U.S. v. Gilliam

• Decision Date: 12 February 1993
• Docket Number: No. 90-5548,90-5548
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward B. GILLIAM, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1009

987 F.2d 1009

UNITED STATES of America, Plaintiff-Appellee, v. Edward B. GILLIAM, Jr., Defendant-Appellant.

No. 90-5548.

United States Court of Appeals Fourth Circuit.

Argued Sept. 30, 1992.

Decided Feb. 12, 1993.

Donald Edward Earls, Norton, VA, argued for defendant-appellant.

Julie Marie Campbell, Asst. U.S. Atty., Abingdon, VA, argued (E. Montgomery Tucker, U.S. Atty., Stephen U. Baer, Asst. U.S. Atty., Roanoke, VA, Jerry Kilgore, Asst. U.S. Atty., Abingdon, VA, on brief), for plaintiff-appellee.

Before WIDENER, WILKINSON, and WILKINS, Circuit Judges.

OPINION

WILKINS, Circuit Judge:

Edward B. Gilliam, Jr. appeals his sentence resulting from pleas of guilty to two indictments charging separate conspiracies to distribute or to possess with the intent to distribute cocaine in violation of 21 U.S.C.A. § 846 (West 1981). Because both indictments involved conspiracy to distribute or to possess with the intent to distribute cocaine, at sentencing the conduct was grouped to establish one base offense level. United States Sentencing Commission, Guidelines Manual, § 3D1.2(d) (Nov. 1989). The district court attributed 30 kilograms of cocaine to Gilliam as a result of his involvement in one of the conspiracies, which combined with the additional quantity of cocaine attributable from the other conspiracy, produced a base offense level of 34. ¹ U.S.S.G. §§ 2D1.1(a)(3), 2D1.1(c)(5), 2D1.4(a). The district court reduced the offense level by two for acceptance of responsibility, U.S.S.G. § 3E1.1, and determined that Gilliam's Criminal History Category was I, resulting in a guideline range of 121-151 months imprisonment. U.S.S.G. Ch. 5, Pt. A. The court imposed a sentence of 121 months.

Gilliam contends that there was no basis to support the conclusion of the district court that he should be held accountable, for sentencing purposes, for 30 kilograms of cocaine. We agree, vacate the sentence, and remand.

I.

For clarity, we refer to one indictment as the Castrillon indictment and the other as the Greear indictment. The Greear indictment alleged that the amount of cocaine involved was more than 500 grams. The Castrillon indictment, the one that is the primary focus of this appeal, alleged that 28 individuals were involved in a conspiracy that was responsible for distributing or possessing with the intent to distribute 30 kilograms or more of cocaine. This indictment described in general terms the activities of numerous participants in an extensive conspiracy spanning three years and involving acts of possession and distribution of cocaine in various locations in Virginia, Tennessee, and Florida. Although the Castrillon indictment attributed specific quantities of cocaine to several individual participants, no specific quantity of cocaine was attributed to Gilliam. The sole reference connecting Gilliam to 30 kilograms or more of cocaine was found in the concluding paragraph of the Castrillon indictment which listed the 28 participants and charged that the conspiracy involved distribution or possession with the intent to distribute 30 kilograms or more of cocaine.

The plea agreement did not state the amount of cocaine that the Government believed should be attributed to Gilliam. It provided only that the Government would recommend a two-level reduction in the base offense level for acceptance of responsibility, would not oppose a sentence at the lower end of the resulting guideline range, and would move for a downward departure if Gilliam provided substantial assistance. The Government and Gilliam mistakenly believed that a 10-year mandatory minimum sentence would apply when the plea was entered. ² Consequently, the plea agreement stated that the penalty was 10 years to life imprisonment. Although prior to sentencing the parties acknowledged that the mandatory minimum sentence was inapplicable, Gilliam did not seek to withdraw his plea. Indeed, during the sentencing hearing Gilliam indicated that he understood that he would receive at least a ten-year sentence.

During the colloquy conducted pursuant to Federal Rule of Criminal Procedure 11, the district court determined that Gilliam had received a copy of the indictment and that he understood the nature of the charges, the maximum penalties, and the constitutional rights waived as a result of his plea. However, the court did not mention the issue of the quantity of cocaine involved in either conspiracy. The Government then related to the court the evidence supporting the guilty pleas of Gilliam and other coconspirators. The recitation of evidence included a detailed account of the activities of numerous participants in the Castrillon conspiracy other than Gilliam. For example, the Government alleged that Castrillon imported into the United States approximately 1600 to 4000 kilograms of cocaine per year over a four-year period. In contrast to Castrillon and other high-level participants, the Government alleged that Gilliam was a street-level distributor of cocaine to individual users in half-gram, gram, eight-ball, and ounce quantities. This reference was the sole attribution of any specific quantity of cocaine to Gilliam.

After the Government concluded its presentation, the court found that the plea was supported by a sufficient factual basis. The special prosecuting attorney then requested that Gilliam's sentencing be conducted at the same time as the sentencing of several other participants because the prosecutor anticipated a dispute as to the quantity of drugs attributable to various participants and planned to present a number of witnesses on this issue at the sentencing hearing. Gilliam's attorney stated that he had no objection to the Government's request.

Prior to sentencing, the probation officer submitted a presentence report which concluded that the quantity of cocaine for which Gilliam should be held accountable "cannot be determined based upon information received from the government, however it does appear that Gilliam's involvement was 15 to 50 kilograms." Gilliam filed a written objection to this recommendation, contending that the quantity of cocaine attributed to him was inaccurate. In an addendum to the presentence report the probation officer wrote, "[i]n that he entered a plea of Guilty to Count One and no information being received from either party as to the specific amount, the guidelines are computed as to the total amount of the conspiracy."

At the sentencing hearing, Gilliam admitted that as part of his involvement in the Greear conspiracy he purchased approximately 855 grams of cocaine. However, he denied any involvement in the Castrillon conspiracy, stating that he pled guilty to that indictment because the Government refused to enter into a plea agreement unless he pled guilty to both the Greear and Castrillon conspiracies. The Government requested that the court impose a ten-year sentence, relying on the minimum sentence provided for in the plea agreement. Responding to questions by the district court concerning the effect of Gilliam's denial of responsibility for any amount of cocaine associated with the Castrillon indictment, the Government requested a continuance in order to present evidence on the amount of cocaine for which Gilliam should be held responsible. Alternatively, the Government pointed to Gilliam's plea of guilty to the indictment which charged his involvement in a conspiracy that was responsible for the distribution of 30 or more kilograms of cocaine. Rejecting the requests by the Government to be given the opportunity to present evidence, the court concluded that while it had "no evidence today as to amount" of cocaine attributable to Gilliam from the Castrillon conspiracy, it had no choice other than to assign the amount alleged in the indictment, 30 kilograms, to Gilliam for his involvement in that conspiracy.

II.

The sentences imposed for drug offenses are influenced significantly by the quantity of illicit drugs involved. See U.S.S.G. § 2D1.1(c). The guidelines provide that relevant conduct shall be determined on the basis of "all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction." U.S.S.G. § 1B1.3(a)(1). The commentary to section 1B1.3 further provides that in conspiracies involving drug offenses the quantity for which each individual participant will be held accountable may vary:

Because a count may be broadly worded and include the conduct of many participants over a substantial period of time, the scope of the jointly-undertaken criminal activity, and hence relevant conduct, is not necessarily the same for every participant. Where it is established that the conduct was neither within the scope of the defendant's agreement, nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake, such conduct is not included in establishing the defendant's offense level under this guideline.

U.S.S.G. § 1B1.3, comment. (n. 1). Accordingly, in order to attribute to a defendant for sentencing purposes the acts of others in jointly-undertaken criminal activity, those acts must have been within the scope of the defendant's agreement and must have been reasonably foreseeable to the defendant. Id. Thus, one participant in a multi-participant drug conspiracy may be held accountable, for sentencing purposes, for a greater or lesser quantity of drugs than other coparticipants. This potential differentiation among coparticipants is consistent with the multiple purposes articulated in the Sentencing Reform Act. See 18 U.S.C.A. § 3553(a) (West 1985 & Supp.1992). This does not mean that in order for a participant to be held accountable for the total amount of drugs attributed to the conspiracy as a whole that the participant must necessarily be at the apex of the criminal organization. It does mean that a court should...