U.S. v. Ibanga

• Decision Date: 05 October 2006
• Docket Number: Action No. 2:04cr227.
• Citation: 454 F.Supp.2d 532
• Parties: UNITED STATES of America v. Michael IBANGA, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

Page 532

454 F.Supp.2d 532

UNITED STATES of America v. Michael IBANGA, Defendant.

Action No. 2:04cr227.

United States District Court, E.D. Virginia, Norfolk Division.

October 5, 2006.

Laura M. Everhart, United States Attorney's Office, Norfolk, VA, for United States of America.

Trey R. Kelleter, Vandeventer Black LLP, Norfolk, VA, for Defendant.

OPINION

KELLEY, District Judge.

After an eleven-day trial, a jury acquitted defendant Michael Ibanga of all of the drug distribution charges against him and one of the two money laundering charges against him in the Indictment. The single count of which defendant Ibanga was convicted typically would result in a Guidelines custody range of 51 to 63 months. However, the United States demanded that the Court sentence defendant Ibanga based on the alleged drug dealing for which he was acquitted. This increased the Guidelines custody range to 151 to 188 months, a difference of about ten years.

Although the Sentencing Guidelines require that district courts include acquitted conduct under certain circumstances when calculating a custody range, U.S. Sentencing Guidelines Manual § 1B1.3, comment. (backg'd.) (Nov.2005) [hereinafter USSG § ___], the Court declined to sentence defendant Ibanga on this basis. Sentencing a defendant to an extra ten years in prison for a crime of which he was acquitted is constitutionally questionable and would not serve the statutory sentencing factors set forth in 18 U.S.C. § 3553(a). The Court therefore sentenced defendant Ibanga to 55 months in prison, a term of incarceration that would have fallen in the middle of the Guidelines range had the acquitted conduct not been included in the calculations. This opinion explains the Court's reasoning.

I. FACTUAL AND PROCEDURAL HISTORY

By Superseding Indictment handed up on January 27, 2005, a Grand Jury sitting in the Eastern District of Virginia charged defendant Michael Ibanga with one count of conspiracy to distribute 50 grams or more of methamphetamine (Count 1) and three counts of distribution of methamphetamine (Counts 28, 36 and 48). The Grand Jury further charged defendant Ibanga with conspiracy to launder money (Count 2) and one count of actual money laundering (Count 19).

Defendant Ibanga was not caught with a substantial quantity of drugs. Instead, the evidence of drug dealing introduced against him at trial consisted principally of testimony from the following witnesses:

• Gilberto Do rot Calceta testified that he received 200 to 300 grams of methamphetamine "ice" from defendant Ibanga every week or two for several months in an unspecified year.

• Eugene VaLasco Galaty testified that he purchased 4 grams of methamphetamine "ice" from defendant Ibanga in March 2002. Galaty further testified that he traveled from Virginia to New Jersey with defendant Ibanga in February 2002. They stayed at the house of defendant Ibanga's father, Isaganni Ibanga. During their stay, Isaganni received a large shipment of methamphetamine "ice" from California. Defendant Ibanga rode with his father and Galaty as they transported the "ice" from New Jersey back to Virginia Beach.

Galaty further testified that he accompanied defendant Ibanga once when he picked up $2,630 from Gilberto Calceta and delivered it to Isaganni. Galaty also testified that he, Joseph Javier and defendant Ibanga were transporting 44 grams of methamphetamine "ice" from New Jersey to Virginia Beach on March 18, 2002 when they were stopped by a Chesapeake Bay Bridge Tunnel police officer. The "ice" was located in a shaving cream can with a false bottom. A small amount of suspected "ice" was found on defendant Ibanga's person, but it was never tested.

• Joseph Cayanan Javier testified that he purchased methamphetamine "ice" from defendant Ibanga on three separate occasions. Javier later became defendant Ibanga's driver. On one occasion, Javier drove defendant Ibanga to collect a large sum of money from Gilberto Calceta. Defendant Ibanga then delivered the collected funds to Isaganni. On another occasion, Javier accompanied defendant Ibanga to a grocery store where they wired funds to California to pay for methamphetamine "ice." Isaganni supplied the money that they wired. Finally, Javier confirmed Galaty's account of the March 18, 2002 stop at the Chesapeake Bay Bridge Tunnel.

• Eric Andres testified that he and defendant Ibanga made two or three trips from New York to Virginia to transport methamphetamine "ice."

• Remie Varies testified he received at his house at least three times each month a package containing one-half to one kilogram of methamphetamine "ice." The packages were sent from California, and he received them on behalf of defendant Ibanga. Varias further testified that he acted as gofer for both defendant Ibanga and Isaganni. In this role, Varias delivered methamphetamine "ice" and wired drug proceeds for both men.

• John Gelardi testified that he purchased at least 74 grams of methamphetamine "ice" from defendant Ibanga. A substantial amount of this "ice" was recovered from Gelardi's house when he was arrested. Gelardi further testified about a conversation he had with defendant Ibanga during which Ibanga admitted owning 50 grams of pink methamphetamine "ice" that police found in the glove compartment of a car located at a murder scene.

A .45 caliber pistol was located under the driver's seat of the car.

Each of these witnesses either testified under a grant of immunity or freely admitted that they were cooperating with the government in the hope of receiving a sentence reduction pursuant to Fed. R.Crim.P. 35.

As noted above, the jury necessarily rejected the testimony of these witnesses because it found defendant Ibanga guilty only of the charge of conspiracy to launder money (Count 2). The Court thereafter entered a Sentencing Procedures Order (Docket No. 111) and released defendant Ibanga on bond pending sentencing (Docket No. 117).

A. The Pre-Sentence Report

As required by Federal Rule of Criminal Procedure 32, the Probation Office of the Court prepared a Presentence Investigation Report ("PSR"). The Probation Office initially calculated defendant Ibanga's Offense Level as a 45 and his Criminal History as a Category II. This produced a Guidelines custody range of life in prison. Since the offense for which defendant Ibanga was convicted (18 U.S.C. § 1956) has a 20-year statutory maximum, 20 years became the recommended sentence.

The Probation Office calculated such a high custody range principally by asserting that defendant Ibanga had distributed 7.68 kilograms of methamphetamine. (PSR ¶ 44). These are, of course, the same allegations of drug distribution charged in Counts 1, 2, 8, 36 and 48 of the Superceding Indictment and rejected by the jury. The Probation Office relied on the evidence introduced at trial as proof of Ibanga's drug dealing.

Not surprisingly, the United States did not object to the Presentence Report as prepared by the Probation Office. Defendant Ibanga timely objected,¹ inter edict, to the Probation Office calculating his sentence based on the alleged drug trafficking for which he had been acquitted. To resolve defendant Ibanga's objection in accordance with Guidelines procedure, the Court had to make findings of fact concerning defendant Ibanga's alleged drug dealing. This task required that the Court determine for itself (without deference to the jury's verdict) the weight of the evidence and apply a preponderance of the evidence standard in doing so. Because the Court's factual determination would be made in the context of sentencing, the Court was entitled to entertain and rely upon evidence that otherwise would have been barred at trial by the Federal Rules of Evidence. USSG § 6A1.3, comment.

B. Findings of Fact

In making its findings of fact, the Court considered all of the testimony and evidence received at trial, as well as evidence introduced during defendant Ibanga's multi-day sentencing hearing. The Court concluded that the only credible witness who gave believable testimony of defendant Ibanga's drug dealing was John Gelardi. Based on his testimony, the Court found by a preponderance of the evidence that defendant Ibanga was responsible for distributing 124.03 grams of methamphetamine "ice."

Having found by a preponderance of the evidence that defendant Ibanga sold some amount of drugs, the Court became obligated to apply the drug distribution guidelines (USSG § 2D1.1) rather than the money laundering guidelines ordinarily applicable to a money laundering conviction (USSG § 2S1.1). This calculation resulted in a custody range of 151 to 188 months.

II. ANALYSIS

A. Constitutionality a Sentencing a Defendant Eased on Acquitted Conduct

Relevant conduct is the "cornerstone" of the Sentencing Guidelines. See William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C. L.Rev. 495, 496 (1990). The district court's decision about what to include (or not include) as relevant conduct drives the length of a defendant's sentence — the more crimes or bad acts labeled as relevant conduct, the greater a defendant's offense level; the higher the offense level, the greater the sentence.

The conduct considered in calculating a defendant's offense level automatically includes the crime(s) of which the defendant was convicted. USSG § 1B1.2(a). The Guidelines also require the district court to include as relevant conduct certain improper actions (such as use of a firearm) upon which the jury never ruled. USSG § 1B1.3. The improper actions included as relevant conduct encompass alleged crimes for which the defendant was never charged as well as alleged crimes for which charges were dropped. Id. § 1B1.3, comment. (backg'd.). To designate such items as relevant conduct, the district court need only find by a preponderance of the evidence (rather than beyond a reasonable doubt) that the wrongful acts occurred. Id. § 6A1.3,...