U.S. v. Oliver, 92-1718
| Decision Date | 10 March 1993 |
| Docket Number | No. 92-1718,92-1718 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Craig Wines OLIVER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before ALAN E. NORRIS and SUHRHEINRICH, Circuit Judges, and CONTIE, Senior Circuit Judge.
Defendant, Craig Oliver, appeals the district court's order sentencing him to 150 months imprisonment for manufacturing marijuana in violation of 21 U.S.C. § 841. On appeal, he argues that the government breached a plea agreement entered into under Fed.R.Crim.P. 11 and that the district court made various legal and factual errors in the process of computing his sentence under the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G."). For the following reasons, we AFFIRM.
On September 18, 1990, a Grand Traverse Narcotics Team acquired and executed a search warrant for defendant's garage and discovered 509 bundled plants of marijuana hanging from the rafters. Defendant was later arrested and charged in a two count indictment with manufacturing marijuana from April 1, 1989 through September 18, 1990 and conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 841 and 846, respectively.
Pursuant to a Fed.R.Crim.P. 11 plea agreement, defendant pled guilty to manufacturing marijuana. In the plea agreement, the government and the defendant entered into three stipulations. First, they agreed that the marijuana manufactured in 1990 did not exceed 509 plants, and that the total amount manufactured over the two year period did not exceed 700 plants. (Plea Agreement, p 3(a)). In addition, qualifying this first stipulation, the defendant reserved the right to introduce evidence that the 1990 quantity was actually less than 509 plants, and that the total number of plants was less than 700; similarly, the government reserved the right to rebut defendant's proofs with argument and evidence. (Id.) Second, the parties stipulated that they would recommend a two-level reduction for acceptance of responsibility if the defendant refrained from additional criminal activities and cooperated with the probation department in the preparation of a presentence report. (Id. p 3(b)). Third, the parties agreed that under U.S.S.G. § 3B1.1(a) and based on the evidence then known, defendant was not a leader or organizer and his criminal activity was not otherwise extensive. (Id. p 3(c)).
The plea agreement also contained two other provisions of significance: (1) defendant acknowledged that the government would fully apprise the district court and probation office of "the nature, scope, and extent of defendant's conduct in relation to the charges brought against him" (Id. p 6); and (2) the parties acknowledged that the plea agreement was not binding on the district court and was only "advisory" in nature. (Id. p 7).
After an evidentiary hearing, the district court determined that the total amount of marijuana grown in 1989 and 1990 was between 700 and 1000 plants. Specifically, the court determined that 400 plants were seized by police in 1990 and that at least as many plants were grown by defendant in 1989. Consequently, defendant was sentenced to 150 months imprisonment, 1 to be followed by five years of supervised release. He was also fined $30,000 and $50 mandatory special assessment. This appeal followed.
Defendant argues that by encouraging the district court to find a total number of plants in excess of 700, the government repudiated the stipulation in the plea agreement that the total number of plants involved in the offense charged was no more than 700. He therefore argues that the government breached the plea agreement and that, as a result, his sentence should be vacated and the case remanded for a resentencing before a different judge. See Santobello v. New York, 404 U.S. 257, 262-63 (1971).
Initially, we note that defendant failed to raise this issue below and has therefore waived it on appeal. Baker v. United States, 781 F.2d 85, 90 (6th Cir.), cert. denied, 479 U.S. 1017 (1986). We therefore review for plain error. United States v. Young, 470 U.S. 1 (1985).
At the hearing to determine the amount of plants involved, the government presented various witnesses who testified that the total number of plants exceeded 1000. This showing should not have been unexpected: Under the plea agreement, the government had reserved the right to present argument and evidence proving that the total number of plants exceeded 700. (Plea Agreement, p 3(a)). Moreover, not only was the government's showing necessary to meet its burden of establishing by a preponderance of the evidence the amount of drugs involved in the offense, but it was also consistent with paragraph six of the plea agreement, wherein the government pledged to apprise the district court of "the nature, scope and extent of the defendant's conduct regarding the charges against him." (Id. p 6). Defendant assented to this provision and cannot now complain that the government's fulfillment of the pledge violated the plea agreement.
Defendant also argues that the district court incorrectly assessed and weighed the evidence regarding the total number of plants involved in the offense. We review the district court's factual findings under a clearly erroneous standard. United States v. Sivils, 960 F.2d 587, 596 (6th Cir.), cert. denied, 113 S.Ct. 130 (1992). Also, defendant objects on two grounds to the district court's application of U.S.S.G. § 2D1.1. First, he claims that the rule in § 2D1.1 treating each plant as one kilogram does not apply, because the plants in this case were not discovered in an unharvested state. Second, he argues that because the plants involved in this case did not possess rootballs, they could not qualify as plants under § 2D1.1.
Upon review of the record, we cannot say that the court's findings were clearly erroneous. The court heard the testimony of police officers that they counted 509 plants seized in 1990, and which the government corroborated with photographs of the actual plants seized. Further, witnesses testified that many hundreds of plants were grown and harvested in 1989. The district court evaluated the evidence and ruled conservatively in determining that defendant had grown between 700 and 1000 marijuana plants during 1989 and 1990. In light of the district court's careful weighing of the evidence, we hold that on this record there was no error, and do not, at this time, reach the legal issue under § 2D1.1.
Defendant next argues that the district court erred by refusing to grant a two level reduction for acceptance of responsibility. This is a factual issue reviewable under a clearly erroneous standard, Sivils, 960 F.2d at 596, and an issue on which defendant bears the burden of proof. United States v. Perry, 908 F.2d 56, 58 (6th Cir.), cert. denied, 111 S.Ct. 565 (1990).
In refusing to grant the reduction, the district court remarked that "[t]his isn't even a close case ... [n]o contrition." Elaborating, the court stated that defendant had contempt for the criminal justice system (using profanities, defendant told his probation officer that the federal authorities harass people in order to make drug arrests) and expressed his belief that marijuana should be legalized. The court further noted that the...
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