U.S. v. Fox
| Decision Date | 14 November 2008 |
| Docket Number | No. 07-3830.,No. 07-3831.,07-3830.,07-3831. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Walter J. FOX and Rodney Sykes, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Elizabeth Altman (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
William R. Jones (argued), Jones Law Firm, Madison, WI, for Defendants-Appellants.
Before BAUER, CUDAHY, and WOOD, Circuit Judges.
Rodney Sykes and Walter Fox pleaded guilty to conspiracy to distribute and to possess with intent to distribute crack cocaine. Each disagrees with the application of the Sentencing Guidelines to the facts of his case and contends that his sentence is unreasonable. Sykes argues that the district court improperly increased his base offense level on the basis that he was an organizer of the offense, and Fox contends that the drug quantity for which he was responsible was miscalculated. We find that Sykes is entitled only to a limited remand under Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 564, 169 L.Ed.2d 481 (2007), but that Fox's sentence must be vacated and remanded for reconsideration of the applicable drug quantity.1
The appellants, Rodney Sykes and Walter Fox, are self-described crack cocaine addicts who bought, sold and used drugs together. They spent a lot of their time getting high at Sykes's house. At some point, Sykes, Fox and their codefendant James Sanderson attracted the attention of the authorities and became targets of an investigation.
On June 1, 2007, an undercover officer (the UO) made arrangements to purchase crack cocaine from Sykes. Sykes met the UO at a designated location and sold her 2.541 grams of crack cocaine for $150. On June 6, the UO made arrangements to purchase more crack cocaine from Sykes. While the UO was waiting at the designated location, Sykes called her and asked her to meet him at a gas station. There, the UO met Sykes and an unknown associate; the associate sold her 4.743 grams of crack cocaine for $300.
The UO again made arrangements with Sykes to purchase crack cocaine on June 13, 2007. Police officers observed Fox leave Sykes's residence and travel to the designated location. Fox sold the UO one "eight-ball"2 of crack cocaine for $150. The UO asked Fox if he had the other eight-ball that the UO had requested. Fox did not, but he agreed to retrieve it. The police officers observed Fox travel back to Sykes's house and then return to the designated location where the UO was waiting. Fox then provided the UO with the second eight-ball. The combined weight of the two eight-balls was 4.138 grams.
On June 22, the UO once again made arrangements with Sykes to purchase crack cocaine. This time James Sanderson met the UO at the designated location and sold her 5.886 grams for $450.
Finally, on June 27, investigators executed a search warrant at Sykes's residence. They found 40 grams of crack cocaine and other items indicative of the use and sale of drugs. Sykes was arrested and gave a statement to the police.
On June 27, 2007, the grand jury returned a six-count indictment against Sykes, Fox and Sanderson. Count One charged all three men with conspiracy to distribute and to possess with intent to distribute five grams or more of crack cocaine from on or about June 1, 2007 to on or about June 22, 2007. Sykes and Fox pleaded guilty to Count One of the indictment on September 12, 2007 pursuant to written plea agreements. Sanderson did not plead guilty at that time; instead, when the present case was appealed, his case was still active in the district court.
In Sykes's Presentence Investigation Report (PSR), the probation officer recommended a two point upward adjustment to his offense level for his role in the offense "because [Sykes] instructed Mr. Fox and Mr. Sanderson on the delivery of cocaine." Sykes objected to the application of this adjustment and argued that it was based on an incomplete summary of his post-arrest statement to investigators.
Sykes acknowledged that in his statement he said that officers would find marijuana and crack cocaine in their search of his residence, that any drugs located in his residence belonged to him, that he had been selling drugs for approximately four or five months, that he sold drugs to make money to buy more drugs, that he usually obtained an ounce to an ounce and a half of drugs every two or three days and that he sold the majority of them but smoked about a quarter to a half ounce per day with Fox and Sanderson. In support of his objection to the enhancement for his role in the offense, Sykes submitted an extended excerpt from the statement, in which he gave the following answers to questions:
Detective Linsmeier: How often did you have Jamie [Sanderson] and Walt [Fox] running dope for you?
Sykes: Running dope for me?
Detective Linsmeier: Yeah, delivering dope for you.
Sykes: Walter don't deliver no dope for me. Walt don't deliver no dope at all. He gets high.
Detective Linsmeier: You're covering for Walt, Rodney.
Sykes: No I'm not. If Walt's delivering dope, he ain't delivering it for me. Now Jamie, he may go and drop something off ... and they don't be doing it for me, they be doing it for themselves.
Detective Linsmeier: So if someone calls you up to order some dope ...
Sykes: I go myself.
Detective Linsmeier: Yeah, but what happens if you're not able to?
Sykes: Jamie will run it sometimes.
Detective Linsmeier: How often does Jamie run it for you?
Sykes: Every now and then Jamie would make a run.
Detective Linsmeier: How often? How many times a week?
Sykes: Maybe three or four times.
Detective Linsmeier: A week?
Sykes: Yeah.
. . .
Detective Linsmeier: Did Walter ever deliver ...
Sykes: If Walter ever delivered, he'd run his own shit. He won't be running for me.
Detective Chamulak: So if somebody called you and said "hey, I need something," and you'd say, "Ok, I'll take care of you," but you didn't have it, and then you called somebody else to take care of it?
Sykes: Yeah, I'll do that.
Detective Linsmeier: So hypothetically someone called you up and said I want whatever, five 8-balls, or whatever, if you don't have it ...
Sykes: Then I'll send them to somebody else.
Detective Linsmeier: Who have you sent them to in the past?
Sykes: [Fox, Sanderson and others.]
. . .
Sykes: Somebody's calling me, I may call Jamie; I may call Walt; I may call somebody and say, uh, somebody want some, you want that? And they be like, "I'll go get it."
Detective Linsmeier: Okay, so where did Jamie or Walt get the coke from? Did they get it from you or their own source?
Sykes: They already had it. They probably already had their own shit.
Detective Linsmeier: From you or from their own source?
Sykes: From their own source.
Sykes argued that, when his statement was considered as a whole, it did not support a finding that Fox and Sanderson were delivering drugs on his behalf or that he was a leader or organizer of the activity. He also quoted an exchange between Fox and the district court that occurred during Fox's change of plea hearing:
Court: Mr. Fox, what was your role in the conspiracy? And were you a member of it?
Fox: Yes, Your Honor. I was a member according to Count One, and on the 13th [of June, 2007] I did deliver ... to the young lady that showed up at Woodman's parking lot who was an undercover. ...
Court: Where did you get that crack? You bought it or just sold it? Who was your source? How did you get it? Who gave it to you? How did you get it for distribution?
Fox: Well, I ended up purchasing the crack cocaine.
At Sykes's sentencing, the district court found that he had organized the distribution of crack cocaine and applied the two-point upward adjustment to his offense level. The court noted that it "has read [Sykes's post-arrest statement] on several occasions and finds that you can probably make 15 conclusions out of it, 14 of which do not benefit the defendant and the Court isn't going to take that 15th step." It pointed to the undisputed fact that the undercover officer called Sykes to order crack cocaine and that on at least two occasions the drugs were delivered by someone other than Sykes. On the subject of the June 13, 2007 sale, the court said,
[T]he undercover officer made arrangements to obtain two 8 ball quantities of crack cocaine from the defendant. Mr. Sykes did not refer the officer to Mr. Fox because he was out of cocaine; rather, Fox delivered the drugs after he was observed by law enforcement leaving the defendant's residence. Sykes must have provided the location and description of the customer to Fox; Sykes did, in order to complete the sale. When Fox met with the undercover officer, he did not have the requested amount of drugs. He was observed by law enforcement driving back to defendant's residence, presumably to obtain the additional quantity, immediately return[ing] to the location where the undercover officer was waiting and provid[ing] the additional crack cocaine.
Based on these circumstances, the court concluded that the government had proven by a preponderance of the evidence that Sykes had instructed Fox to deliver crack cocaine at least on June 13, 2007. Later in the hearing, the court reiterated,
A two-level increase pursuant to Section 3B1.1(c) is applicable because the defendant organized the distribution of crack cocaine. Mr. Sykes did that. He did that over a period of time. The evidence clearly shows the defendant arranged to supply an undercover officer crack cocaine on June 13, 2007 and then provided the crack to Fox who made the delivery; at least that's what Fox apparently is saying.3 Defendant also directed Fox and Sanderson to other customers ....
The court then calculated Sykes's guidelines imprisonment range. It found him to be a career offender under U.S. Sentencing Guidelines...
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