U.S. v. McGregor, 321

• Decision Date: 15 December 1993
• Docket Number: No. 321,D,321
• Citation: 11 F.3d 1133
• Parties: UNITED STATES of America, Appellee, v. George McGREGOR, Defendant-Appellant. ocket 93-1255.
• Court: U.S. Court of Appeals — Second Circuit

Page 1133

11 F.3d 1133

UNITED STATES of America, Appellee, v. George McGREGOR, Defendant-Appellant.

No. 321, Docket 93-1255.

United States Court of Appeals, Second Circuit.

Argued Oct. 18, 1993.

Decided Dec. 15, 1993.

John P. Tavana, Asst. U.S. Atty. for the D. of Vt. (Charles A. Caruso, U.S. Atty. for the D. of Vt.), Burlington, VT, for appellee.

Mark A. Kaplan, Burlington, VT (Jarvis & Kaplan, of counsel), for defendant-appellant.

Before: MAHONEY and WALKER, Circuit Judges, and METZNER, Senior District Judge. ^*

METZNER, Senior District Judge:

Defendant-appellant George McGregor appeals from an order entered in the United States District Court for the District of Vermont (Parker, C.J.) on July 24, 1992, denying a motion to dismiss the indictment for police misconduct. McGregor entered into a plea agreement expressly reserving the right to challenge the denial of his motion. McGregor also appeals from the sentence imposed upon him pursuant to his plea of guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(C).

On appeal, McGregor argues that the district court's findings of fact following a hearing on his motion to dismiss were clearly erroneous. He also challenges his sentence on the grounds that: (1) the quantity of drugs used to determine his base offense level was not established by a preponderance of the evidence; (2) the district court did not grant a downward departure due to extraordinary family circumstances; and (3) the two-level enhancement for an aggravated role in the offense was improper. We find that the district court properly denied McGregor's motion to dismiss, that the quantity of drugs used in determining the base offense level was established by a preponderance of the evidence, and that district court's decision not to grant a downward departure is not appealable. We also conclude that no enhancement for an aggravated role in the offense should have been assessed. Accordingly, we affirm McGregor's conviction, vacate the sentence, and remand for resentencing.

A. The Motion to Dismiss

On December 27, 1990, a confidential informant ("CI") who was working with the Drug Enforcement Administration negotiated with Ellen McGregor, wife of defendant-appellant George McGregor, to purchase cocaine. Ellen McGregor told the CI that her husband had a supply of cocaine in the house and that she would remove part of it and sell it to the CI. It appears that this type of activity by Mrs. McGregor had been going on for some time without her husband's knowledge. Later that day the CI went to the McGregor residence in Essex Center, Vermont to make the purchase. When the CI arrived, Ellen McGregor told him she would not be able to sell the cocaine because there was no cutting agent available to replace the cocaine that she intended to take from her husband's supply. The CI told Ellen McGregor that he would return later with some cutting agent and make the purchase. Prior to his departure, Ellen McGregor gave the CI 0.22 grams of cocaine as a sample.

The CI returned to the McGregor residence on January 10, 1991. There, Ellen McGregor skimmed one-half ounce of cocaine (14.6 grams) from a package which George McGregor had given her for delivery to another customer. The CI paid Ellen McGregor $350.00 for the cocaine and agreed to return later to give her an additional $150.00. Subsequently on that day, Ellen McGregor delivered a package of cocaine to each of two customers of Mr. McGregor who came to the McGregor home for their purchases.

On the following day the Vermont Drug Task Force agents obtained a search warrant for the McGregor residence. At the residence, the agents found George and Ellen McGregor and their two children. During the search, the agents seized a quantity of marijuana; marijuana paraphernalia; over two ounces of inositol, a cutting agent commonly used by cocaine traffickers; two small scales; cocaine paraphernalia; and $2,100.00 in currency.

Though neither George nor Ellen McGregor were arrested at the time of the search, both remained at the residence, and both made incriminating admissions to the agents.

On January 23, 1992, defendant-appellant was indicted on one count of possession with intent to distribute cocaine and one count of conspiracy to distribute cocaine. Both counts related to the delivery by Ellen McGregor of two separate packages of cocaine at the instruction of her husband on January 10, 1991. The defendant's wife was charged in the same indictment with two counts of distributing cocaine, one count referring to December 27, 1990, and the second to January 10, 1991, and one count of conspiracy to distribute cocaine.

George and Ellen McGregor jointly filed a motion to suppress the statements they made at the time their residence was searched and a motion to dismiss the indictment on the grounds of police misconduct. In their motion, the McGregors alleged that: (1) they "were subjected to a warrantless arrest inside their home;" (2) they were "held incommunicado for a period of time until they gave statements to the police;" (3) they were told that "they would be sent to jail if they spoke to counsel;" (4) "they had no choice but to give statements;" and (5) "they were informed that if they gave police information about drug-trafficking activities, they would not get into trouble."

On April 28 and April 30, 1992, the district court held hearings on the motion to suppress and the motion to dismiss. The denial of the motion to suppress is not attacked on this appeal. Four law enforcement agents testified for the government, and three witnesses testified for the McGregors: Ellen McGregor, Nancy McGregor (George McGregor's mother), and Sadie Dodge, a friend of Ellen McGregor's daughter. Summing up this testimony, we find that the government agents denied wrongdoing while the testimony offered by the defendants supported their allegations.

After the hearing, and the submission by both sides of proposed findings of fact with supporting memoranda, the district court issued its findings on July 24, 1992. The court expressly rejected the relevant factual allegations made by the McGregors in support of their motions to dismiss, stating, "[t]his court heard no credible evidence indicating that the agents treated the McGregors improperly during their presence in their residence."

McGregor argues that the district court should have credited the testimony offered by the witnesses that he called at the hearing, and points to testimony in the record which contradicts the testimony of Agent Cole, which was relied on by the district court.

We may not overrule the district court's factual findings unless they are clearly erroneous. See Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). The trial court is in a unique position to evaluate the credibility of witnesses, United States v. Davis, 967 F.2d 84, 86 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 356, 121 L.Ed.2d 270 (1992), and "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." United States v. $10,000 in U.S. Currency, 780 F.2d 213, 220 (2d Cir.1986) (citing United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949)).

The district court's determination that the agents conducted themselves properly during their presence in the McGregor residence was not clearly erroneous. The testimony of Agent Cole and the other agents amply supports the district court's finding.

B. The Sentence

On August 17, 1992, McGregor entered a plea of guilty to Count III of the Indictment, possession of cocaine with intent to distribute, pursuant to a plea agreement.

The final Presentence Investigation Report ("PSI") was prepared on December 10, 1992. The PSI recommended a base offense level of 32, reflecting offense conduct and relevant conduct involving five to fifteen kilograms of cocaine. The 12.54 kilograms of cocaine attributed to McGregor was derived from calculations based on admissions by the defendant and an interview by the probation officer of McGregor's supplier, David Viens. From those sources, the PSI determined that McGregor had been selling four ounces of cocaine per week over a period of seventy- eight weeks, and that the defendant had made at least four trips to Florida for David Viens, returning with at least one kilogram per trip.

The PSI also noted that there was information from another area drug dealer, Lawrence Cruz, that he was receiving one-half pound quantities of cocaine from McGregor during 1990. Since at the time it was not possible to quantify accurately the amounts involved, this information was not specifically included in the relevant conduct determination, but rather was referenced to support generally the five to fifteen kilogram range.

The PSI also recommended a two level downward adjustment of the base offense level for acceptance of responsibility, and a two level increase for an aggravated role in the offense, because the defendant had used his wife to deliver two packages of cocaine to his customers on January 10, 1991. The final recommendation was a total offense level of 32, and a criminal history category I, with a resulting guideline range of imprisonment of 121 to 151 months.

McGregor objected to a number of the recommendations of the PSI. First, he disagreed with the five to fifteen kilogram drug quantity range, and argued that he should be placed in the three and a half to five kilogram range. Second, he objected to the inclusion of statements made by Lawrence Cruz. Third, he contended that the aggravated role recommendation was improper because he never informed his wife that the packages that he asked her to deliver in exchange for money contained cocaine. Finally, McGregor raised with the probation officer various grounds for downward departure, including extraordinary family...