U.S. v. Cureton, 95-2381

• Decision Date: 16 July 1996
• Docket Number: No. 95-2381,95-2381
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur A. CURETON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 469

89 F.3d 469

UNITED STATES of America, Plaintiff-Appellee, v. Arthur A. CURETON, Defendant-Appellant.

No. 95-2381.

United States Court of Appeals Seventh Circuit.

Argued Jan. 19, 1996.

Decided July 16, 1996.

Thomas P. Schneider, Lisa Warwick (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Keith E. Golden (argued), Golden & Meizlish, Columbus, OH, for Defendant-Appellant.

Before POSNER, Chief Judge, and KANNE and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Arthur Cureton pleaded guilty to the charges in a two-count superseding indictment, namely: (1) possession with intent to distribute approximately 6.61 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); and (2) using or carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The district court sentenced him on the drug possession count to seventy months in prison under the sentencing guidelines. For the firearm offense, the district court followed the mandate of 18 U.S.C. § 924(c)(1) and imposed a sentence of sixty months in prison, the term to run consecutive to the seventy-month guidelines sentence. Cureton appeals only the guidelines sentence, arguing: (1) that the district court failed to make adequate findings with respect to two of his objections to the presentence report, (2) that the offense-level schedule in U.S.S.G. § 2D1.1(c) is unconstitutional, and (3) that the district court erroneously determined that it lacked the authority to depart downward on the grounds articulated by Cureton. We find no merit in any of Cureton's contentions and accordingly affirm the sentence imposed by the district court.

I. HISTORY

Prior to Cureton's sentencing hearing, his attorney filed a number of written objections to the presentence report, pursuant to FED.R.CRIM.P. 32(b)(6)(B). In addition to contesting several minor factual representations contained in the report, Cureton raised five objections concerning the guidelines calculation of Cureton's sentence for the drug possession count, asserting: (1) that because the gun found in Cureton's home belonged to his cousin and not him, the probation officer who prepared the report erred in recommending a two-point offense level enhancement under U.S.S.G. § 2D1.1(b)(1); (2) that Cureton was entitled to a two-point reduction in his base offense level for acceptance of responsibility under U.S.S.G. § 3E1.1(a), as well as an additional one-point reduction for timely acceptance of responsibility under U.S.S.G. § 3E1.1(b); (3) that two of Cureton's prior criminal convictions were "related cases" and thus should have been consolidated under U.S.S.G. § 4A1.2 for the purpose of calculating Cureton's criminal history category; (4) that the guidelines' 100-to-1 disparity between "cocaine" and "cocaine base" in U.S.S.G. § 2D1.1(c) is unconstitutionally vague and meaningless because chemically there is no difference between the two terms; and (5) that a downward departure from the guidelines range under U.S.S.G. § 4A1.3 was appropriate because, due to Cureton's history of abuse as a child, the guidelines' prescribed criminal history category overrepresented the seriousness of his criminal past. After the government submitted its response to Cureton's objections, the probation officer prepared an addendum correcting certain factual representations in the report, based on Cureton's objections, and identifying the remaining unresolved issues for the district court to decide.

At the sentencing hearing, the district court proceeded step by step through the guidelines calculation of Cureton's sentence. First, the district court noted that Cureton's possession of between five and twenty grams of "cocaine base" operated to give him a base offense level of 26 under U.S.S.G. § 2D1.1(a)(3), (c). Counsel for both parties agreed to this finding.

The district court then considered possible adjustments to Cureton's base offense level discussed in the presentence report, and it addressed Cureton's objections concerning these adjustments. With respect to the potential two-step upward adjustment for possession of a firearm under § 2D1.1(b)(1), the government expressed its willingness to cede the point and acquiesce to Cureton's first objection to the presentence report's recommended guidelines calculation, and the district court accordingly declined to adjust Cureton's offense level upward. The government also agreed to Cureton's second objection requesting a two-point reduction for acceptance of responsibility under § 3E1.1(a) and an additional one-point reduction for timely acceptance of responsibility under § 3E1.1(b). Thus, the district court lowered Cureton's offense level from 26 to 23.

Turning to Cureton's criminal history, the district court noted that the sum under § 4A1.1 of Cureton's past convictions fell within criminal history category V. Cureton's third objection to the presentence report's recommended guidelines calculation asserted that two of his convictions were "related cases" and thus should have been counted only once in determining his criminal history category. The district court declined to rule on this objection, however, explaining that the question was irrelevant to sentencing because regardless of whether the related convictions were counted as one or two prior crimes, Cureton would still fall within criminal history category V.

Having arrived at the prescribed offense level and criminal history category for Cureton, the district court then solicited arguments from both parties concerning whether a departure from the guidelines sentence range was warranted. The government suggested that Cureton should receive a two-level downward departure from the guidelines range, based on the substantial assistance he gave to the government during various debriefings. Cureton's attorney, reiterating his fourth and fifth objections to the presentence report's recommended guidelines calculation, argued that two additional grounds for downward departure were warranted: (1) that Cureton's criminal history category V overrepresented the seriousness of his past convictions, and (2) that the disparity between offense levels in § 2D1.1(c) for possession of "cocaine" and "cocaine base" is unconstitutionally vague and meaningless because the two terms are technically synonymous. After considering both the government's and Cureton's arguments, the district court ruled that only the two-level downward departure on the basis of Cureton's substantial assistance was appropriate, and it accordingly departed downward to an offense level of 21 for the purpose of calculating Cureton's sentence.

Before finally entering a sentence, the district court asked if all of Cureton's remaining objections to the presentence report (the factual ones) were satisfactorily resolved in the probation officer's addendum. Cureton's counsel indicated that they were, and so the district court proceeded to impose a sentence for Cureton's drug possession crime. Crossing offense level 21 against criminal history category V on the sentencing guidelines table produces a potential sentence ranging between seventy and eighty-seven months in prison, and the district court chose the low end, seventy months, as Cureton's sentence. Judgment was entered against Cureton the day of the sentencing hearing, and the district court ordered a copy of the sentencing hearing transcript appended to the presentence report as written findings.

II. ANALYSIS

A. Adequacy of the District Court's Findings

Cureton's first argument on appeal is that the district court violated FED.R.CRIM.P. 32(c)(1) by failing to make adequate findings concerning Cureton's fourth and fifth objections to the presentence report's recommended guidelines calculation--i.e., his objections that criminal history category V overrepresented the seriousness of his past convictions and that § 2D1.1(c) is unconstitutionally vague. Actually, in his brief Cureton erroneously asserts that the district court violated FED.R.CRIM.P. 32(c)(3)(D), which was amended and redesignated as Rule 32(c)(1) effective December 1, 1994, almost six months before Cureton's sentencing. Old Rule 32(c)(3)(D) provided:

If the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons.

FED.R.CRIM.P. 32(c)(3)(D) (1993) (emphasis added).

By its own terms, old Rule 32(c)(3)(D) mandates specific findings only with respect to factual objections, and this court has held that, under Rule 32(c)(3)(D), a district court was not required to make written findings concerning nonfactual challenges to the presentence report. United States v. Johnson, 903 F.2d 1084, 1092 (7th Cir.1990). Cureton's fourth and fifth objections to the presentence report's recommended guidelines calculation do not assert any factual inaccuracy, but rather present legal questions--one challenges the constitutionality of § 2D1.1(c) and the other requests the court to make a legal finding that Cureton's history, the facts of which are undisputed, warrants a downward departure on the ground that criminal history category V overrepresents the seriousness of his prior crimes. Therefore, under old Rule 32(c)(3)(D), Cureton's argument that the district court was required to make explicit written findings concerning these two objections would be wholly without merit.

But Cureton's sentencing occurred after the effective date of the 1994 ame...