U.S. v. Irvin

• Decision Date: 23 August 1993
• Docket Number: Nos. 91-5454,91-5373 and 91-5468,s. 91-5454
• Citation: 2 F.3d 72
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter IRVIN; Michael L. Schumacher, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. Santiago GONZALES; Walter Irvin; Michael L. Schumacher, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. Santiago GONZALES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 72

2 F.3d 72

UNITED STATES of America, Plaintiff-Appellee, v. Walter IRVIN; Michael L. Schumacher, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellant, v. Santiago GONZALES; Walter Irvin; Michael L. Schumacher,

Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellee, v. Santiago GONZALES, Defendant-Appellant.

Nos. 91-5454, 91-5373 and 91-5468.

United States Court of Appeals Fourth Circuit.

Argued May 7, 1993.

Decided Aug. 23, 1993.

Walter Franklin Green, IV, Green & O'Donnell, Harrisonburg, VA, argued for appellants Irvin and Schumacher and Terry Armentraut, Roger A. Ritchie & Associate, Harrisonburg, VA, argued for appellant Gonzales.

Ray B. Fitzgerald, Jr., Asst. U.S. Atty., Roanoke, VA, argued (E. Montgomery Tucker, U.S. Atty., on brief), for appellee.

Before RUSSELL, WILKINSON, and WILKINS, Circuit Judges.

OPINION

WILKINS, Circuit Judge:

Walter D. Irvin and Michael L. Schumacher challenge their convictions and sentences for conspiracy to distribute and conspiracy to possess with the intent to distribute cocaine and marijuana, see 21 U.S.C.A. Sec. 841(a)(1) (West 1981); 21 U.S.C.A. Secs. 846, 841(b)(1)(A)(ii)(II), 841(b)(1)(B)(vii) (West 1981 & Supp.1993), and conspiracy to import controlled substances into the United States, see 21 U.S.C.A. Secs. 846, 952 (West 1981 & Supp.1993). Santiago Gonzales contests his conviction and sentence for conspiracy to distribute and conspiracy to possess with the intent to distribute cocaine. See 21 U.S.C.A. Secs. 846, 841(a)(1), 841(b)(1)(A)(ii)(II). The primary issue on appeal presented by Irvin and Schumacher is whether a district court must determine the quantity of narcotics reasonably foreseeable to each individual coconspirator prior to a determination of the applicability of the mandatory minimum sentencing provisions of Sec. 841(b). We hold that it must, and because the district court did not make this determination of reasonable foreseeability before application of the statute, we vacate the sentences imposed on Irvin and Schumacher pursuant to Sec. 841(b).

As an alternative to the mandatory minimum sentences, the district court imposed sentences on Irvin and Schumacher pursuant to the sentencing guidelines. We find no error with these sentences, and therefore affirm the sentences imposed on this basis. Further, we find no error with the guideline sentence imposed on Gonzales; accordingly, we also affirm his sentence. Because the alleged trial errors raised by all three Appellants are without merit, we affirm their convictions.

I.

A grand jury returned two indictments charging Irvin, Schumacher, Gonzales, and others with involvement in a large drug importation and distribution conspiracy. Facts elicited at trial, viewed in the light most favorable to the Government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), revealed that Gonzales operated as a source of cocaine for other individuals who participated in different ways and at various levels of the conspiracy. Irvin and Schumacher worked at the retail level, with Irvin selling quantities of marijuana and Schumacher dispensing quantities of marijuana and cocaine.

Following the return of guilty verdicts, ¹ a presentence report (PSR) was prepared for each coconspirator. Each PSR applied the precepts of relevant conduct ² in determining the quantity of narcotics properly attributable to each coconspirator. See United States Sentencing Commission, Guidelines Manual, Sec. 1B1.3 (Nov.1991). Gonzales' PSR recommended attribution of 5 to 15 kilograms of cocaine to him, see U.S.S.G. Secs. 2D1.4, 2D1.1(c)(6), and a four-level enhancement for his role in the offense, see U.S.S.G. Sec. 3B1.1(a). The resulting offense level of 36, combined with a Criminal History Category of I, yielded a guideline range of 188-235 months imprisonment. The PSR noted that because of Gonzales' participation in a conspiracy involved with five or more kilograms of cocaine, he was also subject to the ten-year mandatory minimum sentence under Sec. 841(b).

Irvin's PSR recommended attribution of 5.58 kilograms of marijuana to him, resulting in a base offense level of 14. See U.S.S.G. Secs. 2D1.4, 2D1.1(c)(15). Combined with a Criminal History Category of II, Irvin's guideline range was 18-24 months imprisonment. Schumacher's PSR recommended attribution of 700 grams of cocaine and 79 kilograms of marijuana to him, resulting in a base offense level of 26. See U.S.S.G. Secs. 2D1.4, 2D1.1(c)(9). Combined with a Criminal History Category of III, the resulting guideline range was 78-97 months imprisonment.

At sentencing, the district court observed that Gonzales' guideline range exceeded the statutory mandatory minimum sentence of ten years imprisonment mandated by Sec. 841(b). Consequently, it imposed a guideline sentence of 200 months imprisonment. With regard to Irvin and Schumacher, the Government argued that, due to their convictions on the conspiracy count, both also were subject to the ten-year mandatory minimum sentencing provision of Sec. 841(b). The district court found that the conspiracy as a whole was responsible for distribution of at least five kilograms of cocaine. In the event that the statute required imposition of the mandatory minimum sentence regardless of whether the quantity of narcotics attributed to the conspiracy as a whole was reasonably foreseeable to an individual coconspirator, the district court imposed a mandatory minimum sentence of ten years imprisonment on both Irvin and Schumacher. In the alternative, the court, after adopting the recommendations in the PSRs, imposed sentences under the sentencing guidelines: Irvin received a sentence of 24 months imprisonment and Schumacher received a sentence of 88 months imprisonment.

II.

A.

Section 846 provides that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the ... object of the attempt or conspiracy." 21 U.S.C.A. Sec. 846. ³ Here, the "object" of the conspiracy was possession with the intent to distribute and distribution of narcotics. See 21 U.S.C.A. Sec. 841(a)(1). Section 841(b) sets forth the penalties for these offenses, providing mandatory minimum sentences based on the quantity of narcotics "involv[ed]" in the object offense. 21 U.S.C.A. Sec. 841(b). ⁴ Thus, the penalties established under Sec. 841(b) apply with equal force to attempts and conspiracies to violate the object offenses set forth in Sec. 841(a). See, e.g., United States v. Gilliam, 987 F.2d 1009, 1011 n. 2 (4th Cir.1993) (noting that Congress amended Sec. 846 "to subject those who violate [this] section to the same penalties as those prescribed for the underlying offense"); United States v. Montoya, 891 F.2d 1273, 1293 n. 25 (7th Cir.1989) (same). Because the quantity of narcotics is not an element of the offenses proscribed by Sec. 841(a), United States v. Uwaeme, 975 F.2d 1016, 1018 (4th Cir.1992), in order to apply Sec. 841(b), a district court must determine the appropriate quantity of narcotics at sentencing by a preponderance of the evidence, United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990).

B.

As we have recognized, Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), controls questions of an individual defendant's criminal liability for acts done by others in furtherance of conspiratorial activity. E.g., United States v. Cummings, 937 F.2d 941, 944 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 395, 116 L.Ed.2d 345 (1991). Under Pinkerton, in order to hold a coconspirator criminally liable for acts of other members of the conspiracy, the act must be "done in furtherance of the conspiracy" and "be reasonably foreseen as a necessary or natural consequence of the" conspiracy. Pinkerton, 328 U.S. at 647-48, 66 S.Ct. at 1184; see also Cummings, 937 F.2d at 944 (noting that Pinkerton "makes conspirators liable for all reasonably foreseeable acts of their coconspirators done in furtherance of the conspiracy"). In order to be reasonably foreseeable to another member of the criminal organization, and thus to hold a coconspirator criminally liable, acts of a coconspirator "must fall within the scope of the agreement between the" specific individual and the coconspirator. United States v. Jones, 965 F.2d 1507, 1517 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 346, 121 L.Ed.2d 261 (1992). The issue Irvin and Schumacher ask us to resolve is whether, in arriving at the proper quantity of narcotics for purposes of sentencing under Sec. 841(b) following a finding of guilt for a violation of Sec. 846, a district court must apply the principles of Pinkerton to determine the quantity of narcotics reasonably foreseeable to an individual coconspirator, rather than automatically rely on the quantity attributed to the conspiracy as a whole. They argue that in some cases the quantity attributed to the conspiracy as a whole properly may be attributed to an individual coconspirator, but that in other cases, the quantity properly attributed to an individual coconspirator may be less than that attributed to the entire conspiracy.

To support its conclusion that a standard of reasonable foreseeability has no role in interpretation or application of Sec. 841(b) following a finding of guilt under Sec. 846, the Government contends that the plain language of Sec. 846, which provides that the district court "shall" impose the "same penalties," requires that a district court apply Sec. 841(b) without any intervening assessment of whether the acts of other coconspirators were reasonably foreseeable. The Government also maintains that introduction of the principles of Pinkerton into Sec. 841(b) would impermissibly individualize sentences for conspiracy offenses by focusing on the acts of the individual coconspirator and the...