U.S. v. Darmand, 1625

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: OAKES
• Citation: U.S. v. Darmand, 3 F.3d 1578 (2nd Cir. 1993)
• Decision Date: 08 September 1993
• Docket Number: D,No. 1625,1625
• Parties: UNITED STATES of America, Appellee, v. Mark Lynford DARMAND, Defendant-Appellant. ocket 93-1009.

Page 1578

3 F.3d 1578

UNITED STATES of America, Appellee, v. Mark Lynford DARMAND, Defendant-Appellant.

No. 1625, Docket 93-1009.

United States Court of Appeals Second Circuit.

Argued June 8, 1993.

Decided Sept. 8, 1993.

F. Mac Buckley, Hartford, CT, for defendant-appellant.

Alex V. Hernandez, Asst. U.S. Atty., D.Conn., New Haven, CT (Albert S. Dabrowski, U.S. Atty., of counsel), for appellee.

Before: OAKES, WALKER and WOOD, ^* Circuit Judges.

OAKES, Circuit Judge:

Mark Lynford Darmand appeals from his sentence of ten years' imprisonment for conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 846 (1988), and for carrying a firearm in connection with a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c)(1) (Supp. III 1991). These convictions stemmed from two separate events: the first from a February 20, 1992 sale of $40 worth of crack cocaine to an undercover Bristol, Connecticut police officer; and the second from a November 8, 1991 raid on an apartment in a Bristol low-income housing project during which Darmand was found in possession of a gun and as much as 12.86 grams of crack cocaine. The District Court for the District of Connecticut, Ellen Bree Burns, Judge, imposed the ten-year sentence after Darmand pled guilty to these two counts; two other charges were dismissed as part of a plea agreement.

Darmand initially challenged only the district court's factual determination that 11.97 grams of the cocaine involved in the November offense were attributable to him. At oral argument, however, we requested additional briefing on two questions: (1) whether it was error to use the 12.86 grams of cocaine base involved in the November offense in applying the mandatory minimum sentence for sales of more than 5 grams of cocaine base under 21 U.S.C. Sec. 841(b)(1) (1988 and Supp. III 1991) and 21 U.S.C. Sec. 846 (1988), when the Sec. 846 conspiracy conviction was based on the February sale of only .431 grams of cocaine base, and alleged a conspiracy to sell only these .431 grams; and (2) whether the 12.86 grams from the November transaction could be used, as relevant conduct, to calculate the base offense level for the February offense under the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines"), and whether to do so the district court should have made an explicit finding that the two transactions were "part of the same course of conduct or common scheme or plan as the offense of the conviction" under U.S.S.G. Sec. 1B1.3 (1992) and that section's Application Note 3 (1992).

Having considered the supplementary briefing on these questions, we vacate the sentence and remand for resentencing. We conclude, and the government has conceded, that the statutory mandatory minimum should not have been imposed since the district court found that Darmand possessed less than 5 grams of cocaine in connection with the February conspiracy charge. We further find that, because the district court did not consider whether the two drug offenses were part of the same course of conduct or common scheme or plan in determining that the 12.86 grams in the November case could be considered in determining the base offense level for the February count, this issue should also be reconsidered on remand. However, we hold that the district court did not err in concluding that Darmand possessed all 12.86 grams involved on that occasion; consequently, this issue need not be revisited on remand.

BACKGROUND

Darmand's troubles began (at least for purposes of this case), when, at approximately 8:00 p.m. on November 8, 1991, five or more Bristol, Connecticut police officers armed with a warrant used a battering ram to enter an apartment in a Bristol housing project occupied by Darmand and others. The housing complex consisted of a horse-shoe shaped series of duplexes, opening onto a courtyard and street; drug activity, both indoors and outdoors, was common.

When the officers burst in, Darmand was in the kitchen, which contained much drug manufacturing paraphernalia and which had its own door to the outside. Darmand apparently ran for that door, but was grabbed by an Officer Barton, who shouted to the other officers that Darmand had thrown something out the kitchen door. An initial flashlight search turned up nothing, but a cursory search outside the apartment a few minutes later turned up a "golf-ball sized" package of cocaine, containing twelve rocks of crack cocaine weighing a total of at least 11.97 grams. The package was found in a pile of leaves three or four feet outside the kitchen door after the officers had stirred the pile up with a stick. In addition, Darmand was found to be carrying a 9 millimeter semiautomatic handgun, $390 in cash and four smaller rocks of cocaine weighing a total of .892 grams. This series of events led to Darmand's conviction for possession of a firearm in connection with a drug trafficking offense. An additional charge of possession of cocaine with intent to sell was dropped as part of the plea agreement.

In the second episode, on February 20, 1992, an undercover Bristol police officer bought two twenty-dollar rocks of crack cocaine from Darmand and an unidentified woman outside another apartment at the same housing project. These two rocks weighed .431 grams. After descriptions of Darmand and the woman were radioed to other officers, Darmand was arrested at his girlfriend's apartment in the complex. The officers found an additional 10 rocks of cocaine, weighing 8.88 grams, in a garbage can just outside her apartment door. This episode led to Darmand's conviction for conspiracy to possess with intent to distribute and to distribute cocaine. A sale count was dropped as part of the plea agreement.

The principal concern of all parties at the sentencing hearing was whether the 11.97 grams found outside the first apartment in November and the 8.88 grams found in the garbage can in February could be attributed to Darmand. Judge Burns found that the government had demonstrated, by a preponderance of the evidence, that Darmand had possessed all but the 8.88 grams found in the garbage can outside his girlfriend's apartment--including the 11.97 gram package Darmand allegedly threw out the door on November 8, 1991. The judge stated that she believed the officers' claim that Barton had seen Darmand throw something out the door, and said that the fact that the golf-ball sized package of cocaine was not found on top of the pile of leaves was not decisive, because "[t]hings do filter down through the leaves." She concluded "I can and do find by a preponderance of the evidence that those twelve pieces of cocaine could be and are attributed to the defendant."

Judge Burns then imposed the mandatory minimum 5-year sentence set by the firearms statute for the firearms count. 18 U.S.C. Sec. 924(c)(1). Relying on paragraphs 19-20 of the presentence report, which indicated that U.S.S.G. Sec. 3D1.2 (1992) (the section dealing with convictions, rather than Sec. 1B1.3, the section dealing with relevant conduct) required grouping the quantities involved in separate drug transactions, Judge Burns added the .431 grams involved in the February offense and the 12.86 grams involved in the November offense. Because the total exceeded 5 grams, she again followed the reasoning of the presentence report and sentenced Darmand for the February trafficking count to the mandatory minimum of five years set by 21 U.S.C. Secs. 841(b)(1) and 846 for conspiracies to violate Sec. 841(a) involving more than 5 grams of cocaine base. As the firearms statute requires that its mandatory minimum sentence be served consecutively to any other sentence, Judge Burns sentenced Darmand to 10 years' imprisonment, to be followed by five years' supervised release.

Darmand then filed this appeal.

DISCUSSION

Our review of the sentencing proceedings reveals two errors in the sentencing on the February trafficking count. First, the district court apparently used the rules for grouping separate offenses, set forth in U.S.S.G. Sec. 3D1.2, rather than those for including relevant conduct in determining the base offense level for one offense, set forth in U.S.S.G. Sec. 1B1.3, in determining whether the additional cocaine involved in the November transaction should be used in determining the base offense level for the February offense. Secondly, after concluding that Darmand possessed .431 grams of cocaine as part of the February "offense of conviction" and 12.86 grams of cocaine in November, the district court concluded that Sec. 841(b)(1) required imposition of a mandatory minimum sentence of five years, because Darmand possessed more than 5 grams of cocaine.

We review the application of the mandatory minimum sentence first, since we need not consider the grouping rules under the Guidelines unless the mandatory minimum does not apply in this case.

1. Mandatory minimum of Sec. 841(b)(1).

Unlike the Guidelines, which require a sentencing court to consider similar conduct in setting a sentence, the statutory mandatory minimum sentences of 21 U.S.C. Sec. 841(b)(1) apply only to the conduct which actually resulted in a conviction under that statute. Thus, the district court erred in concluding that it should include the cocaine from the November episode not only as related conduct relevant to the base offense level for the February episode, but also in determining whether the mandatory minimum for the February offense applied.

We reason from the language of Sec. 841(b)(1):

any person who violates subsection (a) of this section [which bars possession of a controlled substance with intent to distribute] shall be sentenced as follows:

. . . . .

(B) In the case of a violation of subsection (a) of this section involving

. . . . .

(iii) 5 grams or more of a mixture or substance ... which contains cocaine base ... such person shall be sentenced to a term of imprisonment [of]...