U.S. v. Mitchell, 91-1864

• Decision Date: 19 June 1992
• Docket Number: No. 91-1864,91-1864
• Citation: 964 F.2d 454
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory Vincent MITCHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 454

964 F.2d 454

UNITED STATES of America, Plaintiff-Appellee, v. Gregory Vincent MITCHELL, Defendant-Appellant.

No. 91-1864.

United States Court of Appeals Fifth Circuit.

June 19, 1992.

S. Michael McColloch, McColl & McColloch, Dallas, Tex., for Mitchell.

James T. Jacks, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for U.S.

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

Before HILL, ^* KING, and DAVIS, Circuit Judges.

PER CURIAM:

Gregory Vincent Mitchell appeals the sentence he received after pleading guilty to a one-count superseding information charging conspiracy to distribute and conspiracy to possess with intent to distribute cocaine. Mitchell, a minor participant in the conspiracy, contends that the court erred in (1) calculating his base offense level in accordance with the amount of drugs involved in the conspiracy as a whole; (2) failing to rule on the Government's motion for downward departure at the time of sentencing; (3) refusing to depart downward to compensate for the Sentencing Guidelines' overrepresentation of the seriousness of his criminal history; (4) refusing to depart downward on account of his unusual personal characteristics; and (5) sentencing him without a finding of guilt. We agree with Mitchell on points one and two, and so vacate and remand for resentencing.

I. BACKGROUND

By superseding information, the Government charged Mitchell and five other persons ¹ with conspiring to distribute more than 500 grams of cocaine between January 1987 and April 3, 1989. The information did not specifically identify the amount any individual defendant had allegedly conspired to distribute. In the factual resume accompanying Mitchell's guilty plea, Mitchell admitted to a conspiracy to distribute cocaine with other persons in the Dallas area lasting from October 1988 to April 3, 1989. The factual resume named as coconspirators Paul Weber, Jimmie Charles Cook, Gustavo Gonzalo Giraldo-Lara and Aura Rey Giraldo. Mitchell admitted to acquiring cocaine "on numerous occasions from the coconspirators Cook and Weber" and in turn distributing it to other persons.

The Presentence Report (PSR) filed in connection with Mitchell's sentencing indicates that Weber obtained 20 kilograms of cocaine in Florida on April 1, 1989. Weber sent Freddie Lynn Sudduth and Debra Sudduth back to Dallas with the 20 kilograms, and instructed them to contact Cook. The Sudduths were arrested the next day when they made the delivery to Cook in Dallas, and federal agents seized the cocaine. Meanwhile, on April 1, Cook had alerted Weber's customers that a shipment of cocaine was to arrive in Dallas shortly. Customers were to contact Cook by paging Weber's beeper, and Cook would call them back to arrange a meeting place. On April 2, all the persons named in the superseding information, including Mitchell, contacted Cook to arrange the purchase of various amounts of cocaine. Mitchell requested "a couple of ounces" of cocaine, ² but Cook told Mitchell that he could not promise to hold any back. Mitchell again asked Cook to hold some cocaine for him, and promised to call the next day when he had the money. Mitchell was arrested shortly thereafter.

At the plea hearing on August 25, 1989, the district judge found that each defendant pleading guilty ³ was doing so freely and voluntarily, but he reserved acceptance of the pleas until such time as he could review the PSRs. The PSR for Mitchell originally arrived at an offense level of 32 and a criminal history category of V, thus leading to a sentencing range of 188-235 months imprisonment. United States Sentencing Guidelines (U.S.S.G.) § 5A, Sentencing Table. The offense level was calculated on the basis of the full 20 kilograms of cocaine involved in the April 1 shipment. Under the drug quantity table accompanying U.S.S.G. § 2D1.1, the base offense level was 34. ⁴ The PSR recommended a two-level reduction for acceptance of responsibility.

Mitchell objected to basing the offense level on the full 20 kilograms, arguing that it should have been based on the fact that he pled guilty to an information charging conspiracy to distribute more than 500 grams. He contended that the proper base offense level was 26, the level which, under the version of the drug quantity table in effect at the time of the offense, covered 500 to 1,900 grams. Mitchell recognized that if the base offense level were reduced to 26, his minor role in the offense would have been acknowledged and he would not be entitled to a downward adjustment for minor participant status. However, he asserted, if the probation officer rejected a reduction and continued to hold him accountable under the Guidelines for the entire 20 kilograms, he was entitled to a four-level reduction for minor participant status. Thus, factoring in the two-level reduction for acceptance of responsibility under both scenarios, Mitchell contended that his total offense level should be either 24 or 28. ⁵

The probation officer rejected a reduction of the base offense level to 26, asserting that "DEA investigation shows the amount to be distributed to co-offenders and codefendants to be approximately 20 kilograms." Applying U.S.S.G. § 1B1.3 (Relevant Conduct), he stated that Mitchell was to be sentenced for the entire 20 kilograms. The officer did grant the four-level downward adjustment for minimal participant status, however, leaving the final adjusted offense level at 28 (he did not disturb the initial two-level reduction for acceptance of responsibility). He rejected all of Mitchell's other objections. Combined with his criminal history category of V, Mitchell's new sentencing range was 130-162 months imprisonment.

At the sentencing hearing on December 15, 1989, the trial judge accepted the PSR's calculation of the offense level. He observed that, although all the evidence showed Mitchell's involvement with the 20 kilogram shipment was limited to the two ounces he ordered from Cook, Mitchell admitted to having made small transactions with the coconspirators on other occasions. Accordingly, he concluded, it was reasonably foreseeable that Mitchell knew his distributors were dealing in amounts larger than his individual purchases and larger even than 500 grams. The judge expressed the view that the four-level downward adjustment for minor participant status sufficiently accounted for the fact that Mitchell was involved with only a small portion of the 20 kilogram shipment.

Mitchell moved for a downward departure on the grounds that he had a difficult upbringing and alcohol problems, and that his criminal history score of V overrepresented his criminal background. The judge refused both requests. The Government filed a motion under U.S.S.G. § 5K1.1 for downward departure on account of Mitchell's substantial cooperation in the investigation, but the judge, after conducting an off-the-record bench conference with the attorneys, indicated that for confidential reasons he would hold this motion open. The judge sentenced Mitchell to the minimum of 130 months imprisonment, followed by a five-year term of supervised release and a $50 special assessment. At no time during the sentencing proceeding, however, did the judge formally accept the plea agreement or Mitchell's guilty plea. A judgment finding Mitchell guilty was entered on December 18, three days after the sentencing hearing. Mitchell's motion for a new trial was denied, and this appeal followed.

II. DISCUSSION

A. Offense Level Based on 20 Kilograms

Mitchell first argues that the district court erred in accepting the PSR's recommendation that the sentence be based on the 20 kilogram shipment obtained by Cook on April 1. He does not suggest that he should be sentenced based on the two ounces he sought to purchase from Cook; rather, he contends that the proper quantity was the "amount greater than 500 grams" listed in the superseding information. Thus, he again urges that the proper base offense level was 26, so that with a two-level reduction for acceptance of responsibility the sentencing range would be 92-115 months.

The district court's findings about the quantity of drugs on which a sentence should be based are factual findings which we review for clear error. United States v. Rivera, 898 F.2d 442, 445 (5th Cir.1990). A finding will not satisfy this deferential standard " 'when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-42, 92 L.Ed. 746 (1948)); see also United States v. Sanders, 942 F.2d 894, 897 (5th Cir.1991) ("a factual finding is not clearly erroneous as long as it is plausible in light of the record read as a whole"). The district court is not limited to considering the amount of drugs seized or specified in the charging instrument, United States v. Sarasti, 869 F.2d 805, 806 (5th Cir.1989), but may consider amounts that were part of a common plan or scheme to distribute. United States v. Ponce, 917 F.2d 841, 844 (5th Cir.1990) (per curiam), cert. denied, --- U.S. ----, 111 S.Ct. 1398, 113 L.Ed.2d 453 (1991); United States v. Byrd, 898 F.2d 450, 452 (5th Cir.1990). The ultimate sentence will be upheld so long as it results from a correct application of the Guidelines to factual findings that are not clearly erroneous. Rivera, 898 F.2d at 445; United States v. Buenrostro, 868 F.2d 135, 136-37 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).

The district court clearly was not limited to considering the two ounces Mitchell sought to purchase or the "amount greater than 500 grams" charged in the superseding information. On the other hand, the court could not simply presume that...