U.S. v. McDowell
| Decision Date | 13 April 1990 |
| Docket Number | No. 89-3345,89-3345 |
| Citation | 902 F.2d 451 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kevin P. McDOWELL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gregory G. Lockhart, Office of the U.S. Atty., Dayton, Ohio, for plaintiff-appellee.
Gary W. Deeds (argued), Columbus, Ohio, for defendant-appellant.
Before JONES and GUY, Circuit Judges, and ENGEL, Senior Circuit Judge.
Defendant, Kevin P. McDowell, appeals from the sentence imposed by the district court after conviction for cocaine-related offenses. McDowell was sentenced after the district court accepted a plea bargain in which he agreed to plead guilty to conspiracy charges in return for the dismissal of the substantive offenses. The district court made an upward departure from the Federal Sentencing Guidelines and offered the following reasons for so doing: (1) the impact of the plea agreement was to reduce by half the potential guidelines sentence because it failed to account for the fact that the defendant was operating a crack house within 1,000 feet of two schools; and (2) at the time the guidelines were adopted, the Sentencing Guidelines Commission could not have taken into consideration the extreme threat to society that has developed due to the use and sale of cocaine base, or "crack."
Upon review, we conclude that the court acted reasonably in considering the fact that the defendant operated a crack house within 1,000 feet of two schools, but that this fact properly should have been taken into consideration as "relevant conduct" in the calculation of the base offense level rather than in making an upward departure. The second factor, by contrast, is not a proper justification for an upward departure from the guidelines. Because the extent to which the district judge considered each factor in calculating the sentence is unclear from the record, we remand, instructing the judge to resentence the defendant, considering the first factor when calculating the proper offense level and without considering the second factor at all.
On November 3, 1988, the federal grand jury at Columbus, Ohio, returned a three-count indictment against the defendant and his mother, Annie Chavis McDowell. The indictment charged the defendant in Count I with conspiracy to maintain a place for the distribution of cocaine and crack, in violation of 21 U.S.C. Sec. 846. 1 Count II of the indictment charged the defendant with the unlawful possession with intent to distribute crack and approximately 84 grams of cocaine within 1,000 feet of two schools, in violation of 21 U.S.C. Sec. 841(a)(1), 2 21 U.S.C. Sec. 845a(a), 3 and 18 U.S.C. Sec. 2. 4 Count III related to Annie Chavis McDowell only and is not at issue in this appeal.
Pursuant to a plea bargain, McDowell pled guilty to Count I and the court, at the request of the government, ultimately dismissed Count II.
A presentence report was prepared by the United States Probation Department, and a determination was made that the appropriate sentencing level for McDowell would be level 20 with a criminal history of III, which would call for a sentence of 41 to 51 months. In assessing the impact of the plea agreement, the probation department determined that, had the defendant been convicted of both counts, the appropriate offense level would have been 26, which would have increased the sentencing range to between 78 and 97 months.
At the sentencing hearing, but before announcing its sentence, the district court informed the defendant that the court was considering an upward departure as recommended by the probation department. After considering the argument of the defendant's counsel, and for the reasons set forth below, the court imposed a sentence of 96 months incarceration followed by a period of 60 months supervised release.
In support of its decision to depart from the guidelines, the court made the following statement:
The Court concludes in this case that this is an appropriate case for an upward departure from the sentence recommended by the guidelines or the sentence provided for by the guidelines, and the Court would incorporate the comments that it made in the case of the co-defendant Annie Chavis McDowell with regard to, first, the fact that this offense involved maintaining a crack house and selling crack cocaine within 1,000 feet of two schools, and that the impact of the plea agreement was to, in effect, basically reduce by half the potential guideline sentence, but that doesn't change the fact that the plea is--the plea of guilty to maintaining a crack house and engaging in a conspiracy to maintain a crack house and engaging in a conspiracy to distribute cocaine within one thousand feet of two public schools.
The Court reiterates its comments concerning the threat to public safety, the threat to the community, the fact that the guideline sentence as formulated for crack cocaine under these circumstances undoubtedly did not and could not at that time have taken into consideration the extreme threat to society which has developed through the use and sale of this particular drug.
The first factor that the judge considered in making his upward departure was the fact that the defendant operated his crack house within 1,000 feet of two schools. The judge stated his rationale for so doing in comments made during the sentencing of the defendant's mother and which he incorporated at the defendant's sentencing hearing:
The Court agrees with the suggestion of the probation officer that this case represents a case in which the Court should depart upward from the guideline sentence. The main justification for reaching that conclusion is the one advanced by the probation officer, namely the fact that by virtue of the plea agreement, this defendant had been permitted to plead guilty to a conspiracy charge, a charge contained in count 1 of the indictment, and the government has agreed to drop the second charge which is based on the proximity of this crack house to a public school, actually two public schools. This crack operation was being carried on within one thousand feet of two public schools. Had that particular offense been pursued, there's no question about the fact that this defendant would have been liable for a substantially higher sentence.
Although the court was correct in taking this conduct into account, it erred in two respects. The primary error was that it considered the location of the crack house as a justification for an upward departure when it should have considered this conduct in calculating the defendant's base offense level. The guidelines are clear that conduct other than that for which the defendant has been convicted may be considered by the court in determining the appropriate sentencing range. Section 1B1.3 of the guidelines provides that, in determining the applicable guideline range for an offense, "relevant conduct" includes "all acts and omissions committed or aided and abetted by the defendant ... that occurred during the commission of the offense of conviction...." Guidelines Sec. 1B1.3(a)(1). This section does not address the proper grounds for departure from the guidelines.
In the recent case of United States v. Sammy Lee Smith, 887 F.2d 104 (6th Cir.1989), this court held that it is proper to consider quantities of drugs charged in dismissed counts when determining the sentencing range. The court in Smith explained that "[i]n its sentencing determination, the district court should have considered all conduct that was part of the same course of conduct or a common scheme or plan as the offense of conviction...." Id. at 108. This reasoning likewise applies in the instant case. The operation of this crack house close to two schools clearly is "conduct that was part of the same course of conduct" as the conspiracy. As such, the conduct should be considered when calculating the base offense level.
The circumstances of the instant case are somewhat different from the Smith case; thus, an expanded discussion is called for. In Smith, considering the conduct charged in the dismissed counts merely amounted to an increase in the quantity of cocaine used to calculate the applicable sentencing range. In the instant case, consideration of the dismissed count would require the court to consider the substantive offense that was the object of the conspiracy. The sentence imposed for the conspiracy charge, by definition, already considers the substantive offense that is the object of the conspiracy. Section 2D1.4 of the guidelines provides: "If a defendant is convicted of participating in an incomplete conspiracy ... to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy ... had been completed." However, the sentencing range made applicable does not automatically factor in the circumstance that this particular conspiracy was carried on within 1,000 feet of two public schools. Although there is no proof in this case that the defendant sold crack to school children, the location of his crack house increased the availability of this deadly drug to children. That the defendant ran a crack house and that he did so in close proximity to school buildings is certainly "relevant conduct" within the meaning of section 1B1.3 of the guidelines.
Consideration of the location of the crack house in this case implicates section 2D1.3 of the guidelines, which provides that the base offense level is to be calculated "corresponding to double the drug amount involved ... for distributing or manufacturing a controlled substance ... within 1000 feet of a schoolyard." That is, the consequence in this case of considering the location of the crack house is to double the quantity of drugs considered in calculating the base offense level.
The court's second error was more one of verbiage than of substance. By stating that "the impact of...
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