U.S. v. McCaskey

• Decision Date: 06 December 1993
• Docket Number: No. 92-3790,92-3790
• Citation: 9 F.3d 368
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Ray McCASKEY a/k/a Snake and Lionel Legard a/k/a Max, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 368

9 F.3d 368

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Ray McCASKEY a/k/a Snake and Lionel Legard a/k/a Max,

Defendants-Appellants.

No. 92-3790.

United States Court of Appeals, Fifth Circuit.

Dec. 6, 1993.

Terry E. Allbritton, Kenneth J. Servay, New Orleans, LA (Court-appointed), for Lionel Legard.

Robert F. Bernard, Asst. Federal Public Defender, New Orleans, LA, for Bobby Ray McCaskey.

Herbert W. Mondros, John Braud, Asst. U.S. Attys., Harry Rosenberg, U.S. Atty., New Orleans, LA, for U.S.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REYNALDO G. GARZA, KING and DeMOSS, Circuit Judges.

PER CURIAM:

Bobby Ray McCaskey and Lionel Legard pleaded guilty to conspiracy to distribute cocaine hydrochloride. Each defendant now appeals his sentence. Legard, in the alternative, seeks to have his guilty plea vacated.

I. BACKGROUND

On December 12, 1991, a grand jury indicted Bobby Ray McCaskey and Lionel Legard in a multi-count indictment, charging them as follows: (I) conspiracy to distribute cocaine hydrochloride in violation of 21 U.S.C. Sec. 846 "from on or about November 4, 1991, and continuing until on or about November 26, 1991"; (II) distribution of cocaine hydrochloride in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 on or about November 4, 1991 ¹; (III) distribution of cocaine hydrochloride in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 on or about November 14, 1991; and (IV) distribution of cocaine hydrochloride in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 on or about November 19, 1991. The indictment also charged Legard alone with two additional counts: (V) distribution of cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) on or about April 19, 1991; and (VI) distribution of cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) on or about October 24, 1991. Legard and McCaskey were arraigned on December 16, 1991, in the United States District Court for the Eastern District of Louisiana and pleaded not guilty to all charges. On the date of arraignment, Legard and McCaskey signed "waiver of conflict of interest forms" whereby they both consented to be represented by retained counsel Blake Jones.

Legard and McCaskey entered into written plea agreements with the government, whereby each agreed to plead guilty to the conspiracy count and the government agreed to request dismissal of the remaining counts. Legard and McCaskey pleaded guilty to the conspiracy count on April 6, 1992. The district court rearraigned both defendants on that date, accepted the plea agreement, and adjudged the defendants guilty. Accordingly, the court ordered preparation of presentence investigation reports (PSRs) for both defendants. The sentencing date was set for June 17, 1992; at the government's request sentencing was continued to July 15, 1992, because of delays in preparation of the PSRs. The defendants then moved for a continuance based on information they had received that government tests on some of the illicit substances at issue tended to show that they were cocaine base instead of cocaine hydrochloride, and sentencing was continued until August 12, 1992. A weather emergency resulted in still another continuance, this time until September 2, 1992.

Two days before the sentencing date, the government notified the defendants that it intended to adduce testimony during the sentencing hearing that the substance involved in the incident charged in Count II was actually cocaine base instead of cocaine hydrochloride. At the sentencing hearing on September 2, 1992, the defendants' attorney tendered to the court a memorandum on behalf of McCaskey alone objecting to the parts of McCaskey's PSR that considered any substance as cocaine base. Government witnesses testified at the sentencing hearing that the substance charged in Count II of the indictment was cocaine base rather than cocaine hydrochloride. The sentencing court adopted Legard's PSR in the absence of any objection, sentencing Legard to ninety months imprisonment, to be followed by a supervised release term of five years, and ordering him to pay a special assessment of $50. With respect to McCaskey, the sentencing court asked if he wanted to withdraw his guilty plea; McCaskey's attorney answered in the negative. The court adopted McCaskey's PSR as to all undisputed issues and resolved McCaskey's objection in favor of the PSR's recommendation that the Count II substance should be considered as cocaine base for sentencing purposes. The court sentenced McCaskey to sixty-five months imprisonment, to be followed by a supervised release term of five years, and ordered McCaskey to pay a special assessment of $50. The court dismissed the remaining counts of the indictment as to both defendants.

Both defendants now appeal. The district court appointed new counsel on appeal for each of the defendants.

II. STANDARD OF REVIEW

The factual findings made by a district court in its determination of a defendant's relevant conduct for sentencing purposes are subject to the "clearly erroneous" standard of review on appeal. United States v. Buckhalter, 986 F.2d 875, 879 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 203, 126 L.Ed.2d 160, and cert. denied, --- U.S. ----, 114 S.Ct. 210, 126 L.Ed.2d 167 (1993); United States v. Lokey, 945 F.2d 825, 839 (5th Cir.1991). Factual findings made in support of a sentencing determination must be supported by a preponderance of the evidence. Buckhalter, 986 F.2d at 879. The district court's sentence will be upheld so long as it results from a correct application of the guidelines to factual findings that are not clearly erroneous. United States v. Rivera, 898 F.2d 442, 445 (5th Cir.1990). The district court's interpretations of the guidelines, being conclusions of law, are reviewed de novo. United States v. Madison, 990 F.2d 178, 182 (5th Cir.1993), cert. dismissed, --- U.S. ----, 114 S.Ct. 339, 126 L.Ed.2d 305 (1993).

We note that the version of the sentencing guidelines in effect from November 1, 1991, through October 31, 1992, applies to the appellants because they were sentenced on September 2, 1992. United States v. Gross, 979 F.2d 1048, 1050-51 (5th Cir.1992) (citing 18 U.S.C. Sec. 3553(a)(4)).

III. LIONEL LEGARD

Legard raises several challenges to his sentence. He contends, inter alia, that the sentencing court considered drug transactions outside the scope of the conspiracy with which he was charged in calculating his sentence, that the government improperly enhanced his sentence by showing that a drug transaction involved cocaine base instead of cocaine hydrochloride as charged in the indictment, and that the government failed to prove adequately that the substance involved in Count II of the indictment was in fact cocaine base. McCaskey, we note, has moved that we consider all of Legard's arguments as they may apply to his sentence as well, and we have granted his motion.

A. Computation of Legard's Base Offense Level

The sentencing court adopted Legard's PSR in determining his sentence. The PSR recommended a finding of a base offense level of twenty-six, based on the finding that all the drugs involved in the incidents charged in Counts II through VI of the indictment were relevant conduct under Sec. 1B1.3 of the sentencing guidelines. The PSR also recommended a two-level reduction for acceptance of responsibility. Based on a total offense level of twenty-four and Legard's criminal history category of IV, the PSR stated that the appropriate guideline sentencing range was seventy-seven to ninety-six months imprisonment. The sentencing court adhered to the guideline sentencing range in sentencing Legard to ninety months imprisonment.

1. Consideration of the Count V and VI Transactions as Relevant Conduct

Legard concedes that the transactions charged in Counts II through IV were correctly considered as relevant conduct in determining his base offense level; he raises two challenges, however, to the consideration of the transactions charged in Counts V and VI as relevant conduct. First, he argues that the sentencing court erred by applying Sec. 1B1.3 of the sentencing guidelines, entitled "Relevant Conduct (Factors that Determine the Guideline Range)," in determining his sentence. See United States Sentencing Commission, Guidelines Manual, Sec. 1B1.3 (Nov.1991). ² Second, he argues that, even if Sec. 1B1.3 applies, the transactions charged in Counts V and VI of the indictment still should not be considered for sentencing purposes. Because the government does not object to our consideration of these arguments, insofar as they present purely legal questions, we will do so in spite of Legard's failure to object at sentencing.

Legard first contends that the United States probation officer who prepared his PSR, and the district court by adoption, erred by applying Sec. 1B1.3 of the sentencing guidelines to determine his relevant conduct and his base offense level. In his view, Sec. 2D1.4, the drug conspiracy sentencing guideline, alone should have been applied to determine his base offense level. For support he cites Sec. 1B1.3 itself, which provides that it shall be used to determine a defendant's base offense level only "where the guideline [applicable to the defendant's offense] specifies more than one base offense level." U.S.S.G. Sec. 1B1.3(a)(i); United States v. Warters, 885 F.2d 1266, 1274 (5th Cir.1989). Legard argues that Sec. 2D1.4 specifies only one base offense level, and that Sec. 1B1.3 was therefore wholly inapplicable to his sentencing.

Legard's argument is clearly wrong. In applying the sentencing guidelines, the district court must first determine the applicable offense guideline section from Chapter Two. Rivera, 898 F.2d at 445 (citing U.S.S.G. Sec. 1B1.1(a)). The applicable guideline section for conspiracy to distribute cocaine is Sec. 2D1.4. That section, which was deleted from the guidelines and...