U.S. v. McGee
| Decision Date | 26 October 1993 |
| Docket Number | No. 92-6348,92-6348 |
| Citation | 7 F.3d 1496 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Charles W. McGEE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Submitted on the briefs. *
Joe Heaton, U.S. Atty., Kim Taylor, Asst. U.S. Atty., Oklahoma City, OK, for plaintiff-appellee.
Albert J. Hoch, Jr., Oklahoma City, OK, for defendant-appellant.
Before BRORBY, BARRETT, and KELLY, Circuit Judges.
Mr. McGee entered a plea of guilty to the crime of possession of eight ounces of cocaine base (crack) with the intent to distribute and was sentenced to 360 months. He appeals his sentence asserting the Sentencing Guidelines preclude a sentencing court from examining a defendant's relevant conduct. We disagree and affirm.
The facts supporting the offense of conviction are undisputed. Mr. McGee was the primary cocaine seller for Juan Carlos Gonzales. Mr. McGee would pick up three to four ounces of crack from Mr. Gonzales, sell it, and then pay Mr. Gonzales $700 for each ounce of cocaine sold. Mr. McGee admitted to doing this on three separate occasions in October 1991. He admitted to distributing a total of eight ounces of crack during these transactions.
The facts supporting the relevant conduct are also undisputed. Mr. McGee had been selling crack for Mr. Gonzales for about eighteen months; during September-October 1991, Mr. Gonzales purchased seven and one-half kilograms of cocaine powder in two separate transactions from the Angulo-Lopez cocaine distribution ring 1; Mr. McGee was present and helped convert the cocaine powder into crack; Mr. McGee then distributed a "good part" of the seven and one-half kilograms purchased and cooked into crack, and had made at least twenty to twenty-five purchase transactions with Mr. Gonzales. The eight ounces of crack purchased from Mr. Gonzales and which formed the basis of Mr. McGee's guilty plea were part of the seven and one-half kilograms obtained by Mr. Gonzales from the Angulo-Lopez organization.
Mr. McGee was originally charged with a conspiracy to distribute cocaine base and with manufacturing cocaine base. A written plea agreement was then entered into by and between the Government and Mr. McGee. The essence of this agreement was that Mr. McGee would plead guilty to a new charge of possession of eight ounces of crack with the intent to distribute and the original charges would be dismissed. This agreement contained no factual stipulations.
Mr. McGee then entered his guilty plea as agreed and a presentence report was prepared. The presentence report, utilizing the facts supporting the relevant conduct, i.e., seven and one-half kilograms of crack, calculated Mr. McGee's base offense level to be 40. 2 Mr. McGee objected to the presentence report and a sentencing hearing was held. The sentencing court applied the relevant conduct in calculating the base offense level and sentenced Mr. McGee to the minimum sentence contained in the Guideline range--360 months.
Mr. McGee appeals asserting a single issue. He asserts that it was error for the sentencing court to consider and apply the relevant conduct in accordance with U.S.S.G. § 1B1.3 as U.S.S.G. § 1B1.2 permits the sentencing court to look only to the offense of conviction.
We review the sentencing court's findings on the quantity of drugs relevant to computing the base offense level, which is a factual finding, under a clearly erroneous standard. United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir.), cert. denied, 498 U.S. 829 (1990). When that application of the Sentencing Guidelines "involves contested issues of law, we review de novo." Id.
U.S.S.G. § 1B1.2 contains the basic rules for determining which Guidelines are applicable under chapter two to determine the offense conduct. U.S.S.G. § 1B1.2, comment. (n. 1). Section 1B1.2 directs the sentencing court to apply the offense guideline in chapter two which is "most applicable to the offense of conviction." This section also contains an exception to the rule, in the case of a plea agreement "containing a stipulation that specifically establishes a more serious offense than the offense of conviction." In that circumstance, the more serious offense so stipulated is used to determine the offense conduct under chapter two. It is this exception which forms the foundation for Mr. McGee's argument.
Mr. McGee points out the exception requires a plea agreement containing a stipulation establishing a more serious offense. Although he did consent to a plea agreement, it did not stipulate to a more serious offense. Therefore he argues, the sentencing judge could not use the relevant conduct as a reason for enhancing his sentence, because it was not part of a factual stipulation.
We commence our analysis by examining the pertinent language of U.S.S.G. § 1B1.2, which states:
(a) Determine the offense guideline section in Chapter Two ... most applicable to the offense of conviction.... Provided ... in the case of a plea agreement ... containing a stipulation that specifically establishes a more serious offense than the offense of conviction, determine the offense guideline section in Chapter Two most applicable to the stipulated offense.
This section directs a sentencing court to utilize the offense guideline section most applicable to the offense of conviction. In the case before us, Mr. McGee entered a plea of guilty to possession of drugs with intent to distribute. Consequently, the sentencing court referenced chapter two and applied § 2D1.1 which specifically deals with drug trafficking including possession with intent to distribute.
The exception contained in § 1B1.2 is clearly not applicable to the facts before us. The fact of a plea agreement, by itself, does not mean that the "limited" exception of § 1B1.2 applies. It comes into play only if a case involves a stipulation the sentencing judge or the Government argues "specifically establishes" a more serious offense. The plea agreement in this case contained no stipulation specifically establishing a more serious crime than the crime of conviction.
The relevant conduct guideline is found at U.S.S.G. § 1B1.3 and sets forth various relevant conduct factors that determine the Guideline range. Section 1B1.3(a)(2) defines relevant conduct as all acts and omissions "that were part of the same course of conduct or common scheme or plan as the offense of conviction." The relevant conduct guideline directs that relevant conduct is pertinent to determining the base offense level and the specific offense characteristics. U.S.S.G. § 1B1.3(a)(ii).
We see no conflict between the relevant conduct guideline contained in U.S.S.G. § 1B1.3(a)(2), and the guideline found in U.S.S.G. § 1B1.2(a) explaining what to do if there is a plea agreement stipulating to a more serious offense than conviction. The one directs that the entire picture of the defendant's conduct be considered when determining the base offense. The other directs that the entire picture must include any stipulation contained in the plea agreement, if it shows a more serious offense than the offense of conviction.
The fact the plea bargain agreement called for the dismissal of the more serious counts, basically charging a conspiracy to distribute much more crack, does not render the relevant conduct guideline inoperative. The use of dismissed counts to determine the offense level is proper. We are not alone in so holding. See United States v. Fine, 975 F.2d 596, 600 (9th Cir.1992); United States v. Frierson, 945 F.2d 650, 654 (3d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1515, 117 L.Ed.2d 651 (1992); United States v. Quintero, 937 F.2d 95, 97 (2d Cir.1991); United States v. Rodriguez-Nuez, 919 F.2d 461, 464 (7th Cir.1990); United States v. Scroggins, 880 F.2d 1204, 1214 (11th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990); United States v. Williams, 880 F.2d 804, 806 (4th Cir.1989); United States v. Wright, 873 F.2d 437, 440 (1st Cir.1989).
Under U.S.S.G. § 1B1.3, the sentencing court is not restricted to using only the quantity of drugs associated with the offense to which a defendant pleads guilty. The commentary to U.S.S.G. § 1B1.3 specifically states the sentencing court, in a drug distribution case, must include quantities and types of drugs not specified in the offense of conviction "if they were part of a common scheme or plan as...
To continue reading
Request your trial
-
U.S. v. Electrodyne Systems Corp.
...Guideline. See 1B1.2(a); Braxton v. United States, 500 U.S. 344, 346-47, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991); United States v. McGee, 7 F.3d 1496, 1498 (10th Cir.1993); see also United States v. Saldana, 12 F.3d 160, 162 (9th Cir.1993) (interpreting Section 1B1.2 as requiring a sentencin......
-
Standing Akimbo, Inc. v. United States
... ... I ... The ... facts of this case are well known to both us and the parties ... Accordingly, we only summarize those facts essential to our ... disposition. Standing Akimbo, Inc. [ 1 ] is a ... ...
-
US v. Gay
...sentencing court may consider drug quantities from dismissed counts as relevant conduct, under 1B1.3(a)(1)(B). See United States v. McGee, 7 F.3d 1496, 1499 (10th Cir. 1993). On appeal, Mr. Gay does not contest the probation officer's calculation of his total amount of cocaine 7. The Drug Q......
-
U.S. v. Bara
...under the Sentencing Guidelines is normally for clear error; however, contested issues of law are reviewed de novo. United States v. McGee, 7 F.3d 1496, 1498 (10th Cir.1993). The law supports the government's position. The district court was required to include the one-and-a-half kilogram a......