U.S. v. Davern

• Decision Date: 21 July 1992
• Docket Number: No. 90-3681,90-3681
• Citation: 970 F.2d 1490
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John P. DAVERN, Defendant-Appellant. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1490

970 F.2d 1490

61 USLW 2067

UNITED STATES of America, Plaintiff-Appellee, v. John P. DAVERN, Defendant-Appellant.

No. 90-3681.

United States Court of Appeals, Sixth Circuit.

Reargued Feb. 12, 1992.

Decided July 21, 1992.

Marilyn A. Bobula, Asst. U.S. Atty. (argued and briefed), Office of U.S. Atty., Cleveland, Ohio, Sean Connelly (argued and briefed), U.S. Dept. of Justice, Civ. Div. Washington, D.C., for plaintiff-appellee.

E. Joshua Rosenkranz (argued and briefed), Howard A. Pincus, Office of Appellate Defender, New York City, for defendant-appellant John P. Davern.

Henry A. Martin, Fed. Public Defender (argued), Federal Public Defender's Office, Nashville, Tenn., Gerald T. McFadden (briefed), San Diego, Cal., for amici curiae Federal Public and Community Defenders and Nat. Ass'n of Crim. Defense Lawyers (NACDL).

Before: MERRITT, Chief Judge, KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges.

KENNEDY, Circuit Judge.

This case requires us to decide the Sentencing Guidelines to be applied where the defendant negotiated and paid for a half kilogram of cocaine but actually received only 85 grams. We hold that the amount negotiated for should determine defendant's sentence, and we AFFIRM the District Court.

I.

In November 1989, defendant agreed to purchase 500 grams of cocaine for $10,500 from an undercover FBI drug enforcement agent. The agent actually transferred to defendant a plastic bag weighing 1,070 grams which contained a small plastic bag of cocaine weighing 85 grams enclosed in a 985 gram mixture of plaster of Paris.

Defendant was charged with and pleaded guilty to possession with intent to distribute an unspecified quantity of cocaine in violation of 21 U.S.C. § 841(a)(1). The District Court held hearings to determine whether defendant should be sentenced under the Guidelines for 85 grams, the amount defendant actually possessed, the 500 grams he attempted to buy, or 1,070 grams, the weight of the package including the plaster of Paris. ¹ The District Court adopted the recommendation of the presentence report and imposed a 51-month sentence based on a quantity of at least 500 grams adjusted for acceptance of responsibility.

The issue presented on appeal was whether defendant should be sentenced only for the 85 grams of cocaine actually possessed. A panel of the Court (Merritt, C.J., and Jones, J. with Kennedy, J. concurring in part and dissenting in part) reversed. United States v. Davern, 937 F.2d 1041 (6th Cir.1991) (vacated). The majority held that courts should take a "flexible approach to the guidelines" by "consider[ing] the facts in light of qualitative standards [set forth in 18 U.S.C. § 3553(a) ] designed to insure punishment 'not greater than necessary.' " The majority stated that a court was not required to follow the Guidelines when "the parties present a legitimate aggravating or mitigating circumstance ... not adequately taken into consideration" by the Guidelines. In such cases, the majority held, the Guidelines are general principles to be considered "in light of the principles of sentencing outlined in § 3553(a)." On the narrow issue presented for review, the panel agreed that the weight of the plaster of Paris should not be included when calculating the base offense level. The majority determined that defendant's sentence should be based on the 85 grams of cocaine he actually possessed. The majority found that the Guidelines are not clear on the question of how to consider a quantity of drugs a defendant attempted to purchase when in fact he actually possessed a lesser amount. The majority considered this situation one such "aggravating circumstance" to be weighed by a district court in sentencing.

The panel's opinion was vacated by a vote to rehear the case en banc. Following rehearing en banc, we AFFIRM the District Court.

II.

The government conceded in its rehearing en banc brief that the weight of the plaster of Paris was not to be considered, and therefore that issue is no longer before the Court. ²

III.

Defendant argues that a district court has the discretion to disregard the Guideline range in cases where the range is out of proportion to 18 U.S.C. § 3553(a)'s directive that a court "impose a sentence sufficient, but not greater than necessary to comply" with the purposes of sentencing. Defendant suggests that the district court may impose a sentence considering only the factors mentioned in 18 U.S.C. § 3553(a)(2). We disagree because we find that the Guidelines are a sentencing imperative. 18 U.S.C. § 3553(b) states:

The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. (Emphasis added.) ³

Subsection (a)(4) provides that in determining the particular sentence to be imposed, the court shall consider

the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(1) and that are in effect on the date the defendant is sentenced.

Our conclusion that a Guideline sentence is mandatory and that departure is justified only as stated in section 3553(b) is supported by the Supreme Court's statement in Burns v. United States, --- U.S. ----, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). There the Court stated:

The only circumstance in which the district court can disregard the mechanical dictates of the Guidelines is when it finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. 18 U.S.C. § 3553(b).

Id. at ----, 111 S.Ct. at 2184-85.

We believe that a district court must first determine a Guideline sentence, and then must consider whether there is an "aggravating or mitigating circumstance," that is, one not taken into account in setting the Guideline sentence. Until the judge has determined a sentence under the Guidelines, it seems impossible to determine whether the mitigating or aggravating circumstance had in fact been taken into account in promulgating those specific Guidelines.

Defendant argues that the fact that he negotiated to purchase, although never possessed, 500 grams is a mitigating circumstance not considered by the Guidelines that the District Court should have taken into account. We disagree because we find that the Guidelines specifically provide for this situation.

Section 2D1.1 is the Guideline section that sets forth the base offense levels for drug offenses. Application Note 12 to section 2D1.1 makes clear that the specific quantity of drugs mentioned in the indictment is not controlling. That note states:

If the offense involved negotiation to traffic in a controlled substance, see Application Note 1 of the Commentary to § 2D1.4.

If we turn then to Application Note 1, we find that it provides:

If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount.

Although that note is located under a heading "Attempts and Conspiracies," as the Fifth Circuit points out in United States v. Garcia, 889 F.2d 1454 (5th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990), its application is not limited to attempts and conspiracies. The Fifth Circuit notes that section 2D1.1 specifically directs the sentencing court to note if, as in this case, the offense of conviction involves "negotiation to traffic." In Garcia, the defendant was convicted of distributing eight ounces of cocaine. He had negotiated to sell sixteen ounces to a DEA agent, but ultimately delivered only eight ounces to the agent. The evidence showed that the defendant was capable of producing sixteen ounces. The court traced the Guidelines from Application Note 11 ⁴ of § 2D1.1 to Application Note 1 of § 2D1.4, and held that the District Court appropriately had used the sixteen ounces to determine the offense level.

Returning to section 2D1.1, we find that Application Note 12 also permits us to analyze this case under the relevant conduct provision of the Guidelines. Application Note 12 states:

Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See § 1B1.3(a)(2) (Relevant Conduct).

Section 1B1.3(a)(2) requires a base offense level to be determined on the basis of "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction" if the offenses are "of a character for which section 3D1.2(d) would require grouping of multiple counts." Section 3D1.2(d) requires grouping of drug offenses. The law in this Circuit is clear that a base offense level is determined by the amount of drugs included in the defendant's relevant conduct, not just amounts in the offense of conviction or charged in the indictment. See e.g., United States v. Ykema, 887 F.2d 697 (6th Cir.1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990); United States v. Smith, 887 F.2d 104 (6th Cir.1989); United States v. Sailes, 872 F.2d 735 (6th Cir.1989); United States v. Perez, 871 F.2d 45 (6th Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989).

The defendant argues that the relevant conduct provision is ambiguous and does not indicate that conceptually distinct crimes should be combined. The defendant argues that section 1B1.3 does not specifically state that...