U.S. v. Kerr, s. 92-4008

• Decision Date: 27 December 1993
• Docket Number: 93-1004,Nos. 92-4008,s. 92-4008
• Citation: 13 F.3d 203
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donna KERR and Nick Muschio, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 203

13 F.3d 203

UNITED STATES of America, Plaintiff-Appellee, v. Donna KERR and Nick Muschio, Defendants-Appellants.

Nos. 92-4008, 93-1004.

United States Court of Appeals Seventh Circuit.

Argued Nov. 3, 1993.

Decided Dec. 27, 1993.

R. Jeffrey Wagner, Asst. U.S. Atty., Gail Joy Hoffman (argued), Milwaukee, WI, for U.S.

John A. Birdsall (argued), Jerry H. Gonzalez, Anthony J. Deutsch, Gonzalez & Saggio, Milwaukee, WI, for Donna E. Kerr.

Jeffrey B. Steinback, Terence P. Gillespie, Leonard Goodman (argued), Andrew M. Plunkett, Genson, Steinback, Gillespie & Martin, Chicago, IL, for Nick Muschio.

Before POSNER, Chief Judge, COFFEY, Circuit Judge, and ZAGEL, District Judge. ^*

ZAGEL, District Judge.

Nick Muschio and Donna Kerr both pleaded guilty to a charge of conspiracy to distribute cocaine. Both appeal their sentences and challenge the guideline calculation. The calculations matter. Muschio was given 220 months in custody from a range of 210-262 months. Were he to win on both issues he raises here, his sentencing range would be 151-188 months in custody. Kerr received 37 months from a range of 37-46 months. Victory on appeal could reduce her range by four or more levels.

Twelve persons were charged with a conspiracy beginning in 1987, led by Steven Senechal and based in Green Bay. Muschio provided cocaine to Senechal on consignment, anywhere from one-half to one kilogram per week. Senechal would pay Muschio later. This began in 1985, but by 1990 Senechal came up short of money (perhaps because he began to consume his inventory), and Muschio began to cut back deliveries. By 1992 Muschio was still providing cocaine to Senechal but with much less regularity. The conspiracy ended in June 1992. Muschio admitted delivery of between fifteen and fifty cocaine kilograms.

Donna Kerr met Senechal nearly two years after the onset of the conspiracy. She lived with him for a year and a half after she met him and knew he sold cocaine several times from their residence. And she knew it quickly. On their first date, he told her he sold cocaine and, on the second, she saw him in possession of cocaine in some quantity. She twice went to Chicago with him to pick up cocaine from Muschio. On two occasions she wired money to Muschio or his employee and, in one of those instances, may have taken money directly from a drug transaction at which she was present and delivered it to Western Union for transmission to Muschio.

Muschio was denied the two-level reduction given for acceptance of responsibility. USSG Sec. 3E1.1(a). When Muschio spoke to the probation officer, he denied involvement in narcotics. The probation officer came to the obvious conclusion that this was inconsistent with acceptance of responsibility. At sentencing Muschio's lawyer noted that he had failed to advise Muschio that one must be candid with one's probation officer. We do not see how this does much good for Muschio; one inference is that Muschio tells lies unless instructed by his lawyer to tell the truth. More importantly, Muschio changed his tune before Judge Curran. Muschio read a long statement. It began, "Your honor, I stand here in front of you today as a man who has lost all self-respect for myself because I have finally come to grips with the fact that for the past several years I have lived my life jumping from one lie to another." It continued with references to making amends and the shame "I have put my family through" and closed with "I accept all the responsibility for my action" and a hope that "I will," in the future, seek to "right the wrong that I have helped to create."

This is a speech that many articulate defendants make in more or less the same words. The speech may reflect the true nature of its maker. If the words sound hackneyed it may be because the speakers are all people facing the same future, a time in prison. But the words may also be pious cant, the right thing to say in the circumstances but not the truth. The trial judge decides which is the case.

Judge Curran decided there was no acceptance of responsibility even though he "was impressed" with Muschio's oration. He rejected the claim of acceptance because Muschio lied to the probation officer, continued unabated his criminal life until he was caught and pleaded guilty last of the conspirators. Judge Curran found the defendant's attitude "was brought about by the weight of the other [co-conspirators' guilty pleas] and not because of any genuine original remorse." It is absurd to say the sentencing judge abused his discretion so we decline to do so. A defendant has the burden of proving acceptance of responsibility, and we have recently reiterated that the trial judge is in a superior position to decide whether acceptance is sincere, and we pay great deference to that decision. United States v. Tolson, 988 F.2d 1494, 1497 (7th Cir.1993). A defendant's failure to demonstrate truthfulness and remorse prior to "the final hour" is certainly a factor upon which a judge might properly rely in determining that the defendant had failed to accept responsibility. United States v. Osborne, 931 F.2d 1139, 1155 (7th Cir.1991). See also USSG Sec. 3E1.1, comment. (n. 6 & backg'd) (the timeliness of a defendant's acceptance of responsibility is a consideration under Sec. 3E1.1(a)). "The reduction for a timely acceptance of responsibility was not adopted with the idea that a defendant might lessen his or her sentence with a last minute, formalistic demonstration of remorse after the government has been forced to expend a great deal of time and resources in gathering an overwhelming case.... It does not take a genius to recognize when one is up against overwhelming odds." Tolson, 988 F.2d at 1499.

Turning now to Muschio's second dispute with the sentence Judge Curran imposed, during the time Muschio was part of the charged conspiracy he delivered cocaine to someone working for the police in Illinois and he was charged in Cook County Circuit Court. That crime occurred on April 9, 1990 and the criminal charge was filed shortly thereafter. In June 1992, Muschio was charged with the conspiracy. He was sent to Illinois and convicted there in August, 1992. He was returned and pleaded guilty to the federal charge in October 1993. The district court treated the Illinois conviction as a prior sentence under USSG Sec. 4A1.2 and this raised the criminal history category from I to II. It does not matter if the sentence on the Illinois conviction has yet to be imposed. USSG Sec. 4A1.2(a)(4).

Under the Guidelines a "prior sentence is one previously imposed ... for conduct not part of the instant offense." USSG Sec. 4A1.2(a)(1). Muschio cites United States v. Belton, 890 F.2d 9 (7th Cir.1989). Belton was part of a conspiracy to distribute cocaine acquired in California for distribution in Milwaukee. During the conspiracy, Belton was caught with cocaine in California and convicted there. The California crime was clearly part of the conspiracy and we noted, in dictum, that the California sentence would not be a prior conviction countable under Sec. 4A1.2. Muschio argues that the Illinois offense was part of the conspiracy because the offense occurred during the conspiracy period.

But the Illinois offense involved a sale there to one Peter Studentki, who was not named in the federal indictment as part of the Green Bay conspiracy. Studentki appears nowhere in the papers arising out of this prosecution. Muschio's argument would make some sense if he were treated as the core of a conspiracy with tentacles in Green Bay and Chicago, but there is no way to read that from the record. There is no evidence that the Illinois transaction was related in any way to the Green Bay bunch and no reason to believe that Muschio was denied the opportunity to show some relationship between the apparently independent offenses.

Donna Kerr says that her role in the offense was mischaracterized; she was a minimal or minor participant in the crime under USSG Sec. 3B1.2, and the sentencing judge failed to see this. In her brief she argues that this is so because the wrong standard was used, that is, whether she was "substantially less culpable" than the other conspirators. Instead it should have been decided whether she was "plainly among the least culpable."

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