U.S. v. Garrard, s. 95-3389

• Decision Date: 10 May 1996
• Docket Number: Nos. 95-3389,95-3391,s. 95-3389
• Citation: 83 F.3d 889
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kelvin GARRARD and Bryant Reagor, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 889

83 F.3d 889

UNITED STATES of America, Plaintiff-Appellee, v. Kelvin GARRARD and Bryant Reagor, Defendants-Appellants.

Nos. 95-3389, 95-3391.

United States Court of Appeals, Seventh Circuit.

Argued March 25, 1996.

Decided May 10, 1996.

Patricia A. Tomaw, argued, Office of U.S. Atty., Springfield, IL, for plaintiff-appellee.

Kelvin Garrard, Chicago, IL, pro se.

Mark Appleton, argued, Appleton & McHugh, Aledo, IL, Greg Chickris, East Moline, IL, for defendant-appellant.

Before BAUER, RIPPLE, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

One of the results--whether it is an unfortunate result or not depends on one's point of view--of the federal sentencing guidelines is longer sentencing proceedings. Under the old law, sentencing proceedings were fairly brisk affairs. Witnesses were called to testify only in unusual cases. And even at that, most witnesses at sentencing were character-type folks--an employer, a minister, a spouse, or a mother--who usually extolled the virtues of the defendant. For the government, the rare witness might be a police officer or an agent who testified that a defendant cooperated or, on the other hand, was a dreadful character who should be sentenced more harshly than one would think.

Under the regime established by the guidelines, sentencing proceedings are often elongated. Sometimes they drag on for days. And lengthy sentencing proceedings often occur in cases where defendants have pled guilty. This situation presents itself because the government and the defendant do not see eye-to-eye on the application of the guidelines. When this occurs, witnesses are often called on both sides to hash out issues like a defendant's role in the offense (was he a leader or a manager, or a minimal or minor participant?) or his relevant conduct (does 20 kilos or 20 ounces of cocaine reflect the extent of the drug trafficking?). When witnesses, desired by one side or the other at a sentencing hearing, are in custody, problems occur. Such is our case today.

Bryant Reagor, Brian Hamilton, McKinley Womack, and Kelvin Garrard were charged in an indictment alleging crack cocaine trafficking in Rock Island and Moline, Illinois. Count 1 alleged that the defendants conspired with Alan Woods and Kevin Burns to distribute crack from late 1991 until the early spring of 1994. Reagor pled guilty to the charge. The presentence report pegged his offense level, based on accountability for over a kilo and a half of crack, at 38. No adjustments, either up or down, were made for Reagor's role in the offense, and he received a goose egg for acceptance of responsibility. With a criminal history category of IV, his guideline range was a staggering 324 to 405 months. Like getting ice in the wintertime, Reagor was sentenced at the low end of the range--27 years without parole.

Reagor's primary argument on appeal is that the district court improperly denied his request to produce Woods, the leader of the drug trafficking conspiracy, so he could "explain" Reagor's limited role in the criminal activity. At the time of the sentencing, Woods was in federal custody following his conviction and sentencing for drug activities in California. Because Woods was not present, Reagor says, the district court did not hear the kind of testimony that would have moved the judge to find (1) that Reagor was either a minor or minimal participant in the conspiracy, (2) that he did in fact accept responsibility for his actions, and (3) that the quantity of crack attributed to him was too high.

To put these claims in perspective, it is necessary to delve into the facts, which started to emerge in late 1991. Most of these facts, which the trial court had every reason to believe, come from testimony at the sentencing hearing.

Everyone agrees that Alan Woods operated a drug distribution business in Bakersfield, California, and that in late 1991 he decided to expand his California business into the Quad Cities area encompassing Rock Island and Moline, Illinois. Woods, who always lived in Bakersfield, sent "crews" to the Quad Cities to oversee his drug operation. The drugs (regular and crack cocaine) were transported to the Quad Cities by women couriers who generally traveled by bus from Bakersfield to Davenport, Iowa. Money from the sale of drugs was returned to Woods by the couriers or by crew members when they went back to California. Occasionally, drugs and money were sent by UPS.

Sheldon Price and Frank Wright, the first "crew," arrived in the Quad Cities area in late 1991. Nate Jones, a local resident who agreed to work with Woods, introduced them to customers. Jones also stored cocaine at his residence. Price and Wright operated the Quad Cities branch of the Woods drug organization until March 28, 1992, when they were involved in a shooting incident at a local bar.

In April of 1992, Dewayne Crompton and Reagor, who was known as "Fats," arrived as the second crew (the first crew, it seems, was being replaced) to oversee the Woods operation. They lived at an apartment in East Moline, leased for their use by Tony Barnes. Crompton and Reagor stored cocaine at the apartment. They also rented a house from which they distributed their drugs. Reagor started selling crack to Barnes about a week or two after his arrival in the area. Barnes initially purchased 1/2-ounce quantities almost daily for about two weeks, which increased to 1 1/2-ounce quantities every two days, and then again increased to 3-ounce quantities. Barnes continued to purchase his cocaine from Reagor for about two and one-half months, at which time Barnes switched to Crompton as his supplier since Crompton agreed to sell at a cheaper price.

Jones testified that he knew of three shipments of cocaine sent to Reagor and Crompton in the Quad Cities. Julie Scott brought two shipments and Sonya Haynes brought one.

Reagor and Crompton continued to oversee Woods' drug operation in the Quad Cities until sometime that summer (1992) when part of a shipment was stolen from their car. Nate Jones, it seems, double-crossed his associates by orchestrating the theft of at least two kilograms of cocaine that Crompton and Reagor stored in the trunk of their car. Crompton and Reagor contacted Woods to tell him about the theft, and Woods ordered both back to California. Although some weeks later Reagor and Crompton returned to the Quad Cities, they were unable to resume their drug business, and so they left.

That fall, Barnes learned from Woods that Crompton was still working for him, this time in Hammond, Indiana. Barnes made three trips to Hammond to buy drugs from Crompton, getting 20 ounces on each trip. The last trip occurred the day before Crompton was arrested in Wisconsin while transporting drugs from Indiana to Minnesota. On this last trip to Hammond, Crompton told Barnes that Reagor was in Minneapolis and would be coming through the Quad Cities on his way to Hammond and could deliver some crack and pick-up money Barnes owed for drugs he purchased from Crompton. After Crompton's arrest, Barnes contacted Woods. Woods gave Barnes a number in Minnesota where Barnes could contact Reagor. Barnes then contacted Reagor to make arrangements for a delivery, and a few days later Reagor delivered 17 ounces of crack to Barnes in Rock Island.

The Woods operation was successful until Jones let the cat out of the bag in late 1993. With information from Jones, the police intercepted two shipments of drug money being sent to Woods in California (each about $20,000), and on February 10, 1994, authorities intercepted 1 1/2 kilograms of crack cocaine Woods shipped from Bakersfield to the Quad Cities. On April 1, 1994, search warrants were issued for houses in the Quad Cities area identified as stash houses for Woods' cocaine. Two and one-half more kilograms of crack were seized. As a result of this activity, the Woods drug organization, in the Quad Cities area, went kaput.

Reagor filed a motion asking the district court to issue a writ of habeas corpus ad testificandum to produce Woods as a witness at Reagor's sentencing hearing. The government objected to the writ on the grounds that Reagor had failed to show that Woods was a necessary witness as required by Rule 17(b) of the Federal Rules of Criminal Procedure. The district court, finding that Woods was not a necessary witness, denied the writ. Woods, it should be noted, had previously pled guilty to conspiracy to...