U.S. v. Damerville, s. 93-3235

• Decision Date: 14 June 1994
• Docket Number: 93-3419,Nos. 93-3235,s. 93-3235
• Citation: 27 F.3d 254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael R. DAMERVILLE and Sharon Douglas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 254

27 F.3d 254

UNITED STATES of America, Plaintiff-Appellee, v. Michael R. DAMERVILLE and Sharon Douglas, Defendants-Appellants.

Nos. 93-3235, 93-3419.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 8, 1994.

Decided June 14, 1994.

John W. Vaudreuil, Asst. U.S. Atty. (argued) and Larry Wszalek, Office of the U.S. Atty., Madison, WI, for plaintiff-appellee.

Mark E. Colbert (argued), Waunakee, WI and Iris M. Christenson (argued), Madison, WI, for defendants-appellants.

Before PELL, WOOD, Jr., and ESCHBACH, Circuit Judges.

PELL, Circuit Judge.

Michael Damerville and Sharon Douglas entered guilty pleas to a one-count indictment charging them with conspiring with others to violate 21 U.S.C. Sec. 841(a)(1), in violation of 21 U.S.C. Sec. 846. Damerville was sentenced as a career offender. He argues that the career offender enhancement should not apply to those convicted of conspiracy to commit a controlled substance offense. Douglas, who was sentenced under Sec. 841(b)(1)(D), argues that she should have been sentenced according to the penalty provision of Sec. 841(b)(4).

I.

The conspiracy began when Don Burkhalter, an inmate at the Federal Correctional Institution in Oxford, Wisconsin, approached fellow inmate Robert Kripps, the boyfriend of Douglas, and asked him to assist in smuggling balloons filled with marijuana into the prison. Burkhalter and Kripps agreed that Kripps would receive one-quarter of the shipment, Burkhalter would receive one-quarter, and Michael Damerville would receive one-half.

Kripps solicited Douglas to bring the marijuana into the prison. After she agreed, Kripps gave Douglas' name and address to Burkhalter and requested that her real name not be used. Meanwhile, Damerville spoke with Tammie and David Blackburn in Des Moines, Iowa. Their taped conversation revealed references to "the thirty-five from Rick," which David Blackburn verified he had received. Damerville requested confirmation that Tammie Blackburn had received a letter containing Douglas' address.

On August 21, 1992, a package, addressed to "Shannon Smith" and bearing a sender's name of "David Blackburn," was shipped "priority overnight" from the Des Moines Federal Express office to the Madison, Wisconsin office. Due to an incorrect recipient address, the package was not delivered. On August 23, Damerville informed David Blackburn that "the girl in Wisconsin" had not received the package. On August 26, Damerville asked Tammie Blackburn to trace the package. The next day Damerville spoke with David Blackburn, who indicated that the package had not yet been traced.

On August 28, the package arrived at the Federal Express Headquarters in Memphis, Tennessee. On August 29, the package was opened for the purpose of categorizing its misdirected contents. The package contained a plumbing-type pipe, a pipe ring, crumpled newspapers, and thirty-five balloons filled with marijuana. The package was turned over to Federal Express security officers. On that same day, David Blackburn furnished Damerville with the package number. Advising Kripps that the package was in Madison, Damerville gave him its number. On August 31, Douglas went to the Federal Express office in Madison where she was informed that the package was in Memphis and that it contained marijuana. She conveyed this information to Kripps when she visited him at FCI-Oxford later that evening. Kripps passed the news to the others at the prison. They did not believe him.

Damerville spoke with the Blackburns. They confirmed that the package had been seized and that Blackburn had used his real name on the package. The thirty-five balloons were subsequently turned over to the Drug Enforcement Agency and found to contain 17.2 grams of marijuana.

The indictment charged Sharon Douglas and Robert Kripps with conspiracy to distribute marijuana. In a superseding indictment Michael Damerville, David Blackburn and Tammie Blackburn were added as co-defendants.

II.

Damerville was convicted pursuant to 21 U.S.C. Sec. 846 for conspiring to commit an offense involving a controlled substance. The district court found that Damerville was a career offender under United States Sentencing Guideline Sec. 4B1.1 and gave him a seventy-seven month prison sentence. A defendant who is convicted of a felony controlled substance offense and has at least two prior felony convictions of a controlled substance offense is a career offender. USSG Sec. 4B1.1. ¹ A "controlled substance offense" is

an offense under a federal or state law prohibiting the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.

USSG Sec. 4B1.2(2). "Aiding and abetting, conspiring and attempting to commit" a controlled substance offense is within the guidelines' definition of offenses that may be considered for career offender enhancement under Sec. 4B1.1 USSG Sec. 4B1.2, comment. (n. 1); see Stinson v. United States, --- U.S. ----, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (commentary to the guidelines that interprets or explains a guideline is authoritative unless it violates the Constitution).

Damerville challenges the Sentencing Commission's authority to include "conspiracy" to commit a controlled substance offense among the offenses that qualify for the career offender enhancement. He relies on United States v. Price, 990 F.2d 1367 (D.C.Cir.1993). In Price the District of Columbia Circuit determined that, by including conspiracies among the offenses that qualify a defendant for career offender status, the Sentencing Commission exceeded the mandate of 28 U.S.C. Sec. 994(h). The Background commentary to Sec. 4B1.1 states:

28 U.S.C. Sec. 994(h) mandates that the Commission assure that certain "career" offenders, as defined in the statute, receive a sentence of imprisonment "at or near the maximum term authorized." Section 4B1.1 implements this mandate.

USSG Sec. 4B1.1, comment. (backg'd.). Section 994(h) applies to offenses "described in section 401 of the Controlled Substances Act (21 U.S.C. 841)." 28 U.S.C. Secs. 994(h)(1)(B) ², (h)(2)(B). The District of Columbia Circuit determined that conspiracies to violate offenses specified in Sec. 994(h) are not the offenses "described in" those sections; therefore, a conspiracy to violate Sec. 841 is not the same as a violation of Sec. 841 for purposes of applying Sec. 994(h), and a defendant convicted of conspiracy to violate Sec. 841 is not the offender described in Sec. 994(h). The court further noted that, because Sec. 994(a) grants broad power to the Sentencing Commission, "the Commission may well be free under Sec. 994(a) to specify equally long terms for defendants not covered by Sec. 994(h)." Price, 990 F.2d at 1369. But the court specified that the Sentencing Commission had not used Sec. 994(a) as its authority to include conspiracies. Because the Sentencing Commission could not rely upon Sec. 994(h) to include conspiracies and did not state its reliance upon Sec. 994(a), it lacked the authority to apply the career offender provisions to those convicted of conspiracy to violate Sec. 841.

The reasoning of the District of Columbia Circuit in Price has been criticized by the Eighth and Ninth Circuits. ³ United States v. Baker, 16 F.3d 854 (8th Cir.1994); United States v. Heim, 15 F.3d 830 (9th Cir.1994). The Ninth Circuit concluded in Heim that the District of Columbia Circuit had read the commentary of Sec. 4B1.1 too restrictively. Heim, 15 F.3d at 832. The court reasoned that the guidelines "implemented," but did not rely upon Sec. 994(h) as the sole legal authority for promulgating the career offender guidelines. Taking into account the legislative history of Sec. 994(h), the court expressed the view that Sec. 994(h) was not intended to be a ceiling for establishing career offender guidelines. ⁴ Similarly, in Baker the Eighth Circuit determined that under the broad power of Sec. 994(a), the Sentencing Commission had the authority to include conspiracies in its treatment of career offenders. The court also noted the Sentencing Commission's response to Price in the form of a proposed amendment: the proposed modified commentary to Sec. 4B1.1 reflects the Sentencing Commission's intent to rely upon its general guideline promulgation authority under Sec. 994(a) to include conspiracy offenses under the career offender guideline. See Proposed Amendments to Sentencing Guidelines, Policy Statements, and Commentary, 58 Fed.Reg. 67521, 67532 (1993).

We agree that the Sentencing Commission had the authority to include conspiracy as an offense subject to treatment by the career offender provisions pursuant to its general authority under Sec. 994(a). The guidelines identify the Sentencing Commission's broad general powers under Sec. 994(a). USSG Ch. 1, Pt. A, intro. comment. (n. 1) ("The guidelines and policy statements promulgated by the Commission are issued pursuant to Section 994(a) of Title 28, United States Code."). The authority granted by Sec. 994(a) is implicit in all the provisions of the guidelines. Reference in the commentary to Sec. 994(h) as a specific source of authority does not preclude the authority of Sec. 994(a). Congress gave the Sentencing Commission the power to implement Sec. 994(h). Section 994(h) does not define the only crimes that require the application of the career offender provisions, but rather it declares that those recidivists convicted of the enumerated crimes must receive a sentence at or near the maximum. Baker, 16 F.3d at 857 (citing S.Rep. No. 225, 98th Cong., 1st Sess. 176 (1983)); see also Mistretta v. United States, 488 U.S. 361, 376, 109 S.Ct. 647, 657, 102 L.Ed.2d 714 (1989). Section 994(h) provides the minimum obligation of the Commission and does not prohibit the inclusion of additional offenses that qualify for such treatment.

The penalty for conspiracy to violate ...