U.S. v. Cusack, 89-5402

• Decision Date: 10 April 1990
• Docket Number: No. 89-5402,89-5402
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas CUSACK, a/k/a T.C., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 29

901 F.2d 29

UNITED STATES of America, Plaintiff-Appellee, v. Thomas CUSACK, a/k/a T.C., Defendant-Appellant.

No. 89-5402.

United States Court of Appeals, Fourth Circuit.

Submitted Dec. 29, 1989.

Decided April 10, 1990.

Louis J. Ruch, McBride, Ruch & Gontram, Philadelphia, Pa., for defendant-appellant.

Michael W. Carey, U.S. Atty., Hunter P. Smith, Jr., Asst. U.S. Atty., Charleston, W.Va., for plaintiff-appellee.

Before HALL, PHILLIPS and SPROUSE, Circuit Judges.

PER CURIAM:

Thomas Cusack ¹ appeals the sentence imposed by the district court after he pled guilty to one count of violating the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(c). Finding no error in the district court's sentence, we affirm.

I

On January 10, 1988, a federal grand jury in Charleston, West Virginia, returned an eighty-five count indictment charging Thomas Cusack and 28 other members of the Pagan Motorcycle Club with violations of federal racketeering, controlled substance, and firearms statutes. Count One charged Cusack with conducting the affairs of an enterprise, the Pagan Motorcycle Club, through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(c) (RICO); Count Two charged him with conspiracy to conduct the affairs of the enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(d) (RICO conspiracy); and Count Four charged him with conspiracy to distribute controlled substances, in violation of 21 U.S.C. Sec. 846.

The indictment described the affairs of the Pagan Motorcycle Club as involving the unlawful transportation and distribution of controlled substances in West Virginia and elsewhere. Count One, which was incorporated by reference in the other counts, alleged that the Club's pattern of racketeering activity extended from January 1980 to the time of the indictment nine years later, and it described three predicate acts of racketeering activity: distributions of a quarter-pound of methamphetamine on two occasions--October 20, 1987, and November 26, 1987--and conspiracy to distribute methamphetamine. Count One further alleged that Cusack, as a member of the Mother Club Chapter of the Pagan Motorcycle Club, distributed methamphetamine to members of the club and others.

On March 21, Cusack pled guilty to the RICO charge, and the government agreed to dismiss the RICO conspiracy and drug conspiracy charges. At the plea hearing, Cusack admitted to being a member of the motorcycle club and to dealing methamphetamine to Kenneth Blaine McMillion, a member and officer of the club, on the two occasions specified in the RICO charge. He denied, however, knowing that the motorcycle club regularly and generally engaged in drug trafficking. Because Cusack's admissions did not suffice as a factual basis for the court's acceptance of his guilty plea on the RICO charge, the government adduced substantial evidence from its own investigations of the motorcycle club's illegal drug trafficking and of the role of the club's hierarchy in the illegal activities. The court then accepted Cusack's plea.

The presentence report contained evidence of Cusack's other transactions in quarter-pounds of methaphetamine. Concluding that he had dealt in one and one-quarter pounds of the drug, the report set his base offense level at 26, but recommended a four-level enhancement for role in the offense, pursuant to Federal Sentencing Guideline Sec. 3B1.1. The report stated that Cusack had been evasive and uncooperative in the investigation, and accordingly it recommended that he not receive a Guideline Sec. 3E1.1 reduction of offense level for acceptance of responsibility. At sentencing, the court found that Cusack had dealt in one pound of methamphetamine as "relevant conduct" under Sec. 1B1.3, excluding one uncharged quarter-pound transaction that the government conceded it could not substantiate. The court accepted Cusack's argument that he should not receive the four-level role-in-the-offense enhancement recommended in the presentence report, but rejected his request for a reduction based on acceptance of responsibility. Having set his offense level at 26 and Criminal History category at I, the court found the applicable sentencing range to be 63-78 months and sentenced Cusack to 78 months.

II

Cusack assigns two errors in the district court's sentencing. First, he challenges the denial of the requested reduction in his offense level for acceptance of responsibility, contending as he must that the findings of fact underlying that ruling were clearly erroneous. Second, he challenges the inclusion of two uncharged methamphetamine transactions in his relevant conduct for sentencing, arguing that their consideration violated the ex post facto clause of the Constitution and was in any event an incorrect application of the Guidelines. We address these assignments of error in turn.

A

Under Guideline Sec. 3E1.1(a), a court may reduce by two levels the offense level of a defendant who "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." Subsection (c) of that Guideline states, however, that "[a] defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right." As we have recognized, the trial judge is best suited to determine whether a defendant is entitled to a Sec. 3E1.1 reduction: "Application Note 5 of the Commentary to Guideline Sec. 3E1.1 explains that '[t]he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility,' and that his determination 'is entitled to great deference on review and should not be disturbed unless it is without foundation.' " United States v. White, 875 F.2d 427, 430-31 (4th Cir.1989). As the evaluation of a defendant's acceptance of responsibility is primarily a factual question, due deference for the sentencing court requires an appellate court to accept its findings unless they are clearly erroneous. See 18 U.S.C. Sec. 3742(e); United States v. Daughtrey, 874 F.2d 213 (4th Cir.1989); White, 875 F.2d at 431.

In this case, the district court's denial of the Sec. 3E1.1 acceptance of responsibility reduction had a foundation in fact and was not clearly erroneous. The commentary to Sec. 3E1.1 lists some of the factors relevant to whether a defendant should receive the reduction. Among the many mentioned are voluntary withdrawal from a criminal association and voluntary and truthful admission of offense and related conduct. Cusack withdrew from the Pagan Motorcycle Club only after he was arrested and ordered to do so as a condition of pretrial release--his presentence report discloses that he told a Philadelphia probation officer he was no longer a member of the Pagans because "the Feds took away my colors." Furthermore, Cusack refused at his sentencing hearing to discuss both some of...