U.S. v. Johnson, s. 91-3211

• Decision Date: 16 June 1993
• Docket Number: 92-1368,Nos. 91-3211,s. 91-3211
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David P. JOHNSON and Ainsley Richards, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 248

997 F.2d 248

UNITED STATES of America, Plaintiff-Appellee, v. David P. JOHNSON and Ainsley Richards, Defendants-Appellants.

Nos. 91-3211, 92-1368.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 9, 1992.

Decided June 16, 1993.

Andrew B. Baker, Jr., Dyer, IN (argued), for U.S.

Donald W. Pagos, Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, Michigan City, IN (argued), for David P. Johnson.

Noah Lipman, New York City (argued), for Ainsley Richards.

Before POSNER and COFFEY, Circuit Judges, and SHADUR, Senior District Judge. ^*

COFFEY, Circuit Judge.

David P. Johnson pled guilty to a charge of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846, and the district court, departing downward from the Sentencing Guidelines, sentenced him to thirty-three months of confinement to be followed by a five-year period of supervised release. Ainsley Richards ¹ also pled guilty to a charge of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846, and was sentenced to 210 months of confinement with five years of supervised release to follow, 784 F.Supp. 1373. We affirm.

I. BACKGROUND

In September 1990, a Grand Jury returned a forty-three count criminal indictment against twelve members of the Rector family drug distribution ring. Two of these twelve members are the defendant-appellants, David Johnson and Ainsley Richards. Johnson was determined to be a minor/minimal participant in the conspiracy, assisting in the marijuana harvest as a "picker" for two weeks in Indiana and receiving a money order in payment for drugs, while the court found Richards was a leader/organizer who purchased large volumes of marijuana from the Rectors and resold it in New York.

A. The Conspiracy

Doug Rector was a drug dealer from Northern Indiana who dealt in the sale of a low grade marijuana called "ditch weed," used primarily as a filler for a higher quality marijuana. During the 1980s when this drug conspiracy was in full operation, Doug operated the enterprise out of his home in Florida, while his brother, Ron Rector, oversaw the harvesting and shipping of the marijuana from Indiana and Nebraska to New York. In 1986, Doug Rector met Edgardo "Chickie" Velez who was an acquaintance of Richards. Velez suggested to Doug that he front him some marijuana and when Doug agreed, Velez transported the marijuana from Florida to New York, where he sold it to Richards. Thereafter, Velez arranged for a substantial number of shipments of marijuana to be transported by the Rector organization to Richards in New York. The shipments initially went from Indiana through Florida to New York, but during the summer of 1986 Doug Rector changed the route and began to channel the shipments directly to New York from Indiana. In September 1986, immediately after Velez had sold 730 pounds of marijuana to Richards, Drug Enforcement Agency (DEA) agents seized $147,000 from Velez in New York. Shortly thereafter, Doug Rector became aware of the seizure, and terminated the employment of Velez as a middle-man and commenced dealing directly with Richards, using a number of couriers to accomplish the delivery of the marijuana to Richards.

By May of 1988, many members of the Rector family had either been indicted or incarcerated. Thus out of necessity, Rex Froedge, a friend and former employee of the Rectors, took over the marijuana deliveries to Richards. In August 1988, another Rector brother, Mike Rector, escaped from a state prison in Indiana and joined Rex Froedge in the drug conspiracy. Mike Rector and Froedge recruited a number of people to pick marijuana in Indiana, including the defendant-appellant David Johnson. ² Johnson picked marijuana for Mike Rector and Froedge on several occasions over a two-week period in the fall of 1988 and was paid for his services. ³ During Johnson's two-week involvement with the conspiracy, they harvested and transported three to four thousand pounds of marijuana. In addition, Johnson received a money order in Indiana sent from New York to pay for marijuana and delivered it to Rex Froedge. After the Grand Jury returned the indictment naming Johnson as a conspirator, a warrant for his arrest was obtained and executed. Shortly thereafter, he decided to cooperate with the government and rendered substantial assistance supplying information about others involved in the conspiracy as well as agreeing to testify in any trials. Pursuant to his arrangement with the DEA, Johnson made inquiries in Indiana and was able to ascertain the location of Rex Froedge, whose whereabouts were unknown to the government. Johnson informed the government of a specific time and place in California where the authorities might find Froedge and shortly thereafter, he too was apprehended by DEA agents.

In December 1988, Mike Rector was arrested on the Indiana State Turnpike and he likewise agreed to cooperate with the DEA and the Indiana State Police. At the time of his arrest, Mike Rector was transporting five pounds of high-grade marijuana and a half-pound of cocaine he had received from Ainsley Richards. After his arrest, DEA agents had Mike Rector place a telephone call to Richards which the DEA recorded. In the taped phone conversation, Rector requested that Richards send a money order to cover the purchase of 730 pounds of marijuana. In response, Richards sent a $5,000 money order as a down payment to an alias of Mike Rector. Thereafter, Richards was arrested in New York on January 29, 1991.

B. The District Court Sentencing Proceedings

After pleading guilty to a conspiracy to distribute marijuana, Johnson was sentenced on September 13, 1991. The court found Johnson's offense level to be thirty-two based on the 3,000 to 4,000 pounds of marijuana harvested by the conspiracy in the late summer and fall of 1988 while Johnson was a member of the conspiracy. The court granted Johnson a two-level reduction based on his acceptance of responsibility but refused to grant his request for a four-level reduction as a minimal participant, and instead gave him a three-level reduction, classifying him as between a minimal participant and a minor participant. This resulted in an adjusted offense level of twenty-seven. With Johnson's criminal history category of II, his Guideline range was 78-97 months. Pursuant to government motions, the court further departed downward eight levels to reflect Johnson's assistance to the government. Johnson's final adjusted offense level was nineteen with a sentencing range of 33 to 41 months. The court imposed a sentence of 33 months in prison with 5 years of supervised release to follow with a condition that he also perform 300 hours of community service.

Prior to his sentencing, Richards conceded his responsibility for the base offense level of thirty-two, which involves a range from 1,000 to 3,000 kilograms of marijuana. Richards objected to three specific findings made in the Probation Department's presentence report. The presentence report recommended a base offense level of thirty-four (3,000 to 10,000 kilograms); Richards objected to any offense level above thirty-two. Second, Richards objected to the recommendation in the presentence report of a two-level enhancement for possession of a firearm. Finally, Richards objected to the recommendation in the report of a four-level enhancement because of his role in the offense. The sentencing judge held an evidentiary hearing in order that he might rule upon Richards' objections to the presentence report. During this hearing, the government established its case through the testimony of DEA agent Trifon K. Magrames. His testimony was drawn from a number of informants as well as other sources of information such as testimony before the grand jury, trial testimony (in cases of other co-conspirators), hotel records, telephone records, Western Union records, police records and transcripts of recorded conversations. After hearing the testimony, the court determined that the evidence presented through Agent Magrames was sufficiently reliable to support the recommendations in the presentence report.

In addressing the total weight of marijuana attributable to Richards, the court, after considering Agent Magrames' testimony, found that the government had established the amount to be at least 7,865 pounds. Because this amount exceeded the highest weight assigned to the level thirty-two Sentencing Guideline, the court set Richards' base offense level at thirty-four. Further, the court found that the evidence was sufficient to infer that Richards knew of individuals under his control, who, while in his presence, were in possession of firearms during his marijuana dealings in New York. Based upon this information, the court enhanced Richards' offense level by two levels for possession of a firearm. The court also found that Richards merited a three-level enhancement because he was the manager or supervisor of criminal activity involving five or more participants.

After finding that Richards was entitled to a two-level reduction for the acceptance of personal responsibility, the court determined that his final adjusted offense level was thirty-seven. Because he had no prior criminal convictions, Richards' criminal history category was I. The sentencing range for a level thirty-seven offense with a category I criminal history is 210 to 262 months. The government recommended that the court impose the minimum sentence in the applicable Guideline range. The court accepted the recommendation and sentenced Richards to a period of confinement of 210 months, to be followed with a five-year supervised period of release.

II. ISSUES ON APPEAL

On appeal, David Johnson raises the following issues: (1) whether the degree of the district court's downward departure was reasonable in light of the substantial assistance he provided the government, and (2) whether the district court erred in decreasing his base offense level by only three levels (as opposed to...