U.S. v. McCrary, 88-5698
| Decision Date | 16 October 1989 |
| Docket Number | No. 88-5698,88-5698 |
| Citation | 887 F.2d 485 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. George W. McCRARY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Benjamin Thomas Reed (Gustin, Reed & Martin, Norfolk, Va., on brief), for defendant-appellant.
Robert William Wiechering, Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.
Before ERVIN, Chief Judge, and PHILLIPS and WILKINSON, Circuit Judges.
George W. McCrary appeals the sentence imposed by the district court after he entered a plea of guilty on one count of conspiracy to possess and distribute a controlled substance, in violation of 21 U.S.C. Sec. 846. We vacate the sentence and remand for limited further proceedings.
The pertinent facts are these. Sometime in August of 1988, drug interdiction agents of the United States Customs Service initiated a "sting" operation designed to lure Fidel Escamilla (Fidel), a major cocaine distributor, to Virginia Beach, Virginia, where the agents planned an undercover drug transaction that would presumably result in Fidel's arrest. Customs agents secured the cooperation of Guy Malbon, who had recently been convicted of several drug offenses and who apparently had conducted business with Fidel over the course of several years. At the government's behest, Malbon contacted Fidel, who agreed to send his nephew, Cosme Escamilla (Cosme), and one other of his "boys," James Slaton, to Virginia Beach. Fidel promised Malbon that Cosme and Slaton would deliver at least two kilograms of cocaine, in return for $90,000.
Fidel ultimately met with Cosme and Slaton in Tennessee, where he described for them the agreed upon terms of the planned delivery to Malbon. For reasons that remain unclear on the face of the record, the defendant was present at this meeting. It appears, however, that he did not participate in the immediate discussions among Fidel, Cosme and Slaton. Sometime shortly after the meeting, Slaton advised McCrary that he could make three hundred dollars by driving Cosme and Slaton to Virginia Beach, staying overnight and returning the following day.
On August 21, 1988, Cosme, Slaton and McCrary set out for Virginia Beach. McCrary drove most of the way. When the group arrived, Slaton called Malbon to work out the details of the planned transfer. Malbon asked Slaton to meet one of Malbon's associates--who proved to be an undercover agent--at a local convenience store, and to deliver the cocaine to him. Slaton was then to return to the same store the next day to pick up the $90,000 payment. Slaton, Cosme and McCrary complied with these instructions, but were arrested on the second day en route to the drop point.
The multiple count indictment ultimately returned by the grand jury charged the defendant with unlawful distribution of a controlled substance, in violation of 21 U.S.C. Sec. 841; interstate travel to facilitate the distribution of a controlled substance, in violation of 18 U.S.C. Sec. 1952; and conspiracy to possess and distribute a controlled substance, in violation of 21 U.S.C. Sec. 846. McCrary agreed to cooperate with the government and pleaded guilty to the last of these three charges, in return for which the prosecution dismissed the remaining counts of the indictment.
Because the defendant committed the offense after November 1, 1987, the district court imposed sentence under the Guidelines. See Sentencing Reform Act of 1984, Pub.L. No. 98-473, Sec. 235, 98 Stat.1988, 2031 (1984) (as amended) (savings clause/effective date), reprinted at 18 U.S.C.A. Sec. 3551 (West 1985 & Supp.1989). On the basis of a presentence report prepared by the United States Probation Office, the court determined that the defendant's "base offense level" was 28, see Drug Quantity Table, Guidelines Sec. 2D1.1; that McCrary was entitled to a two-level downward adjustment for "acceptance of responsibility," Guidelines Sec. 3E1.1; and that various prior convictions placed the defendant in "Criminal History Category II." See id. Sec. 4A1.1. Utilizing the sentencing table found in Chapter 5, Part A of the Guidelines, the court then determined that the applicable "guideline range" for the imposition of a prison term was 70-87 months. The court ultimately sentenced the defendant to seventy months in prison, and this appeal followed.
McCrary argues that the district court erred in three ways: first, by refusing to grant his request for an additional downward adjustment in his base offense level under the Guidelines' provisions for mitigation of the sentences of "minimal" or "minor" participants in "concerted" criminal activity, id. Sec. 3B1.2; second, by refusing to grant his separate request for a "downward departure" from the applicable guidelines sentencing range to reflect a purported showing that the defendant acted under coercion or duress, id. Sec. 5K2.12; and third, by classifying him in Criminal History Category II, when his criminal record suggested that Category I was applicable. Having considered carefully each of these claims, we find that only the third is meritorious.
At least where it appears that the district court needed to do no more than resolve disputed questions of fact, we review its refusal to grant downward adjustments pursuant to the "Mitigating Role" provision of the Guidelines, id. Sec. 3B1.2, under the clearly erroneous standard. United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989). See also 18 U.S.C. Sec. 3742(e). 1 Here, we think the most McCrary can show is that the record admitted of more than one conclusion on the matter; and under the applicable standard of review, we therefore must reject his challenge to the district court's refusal to find him a minimal or minor participant.
At the original sentencing hearing in this case, the defendant introduced evidence tending to show that his role in the alleged drug-running scheme was not as significant as those of his co-conspirators. It appears, for example, that McCrary never had the cocaine on his person, and that he did not actually transfer the drugs to the undercover agent. As the government points out, however, there was substantial contrary evidence that McCrary still played an important part in the conspiracy. He drove almost the entire way from Tennessee to Virginia, was aware of the nature of the planned drug transaction 2 and was present at the convenience store when Slaton handed over the cocaine. We of course recognize that a downward adjustment for "minimal participation" may be appropriate "where an individual was recruited as a courier for a single ... transaction involving a small amount of drugs." Guidelines Sec. 3B1.2, Application Note 2. The evidence here suggested, however, that McCrary had participated in a number of prior deliveries. The quantity of drugs involved in the Virginia Beach transaction was, moreover, hardly insubstantial. The district court's refusal to make a downward adjustment on this basis was not error.
A different standard of review applies where the defendant challenges a district court's decision to grant or deny a requested downward departure from an otherwise applicable guidelines sentencing range. Here we review to determine whether it was "reasonable" for the district court to conclude that McCrary did not act under "coercion" or "duress," and that he therefore was not eligible for a downward departure under Guidelines Sec. 5K2.12. See 18 U.S.C. Sec. 3742(e)(3). This "reasonableness standard" is not to be applied, however, as though it represents a "fixed point within the scope-of-review spectrum." Daughtrey, 874 F.2d at 218. "[R]ather, it ... is a sliding scale, with the appropriate point depending on the particular aspect of the departure decision issue being reviewed." Id.
This means that where, as here, a departure decision is...
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