U.S. v. Hewitt, 90-5578
| Decision Date | 22 August 1991 |
| Docket Number | No. 90-5578,90-5578 |
| Citation | 942 F.2d 1270 |
| Parties | UNITED STATES of America, Appellee, v. Charles P. HEWITT, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David A. Palmer, Sioux Falls, S.D., for appellant.
Philip N. Hogen, argued (Thomas J. Wright, on brief), Sioux Falls, S.D., for appellee.
Before JOHN R. GIBSON, Circuit Judge, and FLOYD R. GIBSON and ROSS, Senior Circuit Judges.
Charles P. Hewitt (defendant) appeals his seventy-month sentence imposed by the district court. We reverse and remand.
Defendant, Edmund Arndt, Kathleen Hofer and Duane White were all arrested on July 20, 1990. Law enforcement officials used a confidential informant in their investigation and the ensuing arrests. The informant advised officers that cocaine had been purchased from White on several occasions in the past. White was employed by Arndt at an auto shop. The informant contacted White on July 20, 1990 and learned that a shipment of cocaine was expected that evening. The police then obtained and executed a search warrant at White's residence.
White elected to cooperate with the police and told the police that defendant would be arriving with cocaine at the Sioux Falls airport that evening. The officers escorted White to the airport. White had previously met defendant and was able to point him out to the police. The police searched defendant and found 170 grams of cocaine in his boots. Defendant was then interviewed by the police and he admitted to having made two previous trips to Sioux Falls for the purpose of delivering cocaine. Defendant stated that one such trip took place in March or April 1990 and the other trip occurred on June 1, 1990. Defendant admitted that on each of these trips, 112 grams of cocaine were involved.
Defendant was charged along with the three others in a tencount indictment in which defendant was charged with three counts of interstate travel or transportation in aiding of racketeering (18 U.S.C. §§ 2 and 152); three counts of distribution and possession with intent to distribute controlled substances (21 U.S.C. §§ 841(a) and 841(b)(1)(B); and one count of conspiracy (21 U.S.C. § 846). Defendant entered into a written plea agreement with the government in which defendant entered a guilty plea to Count VI of the indictment (distribution and possession with intent to distribute 170 grams of cocaine on July 20, 1990) and also agreed to fully cooperate with the government. Among other things, the government agreed that unless evidence was disclosed to establish otherwise, defendant was involved with 394 1 grams of cocaine as alleged in the indictment.
The district court ordered a presentence investigation (PSI) to be conducted. During the investigation, the probation officer interviewed Detectives Jensen and Plucker, the two officers who had escorted White to the airport to identify defendant. Detective Jensen recalled that, while en route to the airport, White stated that defendant had made six to eight (or six to ten) 2 prior trips to Sioux Falls for the purpose of distributing cocaine. Detective Plucker did not recall that White had made this statement, even though Plucker, Jensen and White were all traveling in the same car at the time the conversation allegedly took place. Furthermore, this conversation was not included in the police report and so the prosecuting attorney did not know about these additional Sioux Falls trips until after the probation officer had begun his investigation for the PSI. And so, it appears that the prosecutor was unaware of this information at the time the plea agreement was drawn up and signed.
The government contends that the Jensen/White conversation did indeed take place and that Detective Plucker was talking on the police radio and simply did not hear White make the statement. In its brief, the government also contends that Jensen thought Plucker had heard the conversation and therefore, Jensen did not think that it needed to be included in the report. In any event, these additional trips to Sioux Falls were used by both the probation office and the district court in calculating the amount of cocaine attributable to the defendant.
In addition to the 170 grams of cocaine found in defendant's boots at the airport and the cocaine linked to the additional Sioux Falls trips, the district court also considered evidence of two trips to Aberdeen South Dakota made by defendant for the purpose of distributing cocaine. This information was discovered after the plea agreement was made, while officers were debriefing codefendant Arndt. Arndt stated that he had met defendant twice in Aberdeen, in the summer months of 1989. On each occasion, Arndt contended that defendant provided him with one and one-half ounces of cocaine for a total of three ounces (85 grams). Later, when the probation officer asked defendant about the Aberdeen trips, defendant did recall that he had made one such trip to Aberdeen to meet Arndt and supply him with cocaine.
At sentencing, the probation officer recommended in the PSI that 708 grams of cocaine be attributed to defendant. This amount included:
170 grams -- amount found in defendant's boots at the airport on July 20
1990
453 grams -- four trips to Sioux Falls with 112 grams per trip
85 grams -- two trips to Aberdeen with approximately 42 grams per trip.
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708 grams -- TOTAL
However, the district court made a different finding based on its own review of the evidence. The district court imputed defendant with 884 grams of cocaine. This amount included:
170 grams -- amount found in defendant's boots at the airport on July 20,
1990.
672 grams -- six trips to Sioux Falls with 112 grams per trip.
42 grams -- one trip to Aberdeen with 42 grams.
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884 grams -- TOTAL
Pursuant to the Guidelines, defendant's offense level was set at 26, but then reduced to 24 after the court found that defendant was entitled to a two-point decrease for acceptance of responsibility. The court also determined defendant's criminal history category to be level III (in accordance with the recommendation of the PSI). The appropriate sentencing range for this combination is 63 to 78 months. The district court sentenced defendant to 70 months to be followed by three years supervised release.
Defendant has timely appealed his sentence. Defendant argues that the district court incorrectly calculated the quantity of cocaine attributable to him and also that the district court improperly assessed his criminal history category.
We first address the issue of the quantity of cocaine attributable to the defendant. As discussed above, the plea agreement set the quantity of cocaine at 394 grams. However, during sentencing, the district court found that additional cocaine was involved. In particular, the district court found that defendant had made six prior trips to Sioux Falls to deliver cocaine and that 112 grams of cocaine were involved on each trip. Furthermore, the district court included one of the Aberdeen trips in its calculation, finding that 42 grams were involved on that trip. These figures, when added to the 170 grams found in defendant's boots at the airport, total 884 grams.
Defendant objects to the use of the 42 grams of cocaine from the Aberdeen trip because of the way the information was obtained. Defendant argues that his own guilty plea "forced" Arndt to plead guilty and that now the government is using Arndt's statements against defendant. Therefore, defendant contends that the government is using "indirect information gained by Defendant's cooperation against [defendant]." Appellant's brief, p. 16. This may be the case, but there is nothing improper about using a co-defendant's statements against a defendant who has pled guilty.
Arndt was the first to disclose the Aberdeen trips. The fact that defendant later admitted to one of the Aberdeen trips has no bearing on the propriety of including 42 grams of cocaine in the amount attributable to defendant. In support of his theory that statements by co-defendant Arndt cannot be used against defendant, defendant cites two cases: United States v. Stevens, 918 F.2d 1383 (8th Cir.1990), and United States v. Shorteeth, 887 F.2d 253 (10th Cir.1989). We have carefully reviewed both cases and conclude that, under the present facts, nothing in either case prevents a sentencing court from using statements made by a co-defendant in determining the amount of drugs attributable to a defendant. In particular, we note that neither case even involved statements made by a co-defendant. 3
Therefore, we find no merit in the argument that defendant's guilty plea "forced" co-defendant Arndt to plead guilty and therefore, none of Arndt's statements can be used against defendant. In fact, we note that previous decisions have held that the practice of using a co-defendant's statements against a defendant is accepted. See United States v. Boyd, 901 F.2d 842 (10th Cir.1990) ; United States v. Davis, 912 F.2d 1210 (10th Cir.1990) . Thus, the trial court's inclusion of 42 grams from one Aberdeen trip in its calculation of the amount of cocaine attributable to defendant was not clearly erroneous. United States v. Ehret, 885 F.2d 441, 444-45 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990).
Defendant also contends that it was improper for the district court to use the additional trips to Sioux...
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