U.S. v. Goff

• Decision Date: 06 July 1990
• Docket Number: No. 89-5656,89-5656
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Cheryl GOFF, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1441

907 F.2d 1441

UNITED STATES of America, Plaintiff-Appellant, v. Cheryl GOFF, Defendant-Appellee.

No. 89-5656.

United States Court of Appeals Fourth Circuit.

Submitted Jan. 23, 1990.

Decided July 6, 1990.

Michael W. Carey, U.S. Atty., Amy M. Lecocq, Asst. U.S. Atty., Charleston, W.Va., for plaintiff-appellant.

Larry D. Taylor, Charleston, W.Va., for defendant-appellee.

Before ERVIN, Chief Judge, WILKINS, Circuit Judge, and WARD, Senior District Judge for the Middle District of North Carolina, sitting by designation.

WILKINS, Circuit Judge:

The United States appeals the sentence imposed on Cheryl Goff, contending that the district court erred in determining her base offense level by improperly calculating the quantity of drugs for which she was accountable. The government also contends that the decision of the district court to depart downward from the applicable sentencing guidelines range was based on impermissible factors. We vacate the sentence imposed and remand with instructions to impose a sentence consistent with this opinion.

I.

Goff was convicted by a jury of conspiracy to distribute cocaine. 21 U.S.C.A. Sec. 846 (West Supp.1990). At trial witnesses testified that Goff made several trips from Charleston, West Virginia, to Philadelphia, Pennsylvania, with her boyfriend Freddie Harris, reputed to be a major drug dealer, and his associates. Once in Philadelphia they purchased cocaine in "ten dollar" bags. Upon returning to Charleston, they diluted, repackaged, and sold the cocaine. They employed a diluting process whereby each "ten dollar" bag was repackaged into four "quarter" bags which were subsequently sold for $25 each. Thus, for example, cocaine purchased for $2,000 in Philadelphia would sell, after repackaging, for $20,000.

Because the offense was committed after November 1, 1987, Goff's sentence was governed by the Sentencing Reform Act of 1984, 18 U.S.C.A. Secs. 3551, et seq. (West 1985 & Supp.1990), and the sentencing guidelines promulgated by the United States Sentencing Commission.

II.

The presentence report recommended that Goff be held accountable for 249 grams of cocaine for sentencing purposes. This amount was calculated by determining the Charleston street value of the amount of cocaine purchased in Philadelphia (dollar amount) and dividing by $297, the price per gram charged by the conspirators as determined from 14 undercover buys. See United States Sentencing Commission, Guidelines Manual, Sec. 2D1.4, comment. (n. 2) (Oct.1988) ¹ (authorizing this method of computation for offenses involving drugs "[w]here there is no drug seizure or the amount seized does not reflect the scale of the offense"); see also U.S.S.G. Sec. 2D1.1, comment. (n. 11); United States v. Gerante, 891 F.2d 364, 369 (1st Cir.1989).

The presentence report correctly reflected that 249 grams of cocaine resulted in a base offense level of 20. U.S.S.G. Sec. 2D1.1(a)(3). It also recommended that Goff's offense level be increased by 2 for willfully obstructing the prosecution of her offense, U.S.S.G. Sec. 3C1.1, because she gave perjured testimony at trial. Offense level 22, combined with Goff's criminal history category of III, results in a sentencing guidelines range of 51-63 months.

The government did not object to the sentencing recommendation in the presentence report. Goff, however, took issue with the quantity of 249 grams. The district court noted that its trial notes supported the dollar amounts used in the calculation. It stated that "an adequate case is made by the government and the probation officer for the 249 gram quantity." However, the court went on to state:

The court is going to give the defendant the benefit of the doubt with respect to the totality of that quantity, and without finding a specific level, is going to reduce it into the area of 100 to 199 grams of cocaine, which gives a base offense level of 18 instead of 20.

(Emphasis added.)

The court then increased the offense level of 18 by 2 for willfully obstructing the prosecution of the offense, resulting in an adjusted offense level of 20. Additionally, the district court reduced Goff's criminal history category, finding that her three shoplifting convictions were local ordinance violations and should not have been included in her criminal history calculation. ² By not including these violations Goff's criminal history category was determined to be I.

Offense level 20, combined with criminal history category I, results in a sentencing guidelines range of 33-41 months. The government moved for an upward departure pursuant to section 4A1.3 contending that Goff's criminal history category significantly underrepresented the seriousness of her criminal history. Although indicating that this argument had some merit, the district court instead departed downward, stating:

[T]he court does take note of the fact that there was no indication that you profited from this venture except to receive cocaine....

When I take into account the matter of your addiction, the future of your children, and the fact that you don't need such a lengthy sentence as that which would be required in order to, it is hoped, have you find the way to a drug-free life and one that will permit you to care for your children before they are up and completely gone, I have concluded to take all those matters into account and depart downward to a two-year sentence in your case.

The court added that another reason for the departure was that Hubie Tyler, one of Goff's co-conspirators with a more serious criminal history, was sentenced to 24 months in prison. Finally, at the end of the sentencing hearing the court stated:

[W]ith respect to sentencing and the downward departure of 24 months, ... all of the elements that the court relies upon combine in totality as being matters which had not been adequately taken into account by the Sentencing Commission in arriving at the guideline range in the case, and it is for that reason that the court has departed downward.

III.

We first address whether the district court erred in determining Goff's base offense level by reducing the amount of cocaine for which it initially indicated she was accountable. Our review is governed by two principles. First, the government must prove the quantity of drugs involved by a preponderance of the evidence. United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990). Second, since calculation of the quantity of drugs is a factual determination, the finding of the district court will be upheld unless clearly erroneous. United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989).

Here the district court first stated that the government had made "an adequate case ... for the 249 gram quantity." Yet, instead of applying the appropriate base offense level of 20 because of the 249 gram quantity, the district court inexplicably, but perhaps for good reason not included in the record before us, held Goff accountable for only 100 to 199 grams, thereby reducing her base offense level to 18. The contradictory stance of the district court compels us to remand for a determination after specific fact-finding of the correct quantity for which Goff should be held accountable at sentencing. We offer no opinion as to the result but suggest that a reduction or increase without supporting fact-finding is inappropriate.

IV.

The district court departed downward and imposed a sentence of 24 months based on (1) Goff's cocaine addiction, (2) her responsibilities for the care of her children, (3) the fact that she received no money from the conspiracy but was paid in kind with cocaine, and (4) the fact that a co-conspirator, Hubie Tyler, who had a more extensive criminal history than Goff, was sentenced to 24 months. In addition, the district court stated that all four of these factors "combine in totality" to justify a departure.

Pursuant to 18 U.S.C.A. Sec. 3553(b) (West Supp.1990), a court is required to impose a sentence within the sentencing guidelines range "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." The departure standard set forth in section 3553(b) envisions a two-prong test. United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990). The first prong of the test initially requires a determination that a particular aggravating or mitigating circumstance of a kind, or to a degree, was "not adequately taken into consideration by the Sentencing Commission." If the court determines that a circumstance was "not adequately taken into consideration," it must next engage in a fact-finding mission to determine if the circumstance is supported by the facts in the particular case under consideration. Then, if the district court identifies one or more aggravating or mitigating circumstances "not adequately taken into consideration," it may depart from the sentencing guidelines range only if it further determines that a sentence different from the guidelines sentence "should result." This second prong of the departure test requires the district court to determine whether the circumstance now identified and found to exist in the particular case is of sufficient importance and magnitude to justify a departure. Id.

In addition to this two-prong test, 18 U.S.C.A. Secs. 3742(e)(3) and (f)(2) (West Supp.1990) require an appellate court to determine whether a departure is reasonable. See United States v. Summers, 893 F.2d at 66-67 (outlining standards of appellate review of reasonableness of a departure); see also United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Williams, 891 F.2d 962, 962-64 (1st Cir.1989). In Summers we held...