U.S. v. Francis, s. 94-1002

• Decision Date: 10 November 1994
• Docket Number: 94-1003,Nos. 94-1002,s. 94-1002
• Parties: 41 Fed. R. Evid. Serv. 414 UNITED STATES of America, Plaintiff-Appellee, v. Nakia R. FRANCIS and Stanley D. Crume, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 803

39 F.3d 803

41 Fed. R. Evid. Serv. 414

UNITED STATES of America, Plaintiff-Appellee, v. Nakia R. FRANCIS and Stanley D. Crume, Defendants-Appellants.

Nos. 94-1002, 94-1003.

United States Court of Appeals, Seventh Circuit.

Argued May 10, 1994.

Decided Nov. 10, 1994.

Robert T. Coleman, Asst. U.S. Atty., (argued), Office of the U.S. Atty., Criminal Div., Fairview Heights, IL, for U.S.

Mark C. Hunter (argued), Metropolis, IL, for Nakia R. Francis.

Ward E. Walshon (argued), Mounds, IL, for Stanley D. Crume.

Before COFFEY, MESKILL ^* and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

Nakia R. Francis and Stanley D. Crume pleaded guilty to conspiracy to distribute cocaine base and possession with the intent to distribute cocaine base. 21 U.S.C. Secs. 841(a)(1), 846. Crume also entered a plea of guilty to possession of a firearm in relation to a drug trafficking offense. 18 U.S.C. Sec. 924(c)(1). Francis was sentenced to 228 months of imprisonment to be followed by five years of supervised release. Crume was sentenced to 189 months of imprisonment on the conspiracy and possession counts to run consecutively with his 60 month sentence on the possession of firearm count. He was also given a term of supervised release of five years. On appeal, both defendants argue that the district court erred in denying each of them the additional one-level reduction under U.S.S.G. Sec. 3E1.1(b) for timely acceptance of responsibility. Francis also challenges the district court's use of hearsay evidence in calculating his base offense level, see U.S.S.G. Secs. 2D1.1, 6A1.3, p.s., and the enhancement for obstruction of justice under U.S.S.G. Sec. 3C1.1. We affirm the sentences of each of the defendants.

I. Background

Nakia Francis and his co-defendant Stanley Crume were involved in a drug distribution chain transporting crack cocaine from Houston, Texas to Cairo, Illinois. Francis and Crume were responsible for distributing and coordinating the distribution of the crack cocaine in Cairo, Illinois. The group used Crume's residence in Cairo, and later a trailer in Wickliffe, Kentucky to cut and package the crack cocaine. In November 1992, Francis was charged with possession with the intent to distribute one kilogram of cocaine in Alexander County, Illinois. The day after he was arrested, Francis gave a statement to FBI agent Stonecipher admitting his involvement in the conspiracy and implicating his co-conspirators Charles B. Ashley, Billy Ray Ashley, Craig C. Ashley, and Shauna Sylvester. Thereafter, Francis, the four individuals he had implicated, Crume and several others were charged in a superseding indictment with conspiracy to distribute cocaine.

On or about March 4, 1993, Francis signed an affidavit retracting his statements concerning the four individuals whom he had implicated in his earlier statement to the FBI. He stated in his affidavit:

NAKIA FRANCIS, being first duly sworn upon oath, deposes and states as follows:

1. That he is a defendant in a Federal criminal prosecution.

2. That on a prior date I gave a statement regarding the following persons about their involvement in a criminal matter:

Charles B. Ashley

Billy Ray Ashley

Craig C. Ashley

Shauna Sylvester

3. That the information I gave was false.

4. Therefore, I hereby retract any and all statements and information given against these named people.

5. That I am willing to appear before any judge or magistrate to retract the same on the Court record.

At the first pre-trial conference held on March 5, 1993, Crume allegedly expressed his intention to plead guilty, although he did not enter a plea at that time but continued to discuss and negotiate the applicable guideline range and possible sentence with the government's attorneys. The district court postponed the trial date from March 22 to May 1993 for all defendants. Thereafter, the government filed a motion to sever Francis from the rest of the defendants which was successfully opposed by Francis. It also moved to compel Francis, Crume and others to provide handwriting exemplars. After various adjournments of the trial, the case against Charles B. Ashley was dismissed, and a second superseding five-count indictment was returned in August 1993 against Francis, Crume and the other co-conspirators. The trial was then reset for October 18, 1993. Francis and Crume each entered a plea of guilty after the final pre-trial conference on October 8 and approximately one week before the trial. The remaining defendants proceeded to trial before Judge Gilbert on the date scheduled for trial, and were found guilty as charged in the second superseding indictment.

At Francis's sentencing hearing, the government called only one witness, FBI Agent Greg Holston, ¹ to testify as to the amount of crack cocaine attributable to Francis and his co-conspirators. In addition to testifying as to his knowledge as the case agent, Holston recounted the testimony of the government's witnesses who testified at the trial of Francis's co-defendants. Specifically, Agent Holston's testimony was drawn from cooperating individuals, the trial testimony of Francis's co-conspirators, Western Union records and police reports.

Holston testified that Francis was arrested on December 8, 1993 with 23.7 grams of crack cocaine in his possession, and that the 23.7 grams was part of a 17-ounce, or approximately 481-gram, shipment Francis was responsible for transporting from Houston to Cairo in December 1992. According to Holston, two of Francis's co-conspirators testified at the co-defendants' trial that they had accompanied Francis to Texas and obtained the 17-ounce shipment of cocaine. Holston also stated that, based on the testimony of one of Francis's co-conspirators, he knew of three multiple-ounce shipments of cocaine that were delivered to Crume and Francis's trailer in Wickliffe, Kentucky. According to Agent Holston, this co-conspirator told the FBI that each of the shipments weighed up to nine ounces.

Further in support of its case, the government produced a summary record of Western Union money transfers made by Francis's group between June and November 1992. Holston stated that the Western Union record was introduced at the co-defendants' trial to demonstrate that a total of $37,300 was wired from Cairo to Houston as drug payments. According to Holston, there was testimony at the co-defendant's trial that crack cocaine was being sold at $1,000 per ounce in Houston, Texas at the time of the money transfers and that the $37,300 would translate into over 1,000 grams of crack cocaine.

The district court found that Francis's relevant conduct involved at least 500 grams, but not more than 1.5 kilograms of crack cocaine, placing Francis's base offense level at 36 for sentencing. The court stated that its finding was based on not only Agent Holston's testimony and the $14,000 money transfers Francis had personally made, but also on the totality of the evidence presented during the co-defendants' trial. The district court enhanced Francis's sentence by two levels, finding that Francis's retraction of statements concerning his co-defendants' criminal involvement was consistent with "the elements contained in the sentencing guidelines for obstructing justice." Finally, the court gave Francis a two-level reduction for acceptance of responsibility. The court found, however, that Francis was not entitled to the additional one-level reduction under U.S.S.G. Sec. 3E1.1(b) because the guilty plea was entered only a week before the trial date. At a sentencing hearing held on the same day, the district court also denied Crume the reduction under U.S.S.G. Sec. 3E1.1(b) apparently for the same reason.

II. Analysis

A. Acceptance of Responsibility

Both defendants challenge the district court's denial of the additional level of reduction under U.S.S.G. Sec. 3E1.1(b) for early acceptance of responsibility. The district court's acceptance of responsibility determination under U.S.S.G. Sec. 3E1.1 is a factual determination, and will be overturned only if clearly erroneous. United States v. Robinson, 20 F.3d 270, 273 (7th Cir.1994). The defendant bears the burden of proving by a preponderance of the evidence that he is entitled to the reduction under Sec. 3E1.1(b). Id.; United States v. Rivero, 993 F.2d 620, 622 (7th Cir.1993).

Section 3E1.1(b)(2) provides that a defendant, who qualifies for the two-level decrease under subsection (a) and whose offense level is 16 or greater, may receive a third level reduction if he has "timely notif[ied] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently." Both Francis and Crume argue that although they did not plead guilty until approximately one week before the trial, they had timely notified the authorities of their intention to plead guilty, warranting the Sec. 3E1.1(b)(2) reduction. ² Specifically, Crume claims that he notified the government as early as the first pre-trial conference in March, which was seven months before his guilty plea.

The defendants' argument must fail. Application Note 6 provides that to "qualify under subsection (b)(2), the defendant must have notified authorities of his intention to enter a plea of guilty at a sufficiently early point in the process so that the government may avoid preparing for trial and the court may schedule its calendar efficiently." As the language of Sec. 3E1.1(b)(2) and its application note make clear, subsection (b)(2) is designed to prevent the government from engaging in needless trial preparation and to give the overburdened trial courts an opportunity to allocate their limited resources in the most efficient manner. See United States v. Robinson, 14 F.3d 1200, 1203 (7th Cir.1993); United States v. Morillo, 8 F.3d 864, 871 (1st Cir.1993). Cf. United States v. Tolson, 988 F.2d 1494, 1499 (7th Cir.1993) (denying two-level...