U.S. v. Hammer, s. 92-2606

• Decision Date: 18 October 1993
• Docket Number: 92-2614,Nos. 92-2606,92-2674 and 92-2678,92-2608,s. 92-2606
• Parties: UNITED STATES of America, Appellee, v. Scott HAMMER, Appellant. UNITED STATES of America, Appellee, v. Ricky Allen HIRSCH, Appellant. UNITED STATES of America, Appellee, v. Alan J. BROWN, Appellant. UNITED STATES of America, Appellee, v. Dennis G. WALKNER, Appellant. UNITED STATES of America, Appellee, v. Beth HENDRIKSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 266

3 F.3d 266

UNITED STATES of America, Appellee, v. Scott HAMMER, Appellant.

UNITED STATES of America, Appellee, v. Ricky Allen HIRSCH, Appellant.

UNITED STATES of America, Appellee, v. Alan J. BROWN, Appellant.

UNITED STATES of America, Appellee, v. Dennis G. WALKNER, Appellant.

UNITED STATES of America, Appellee, v. Beth HENDRIKSON, Appellant.

Nos. 92-2606, 92-2608, 92-2614, 92-2674 and 92-2678.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 15, 1993.

Aug. 23, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 18, 1993 in

No. 92-2674.

John L. Lane, Cedar Rapids, IA, for appellant Hammer.

Stephen A. Swift, Cedar Rapids, IA, for appellant Hirsch.

Robert E. Walker, Fort Dodge, IA, for appellant Brown.

David P. McManus, Cedar Rapids, IA, for appellant Walkner.

David G. Thinnes, Cedar Rapids, IA, for appellant Hendrikson.

Richard L. Murphy, Cedar Rapids, IA, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, FAGG and BEAM, Circuit Judges.

RICHARD S. ARNOLD, Chief Judge.

In this case five defendants, each of whom pleaded guilty, appeal their sentences for drug-related crimes. One of the principal questions presented is the constitutionality of the continuing-criminal-enterprise statute, 21 U.S.C. Sec. 848(b), which provides for a mandatory life sentence for someone whose enterprise involves 30 kilograms of a mixture or substance containing methamphetamine. We hold that the statute is valid.

Issues are also presented as to the proper procedure to be used in sentencing under the United States Sentencing Guidelines. In United States v. Wise, 976 F.2d 393, 404 (8th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1592, 123 L.Ed.2d 157 (1993), we held that presentence reports are not evidence. We reaffirm that holding today. When a defendant contests facts alleged in a presentence report, and the issue is one on which the United States has the burden of proof--the proper base offense level, for example, or a factor that will enhance the sentence--the government must produce evidence sufficient to persuade the sentencing court by a preponderance of the evidence that the prosecution's position is correct.

I.

After the government had examined its first witness at trial, Dennis Walkner pleaded guilty to conducting a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848. In this statute, Congress has given the courts explicit directions on sentencing. Section 848(b) provides in pertinent part as follows:

Any person who engages in a continuing criminal enterprise shall be imprisoned for life ... if

* * * * * *

(2)(A) the violation referred to in subsection (d)(1) ¹ of this section involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title....

In the case of methamphetamine, the quantity described in Sec. 841(b)(1)(B) is 100 grams. Three hundred times 100 grams is 30,000 grams, or 30 kilograms (KG). The District Court found that Walkner's enterprise involved more than 30KG. A life sentence was therefore mandatory, and the Court duly carried out the command of Congress.

Walkner admitted his involvement with 27.2KG of methamphetamine. Walker Sentencing Tr. 20. The only issue of fact under Section 848, therefore, is whether the District Court clearly erred in finding that he was involved, through the continuing criminal enterprise, with at least 2.8KG more. On appeal, Walkner takes the position (as he did below) that he withdrew from the enterprise in 1989, when he "sold" his drug-dealing "franchise." This withdrawal, he says, left him short of the requisite 30KG. The District Court's finding that Walkner continued to be involved after this "sale" is not clearly erroneous. Walkner does not contest the fact that the quantity handled by the enterprise after his alleged withdrawal was sufficient to bring him up to the 30KG level. In addition, the District Court did not believe Walkner's testimony that he could not foresee that the enterprise would distribute drugs in addition to those handled by Walkner himself. This credibility determination was for the District Court to make. See Walkner Sent. Tr. 62-63. We affirm the finding that Walkner was involved with 30KG or more of methamphetamine.

So far as Section 848 is concerned, Walkner is left with a variety of legal arguments, urged by his appointed counsel with great industry and tenacity. He claims that the mandatory sentencing provisions of Section 848(b) violate the doctrine of separation of powers; that the statute violates the Due Process Clause of the Fifth Amendment because it fails to require written notice of the possibility of a life sentence in the event of involvement with a certain amount of drugs; ² that a life sentence is cruel and unusual punishment, forbidden by the Eighth Amendment; and that the District Court was without subject-matter jurisdiction because its lack of ability to choose what sentence would be appropriate destroyed any case or controversy within the meaning of Article III. We reject each of these arguments. They essentially are no more than criticisms of a legislative choice made by Congress. The people's elected representatives may, if they wish, deprive the courts of sentencing discretion by fixing the punishment for crime by statute. Chapman v. United States, --- U.S. ----, ----, 111 S.Ct. 1919, 1928, 114 L.Ed.2d 524 (1991): "Congress has power to define criminal punishments without giving the courts any sentencing discretion."

Walkner's life sentence rests on two independent bases: the requirement of Section 848(b) and the District Court's computation of an offense level under the Sentencing Guidelines. Walkner makes a number of legal and factual arguments about the District Court's application of the Guidelines. It is unnecessary for us to discuss any of them. Section 848(b), whose validity we uphold, is an independent and adequate ground for the sentence. We affirm the life sentence imposed on Walkner.

II.

Scott Hammer pleaded guilty to distribution of methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1) and was sentenced to four years and seven months in prison. His sole claim is that the District Court erred when it refused to grant him a two-level reduction under U.S.S.G. Sec. 3B1.2(b) for being a minor participant in the offense. Specifically, he argues that his activity in the conspiracy was significantly less than that of one of his co-defendants, Penny Green, who, pursuant to an agreement with the government was granted this reduction. In support of his claim, Hammer relies on the presentence report to show that the drug amounts he was involved with were substantially less than those of his co-defendants. (The government does not object to Hammer's use of the presentence report in this way.) This same report, however, includes information about Hammer which amply supports the District Court's decision not to grant him this reduction. Statements from Hammer himself indicate that he was involved with larger amounts of drugs than he pleaded guilty to. See Hammer PSR 47. Furthermore, Penny Green, who Hammer argued was more culpable than he, occasionally directed other customers to Hammer for narcotics or obtained narcotics from Hammer herself to distribute to other customers. Thus, we cannot say that the District Court was clearly erroneous when it found that Hammer was not substantially less culpable than Green.

III.

Each of the remaining three appellants--Ricky Allen Hirsch, Alan J. Brown, and Beth Hendrikson--contests the procedure followed by the District Court at sentencing. (Walkner and Hammer did not make this argument.) The District Court did not require the government to call witnesses. Instead, it accepted the PSRs as presumptively true and left it open to the defendants to call witnesses to refute them if they wished. For their part, defendants argue that once they have placed in issue the statements of fact in a PSR, the government must prove by live witnesses or other reliable evidence the material facts it relies on to establish a base offense level or an enhancing factor. The government replies that defendants' position was not properly preserved in the court below, and that it is wrong on the merits, anyway.

Beth Hendrikson pleaded guilty to one count of conspiracy to distribute and to possess with the intent to distribute more than one KG of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. Secs. 841(a), 841(b)(1)(A)(viii), and 846. She was sentenced to ten years in prison, which is the mandatory minimum sentence fixed by statute. The Guidelines range for her sentence was twelve years and seven months to fifteen years and eight months. The United States moved for a departure below the bottom of the Guidelines range, on account of Hendrikson's substantial assistance. It did not move for a departure below the statutory minimum. The Court granted the government's motion for departure, and therefore imposed a sentence below the bottom of the Guidelines range, but it could not go below the ten-year minimum fixed by Congress. Hendrikson's base offense level, which she does not contest, was 32. The Court added two levels because of its finding that Hendrikson possessed a dangerous weapon during the commission of the offense. U.S.S.G. Sec. 2D1.1(b)(1). Hendrikson contests this finding on the basis of her argument, described above, that the District Court's sentencing procedure was faulty.

The facts of Hendrikson's case make it unnecessary to consider either the merits of this procedural argument, or whether she urged it in the District Court. Even if the point was properly preserved, and even if (as we in fact hold later in this opinion) the PSR was erroneously used as evidence, any error was harmless as to Hendrikson. Taking only the facts conceded by Hendrikson, it is clear that the finding of possession during the commission of the offense was supported by...