U.S. v. Fountain

• Decision Date: 14 June 1996
• Docket Number: Nos. 95-2264,s. 95-2264
• Citation: 83 F.3d 946
• Parties: UNITED STATES of America, Cross-Appellant/Appellee, v. Ivy Nelson FOUNTAIN, Appellant/Cross-Appellee. /2374.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 946

83 F.3d 946

UNITED STATES of America, Cross-Appellant/Appellee, v. Ivy Nelson FOUNTAIN, Appellant/Cross-Appellee.

Nos. 95-2264/2374.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 15, 1995.

Decided May 1, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied June 14, 1996.

Appeal from the United States District Court for the Northern District of Iowa; Michael J. Melloy, Judge.

Paul J. Papak, Asst. Public Defender (argued), for Appellant/Cross-Appellee.

Robert Lee Tieg, Asst. U.S. Atty., argued (Daniel C. Tvedt, Asst. U.S. Atty., on the brief), for Appellee/Cross-Appellant.

Before McMILLIAN and BEAM, Circuit Judges, and PERRY, District Judge. ^*

BEAM, Circuit Judge.

Ivy Nelson Fountain appeals his conviction for two counts of knowingly distributing cocaine base within 1000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) and 860(a). The government cross appeals Fountain's sentence, challenging the district court's application of Amendment 506 to the United States Sentencing Guidelines (USSG or Guidelines) section 4B1.1 in connection with Fountain's sentencing as a "career offender." The government contends that the Sentencing Commission exceeded its authority in enacting the amendment which now defines the phrase "Offense Statutory Maximum." The government claims the amendment conflicts with the statutory mandate of 28 U.S.C § 994(h). We affirm the conviction but vacate the sentence and remand for resentencing.

I. BACKGROUND

Fountain was charged with two counts of distribution of cocaine base within 1000 feet of a school. He entered a plea of not guilty to the charges and the action proceeded to trial. The government's proof at trial consisted largely of an informant's testimony and of recorded conversations between Fountain and the informant. The evidence showed Fountain sold five grams of cocaine base. The jury returned a verdict of guilty.

Over Fountain's objection, the government sought an enhanced statutory penalty based on Fountain's criminal record. ¹ The government contended, however, that a recent amendment to the Sentencing Guidelines should not be applied to calculate Fountain's career offender sentence because the Sentencing Commission had exceeded its authority in enacting the amendment.

Section 4B1.1 of the Guidelines provides a method for determining the guideline sentencing range for career offenders. The sentencing range under section 4B1.1 is calculated with reference to a table that provides an offense level for a given "Offense Statutory Maximum." ² The "Offense Statutory Maximum" is determined by the statute under which a defendant is convicted. For example, in this case, Fountain was convicted under 21 U.S.C. § 841 which provides a statutory sentencing range of five to forty years for distribution of five or more grams of cocaine base and ten years to life for repeat offenders. 21 U.S.C. §§ 841(a) & 841(b)(1)(B). Therefore, section 841 provides two "Offense Statutory Maximum" sentences--forty years for distribution and life for repeat offenders. In other words, there is a recidivist enhancement built into section 841.

A recent amendment to the Guidelines commentary states that "Offense Statutory Maximum" in section 4B1.1 means only the unenhanced maximum term. ³ The government contends that the Sentencing Commission is without power to enact the provision because it conflicts with the statutory mandate presented in 28 U.S.C. § 994(h), the Guidelines enabling statute. ⁴ The issue presented here is whether to use the five-to-forty-years figure (unenhanced) or the ten-years-to-life figure (enhanced) in section 841 as the "Offense Statutory Maximum." Use of the unenhanced figure results in a sentencing level of 34 (with a sentencing range of 262 to 327 months) whereas use of the enhanced figure results in a sentencing level of 37 (with a sentencing range of 360 months to life). In practical terms, the difference is an increase in Fountain's sentence of more than eight years.

The district court found that Fountain had the requisite predicate offenses and sentenced him as a repeat offender, but rejected the government's contention that the enhanced figure should be used as Fountain's "Offense Statutory Maximum." United States v. Fountain, 885 F.Supp. 185 (N.D.Iowa 1995). Accordingly, the district court used the forty-year figure. Fountain was sentenced to two concurrent terms of 262 months (21 years and eight months) (base offense level 34, criminal history category VI).

On appeal, Fountain contends that: (1) the district court erred in admission of the recorded conversations; (2) the Government committed a Brady violation; and (3) he should not have been sentenced as a career offender. On cross appeal, the government challenges the district court's application of the recent amendment, contending that Fountain should have been sentenced under the higher, enhanced "Offense Statutory Maximum."

II. DISCUSSION

A. Admission of Tape Recordings

Fountain first argues that the trial court erred when it admitted transcripts of taped conversations. He contends that the recordings were incomplete and inaudible. A district court has broad discretion in ruling on the admissibility of proffered evidence. Dillon v. Nissan Motor Co., 986 F.2d 263, 270 (8th Cir.1993). Accordingly, we will not disturb a district court's evidentiary ruling absent a clear and prejudicial abuse of that discretion. Id. We have reviewed the transcript and find adequate foundation for admission of the tapes.

B. Brady Violation

Fountain contends that the government failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he alleges that the government did not disclose a material inconsistency between the testimony of Officer Fessler, who testified to the Grand Jury that the transaction at issue took place in plain view, and that of Fessler's partner, Officer Parker, who testified at trial that the transaction took place inside the apartment and could not be viewed by either officer.

Fountain did not raise this issue at trial. Where an appellant has not properly preserved an issue for review, this court reviews only for plain error. United States v. Swanson, 9 F.3d 1354, 1356 (8th Cir.1993). Under plain error review, an error not identified by a contemporaneous objection is grounds for reversal only if the error prejudices the substantial rights of the defendant and would result in a miscarriage of justice if left uncorrected. Id. at 1356-57. Plain error has been described by the Supreme Court as "obvious, or ... otherwise seriously affect[ing] the fairness, integrity or public reputation of judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936); see also Phillips v. Parke, Davis & Co., 869 F.2d 407, 409 (8th Cir.1989).

In the present case, we are hard pressed to find any error, much less plain error. The government asserts that it turned over its discovery file to Fountain and he does not dispute that assertion. Fountain contends nonetheless that the Government failed to "disclose" an inconsistency in the two officers' testimony, that is, that it did not highlight the inconsistencies to defense counsel. The government has no such duty. Moreover, the inconsistency was apparently discerned by defense counsel and was the subject of extensive cross-examination. Accordingly, we find no Brady violation.

C. Fountain as Career Offender

Fountain challenges the district court's finding that he is a career offender. A defendant is regarded as a career offender if: (1) he was at least eighteen years old at the time of the offense of conviction; (2) that offense is a crime of violence or a drug-related felony; and (3) and he has two prior convictions for drug felonies or crimes of violence. USSG § 4B1.1. We review the district court's application of the Guidelines de novo. United States v. Gullickson, 981 F.2d 344, 346 (8th Cir.1992).

Fountain contends that a 1981 burglary conviction and a 1989 drug conviction should not have been counted as predicate offenses under the Guidelines. Specifically, he first claims that the burglary should not count as a "crime of violence" under the Guidelines because he burglarized a garage, not a dwelling. A crime of violence is defined in the Guidelines as:

(1) any offense under federal or state law punishable by imprisonment for a term exceeding one year that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(ii) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

USSG § 4B1.2.

As indicated, Fountain was convicted of burglarizing a garage. The burglary in question was in progress when interrupted by the homeowner, an off-duty police officer. Fountain and his accomplice were armed with a loaded revolver, which was pointed at the officer/homeowner. The officer/homeowner then fired his weapon at the burglars and they fled. Under the circumstances, we have no difficulty finding that the incident "otherwise involves conduct that presents a serious potential risk of physical injury to another." See United States v. Hascall, 76 F.3d 902, 904 (8th Cir.1996) (second-degree burglary of a commercial building qualifies as a crime of violence under section 4B1.2); see also United States v. Cornelius, 931 F.2d 490, 493 (8th Cir.1991) (use of a weapon signifies a crime of violence).

Fountain next contends that his 1989 guilty plea to a drug charge was not voluntary because he was not informed that the felony conviction could later be used to enhance a sentence. A court is not required to inform a defendant of the possibility of being sentenced as a recidivist for a plea to be valid. See Nichols v. United States, --- U.S. ----, ----, ...