U.S. v. Davis

Decision Date04 March 1991
Docket NumberNo. 89-6519,89-6519
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Phillip S. DAVIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

John W. Gill, Jr., U.S. Atty., Curtis L. Collier, Steven H. Cook, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Chattanooga, Tenn., for plaintiff-appellee.

Bobby Lee Cook, Cook & Palmour, Summerville, Ga., Jake Arbes (argued), Atlanta, Ga., for defendant-appellant.

Before NATHANIEL R. JONES and NELSON, Circuit Judges, and SILER, Chief District Judge. *

DAVID A. NELSON, Circuit Judge.

This is a drug conspiracy case in which the defendant is appealing a 14-year sentence of imprisonment. The district court (Edgar, J.) set the sentence at the low end of the sentencing guideline range, as computed by the court. The defendant contends, among other things, that the range was miscalculated because, in determining the quantity of drugs involved in the conspiracy, the court relied on an out-of-court statement made by the defendant at a time when his mental condition was suspect. The defendant also contends that use of the statement (which was elicited by a probation officer in an interview that the defendant's lawyer chose not to attend) violated the defendant's Fifth Amendment right against compelled self-incrimination.

We conclude that no violation of the Fifth Amendment occurred, the defendant not having been compelled to be a witness against himself. We conclude further that the district court's factual determination as to the quantity of drugs involved was not clearly erroneous. Accordingly, and because we find none of the defendant's other contentions persuasive, we shall uphold the sentence.

I

The defendant, Phillip S. Davis, is a man of superior intelligence. He also suffers from a long-standing mental disorder. One of his former psychiatrists testified, at sentencing, that Mr. Davis has "a chronic severe anxiety/phobic neurosis," superimposed on "a cyclothymic personality disorder." His current psychiatrist described the condition as a "panic disorder." Mr. Davis (who was 45 years old at the time of his sentencing) told Judge Edgar that he had been taking medication for many years, and was currently "well-regulated on a medication called Klonopin, which is a blocker for panic disorder."

In the early 1980s, according to Mr. Davis' presentence report, he began buying and selling marijuana. He switched to cocaine in 1983, and continued trafficking in that substance until his arrest on March 16, 1989. He had begun to withdraw from the cocaine business, and at the time of his arrest had only one big customer left, a man named Donald Howard.

Mr. Davis was carrying a loaded pistol when arrested, and another loaded pistol was found in the glove compartment of his late-model Mercedes. On the morning of his arrest he was observed hiding two bags of cocaine on the grounds of a community center at which an elementary school was located. Subsequent to his arrest the police found more cocaine in a safe at his girlfriend's house. Also recovered there were scales and plastic bags containing cocaine residue. It appears that Mr. Davis utilized a telepager to facilitate communications with his customers. There is no question that he was functioning as a professional drug dealer, jeopardizing others (including children) in the process.

A federal grand jury handed up a 15-count indictment against Mr. Davis. He pleaded not guilty and was freed on a $500,000 bond. His counsel subsequently negotiated a plea bargain, and Mr. Davis was rearraigned on June 14, 1989. At that time he pleaded guilty to a single count charging him with unlawful distribution of two ounces of cocaine on March 9, 1989, one week before his arrest. The indictment's remaining counts, including one charging him with possession of three and one-half ounces of cocaine on the day of the arrest, were dismissed. Pursuant to the plea bargain, however, Mr. Davis pleaded guilty to an information charging that over a period beginning in March of 1987 and continuing to March 16, 1989, he conspired with others to distribute cocaine. After approval was obtained from the Department of Justice, Mr. Davis also pleaded guilty to an information charging him with income tax violations.

In the course of his rearraignment on June 14, 1989, Mr. Davis responded, under oath, to a battery of questions posed by the district judge. One of the topics covered was whether Mr. Davis was in a condition to make decisions that day. Mr. Davis assured the judge that he was: "I'm alert and sober and not overly medicated." One of his two lawyers backed him up on this, and the court found as a fact that the defendant was not under the apparent influence of narcotics or other drugs and was competent to plead.

Before accepting the plea, the judge asked the government to describe the case it was prepared to present against Mr. Davis. The prosecutor responded that beginning in March of 1987, and continuing to the date of the arrest, defendant Davis supplied "a cooperating individual" (Donald Howard, presumably) with at least two ounces of cocaine every two weeks. When asked if this were true, Mr. Davis responded thus: "Basically, I would say that is true."

Immediately after his rearraignment, Mr. Davis--who remained free on bond--was asked by a probation officer, Ms. Leslie Cory, to participate in a presentence interview. Ms. Cory did not order him to participate, and neither did the court; there has been no showing that the interview was anything other than voluntary.

It had been established at the rearraignment that Mr. Davis had already discussed the sentencing guidelines with one of his attorneys and understood that the court could not determine what guidelines were applicable until a report was received from the probation officer. Assuming, perhaps, that Mr. Davis' attorney had explained to him how the preparation of such a report would be handled, the judge did not touch on that subject; he did explain the Fifth Amendment privilege against self-incrimination, however, and he also told Mr. Davis that "you have a right to have counsel represent you at all stages of any criminal proceeding."

Probation Officer Cory subsequently testified that when she set up the interview with Mr. Davis, she invited one of his lawyers to attend. The lawyer, for reasons unknown to us, declined.

Ms. Cory explained the purpose of the interview to defendant Davis before getting into a discussion of the facts of the case. Although Mr. Davis appeared "distraught" at having pleaded guilty, and was "a little hyper" and "bombastic," there is no contention that Ms. Cory employed any threats or coercion. She testified without contradiction that she did not. Her presentence report noted, moreover, that Ms. Cory made it a practice "to inform the defendant that, if at any time during the interview he has a question as to why the probation officer wishes to discuss any particular matter, he should feel free to interrupt the interview to ask the probation officer to explain the reason for her question."

Ms. Cory testified that she asked Mr. Davis about the facts asserted by the government at the hearing earlier in the day, and Mr. Davis replied that "the facts were about right." The government had spoken of a minimum of two ounces of cocaine every two weeks, however, and Mr. Davis told Ms. Cory that he supplied Mr. Howard on a weekly basis:

"He said initially, he dealt five or six ounces of cocaine a week to Donald Howard, but then it dropped off to just a couple ounces of [sic] week towards the end."

Ms. Cory did not complete her presentence report until more than a month after the interview. On July 18, 1989, while working on the report, she realized she did not know precisely when it was that the quantity of cocaine Mr. Davis was supplying to Mr. Howard dropped off to two ounces a week. Accordingly, she called Mr. Davis on the telephone and asked him.

Mr. Davis responded that he had never sold Mr. Howard two to five ounces a week. Howard sometimes went two or three weeks, or even a month, without making a purchase, Mr. Davis now said, adding that there was only one occasion when Howard bought as much as four ounces. Ms. Cory asked Mr. Davis why he had given a different account at the interview on June 14, and he replied that it "had been a long day."

Ms. Cory presented both versions of the story in her presentence report, but indicated that she found the earlier statement more credible. In calculating the quantity of drugs involved, as required by U.S.S.G. Secs. 2D1.1 and 2D1.4, she decided to reject the July 18 version and use the minimum amount--two ounces per week--specified by Mr. Davis at the June 14 interview.

With certain adjustments called for by the guidelines, this produced a total offense level of 34. If Ms. Cory had based her calculations on the quantity the government said it could prove independently, the total offense level would have been only 30. Assuming Mr. Davis belonged in Criminal History Category III, as the probation officer believed he did, an offense level of 34 would have yielded a guideline range of 188-235 months' imprisonment. An offense level of 30, on the other hand, would have yielded a guideline range of 121-151 months. Absent a departure from the guideline range, use of the June 14 statement would thus increase the sentence by more than three years.

Through his counsel, Mr. Davis filed written objections to the presentence report. He challenged the quantity of drugs involved, asserting that "Mr. Davis sold to Mr. Howard sporadically over a two year period in approximately two ounce quantities," and he objected "to the use by the probation officer of any statements Mr. Davis might have made to the probation officer ... without first having been given Miranda warnings." (Emphasis supplied.)

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