U.S. v. McEntire
| Decision Date | 11 August 1998 |
| Docket Number | 96-3470,Nos. 96-3973,s. 96-3973 |
| Citation | 153 F.3d 424 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Randy L. McENTIRE and Mark R. Wilkins, SR., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Randy G. Massey (argued), Office of U.S. Atty., Criminal Div., Fairview Heights, IL, for U.S.
James F. Haffner (argued), Sexton & Haffner, St. Louis, MO, for Randy L. McEntire.
John J. O'Gara, Jr., Belleville, IL, James F. Haffner (argued), Sexton & Haffner, St. Louis, MO, Mark R. Wilkins.
Before HARLINGTON WOOD, JR., COFFEY, and FLAUM, Circuit Judges.
Defendants Randy L. McEntire and Mark R. Wilkins, Sr., appeal the sentence each received after pleading guilty to one count for conspiracy to distribute methamphetamine. Both challenge the type and the quantity of methamphetamine used by the district court judge in calculating the base offense levels under the Sentencing Guidelines. Because of the nature of the issues involved, a more detailed factual and legal review is required.
On January 20, 1995, Defendants Randy L. McEntire ("McEntire") and Mark R. Wilkins, Sr. ("Wilkins"), along with twelve other defendants, were charged in a three-count 1 indictment returned by a grand jury sitting in the Southern District of Illinois. Count I charged the defendants with conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and § 846. Count III was a forfeiture allegation pursuant to 21 U.S.C. § 853(p). On November 20, 1995, a superseding indictment was returned. The charges remained the same but four more defendants were added under Counts I and III.
Both defendants pleaded guilty to Count I, admitting that from June 1992 to January 1995, eighteen defendants, including McEntire and Wilkins, were members of a conspiracy to distribute large quantities of methamphetamine. Both McEntire and Wilkins also admitted to the forfeiture allegations. 2 McEntire and Wilkins entered separate Stipulations of Facts and Plea Agreements.
McEntire stipulated that, on occasion, he not only accompanied Don Skaggs ("Skaggs"), the primary distributor, to California and Nevada to acquire methamphetamine but that he, McEntire, was a distributor of the methamphetamine in Missouri. In McEntire's plea agreement, the government stated that it believed McEntire's relevant offense conduct involved in excess of 30 kilograms of a mixture or substance containing methamphetamine, 3 resulting in an initial Guideline offense level of 38. McEntire contested the amount assumption in his plea agreement, the presentence report, and the sentencing hearing. He stated in his objections to the presentence report that the amount of methamphetamine he received was between 40 to 50 pounds, placing his relevant conduct in excess of 10 kilograms but less than 30 kilograms, resulting in a base offense level of 36. McEntire agreed with the government that, having accumulated nine points from previous convictions, his Criminal History Category under the Sentencing Guidelines was IV, which was later amended to level V when additional convictions were discovered. 4 His agreement also stated that the government would recommend that McEntire receive a recommendation for a reduction of three levels due to his recognition and acceptance of personal responsibility for his conduct in the conspiracy. The government also agreed to recommend a sentence to the low end of the range ultimately determined by the court.
Wilkins stipulated to the fact that he acted as a courier and stash house operator. Detailing five separate drug transactions, the government calculated that from October or November of 1992 through June of 1994, Wilkins, as part of the conspiracy, was directly involved in handling between 22+ to 24 pounds of a mixture or substance containing methamphetamine, which would result in a base offense level of 36. Wilkins did not contest this assumption in his plea agreement but did object to that amount in the presentence report. The government stated in the agreement that Wilkins had acquired two criminal history points from previous convictions and that his Criminal History Category under the Sentencing Guidelines was II. The government also agreed that Wilkins receive a recommendation for a reduction of three levels due to his recognition and acceptance of personal responsibility for his conduct in the conspiracy and recommended a sentence to the low end of the range ultimately determined by the court.
Both McEntire and Wilkins' plea agreements were non-cooperating agreements which specifically stated that there was no agreement as to what the sentence would be nor as to what quantity of methamphetamine constituting each defendant's relevant conduct would be. McEntire's formal plea of guilty was entered on June 7, 1996. Wilkins' formal plea was entered on June 28, 1996. Both were sentenced under the United States Sentencing Commission Guidelines ("U.S.S.G.") (Nov. 1, 1994), due to the fact that all of the offenses occurred prior to February 1995.
Formal sentencing hearings for McEntire were held on September 6, September 25, and September 27, 1996. One of the co-defendants who testified was Don Skaggs. Skaggs and his wife, Sherie, seemed to be the central figures of the conspiracy. Skaggs testified at another co-defendant's trial that he, Skaggs, was the "kingpin" of the conspiracy. Skaggs stated that various co-defendants served as couriers, transporting the methamphetamine from California to the Skaggses' residence in Granite City, Illinois. The Skaggses also traveled to Nevada and California to obtain methamphetamine and then returned to distribute the drugs to other coconspirators in the Granite City area and in Missouri. Skaggs estimated at the hearing that he personally had received between 130 to 180 pounds of methamphetamine.
Skaggs originally gave a proffer on August 21, 1995, stating that he personally had received 150 pounds of methamphetamine and that he had supplied McEntire with 50 pounds. He then testified at a codefendant's trial that he provided McEntire with between 80 to 100 pounds of a mixture or substance containing methamphetamine for redistribution. Skaggs next signed an affidavit which stated that "I have no real knowledge or accurate estimate as to the amount of methamphetamine I supplied to Randy McEntire." The affidavit was presented into evidence at the sentencing hearings. According to Skaggs' testimony at the sentencing hearing, for a period after the co-defendant's trial, Skaggs and McEntire were bunkmates in the same county jail. Skaggs stated that McEntire discussed with him the fact that Skaggs had testified the poundage sold to McEntire was 80 to 100 pounds, and McEntire had said that he only bought about 40 pounds from Skaggs. Skaggs stated that McEntire asked him to write a statement that the 80-to-100-pound estimate was incorrect. Skaggs then testified at the hearing that, if anything, his earlier testimony that he sold McEntire 80 to 100 pounds of methamphetamine was conservative or low.
Skaggs testified to a specific occasion when he and McEntire traveled to Las Vegas to obtain four pounds of methamphetamine. Skaggs also stated that on two specific occasions he received $30,000 from McEntire as payment for two pounds of methamphetamine and on "many" occasions, Skaggs said he received $10,000 to $20,000 from McEntire. Skaggs testified that he started selling to McEntire from May 11, 1992, when McEntire was released from prison, and that he did a series of deals with McEntire that summer, each approximately two weeks apart, but sometimes twice a week. On cross-examination, the defense enumerated seven deals with McEntire between McEntire's release date and July 4th.
Skaggs also testified that he, personally, used "a lot" of methamphetamine, in addition to using other drugs, and that it sometimes affected his memory. He also stated that he had previously lied to the authorities in order to benefit himself.
Bradley Leger, another co-defendant, testified at McEntire's sentencing hearing that after Skaggs and McEntire's regular supplier was incarcerated, he became their supplier from June or July 1994 to December 1994. He stated that on nine different occasions he personally supplied methamphetamine to McEntire. The first transaction was in 1994 when Leger delivered a three-pound package to one of McEntire's couriers who had come to California. The courier was apprehended and the contents were tested. The second exchange was when McEntire told Leger to mail a two-pound package of methamphetamine to be received by a third party for McEntire. This package was intercepted by the government and its contents analyzed. The third and fourth occasions were two trips McEntire made to California with a girlfriend to obtain a one-pound package on each trip. The fifth and sixth transactions occurred when Leger sold a two-pound package on two different occasions to one of McEntire's couriers. The seventh exchange occurred when Leger delivered a two-pound package to McEntire in Missouri. The eighth was another two-pound package delivered directly to McEntire in Missouri. The total amount of methamphetamine Leger directly accredited to McEntire was fifteen pounds.
Special Agent Kevin Martens ("Martens") of the Criminal Investigation Division of the Internal Revenue Service also testified at McEntire's sentencing hearings. He confirmed that two packages of methamphetamine, one from McEntire's courier in California and one which had been sent through the mail to one of McEntire's co-conspirators, had both been intercepted and analyzed. Those laboratory reports were entered as exhibits at the hearing. Agent Martens testified that the first report, Exhibit No. 1, was for 1,283.6 grams 5 seized from McEntire's courier at the airport in California. This mixture tested positive...
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