U.S. v. Lawrence, 90-1103NI

• Decision Date: 09 October 1990
• Docket Number: No. 90-1103NI,90-1103NI
• Citation: 915 F.2d 402
• Parties: UNITED STATES of America, Appellee, v. Troy LAWRENCE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 402

915 F.2d 402

UNITED STATES of America, Appellee, v. Troy LAWRENCE, Appellant.

No. 90-1103NI.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 16, 1990.

Decided Oct. 9, 1990.

Stephen A. Swift, Cedar Rapids, Iowa, for appellant.

Janet L. Petersen, Cedar Rapids, Iowa, for appellee.

Before LAY, Chief Judge, JOHN R. GIBSON and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

Troy Lawrence appeals from the sentence imposed on him after he pled guilty to one count of conspiracy to distribute and possess with intent to distribute marijuana, in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1988), and one count of making false representations to a Federal Bureau of Investigation (FBI) agent, in violation of 18 U.S.C. Secs. 2, 1001 (1988). Lawrence argues that the district court erred in considering unseized, uncharged amounts of cocaine to determine his baseline offense level under the Federal Sentencing Guidelines because his cocaine involvement was separate from the marijuana conspiracy and hence did not constitute "relevant conduct" under Sec. 1B1.3(a)(2) of the guidelines. Lawrence further argues that the evidence does not support the district court's approximation of the quantity of cocaine under Sec. 2D1.4 of the guidelines for the purpose of determining his base offense level. We affirm in part and reverse in part.

I.

Troy Lawrence was indicted on October 19, 1988 and charged with three counts of drug-related offenses. ¹ On December 2 1988, Lawrence entered into a plea agreement whereby he agreed to plead guilty to one count of conspiracy to distribute and possess with intent to distribute marijuana, in exchange for the government dropping the remaining two counts. ² In January 1989, FBI agents questioned Lawrence about his involvement with cocaine trafficking. At that time, Lawrence denied any such involvement. Plea Tr. at 35-36. After Mark Stearns, Lawrence's marijuana source, informed the FBI of Lawrence's cocaine dealing, the FBI subjected Lawrence to a polygraph examination. During the examination, conducted in April 1989, Lawrence again denied any involvement with cocaine. Id. at 34-35. Immediately after the examination, however, Lawrence admitted purchasing approximately one pound of cocaine in eighth-ounce, ³ quarter-ounce, and half-ounce quantities between 1980 and 1988. Sentencing Tr. at 14. Lawrence eventually admitted after further questioning that his source was David Lederle and that his customers included Brian Howell and Ken Davis. Id. The FBI elicited no further information from Lawrence concerning his cocaine involvement.

At the sentencing hearing, the district court received evidence from FBI Special Agent Dudley for the government, and from Mark Stearns, Lawrence's marijuana source and boyhood friend, for Lawrence. Dudley testified as to Lawrence's marijuana involvement, and that Lawrence admitted purchasing cocaine. In addition to the one pound statement, Dudley testified on cross-examination that Lawrence admitted selling at least twenty grams to Brian Howell and two or three eighth-ounce quantities to Ken Davis during the summer of 1988. Sentencing Tr. at 18. Dudley also testified that Lawrence stated he was unsure whether he distributed cocaine to anyone else. Id. at 20. Dudley admitted that the FBI had not questioned Lawrence about distributing cocaine in the years 1984 to 1987, nor had they asked him how much cocaine he personally used. Dudley also admitted that there were no statements about Lawrence's cocaine involvement from Lederle, Howell, or Davis because those were ongoing investigations. Id. at 23. Finally, Dudley admitted that the principal evidence regarding what quantities of cocaine Lawrence possessed and when he distributed them came from Lawrence himself. Id. at 24.

Testifying for Lawrence, Mark Stearns detailed their marijuana conspiracy and admitted that he began dealing cocaine at approximately the same time as he began the conspiracy. Sentencing Tr. at 35-37. Stearns denied selling or giving any cocaine to Lawrence and stated that he could not remember whether he had ever told Lawrence he was dealing cocaine. Id. at 36, 38. He also stated that he could not remember whether Lawrence had ever indicated to him that Lawrence knew about his cocaine involvement. Id. at 38-39. Stearns did admit, however, that after he moved to Arizona, where he continued his cocaine and marijuana dealings, Lawrence visited him on several occasions. Id. at 37.

The district court next entertained the government's and the defendant's arguments concerning, among other issues, whether Lawrence's cocaine involvement constituted "relevant conduct" under Sec. 1B1.3(a)(2) of the guidelines ⁴ for the purpose of determining his base offense level under the guidelines, and what amounts of cocaine should be included in the same determination. Regarding the relevant conduct issue, the district court characterized the correct inquiry as whether the common scheme involved was a broad drug distribution scheme or a marijuana distribution scheme. Sentencing Tr. at 46. Relying on the "broad scope of the relevant conduct analysis, as indicated [by] the [guideline's] background notes," the district court found there was "a course of conduct and common scheme to possess and distribute drugs," and thus included cocaine in the base offense level determination. Sentencing Tr. at 55.

Regarding the quantity of cocaine to be included, the district court noted that the probation officer, in the Presentence Investigative Report (PSI), used a starting figure of sixteen ounces of cocaine, based on Lawrence's possession of one pound over the period from 1980 to 1988, divided it over an eight-year period, and then included the portion that fell within the four-year period of the conspiracy. ⁵ Sentencing Tr. at 53-54. The district court relied on Sec. 2D1.4 Application Note 2 ⁶ to approximate the quantity of cocaine and attributed eight ounces to Lawrence. Id. at 55. This quantity of cocaine, added to the sixty-five pounds of marijuana the district court had determined was appropriate, resulted in a heroin equivalency of 74.39 grams and a Level 22 baseline offense. Lawrence received a two-level increase for obstruction of justice for lying to the FBI agent, which resulted in a final base offense level of 24. The district court then combined the Level 24 offense with Lawrence's criminal history category of II and sentenced him to concurrent sixty-month terms of imprisonment, four years of supervised release on the conspiracy charge, three years of supervised release on the obstruction of justice charge, and a $100 special assessment.

II.

A. Standard of Review

The standard of review for appeals of sentences imposed under the Federal Sentencing Guidelines is set out in 18 U.S.C. Sec. 3742(e)(4) (1988):

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.

We have previously stated that under this standard of review, "whether uncharged drugs are part of a common scheme or plan is a factual finding which will be disturbed only if clearly erroneous." United States v. Sleet, 893 F.2d 947, 949 (8th Cir.1990) (citing United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989)); United States v. Gooden, 892 F.2d 725, 728-29 (8th Cir.1989), cert. denied sub nom. Keener v. United States, --- U.S. ----, 110 S.Ct. 2594, 110 L.Ed.2d 274 (1990). But see United States v. Woolford, 896 F.2d 99, 104 (5th Cir.1990) (refusing to decide whether common scheme or plan is a finding of fact, subject to clearly erroneous standard, or an application of the guidelines to the facts, and thus entitled to due deference). A district court's determination of a quantity of drugs for sentencing purposes is also a factual finding subject to the clearly erroneous standard. See United States v. Murphy, 899 F.2d 714, 717 (8th Cir.1990).

B. Relevant Conduct

Lawrence's first argument on appeal is that his cocaine involvement did not constitute relevant conduct under Sec. 1B1.3 of the guidelines. ⁷ Lawrence was convicted of conspiracy to distribute and possess with intent to distribute marijuana. The appropriate guideline for that charge is Sec. 2D1.4 which governs attempts and conspiracies. The guideline provides that the base offense level for someone convicted of a conspiracy is the same as if the object of the conspiracy had been completed. U.S.S.G. Sec. 2D1.4(a). The appropriate guideline in this case is Sec. 2D1.1 which governs drug-related offenses. Application Note 12 of this guideline provides: "Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See Sec. 1B1.3(a)(2) (Relevant Conduct). If the amount seized does not reflect the scale of the offense, see Application Note 2 of the Commentary to Sec. 2D1.4." U.S.S.G. Sec. 2D1.1, comment. (n. 12) (emphasis in original). As noted above, Sec. 1B1.3 specifies that the district court must determine a base offense level on the basis of all "acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. Sec. 1B1.3(a)(2).

Lawrence argues that his cocaine involvement did not constitute relevant conduct because the "cocaine transactions took place at a different time, involved different parties, and were not a part of the same course of conduct, common scheme or plan." Brief of Appellant at 2. The state of the law regarding relevant conduct under the guidelines is unsettled. No bright-line rule exists defining "common scheme or plan," or "same course of conduct." Some courts have applied, without formally adopting, a narrow relevant conduct standard, holding relevant conduct findings...