U.S.A. v. Noble, 99-2899
| Citation | 246 F.3d 946 |
| Decision Date | 05 April 2001 |
| Docket Number | No. 99-2899,99-2899 |
| Parties | (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. John Noble, Defendant-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Western District of Wisconsin. No. 99 CR 6--Barbara B. Crabb, Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted] Before Bauer, Posner, and Williams, Circuit Judges.
John Noble was convicted of possession of controlled substances with intent to distribute under 21 U.S.C. sec.sec. 841(a) and 846. The district court made findings as to the amount of drugs that Noble distributed, determined Noble's base sentence according to the United States Sentencing Guidelines ("Sentencing Guidelines"), and added eight levels of enhancement based on three aggravating factors. Noble appeals his sentence on two grounds. First, he contends that the district court committed factual sentencing errors. Second, he maintains that he was sentenced above the statutory maximum in violation of Apprendi. We vacate Noble's sentence and remand for proceedings consistent with this opinion.
Noble dealt drugs over a tri-state area. Noble sold the drugs himself, and enlisted a small group to aid him which included Jeff Spaeth, Steve Jobe, James Burke, Sam Groff, Mark Ackley, and Noble's girlfriend Dawn Henning. Group members transported, sold, or stored drugs in their homes for Noble.
Jeff Spaeth bought a significant quantity of cocaine from Noble over a two year period. To the police, he estimated the amount at 50 ounces, but at trial he testified that it totaled 100 ounces. Spaeth allowed Noble to store cocaine in a safe in his trailer. Noble carried a key to Spaeth's trailer so he could access the drugs while Spaeth was not home. Spaeth had a long history of cocaine and marijuana use.
Steve Jobe delivered cocaine for Noble from 1996 until the fall of 1997. Initially, Jobe merely acted as a driver, shuttling Noble mainly to Janesville, Wisconsin so Noble could sell cocaine to Spaeth. Eventually, Jobe took over Noble's delivery role, dropping off drugs and picking up proceeds from Spaeth. Noble paid Jobe between $25 and $50 for each trip. Also, on at least 10 nights, Jobe accompanied Noble on his routine drug deals at a series of strip clubs. Jobe assisted by carrying the drugs and passing Noble individual packets to sell. When Jobe was with Noble, Noble sold between 1/2 and 1 ounce of cocaine per night. Noble ultimately told Jobe that he sold drugs at these club roughly five nights per week for a year.
As Jobe's efforts slackened, Noble began to pay James Burke to transport drugs to Iowa, Illinois, and Wisconsin. Burke transported cocaine to Spaeth between 10 and 20 times, and marijuana to Mark Ackley 7 or 8 times. Noble negotiated the price and quantity sold. In exchange for Burke's services, Noble paid Burke's rent and provided him with cash and automobiles.
Noble temporarily lived with Sam Groff in Charles City, Iowa. Beginning in the fall of 1996, Groff began distributing marijuana for Noble, ferrying drugs from Illinois to Iowa. Groff sold roughly 14 pounds of marijuana. Groff stopped transporting Noble's marijuana when Noble moved back to Illinois. Noble replaced Groff with Mark Ackley. Ackley estimated that he sold roughly 40 pounds of marijuana over an estimated one year. The court found that the time frame of Ackley's dealing lasted 7 months.
Dawn Henning met Noble in 1992, and they developed a romantic relationship. Henning began working 3 to 4 nights per week at a strip club in January of 1996. Each night she worked, Noble gave her cocaine to sell. Henning used cocaine herself and became addicted. Noble moved in with Henning in 1997, and they shared a bedroom.
In 1997, the police raided the apartment Noble and Henning shared. The police found cocaine and marijuana, along with a calculator labeled with the name of Noble's old apartment complex, in a car parked in Noble's garage. In Henning and Noble's bedroom they found $2,400 in drug proceeds and a gun in Henning's closet. The police arrested Noble and released him on bail. Desiring to avoid punishment, Noble convinced Burke to confess to owning the drugs found in Noble's garage. Burke was convicted and spent several months in jail before he recanted his confession.
The police revived their investigation of Noble. Noble was charged with and convicted of violating 21 U.S.C. sec.sec. 841(a)(1) and 846, offenses which have a statutory maximum of 20 years. The district court determined that Noble possessed or distributed 5 kilograms of cocaine and 31.06 kilograms of marijuana. In so determining, it relied on testimony from the following witnesses to attribute the following quantity of drugs to Noble:
Converting the cocaine to its marijuana equivalent for sentencing purposes, the judge determined that Noble was responsible for a total of 1,390.064 kilograms of marijuana. This total made Noble eligible for an enhanced sentence under 21 U.S.C. sec. 841(b)(1)(A)(vii), which carries a sentence range of 10 years to life imprisonment for those who possess 1000 to 3000 kilograms of marijuana. The judge imposed three sentence enhancements: a four-level organizer or leader enhancement, a two-level dangerous weapon enhancement, and a two-level obstruction of justice enhancement. Applying the Sentencing Guidelines, the judge combined Noble's criminal history level of III and his offense level of 40 to reach a sentencing range of 360 months to life. The judge imposed 360 months in prison.
Noble argues that the district court committed two factual errors in: (1) determining the quantity of drugs Noble possessed and distributed; and (2) assessing sentence enhancements not supported by sufficient evidence. Further, Noble argues that his sentence violates Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). We dispose of cases on factual rather than constitutional grounds when possible. See United States v. Westmoreland, 240 F.3d 618, 629 (7th Cir.2001). We therefore first proceed to Noble's factual challenges.
Our review of the factual determinations in this case is challenging because key parts of the factual record are shallow. To fashion Noble's sentence, the district court necessarily engaged in a spate of credibility determinations involving evaluating the defendant's word against a witness's. We emphasize that uncorroborated evidence can be a sufficient basis for a sentence, see United States v. Johnson, 227 F.3d 807, 813 (7th Cir. 2000), and we are reluctant to disturb credibility determinations absent a compelling reason.
Noble argues that the court committed three errors in determining the amount of drugs by: (1) committing a mathematical error when it aggregated the quantity of drugs in counts one and two; (2) double counting the drugs found in Noble's garage by including them in both counts; and (3) basing its determination of drug quantity on unreliable evidence. Noble correctly charges clear error in his first two contentions. First, when adding the quantity of drugs found in counts one and two, the district court mistakenly arrived at a total of 1,390.064 kilograms; the correct total is 1068.40 kilograms. Second, Noble and the government agree that the judge impermissibly double counted the 37.04 kilograms of drugs found in Burke's car. The drug quantity must therefore be reduced by that amount to a total of 1031.36 kilograms.
Noble next argues that the court erred by basing its findings on the unreliable testimony of Spaeth, Jobe, Ackley, and Groff. We accord great deference to the district court's sentencing determinations, including drug quantity, and we will not overturn its findings of fact unless they are clearly erroneous. See United States v. Berthiaume, 233 F.3d 1000, 1002 (7th Cir. 2000) (citations omitted). However, there are limits to our deference. The court's sentence determinations must be based on reliable evidence, not speculation or unfounded allegations. See United States v. Pigee, 197 F.3d 879, 889 (7th Cir. 1999) (citation omitted); United States v. Howard, 80 F.3d 1194, 1204 (7th Cir. 1996) (). The government bears the burden to prove the facts supporting the sentence by a preponderance of the evidence. See Johnson, 227 F.3d at 813.
We address Noble's most serious challenge first. Noble urges us to reverse the district court's decision to attribute 100 ounces of cocaine to him based on Spaeth's testimony. Spaeth's inconsistent estimation of drug quantity, 50 ounces in a police interview and 100 ounces under oath, required the district...
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