U.S. v. Gould, 90-2497

• Decision Date: 08 January 1993
• Docket Number: No. 90-2497,90-2497
• Citation: 983 F.2d 92
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elbert Lee GOULD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 92

983 F.2d 92

UNITED STATES of America, Plaintiff-Appellee, v. Elbert Lee GOULD, Defendant-Appellant.

No. 90-2497.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 17, 1992.

Decided Jan. 8, 1993.

Frederick J. Hess, U.S. Atty., Robert Haida, Kit R. Morrissey (argued), Asst. U.S. Attys., Crim. Div., Fairview Heights, IL, for plaintiff-appellee.

Michael Dwyer, David R. Freeman, Federal Public Defender (argued), Office of Federal Public Defender, St. Louis, MO, for defendant-appellant.

Before FLAUM and MANION, Circuit Judges, and CURRAN, District Judge. ^*

CURRAN, District Judge.

Elbert Lee Gould, a former member of the Carbondale Illinois Police Department, was indicted on one count of conspiring to possess with intent to distribute in excess of 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 846. On May 3, 1990, Gould pleaded guilty to the lesser included offense of conspiracy to possess cocaine with the intent to distribute. At the time of his plea Gould stipulated that, while serving as a City of Carbondale police officer, he had warned another member of the conspiracy of the identity of four informants and of police surveillance.

At the sentencing hearing on July 3, 1990, Charles Gunn, who had pleaded guilty to being a member of the conspiracy, testified that he had known Gould for twelve or fourteen years on a social basis. Then, in the spring of 1989, Gunn began selling quarter grams of cocaine to Gould. During this time, Gunn said that Gould provided him with information concerning police surveillance of Gunn's house and car and descriptions of undercover police vehicles. Gould also supplied the names of four police informants.

After receiving this testimony at the sentencing hearing, Judge Foreman found that Gould's base offense level should be adjusted upward by two levels pursuant to Section 3B1.3 of the Sentencing Guidelines for abusing a position of public trust. Judge Foreman explained to the defendant that:

I think that you significantly facilitated this conspiracy in the sense that, by giving this information to Mr. Gunn, it could easily have kept him from being caught earlier. Certainly could have easily and maybe did help him from being detected, and that might very well have let him continue his activity a little bit longer in the conspiracy and in the selling of the drugs.

Transcript of Sentencing Hearing at 57.

Taking this enhancement into account, Judge Foreman sentenced Gould to eighteen months incarceration, followed by three years of supervised release, plus a special assessment of $50.00. Gould then filed a timely notice of appeal. See 18 U.S.C. § 3742; 28 U.S.C. § 1291 and Federal Rule of Appellate Procedure 4(b).

The sole issue raised by Gould on appeal is whether the district court abused its discretion by enhancing Gould's sentence based on its finding that Gould abused a position of public trust in a matter that significantly facilitated the commission or concealment of the crime of which he pleaded guilty. See United States Sentencing Commission, Guidelines Manual, § 3B1.3 (1990). Because we conclude that the district court did not abuse its discretion, we affirm.

Factual findings used to determine the appropriate sentencing guideline range are reviewed under the clearly erroneous standard, while conclusions of law are reviewed de novo. A finding can be said to be clearly erroneous "when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Company, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). The statute establishing appellate review of sentencing decisions under the Guidelines provides that the court of appeals "shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e) (West Supp.1991).

Sentencing Guideline § 3B1.3 provides that: "[I]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels." United States Sentencing Commission, Guidelines Manual, § 3B1.3. Application Note 1 further states that: "The position of trust must have contributed in some substantial way to facilitating the crime and not merely have provided an opportunity that could as easily been afforded to other persons. This...