exceeded statutory limits, resulted from material misinformation or were based upon constitutionally impermissible considerations. United States v. Dazzo, 672 F.2d 284, 289 (2d Cir.), cert. denied, 459 U.S. 836, 103 S.Ct. 81, 74 L.Ed.2d 77 (1982); United States v. Vasquez, 638 F.2d 507, 533-34 (2d Cir.1980), cert. denied, 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981). The Sentencing Reform Act expanded appellate review but limited it to certain categories of claims. Unless Papathanasion's claim concerning Judge Walker's failure to depart downward falls within one of these categories, therefore, appellate review is not available. See United States v. Fossett, 881 F.2d 976 (11th Cir.1989) (Sentencing Reform Act prohibits defendant from appealing sentencing judge's refusal to make downward departure); United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.1989) (per curiam) (same).

The applicable provision of the Act, Section 3742, ² provides for an appeal by a defendant where the claimed error falls within one of four categories defined in Subsection (a). Briefly stated, these are: (a)(1) the sentence was in violation of law; (a)(2) the sentence is based on an incorrect application of the Guidelines (as in Papathanasion's claim with regard to Guidelines Section 3B1.2); (a)(3) the sentence is outside the Guidelines range and is greater than the maximum set by the Guidelines--an upward departure; and (a)(4) the sentence was imposed for an offense for which no guideline has been promulgated and is plainly unreasonable. The government may appeal where the claim of error falls within one of four categories defined in Subsection (b). Subsections (b)(1), (b)(2) and (b)(4) are identical to the corresponding Subsections of (a). Subsection (b)(3), however, provides that where the sentence is outside the Guidelines range, the government may appeal only if it is less than the minimum set by the Guidelines--a downward departure.

Our examination of Papathanasion's claim begins with Section 3742(a)(1), which provides for appeals based on claims by a defendant that a sentence is "in violation of law." This Subsection could of course be read broadly to allow appeals based on any arguable claim of error in sentencing, including a claim that a particular sentence is unreasonably high or low. That reading, however, would make nonsense of Section 3742 by rendering its other subsections utterly superfluous. Congress hardly needed to add subsections authorizing appeals that claim an incorrect application of the Guidelines, that challenge sentences outside the Guidelines, or that question the reasonableness of sentences for offenses not governed by the Guidelines, if Subsection (a)(1) authorizes appeals of all sentences based on any arguable claim of error. The structure and relationship of the various subsections of Section 3742 thus indicate that, as the Senate Report states, Congress intended to provide only "a limited practice of appellate review of sentences." S.Rep. No. 225, 98th Cong., 2nd Sess. 149 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3332 (hereinafter S.Rep. No. 225). Because a broad reading of Section 3742(a)(1) is untenable, the only sensible view of that provision is that it was largely intended to ensure that the appellate review previously available for claims that a sentence was in excess of the statutory maximum, was based on impermissible considerations, or was the result of some other demonstrable...