U.S. v. McLean
| Decision Date | 28 March 2002 |
| Docket Number | Docket No. 00-1342. |
| Citation | 287 F.3d 127 |
| Parties | UNITED STATES of America, Appellee, v. Clive Ulet McLEAN, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Barbara D. Cottrell, Assistant United States Attorney; Richard S. Hartunian, Assistant United States Attorney; Daniel J. French, United States Attorney, on the brief, United States Attorney's Office for the Northern District of New York, Albany, NY, for Appellee.
Patrick T. Burke, Burke, McGlinn & Miele, Suffern, NY, for Defendant-Appellant.
Before: OAKES, KEARSE, and CABRANES, Circuit Judges.
Clive Ulet McLean, Jr. appeals from the sentence imposed by the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge) pursuant to a judgment of conviction entered upon his plea of guilty to one count of conspiracy to distribute marijuana, in violation of 21 U.S.C. § 846,1 and three counts of possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1).2 Although the indictment charged that the amount of marijuana involved in the conspiracy exceeded 100 kilograms, the District Court accepted McLean's plea despite his refusal to allocute to any drug quantity. The District Court subsequently sentenced McLean principally to a 63-month concurrent sentence on each of the four counts based on its own findings that the conspiracy McLean entered into involved more than 100 kilograms of marijuana. The 63-month concurrent sentence on each count exceeds by three months the statutory maximum applicable for an offense involving an unspecified quantity of marijuana. See 21 U.S.C. § 841(b)(1)(D).3
On appeal, McLean challenges only his sentence, contending that: (1) the District Court's findings with respect to the quantity of marijuana involved in the conspiracy were clearly erroneous; (2) the District Court erred in declining to apply a two-point deduction to his Base Offense Level for acceptance of responsibility; and (3) his sentence violates the teachings of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
We find no basis to disturb the findings of the District Court with respect to either the quantity of marijuana involved or McLean's acceptance of responsibility. With respect to McLean's Apprendi claim, we hold that, in these circumstances, it was plain error to impose a sentence on each count in excess of the statutory maximum authorized for a crime involving an unspecified amount of marijuana, but that, because the United States Sentencing Guidelines require the District Court to impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment mandated by the Guidelines, the error did not affect McLean's substantial rights.
Accordingly, we affirm the judgment of the District Court.
On October 4, 1999, McLean pleaded guilty to all four counts of an indictment. The indictment charged McLean with one count of conspiring to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. § 846, and with three counts of possessing with intent to distribute and distributing marijuana in violation of 21 U.S.C. § 841(a)(1). Count 1 of the indictment specified that "[t]he amount of marijuana involved in this conspiracy exceeds 100 kilograms." The remaining counts did not specify the quantity of drugs involved.
Although McLean sought to enter a guilty plea, he continued to contest the amount of marijuana charged in Count I of the indictment. Specifically, at his allocution when the Court asked McLean how he pleaded to Counts I, II, III, and IV of his indictment, his counsel interjected:
Before the entry of Mr. McLean's plea, I note that the final sentence in Count I is as follows: Quote, the amount of marijuana involved in this conspiracy exceeds 100 kilograms. With respect to the amount of marijuana alleged, the defendant contests the allegation of the Government as to the total quantity. However, he is prepared to plead guilty to Count I with that understanding....
Tr. dated Oct. 4, 1999, at 15. In its response to the District Court's request that the prosecutor advise McLean of the relevant statutory penalties and sentencing guidelines in his case, the Government acknowledged that the issue of quantity would be resolved by the District Court:
Your Honor, had the defendant — or with the defendant's conviction on Count I of the indictment, if the Court finds that the quantity of marijuana involved in the conspiracy exceeded 100 kilograms, then in that event, the defendant would face the penalties set forth in 21 United States Code, Section 841(b)(1)(B).
Id. at 22. Thus, it is clear that neither defense counsel nor the Government (nor, apparently, the District Court) understood McLean to have pleaded guilty to a crime involving any specific threshold drug quantity,4 despite the fact that Count I of the indictment charged quantity with respect to the conspiracy. Nevertheless, the District Court — acting over eight months before Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was decided — accepted McLean's plea. The District Court's acceptance of the plea is not surprising, because, prior to Apprendi, this Court had held that, in cases involving violations of 21 U.S.C. § 841(a), "[w]hen an indictment does allege that a particular quantity is involved, the effect is only to put the defendant on notice that the enhanced penalty provisions of section 841(b) may apply." United States v. Campuzano, 905 F.2d 677, 679 (2d Cir.1990) (emphasis added), overruled by United States v. Thomas, 274 F.3d 655 (2d Cir.2001) (en banc). In other words, prior to Apprendi, even when quantity was charged in an indictment, it remained a sentencing factor to be determined by the Court after a defendant's conviction.
The Presentence Investigation Report ("PSR") prepared by the United States Probation Office and circulated on October 12, 1999, recommended that the District Court hold McLean accountable for the distribution of 147.65 kilograms of marijuana and, thus, calculate his base offense level to be 26. The amount recommended by the Probation Office included the following: 7.057 kilograms seized from McLean at the time of his arrest on November 19, 1998; an estimated 108.64 kilograms based on the testimony of co-operating witness Michael DeLuca, who claimed to have received twenty pounds of marijuana monthly from McLean from November 1996 until November 1997; and 31.96 kilograms based on the testimony of Yvel Jean-Baptiste who, after being arrested in April 1998 for receiving a delivery of 7.49 kilograms of marijuana, told authorities that he had received four such shipments from McLean.
The PSR also recommended that McLean be denied a downward sentencing adjustment for acceptance of responsibility. In his interview with a probation officer after his arrest, McLean admitted that he sold DeLuca drugs on five to seven occasions between November and December 1997; however, he denied selling DeLuca the large quantities that DeLuca claimed. McLean also denied having marijuana continuously delivered to Jean-Baptiste's house, although he conceded that he was culpable for a single delivery to that location in April 1998. The probation officer concluded that "defendant has not admitted all the conduct that comprises the offenses of conviction and has denied additional relevant conduct for which he is accountable."
In March 2000, the District Court held a pre-sentencing hearing on the issue of relevant conduct, see generally United States v. Fatico, 579 F.2d 707 (2d Cir.1978), at which Andrew Zostant, the Government's investigator, and DeLuca testified. On direct examination, DeLuca testified that his relationship with McLean lasted from the fall of 1996 though the fall of 1997; that McLean was his main source of marijuana during that time; that he usually (but not always) purchased drugs from McLean in the back of McLean's clothing store on Central Avenue in Albany, New York; that he purchased marijuana from McLean between twenty and twenty-five times; that one of his first purchases from McLean was about a half-pound of marijuana, but that, about "midway" into their relationship, he began buying about twenty pounds each month from McLean; that he was arrested in May 1998 and agreed to cooperate with the Government; that, while wearing a wiretap, he met McLean on September 4, 1998, at which time McLean gave him a sample of marijuana and told him that he had just sold a 100-pound shipment; that, on November 18, 1998, he spoke to McLean by telephone and then met him in order to buy ten pounds of marijuana; that, at the same November 18 meeting, he arranged to buy five more pounds the following day; and that on November 19, 1998, McLean was arrested. All of this, DeLuca testified on cross-examination, approximated transactions for which he had no written records. DeLuca also testified that it was "possible" that he had not been in the store on Central Avenue until 1997.
As an exhibit at the relevant conduct hearing, the Government also submitted to the District Court the grand jury testimony of Yvel Jean-Baptiste. Before the grand jury, Jean-Baptiste had testified that, beginning around November 1997, McLean used Jean-Baptiste's apartment as an address at which to receive marijuana; that he gave his keys to McLean at least four times so that McLean could use his apartment; and that on April 27, 1998, he (Jean-Baptiste) was arrested when the police found a shipment of marijuana in his apartment, after which he entered into a cooperation agreement with the Government.
At sentencing, the District Court adopted the recommendations of the PSR regarding the quantities of drugs involved in McLean's crimes, except that the Court only...
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