U.S. v. Montgomery, 92-2153

• Decision Date: 24 January 1994
• Docket Number: No. 92-2153,92-2153
• Citation: 14 F.3d 1189
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth G. MONTGOMERY, Defendant-Appellant.

Page 1189

14 F.3d 1189

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth G. MONTGOMERY, Defendant-Appellant.

No. 92-2153.

United States Court of Appeals Seventh Circuit.

Argued Sept. 9, 1993.

Decided Jan. 24, 1994.

James Porter, Asst. U.S. Atty., Margaret Mary Robertie (argued), Office of U.S. Atty., Crim. Div., Fairview Heights, IL, for plaintiff-appellee.

Carol J. Reid, Springfield, IL (argued), for defendant-appellant.

Before CUMMINGS, COFFEY, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Kenneth G. Montgomery was convicted by a jury on two counts of possession with the intent to distribute cocaine base (or crack cocaine) in violation of 21 U.S.C. Sec. 841(a)(1). The district court sentenced Montgomery to a concurrent term of 240 months in prison on each of the two counts of conviction. Montgomery appeals, challenging the admission of his confession at trial as well as the sentence he received under the Sentencing Guidelines. We affirm Montgomery's convictions but vacate his sentence and remand for resentencing.

I. FACTS

On April 24, 1991, Patches Holmes, an undercover operative with the St. Clair County Sheriff's Department Tactical Unit, purchased a sixteenth-ounce piece of crack cocaine from Montgomery. Because the transaction occurred at Montgomery's residence, the authorities obtained a warrant to search the premises, and they executed the warrant at 6:30 a.m. on April 26, 1991. Upon entering the residence, the Sheriff's deputies found Montgomery in bed holding a .357 magnum revolver, although he dropped the weapon when ordered to do so. The deputies found Montgomery's wife Lisa, who was approximately eight months pregnant, in the bedroom closet, where she apparently had hidden after hearing the officers. The deputies seized a small quantity of marijuana, a beeper, Montgomery's revolver, and some gold jewelry.

Montgomery and his wife were taken to the local jail and placed in separate interview rooms. Lisa Montgomery underwent a medical examination, and she was then interviewed by Captain Terry Delaney and Deputies David Clark and Glenn Haas of the St. Clair County Sheriff's Department. Lisa signed a statement for the officers in which she acknowledged that her husband had been dealing drugs, although not on a large level. She was subsequently released.

Montgomery was held in a separate interview room for almost seven hours before he made a statement. At 1:40 p.m., Montgomery signed a typewritten form acknowledging that he had read and understood his Miranda rights and agreeing to submit to questioning by the officers. Montgomery then requested that they move to a more private location, and the officers moved Montgomery to a private office. There, Montgomery signed a "voluntary statement" admitting that he had "been dealing drugs for six months," that he supplied street-level dealers with "16 balls" of crack cocaine, and that he did not "front anyone." Montgomery also described in the statement how he "cooked" and sold cocaine and stated: "I sell about 2 oz. of cocaine every other day. But now I sell about 2 oz. a week." State authorities subsequently decided not to charge Montgomery, and he was released.

Holmes purchased crack cocaine from Montgomery a second time on October 3, 1991. Holmes went to Montgomery's residence with Deputy Johnnie Singleton, who also was acting undercover. Holmes and Singleton spoke to Montgomery and an unidentified man in Montgomery's driveway. As Holmes was counting money for Montgomery's companion, an argument ensued over whether Holmes was being shorted in the sale. Montgomery then placed the cocaine in a toolbox and directed that Holmes pay another unidentified man who was waiting in a nearby automobile. Once that man signaled that Holmes' payment was in order, Montgomery permitted Holmes to retrieve the cocaine from the toolbox.

Montgomery was indicted on October 23, 1991. Count I charged a conspiracy between Montgomery and four unindicted co-conspirators to distribute in excess of fifty grams of crack cocaine; count II charged that Montgomery had possessed with the intent to distribute 1.1 grams of crack cocaine on or about April 24, 1991; and count III charged possession with the intent to distribute 3.0 grams of crack cocaine on or about October 3, 1991. The government subsequently dismissed the conspiracy count and proceeded to trial only on the possession counts.

Prior to trial, Montgomery moved to suppress the written statement he had provided while in custody on April 26, 1991. He argued that the statement had not been voluntary because he made it while under the influence of crack cocaine. Montgomery also maintained that he made the statement only to gain his release because he was worried about the condition of his pregnant wife and needed more cocaine. The district court held an evidentiary hearing and then denied the motion, concluding that Montgomery's statement was voluntarily given. The court found that Montgomery was not a credible witness and noted that, despite his apparent drug problem, there was no indication that Montgomery was incapacitated when he made the statement.

At trial, Montgomery asserted that Kevin Marston, his brother-in-law, had sold the crack cocaine to Holmes and that he had signed the April 26, 1991 statement only to protect Marston. The jury apparently rejected this story and found Montgomery guilty on both remaining counts.

The district court conducted a sentencing hearing on May 8, 1992, at which two issues were contested: (1) whether Montgomery should receive a two-level enhancement under U.S.S.G. Sec. 2D1.1(b)(1) for possessing a firearm during the commission of a drug trafficking offense, and (2) whether the cocaine sales referenced in Montgomery's April 26, 1991 statement constituted "relevant conduct" for purposes of calculating Montgomery's base offense level. The district court first found that application of the firearm enhancement was appropriate because Montgomery had possessed the gun during the period that he was dealing cocaine. The court then found that the government's evidence at the sentencing hearing corroborated Montgomery's written statement that he had been dealing drugs for approximately six months and that he had sold about two ounces of cocaine every other day, but now about two ounces a week. The court further found that the transactions described in the statement were part of the same course of conduct as the offenses of conviction and that they therefore constituted "relevant conduct" for sentencing purposes under U.S.S.G. Sec. 1B1.3(a)(2). Assuming that Montgomery had been selling cocaine for six months and assuming four weeks to every month, the district court concluded that Montgomery had admitted to twenty-four weeks of cocaine dealing. The court then assumed the sale of two ounces every week for twenty-four weeks, meaning that Montgomery would have sold forty-eight ounces of cocaine base over the six-month period covered by his confession. The court then converted the forty-eight ounces to 1,360.78 grams, added the 4.1 grams involved in the offenses of conviction, and determined that Montgomery should be sentenced on the basis of 1.364 kilograms of crack cocaine. This resulted in a base offense level of 38 under U.S.S.G. Sec. 2D1.1(a)(3), which, when coupled with his criminal history category of I, resulted in a range of between 235 and 293 months incarceration. The court sentenced Montgomery to a concurrent term of 240 months on both counts of conviction, to be followed by five years of supervised release. Montgomery appeals his convictions and sentence.

II. DISCUSSION

A. Suppression of the April 26, 1991 Statement

Montgomery first challenges the district court's denial of his motion to suppress the April 26, 1991 statement. The statement is in the handwriting of Deputy David Clark of the St. Clair County Sheriff's Department, but Clark testified that the words were Montgomery's own. Montgomery initialed both the beginning and end of each page and then signed his full name at the bottom of the statement, which reads as follows:

I been dealing drugs for six months. I supply street level dealer with 16 balls. I don't front anyone.

I got my cocaine in powder from a guy name Steve. I believe Steve get it from a guy name Moe. Steve can be reach at 782-0087. Steve be at a white house on 41st; between the driveway is a tree that separate the driveway of two white houses.

Steve then walks across the street and gets the cocaine. Steve goes into a brown house with lots of trees or bushes along the driveway. This guy Moe drives a brown Lincoln.

When I get 2 oz. of powder cocaine I would cook it myself. I would go to the Graystones apartment and promise someone a twenty dollar piece if they would let me use their stove to cook it on.

I would drive around in my truck with the drugs on me. I would get beeped and then meet with the person and transact business.

The truck is mine. I bought it from "D" Delois Gaitor back October or September of last year.

I sell about 2 oz. of cocaine every other day. But now I sell about 2 oz. a week. I pay about $3,000.00 for 2 oz. and make about 40 16 oz. balls.

I've also dealt with Major Bailey when I could get any good coke from my guys.

In moving to suppress, Montgomery argued that the statement was not freely and voluntarily made. He maintained that the officers who took the statement promised that both he and his wife would be released once he made a statement. The officers also allegedly told Montgomery that he and his wife would be heading to jail for a long time, that his baby probably would be born in jail, that his children would then be taken from him, and that he and his wife could be evicted from their home. Moreover, Montgomery suggested that, given his concern for his pregnant wife and his need for additional cocaine, he would have done anything to obtain his freedom.

The district court held an...