U.S. v. Morgan

• Decision Date: 02 September 2004
• Docket Number: No. 03-1768.,03-1768.
• Citation: 384 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Michael MORGAN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

384 F.3d 1

UNITED STATES of America, Appellee, v. Michael MORGAN, Defendant, Appellant.

No. 03-1768.

United States Court of Appeals, First Circuit.

Heard June 8, 2004.

Decided September 2, 2004.

Appeal from the United States District Court for the District of New Hampshire, Joseph A. DiClerico, Jr., J John Nicholas Iannuzzi, for appellant.

Mark E. Howard, Assistant United States Attorney, with whom Thomas Colantuono, United States Attorney, was on the brief, for appellee.

Before SELYA, Circuit Judge, PORFILIO,^* Senior Circuit Judge, and LYNCH, Circuit Judge.

PORFILIO, Senior Circuit Judge.

Michael Morgan pled guilty to conspiracy to distribute in excess of 100 kilograms of marijuana in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1), while reserving the right to challenge at his sentencing hearing the quantity of drugs for which he was responsible. He now appeals the 40-month sentence imposed on three principal grounds. Finding no merit in this triumvirate, we affirm.

In November 2001, the government charged Morgan, a Jamaican musician who became a United States citizen the previous month, and Beverly Pryme, also Jamaican and the mother of three of his children, with conspiracy to distribute over 100 kg. of marijuana from January 1990 until October 22, 2001. The indictment was the happenstance of the 1999 arrest of Daniel Merritt for a domestic assault in Merrimack, New Hampshire; he confessed to selling approximately 262 pounds of marijuana supplied by Morgan, a former college friend, and Pryme. Facing drug and tax evasion charges, Merritt agreed to cooperate, a decision which netted him a 27-month sentence.

To that end, in July 2001, Merritt bridged the two-year hiatus since his arrest and twice telephoned Morgan, recording the conversations. Later that month, Merritt met Pryme for the first of two controlled buys, neither of which Pryme disclosed to Morgan who was traveling abroad some of that time. Pryme was arrested during a third controlled buy, and the two were subsequently indicted.

On December 4, 2001, Morgan proffered a statement to the government. He described his early college dealings with Merritt through 1998; his surprise to hear from Merritt again in 2001; and his disagreement with Pryme for continuing to supply larger quantities of marijuana from suppliers in New York with whom Pryme was "intimate" but called "murderers." Morgan stated his primary sources were "Big Dred," "Mark," and his brother, "Tender."

On July 10, 2002, the government sent Morgan a proposed plea agreement in which it agreed to drop two counts in exchange for Morgan's agreeing to plead guilty to a conspiracy involving over 100 kg. of marijuana. Morgan did not execute the agreement and attempted an amendment to make the agreement "subject to a disclaimer" of the "weight and scope." With the plea agreement in limbo, the parties submitted briefs to the district court addressing whether Morgan could plead guilty to the offense but reserve for sentencing the weight of drugs attributed to his involvement.

On November 5, 2002, the government refused to meet again with Morgan for safety valve consideration, explaining to his counsel the decision was "[i]n light of your client's continued insistence that he is not responsible for 100 or more kilograms of marijuana." On November 8, 2002, however, the district court ruled on Morgan's motion, holding that under United States v. O'Campo, 973 F.2d 1015, 1026 (1st Cir.1992), "the base offense level of a co-conspirator at sentencing should reflect only the quantity of drugs he reasonably foresees [ ] is the object of the conspiracy to distribute after he joins the conspiracy." Then applying Derman v. United States, 298 F.3d 34, 42-43 (1st Cir.2002), which addressed the duties of the judge and jury in a drug conspiracy case, post-Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the court concluded "defendant may enter a plea of guilty to the conspiracy charged in count one and reserve the right to contest at sentencing the quantity of drugs for which he is to be held responsible under the law" contingent upon his agreeing to additional conditions.¹

At the sentencing hearing, the government presented three witnesses to prove the quantity of marijuana attributable to Morgan under U.S.S.G. § 1B1.3 for purposes of the court's setting the base level of the offense. The court also heard arguments on whether Morgan was entitled to the two-level reduction under U.S.S.G. § 5C1.2, which incorporates the safety valve statute, 18 U.S.C. § 3553(f), and a two-level departure for substantial assistance under U.S.S.G. § 5K1.1.

Daniel Merritt, questioned by both counsel and the court, testified that Morgan sold him approximately 130 pounds of marijuana, most of which he resold in small five to twenty pound quantities. He added, however, he sold to Daniel Scharn of Billerica, Massachusetts, the bulk of at least 100 pounds. Beverly Pryme, who also identified another source for the marijuana she sold Merritt, told the court Morgan provided 75 to 80 pounds of marijuana to Merritt. Finally, Patrol Sergeant Paul Poirier of the Merrimack Police Department described his investigation and surveillance that led to Pryme's arrest and told the court he believed Pryme "downplayed" the amount of marijuana attributable to Morgan. Based on the evidence and arguments of counsel, the court then stated:

As we all know from experience, evidence concerning quantities is often comprised of estimates, estimates as to quantities, estimates as to the number of times deliveries are made, and estimates as to over what period of time those deliveries were made. Evidence concerning quantities depends also on memories, some of which are good and some of which are not so good. Therefore extrapolation is required when such evidence is received, and in my opinion the Court must be cautious when extrapolating.

Applying the standards of U.S.S.G. § 1B1.3 to all of the evidence "over the last few hours," the court found between 80 and 100 kilograms of marijuana were attributable to Morgan, resulting in a total offense level of 24.

Without elaboration, the court declined to give the two-level reduction under the fifth element of U.S.S.G. § 5C1.2. It also rejected Morgan's motion under U.S.S.G. § 5K1.1. Morgan based his motion upon a presumption that the plea agreement was revitalized when the court attributed less than 100 kilograms of marijuana to him.² Observing that Morgan's truthfulness remained an issue throughout the hearing and that the government's position was not taken in bad faith, the court concluded it would not "in effect force a 5K1 motion on the government." Morgan challenges both conclusions in this appeal as well as the court's refusal to depart downward under U.S.S.G. § 5H1.6 in consideration of his extraordinary family ties and responsibilities.

I. Drug Quantity for Sentencing and Safety Valve Purposes

Morgan characterizes the court's finding between 80 to 100 kilograms attributable to his role in the conspiracy as "judicial confirmation" that he did not participate in the "full 131.59 kilo conspiracy" and as proof of his truthfulness for purposes of applying the safety valve and substantial assistance reductions to his sentence. We deal with each contention in turn.

A. Drug Quantity

As oft-written, "[w]e review the sentencing court's factual findings, which must be supported by a preponderance of the evidence, for clear error." United States v. Lopez, 299 F.3d 84, 87 (1st Cir.2002), citing United States v. Damon, 127 F.3d 139, 141 (1st Cir.1997). That "preponderance," United States v. Marks, 365 F.3d 101, 105 (1st Cir.2004), simply requires the government to present enough information, free from the strictures of the rules of evidence which do not apply to sentencing hearings, "provided that the information has sufficient indicia of reliability to support its probable accuracy," Lopez, 299 F.3d at 89; Fed.R.Evid. 1101(d)(3), to make it more likely than not that the fact to be proved is true. We then will "treat[ ] with deference" the district court's determination which we will reverse "only if, after reviewing all the evidence, we are left with the definite and firm conviction that a mistake has been committed." Lopez, 299 F.3d at 87 (citation omitted).

Despite Morgan's persistently conflating the inquiries on drug weight and the vindication of his truthfulness in testifying about his involvement in the conspiracy, we must untangle the two issues. While the testimony at the sentencing hearing established at most approximately 135 pounds to be attributed to Morgan's participation in the conspiracy, the presentence report more fully documented additional quantities from recipients, particularly Scharn and Stanbury, whom, the government conceded, it perhaps "should have been more diligent" in calling to testify "to get over 100 kilos."³ Nevertheless, the district court also had benefit of the background facts from the presentence report, which we, too, utilize in our review for clear error. See id. at 86, citing United States v. Brady, 168 F.3d 574, 576 (1st Cir.1999). The pandect on sentencing and the standard of review we must follow require no more. Assessing the credibility of the witnesses against the background facts in the presentence report, the district court did not err in concluding Morgan was responsible for 80 to 100 kilograms of marijuana involved in the conspiracy, resulting in a base offense level of 24.

B. Safety Valve and Substantial Assistance

On the "battleground" of the fifth element of 18 U.S.C. § 3553(f),⁴ United States v. Matos, 328 F.3d 34, 38 (1st Cir.2003), Morgan contends the district court failed to make its own independent determination of whether he met the only contested element of the safety valve provision, that he provide all information and evidence of the offense. That void in the court's determination cannot be filled...