U.S. v. Hill

• Decision Date: 28 March 1996
• Docket Number: No. 95-5246,95-5246
• Citation: 79 F.3d 1477
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Joseph HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1477

79 F.3d 1477

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Joseph HILL, Defendant-Appellant.

No. 95-5246.

United States Court of Appeals Sixth Circuit.

Argued Oct. 17, 1995.

Decided March 28, 1996.

On Appeal from the United States District Court for the Western District of Tennessee; Jon P. McCalla, Judge.

Christopher E. Cotten, Asst. U.S. Attorney (argued and briefed), Memphis, TN, for Plaintiff-Appellee.

Daniel Johnson (argued and briefed), Johnson & Baggett, Memphis, TN, for Defendant-Appellant.

Before: BATCHELDER and MOORE, Circuit Judges; ENSLEN, Chief District Judge. ^*

KAREN NELSON MOORE, Circuit Judge.

Appellant Kenneth Joseph Hill pleaded guilty to one count of possession with intent to distribute cocaine base pursuant to 21 U.S.C. § 841(a)(1) and one count of possession of a firearm as a felon pursuant to 18 U.S.C. § 922(g). Hill appeals several aspects of his sentence under the United States Sentencing Guidelines ("Sentencing Guidelines"). His primary argument is that the district court erred by including as "relevant conduct" under section 1B1.3 of the Sentencing Guidelines a drug transaction that preceded the offense of conviction by approximately nineteen months and had been charged in a previous indictment. As a corollary argument, Hill contends that the district court also erred by increasing his criminal history category under section 4A1.1(e), which provides for a two-point increase in a defendant's criminal history score if the defendant committed the offense of conviction (including any relevant conduct) less than two years after release from imprisonment on a sentence of at least sixty days. See U.S.S.G. § 4A1.1(e), application note 5. Since the district court's finding was premised on the date of the relevant conduct, Hill argues that if we hold that the relevant conduct decision was erroneous, we must also hold that the district court erred by increasing Hill's criminal history score under section 4A1.1(e).

Hill also appeals the district court's decision to enhance his sentence for possession of a firearm pursuant to section 2D1.1 and for obstruction of justice pursuant to section 3C1.1. In addition, Hill claims that the district court erred by refusing to reduce his offense level for acceptance of responsibility pursuant to section 3E1.1 or grant his request for a downward departure pursuant to section 4A1.3. Finally, Hill challenges the district court's factual finding regarding the weight of the cocaine base and the constitutionality of the sentencing regime under 21 U.S.C. § 841(b), which apportions the penalty for an offense involving one gram of cocaine base as if it were one hundred grams of cocaine powder.

Because we agree with Hill that the district court's "relevant conduct" finding and concomitant increase in Hill's criminal history category are erroneous, we VACATE Hill's sentence and REMAND for resentencing. Finding Hill's remaining assignments of error to be without merit, we AFFIRM the district court's decision in all other respects.

I. BACKGROUND

A grand jury indicted Hill for drug-related offenses committed on or about May 18, 1993. Counts one and two charged Hill with possession with intent to distribute approximately 20.8 grams of cocaine base (commonly known as "crack") and 52.9 grams of cocaine, respectively, in violation of 21 U.S.C. § 841(a)(1). Count three charged Hill with possession of a firearm in violation of 18 U.S.C. § 922(g).

Pursuant to a written plea agreement, Hill pleaded guilty to counts one and three, and the government agreed to dismiss count two of the indictment. The government also agreed to dismiss its appeal of the district court's grant of Hill's motion to suppress in a 1991 case in which Hill had been indicted for possession with intent to distribute approximately 75.4 grams of cocaine base. Nonetheless, the district court included the quantity of cocaine base from the 1991 case as "relevant conduct" in determining Hill's sentence in the instant case.

II. ANALYSIS

A. Relevant Conduct Under U.S.S.G. § 1B1.3

Hill argues that the district court erred by including 75.4 grams of cocaine base charged in the 1991 indictment as "relevant conduct" under section 1B1.3 of the Sentencing Guidelines because he claims that the 1991 drug transaction and the 1993 conviction were isolated incidents with no common victim, accomplice, purpose, or modus operandi. Therefore, Hill challenges the district court's finding that since both offenses involved possession with intent to distribute cocaine base, the 1991 transaction constitutes "relevant conduct."

The government asks this court to infer that Hill made his living as a crack dealer because he had a prior conviction for selling crack cocaine in December 1988 and he has not had legitimate employment since 1981. But the government did not introduce evidence at the sentencing hearing to support a finding that Hill sold crack regularly, and the district court made no such finding. Therefore, this court will not presume that Hill made his living as a crack dealer during his period of unemployment. Rather, we analyze the relevant conduct issue as two instances, approximately nineteen months apart, of possession with intent to distribute cocaine base.

When reviewing a district court's sentencing decisions, this court will disturb the underlying factual findings only if they are clearly erroneous. 18 U.S.C. § 3742(e); United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir.1991). Furthermore, the court of appeals must "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e). However, "[w]hether the facts found by the district court warrant the application of a particular guideline provision is a legal question and is to be reviewed de novo by the appellate court." United States v. Partington, 21 F.3d 714, 717 (6th Cir.1994). Thus, in analyzing whether the 1991 drug transaction should count as relevant conduct, we review the district court's determination de novo.

At the outset we recognize the apparent unfairness in the district court's relevant conduct determination, which effectively nullifies Hill's plea agreement by imposing the same sentence Hill would have received had he not struck a deal with the government to abandon the appeal of the grant of his motion to suppress in the 1991 case. At least with respect to his period of imprisonment, Hill could not have done worse by awaiting the outcome of the government's appeal. ¹ But Hill acknowledges that it is well settled in this circuit that conduct forming the basis for counts dismissed pursuant to a plea agreement may be considered in determining a defendant's base offense level under the Sentencing Guidelines. See, e.g., U.S.S.G. § 1B1.3, background ("Conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range."); Partington, 21 F.3d at 717 ("Conduct which forms the basis for counts dismissed pursuant to a plea bargain may be considered in determining the base offense level under the guidelines."); United States v. Ykema, 887 F.2d 697, 699-700 (6th Cir.1989) (rejecting appellant's contention that the government violated the plea agreement because the appellant received the same sentence he would have received had there been no plea agreement), cert. denied, 493 U.S. 1062, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990). We caution criminal defense attorneys to counsel their clients accordingly. See id. at 699. In light of our precedent, we must consider whether the 1991 offense constitutes "relevant conduct" without regard to Hill's plea agreement.

The 1991 drug transaction may be included in Hill's offense level as "relevant conduct" only if it is "part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2). To qualify as part of a "common scheme or plan" under the "relevant conduct" guideline, the offenses "must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi." U.S.S.G. § 1B1.3, application note 9(A). If offenses do not qualify as part of a common scheme or plan, offenses are nonetheless considered the "same course of conduct" if "they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses." U.S.S.G. § 1B1.3, application note 9(B). ² The three factors relevant to determining whether offenses are sufficiently related to constitute the "same course of conduct" include "the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses." Id. The commentary requires courts to balance these factors such that "when one of [these] factors is absent, a stronger presence of at least one of the other factors is required." Id. In an apropos illustration of this sliding scale approach, the commentary explains that "where the conduct alleged to be relevant is relatively remote to the offense of conviction, a stronger showing of similarity or regularity is necessary to compensate for the absence of temporal proximity." Id. Furthermore, the "nature of the offenses" may also be considered to the extent pertinent to the court's analysis of the three factors. Id. (citing as an example the failure to file a tax return for three consecutive years because such returns are only required at yearly intervals).

Section 1B1.3(a)(2) applies only to "offenses of a character for which § 3D1.2(d) would require grouping of multiple counts." Section 3D1.2(d) requires "grouping" of "counts involving substantially the same harm," which includes drug offenses because the offense level for drug offenses is based largely on the quantity of the substance involved. See U.S.S.G. §...