U.S. v. Koonce
| Decision Date | 23 September 1991 |
| Docket Number | No. 90-4081,90-4081 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Stephen G. KOONCE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Samuel Alba and Robert G. Wing of Prince, Yeates & Geldzahler, Salt Lake City, Utah, for defendant-appellant.
Karen Skrivseth, Dept. of Justice, Washington, D.C. and Wayne T. Dance, Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.
Before SEYMOUR and EBEL, Circuit Judges, and BROWN, Senior District Judge. *
This case presents two issues. First, we must decide whether the Double Jeopardy Clause (U.S. Const. amend. V), prohibits the conviction and imposition of a sentence for possession of a controlled substance where the same possession was used in a prior narcotics proceeding to increase the defendant's sentence under the United States Sentencing Guidelines. We hold that the Double Jeopardy Clause prohibits the subsequent conviction and sentence. Second, we must decide whether the Double Jeopardy Clause prohibits the imposition of a sentence for being a felon in possession of firearms where possession of the same firearms during commission of a narcotics offense was used to enhance the defendant's sentence in a prior narcotics proceeding under the United States Sentencing Guidelines. We hold that the Double Jeopardy Clause does not preclude this subsequent conviction and sentence.
The defendant-appellant, Stephen Koonce, ran a methamphetamine distribution operation out of his Monticello, Utah residence. In late 1987, one of Koonce's customers, Darryl Petschen, pled guilty to charges of illegally distributing methamphetamine. Petschen named Koonce as his supplier and offered to help South Dakota and Minnesota authorities apprehend Koonce. Petschen made a series of tape recorded telephone calls to Koonce in Monticello requesting that Koonce sell him methamphetamine. Petschen then sent a letter to Koonce requesting that a quantity of methamphetamine be mailed to a designated post office box in Sioux Falls, South Dakota.
A package containing 443 grams of methamphetamine arrived at the post office box on February 4, 1988. Koonce's fingerprints were found on the outer wrappings of the package. Shortly thereafter, law enforcement officials obtained a warrant to search Koonce's residence. The authorities executed the warrant and discovered Petschen's letter to Koonce, a large number of firearms, and an additional 963 grams of methamphetamine stored in Koonce's freezer.
Koonce was charged in the United States District Court for the District of South Dakota with one count of distributing an unspecified amount of methamphetamine under 21 U.S.C. §§ 841(a)(1) and 846 (1988). 1 The jury found Koonce guilty of distributing the 443 grams he had mailed to the Sioux Falls post office box. However, when the district court calculated his sentence under the United States Sentencing Guidelines, it took into account two additional quantities of methamphetamines: (1) the 963 grams discovered in his house in Monticello, and (2) 6,463 grams Petschen testified he had purchased from Koonce The United States then decided to charge and prosecute Koonce in the United States District Court for the District of Utah for possession with intent to distribute the 963 grams of methamphetamine found at his Monticello residence under 21 U.S.C. § 841(a). In addition, Koonce was charged with being a felon in possession of numerous firearms under 18 U.S.C. § 922(g). Koonce immediately objected, arguing that the Double Jeopardy Clause protected him from being tried in the Utah district court for distributing the 963 grams of methamphetamine and for possessing the firearms. The district court refused to dismiss the indictment against him, and we affirmed. United States v. Koonce, 885 F.2d 720, 722 (10th Cir.1989) (Koonce II ). We held that because Koonce had not been charged in South Dakota for any crime stemming from the 963 grams of methamphetamine discovered in his Monticello residence, or for possessing the firearms, the Double Jeopardy Clause's ban against multiple prosecutions was not implicated. Id. Further, we agreed with the government that because Koonce had not yet been found guilty of the Utah offense--let alone punished--his claim based upon the Double Jeopardy Clause's ban against multiple punishments was not yet ripe for review. Id. The case was remanded back to the district court for trial.
during the year prior to Koonce's arrest. 2 Thus, Koonce's South Dakota sentence was based upon his distributing a total of 7,869 grams of methamphetamine. The court calculated Koonce's initial offense level as 34 under U.S.S.G. § 2D1.1(a)(3) (1988) by referencing a total weight of 15,738 grams of cocaine. 3 After adding a two level enhancement for possessing firearms during the commission of the offense and calculating Koonce's criminal history as a level III, the South Dakota district court found that the appropriate sentencing range under the Guidelines was 235 to 293 months. The district court sentenced him to 240 months imprisonment, the statutory maximum under 21 U.S.C. § 841(b). In addition, the court sentenced Koonce to serve five years of supervised release following the completion of his twenty-year prison term. Finally, the court fined Koonce $50,000. The Eighth Circuit Court of Appeals affirmed Koonce's conviction and sentence on appeal. United States v. Koonce, 884 F.2d 349 (8th Cir.1989) (Koonce I )
The Utah district court found Koonce guilty on the methamphetamine possession charge as well as on the felon in possession of a firearm charge. On the methamphetamine count, the district court sentenced him to a term of ninety-seven months to be served concurrently with his South Dakota sentence. On the firearms charge, the court sentenced Koonce to a twelve month concurrent sentence. In addition, Koonce was sentenced to six years of supervised release to run concurrently with the five years of supervised release already imposed by the South Dakota court. At the time of sentencing, Koonce again raised his Double Jeopardy claims. The district court again dismissed this claim, and Koonce appealed. The issue being ripe for review, Koonce's appeal is before us a second time.
We employ a three-step analysis to determine the validity of Koonce's claim that the methamphetamine distribution sentence imposed by the Utah district court violated the punishment component of the Double Jeopardy Clause. We determine first whether, for purposes of the Double Jeopardy Clause, Koonce was punished in South Dakota for the methamphetamine found at his Monticello residence. Second, we determine whether Congress intended that an accused in Koonce's position should receive cumulative sentences from two separate proceedings where both sentences punish the accused for the exact same conduct. Third, we determine whether the punishment imposed by the Utah district court constitutes double punishment under the Double Jeopardy Clause where the sentence imposed runs concurrently with his South Dakota sentence.
A. The South Dakota Punishment --We begin with the language of the relevant constitutional provision: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend V. The text of the Clause prohibits double prosecution where each prosecution places the defendant in jeopardy of receiving punishment for the same offense. However, in addition to providing explicit protection against double prosecution, the Clause further prohibits the government from punishing its citizens twice for the same offense. Grady, 110 S.Ct. at 2090; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873) (); see also Comment, Twice in Jeopardy, 75 Yale L.J. 262, 266 n. 13 (1965) ( ). The protection from double prosecution would certainly be a hollow one if the government were constitutionally permitted to develop a scheme to punish a person twice for the same conduct just so long as it did not subject him to two trials:
If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence....
....
The protection against the action of the same court in inflicting punishment twice must surely be as necessary, and as clearly within the maxim, as protection from chances or danger of a second punishment on a second trial.
Ex parte Lange, 85 U.S. (18 Wall.) at 168-69.
When the South Dakota district court sentenced Koonce, it punished him not only for distributing the methamphetamine that he mailed to Sioux Falls, but it also punished him for the 963...
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