U.S. v. McWaine, 01-60356.

• Decision Date: 24 April 2002
• Docket Number: No. 01-60356.,01-60356.
• Citation: 290 F.3d 269
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Derwin Renwick McWAINE, also known as Skibow, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

290 F.3d 269

UNITED STATES of America, Plaintiff-Appellee, v. Derwin Renwick McWAINE, also known as Skibow, Defendant-Appellant.

No. 01-60356.

United States Court of Appeals, Fifth Circuit.

April 24, 2002.

John R. Hailman, Asst. U.S. Atty. (argued), Jim Ming Greenlee, Asst. U.S. Atty., Robert Henry Norman, Asst. U.S. Atty., Oxford, MS, for Plaintiff-Appellee.

Christopher Raymond Green (argued), University of Notre Dame, Dept. of Philosophy, Notre Dame, IN, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Mississippi.

Before EMILIO M. GARZA, BENAVIDES and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Derwin Renwick McWaine ("McWaine") challenges the sentence imposed upon him for various drug trafficking, firearms, and money laundering offenses. We hereby AFFIRM McWaine's sentence with a MODIFIED term of supervised release.

FACTUAL AND PROCEDURAL HISTORY

McWaine was convicted after a jury trial of Counts 1-4, 7-12, and 14-15 of a 15-count indictment for violating federal drug, gun, and money laundering statutes. The district court sentenced McWaine to life imprisonment on Count 1, which charged conspiracy to distribute cocaine base; 60 months on Count 2, which charged possession with intent to distribute marijuana; 120 months on Count 3, which charged possession of a gun as a felon; 60 months on Count 4, which charged possession of a gun with an obliterated serial number; and 240 months each on Counts 7-12 and 14-15, which charged money laundering. All sentences were ordered to run concurrently.

This Court affirmed McWaine's conviction based upon "overwhelming evidence" but vacated his sentence and remanded his case to the district court for re-sentencing in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). United States v. McWaine, 243 F.3d 871, 874, 875-76 (5th Cir.2001). Specifically, this Court concluded that McWaine's life imprisonment term violated Apprendi because the quantity of drugs with respect to Count 1 had not been alleged in the indictment or proven to the jury beyond a reasonable doubt, and thus, McWaine could not be sentenced on Count 1 to more than the twenty year statutory maximum provided by 21 U.S.C. § 841(b)(1)(C) (2001). Id. at 875.

The Presentence Investigation Report ("PSR"), unchanged on remand, made the following recommendations. With respect to Counts 1 and 2 (the drug-related counts), the PSR found that based upon all of the evidence and the testimony at trial, McWaine was responsible for distributing approximately 100 kilograms of crack cocaine and for possessing approximately seven pounds of marijuana. The PSR recommended grouping Counts 1 and 2 pursuant to § 3D1.2(d). See U.S. SENTENCING GUIDELINES MANUAL § 3D1.2(d) (1997) ("Sentencing Guidelines" or "U.S.S.G."). Based upon the aforementioned drug quantities, the PSR calculated the base offense level for these counts under U.S.S.G. §§ 2D1.1(a)(3) and (c)(1) as 38. Added to this offense level were two points for possession of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1), four points for having a leadership role in criminal activity that involved five or more participants under U.S.S.G. § 3B1.1(a), and two points for obstruction of justice under U.S.S.G. § 3C1.1. The adjusted offense level was therefore 46.

Counts 3 and 4 (the gun-related counts) were grouped together under U.S.S.G. § 3D1.2(d), and the base offense level was calculated at 20 under U.S.S.G. § 2K2.1(a)(4) because McWaine had one prior felony conviction of a crime of violence. Added to the offense level was one point under U.S.S.G. § 2K2.1(b)(1)(A) because the offense involved three or more firearms, two points under § 2K2.1(b)(4) because the serial number on one of the firearms had been obliterated, and four points under § 2K2.1(b)(5) because a firearm had been possessed in connection with another felony offense. The adjusted base offense level for Counts 3 and 4 was therefore 27. However, U.S.S.G. § 2K2.1(c)(1)(A) directs the application of § 2X1.1 (Attempt, Solicitation, or Conspiracy), which defines its base offense level as the base offense level from the guideline for the substantive offense, plus adjustments for any intended offense conduct that can be established with reasonable certainty. The PSR thus looked to the base offense level plus adjustments for Counts 1 and 2, which was 40 (38 plus two points for a specific offense characteristic). Because the offense level plus adjustments of Counts 1 and 2 equaled 40, which was more than the adjusted base offense level of 27 for Counts 3 and 4, the PSR applied 40 as the adjusted base offense level for Counts 3 and 4. The PSR then added four points for having a leadership role under U.S.S.G. § 3B1.1(a) and two points for obstruction of justice under § 3C1.1. The adjusted offense level was therefore 46.

Counts 7-12 and 14-15 (the money laundering counts) were grouped together pursuant to U.S.S.G. § 3D1.2(d), and the base offense level was calculated at 23 under § 2S1.1(a)(1) (the guideline for an 18 U.S.C. § 1956(a)(1)(A)(i) (2000) offense (laundering of monetary instruments)). The PSR added three points under U.S.S.G. § 2S1.1(b)(1) because McWaine knew the funds were the proceeds from an unlawful activity, four points under § 3B1.1(a) for having a leadership role in the criminal activity, and two points under § 3C1.1 for obstruction of justice. The adjusted offense level was therefore 32.

The PSR recommended grouping Counts 1 and 2 with Counts 3 and 4 because pursuant to the cross-reference provision of U.S.S.G. § 2K2.1(c)(1)(A), the adjusted base offense level for Counts 3 and 4 was determined under § 2D1.1. The PSR therefore concluded that Counts 1-4 involved the same victim and the same act or transaction as required in U.S.S.G. § 3D1.2(a). The PSR then recommended grouping Counts 1-4 with Counts 7-12 and 14-15 because the societal interests underlying the drug distribution and the money laundering involved the same victim as required in U.S.S.G. § 3D1.2(b). As all counts were grouped under U.S.S.G. § 3D1.2(a)-(c), § 3D1.3(a) provided that the combined adjusted offense level be determined by the most serious of the counts comprising the group, i.e., the highest level of the counts in the group. The PSR thus recommended using the adjusted offense level of 46 for Counts 1-2 and/or Counts 3-4 for the combined adjusted offense level. The total offense level was also determined to be 46. McWaine received thirteen criminal history points, which placed him in a criminal history category of VI. The range suggested by the guidelines was life imprisonment. See U.S.S.G. Ch. 5, Pt. A (sentencing table).

The district court, after considering the sentencing memoranda filed by the parties, sentenced McWaine to twenty years on Count 1, the statutory maximum provided by § 841(b)(1)(C), and five years on Count 2, the statutory maximum provided by § 841(b)(1)(D). Counts 1 and 2 were ordered to run concurrently. McWaine was sentenced to ten years on Count 3, the statutory maximum provided by 18 U.S.C. § 924(a)(2) (2000), and a concurrent five years on Count 4, the statutory maximum provided by § 924(a)(1)(B). McWaine was sentenced to twenty years on each of Counts 7-12 and 14-15, the statutory maximum provided by 18 U.S.C. § 1956(a)(1)(A)(I), with all counts to run concurrently. The sentences of twenty, ten, and twenty years' imprisonment were ordered to run consecutively for a total of fifty years of imprisonment. Consecutive sentencing was ordered because pursuant to U.S.S.G. § 5G1.2 (sentencing on multiple counts of conviction), if the sentence carrying the highest statutory maximum (here, twenty years) is less than the total punishment (here, life imprisonment as suggested by the guidelines), then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. McWaine was also sentenced to a concurrent term of five years' supervised release and ordered to pay a $900 assessment.

The district court concluded that Apprendi did not apply to the guideline computation and overruled McWaine's objections to the PSR's finding of the quantity of drugs for purposes of the guidelines computation and his objections to the PSR's calculations related to the gun counts. McWaine appealed.

DISCUSSION

McWaine argues on appeal that the district court erred in applying U.S.S.G. § 2D1.1(c)(1) and U.S.S.G. § 5G1.2(d) to determine his sentence. He also argues that the PSR erred in enhancing his offense level for the gun counts based upon a finding that he possessed three, as opposed to two, guns in connection with his criminal activities, that he had a leadership role with respect to the gun-related counts, and that he obstructed justice with respect to the gun-related counts.¹

I. Application of the Drug Quantity Table

McWaine argues that when Apprendi changes "the predicate statute under which the defendant is convicted, the guidelines computation is likewise changed." Specifically, he argues that the district court erred in determining his base offense level for Count 1 as 38 under U.S.S.G. § 2D1.1(c)(1). The base offense level was determined under this subsection because the PSR found McWaine responsible for 100 kilograms of cocaine base and approximately seven and one-half pounds of marijuana. See U.S.S.G. § 2D1.1(c)(1). McWaine argues that Application Note 10 and the background information to U.S.S.G. § 2D1.1 make clear that the different subsections of § 2D1.1(c) (providing base offense levels for differing drug quantities) correlate to the different drug quantity levels provided for in § 841(b)(1)(A)-(C).² He thus maintains that the district court only had the discretion to determine the base offense level for Count 1 within the range allowed by U.S.S.G. § 2D1.1(c)(8)-(14) (providing base offense levels from 12...