U.S. v. Pauley

• Decision Date: 22 April 2002
• Docket Number: No. 00-4359.,00-4359.
• Citation: 289 F.3d 254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Overton Wayne PAULEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

289 F.3d 254

UNITED STATES of America, Plaintiff-Appellee, v. Overton Wayne PAULEY, Defendant-Appellant.

No. 00-4359.

United States Court of Appeals, Fourth Circuit.

Argued January 25, 2002.

Decided April 22, 2002.

COPYRIGHT MATERIAL OMITTED

ARGUED:

David Robert Bungard, Robinson & McElwee, L.L.P., Charleston, West Virginia, for Appellant. John Castle Parr, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

ON BRIEF:

Rebecca A. Betts, United States Attorney, Stephanie Taylor, Student Intern, Huntington, West Virginia, for Appellee.

Before WIDENER and GREGORY, Circuit Judges, and CYNTHIA HOLCOMB HALL, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge WIDENER and Senior Judge HALL joined.

OPINION

GREGORY, Circuit Judge.

Appellant Overton Wayne Pauley asserts numerous challenges to his sentence of 40 years imprisonment for aiding and abetting possession with intent to distribute methamphetamine and marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We affirm in all respects but one. Because Pauley's sentence ran afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Cotton, 261 F.3d 397 (4th Cir.2001), cert. granted, ___ U.S. ___, 122 S.Ct. 803, 151 L.Ed.2d 689 (2002), we vacate his sentence and remand for resentencing.

I.

Pauley was part of a loose-knit group of individuals, known as the "Garrison Street Crew," that was engaged in distribution of marijuana and methamphetamine in Kanawha County, West Virginia. The crew added to its inventory of drugs for distribution by effecting a string of thefts from other drug dealers. The criminal charges against Pauley stemmed from one of these thefts.

The primary collaborators in the scheme to steal drugs were Pauley and another man named John Hudson, Jr. On May 10, 1998, Pauley and Hudson obtained the assistance of two other men, Shawn Pittman and Rob Parsons, for the purpose of robbing a drug dealer named James Facemeyer at the home of his girlfriend, Carolyn Selbe. The four men drove to Selbe's trailer home in Pauley's Nissan Maxima. Hudson was armed with a .9mm handgun and Parsons was armed with a hammer. Pauley acted as driver and lookout. Pittman also served as a lookout. Wearing masks, Hudson and Parsons kicked down the door and quickly proceeded to the bedroom where they found Facemeyer and Selbe asleep. Brandishing their weapons, Hudson and Parsons demanded drugs and money. Facemeyer complied and surrendered two ounces of methamphetamine and four to five pounds of marijuana.

In November 1998, Hudson learned that another drug dealer, Jason Jarrell, was in possession of one-half kilogram of cocaine. Hudson and Pauley drove to Jarrell's home to scout the location. In mid-November, Pauley, Hudson, Rob Parsons, and Steve Hager drove to Jarrell's home to commit the robbery, again using Pauley's Nissan Maxima.¹ The plan, which called for Pauley to approach the house and knock on the door, failed because Pauley was unable to force his way through the door. Later that day, Pauley and Hudson returned with two other individuals, but were unable to commit the robbery because Jarrell came outside with a gun in his waistband. Within a couple of days, Hudson and another man returned to Jarrell's home, broke in, and stole the cocaine. For Pauley's part in scouting and planning the earlier robbery attempt, Hudson sold Pauley an ounce of cocaine at a price below market value.

On December 10, 1998, Pauley was involved in a third drug-related theft. Pauley had earlier learned from Hudson that Christy Alberts and Leonard Watts, also known to deal drugs, had been talking to others about Hudson's role in drug activities which, if those activities became known to law enforcement officers, would implicate not only Hudson, but others who participated, including Pauley. Pauley recruited Lonnie Stuckey to go to the residence of Alberts and Watts to rob them of drugs and money. Hudson provided guns to Pauley for use in the robbery. Pauley and Stuckey were driven to the residence by two female friends. After donning masks, Pauley and Stuckey kicked down the door to Watts' residence. Finding Watts and Alberts in the bedroom, Pauley searched the room for drugs and then ordered Watts and Alberts into the living room. Pauley ordered Watts and Alberts to lie face down on the floor. Although he was wearing a mask, Christy Alberts recognized Pauley, and stated, "I know it's you Wayne, I'm going to get you Wayne, you are going to get in trouble." Pauley shot and killed both Alberts and Watts. He then stole 7.12 grams of methamphetamine.

On March 15, 1999, Pauley participated in a fourth theft, this time at the residence of a drug dealer named Byrd. Pauley, accompanied by Hudson and two others, drove his Nissan Maxima to the residence. Finding the home unoccupied, all four individuals entered the home. Though they found no drugs, the four did steal eleven firearms from the residence.

Pauley was subsequently arrested and charged in a ten count indictment. He pleaded guilty to count eight, which charged him with aiding and abetting possession with intent to distribute methamphetamine and marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count eight was based on the May 10, 1998 robbery of James Facemeyer. On July 19, 1999, Pauley entered his plea. The remaining counts were dismissed.

At sentencing, the district court found that Pauley was responsible for a quantity of drugs equivalent to 456.25 kilograms of marijuana. The district court then applied the murder cross-reference contained in U.S. Sentencing Guidelines Manual § 2D1.1(d)(1), resulting in a guideline sentence of life imprisonment. Without the cross-reference, Pauley's guideline range would have been 97 to 121 months. The district court applied the murder cross-reference after concluding that the murders were part of the same course of conduct as the offense of conviction or a common scheme or plan. J.A. 377. The district court imposed a sentence of 40 years — the maximum amount of time under 18 U.S.C. § 841(b)(1)(B). Pauley filed a timely appeal.

II.

The district court's findings of fact at sentencing, including those pertaining to relevant conduct, are reviewed for clear error. 18 U.S.C. § 3742; United States v. Fletcher, 74 F.3d 49, 55 (4th Cir.1996); United States v. Williams, 977 F.2d 866, 869 (4th Cir.1992). The district court's legal conclusions are subject to de novo review. United States v. Brock, 211 F.3d 88, 90 (4th Cir.2000).

A.

Under the scheme created by the United States Sentencing Guidelines, whether a particular cross-reference should be applied depends on whether the conduct to which the cross-reference refers is "relevant conduct," defined as follows:

(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and

(B) in the case of jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,

that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;

(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction;

(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and

(4) any other information specified in the applicable guidelines.

USSG § 1B1.3. The district court found that the murders were relevant conduct under subsection (a)(2).

By its terms, § 1B1.3(a)(2) applies only to offenses to which § 3D1.2(d) would require the grouping of multiple counts. Offenses are grouped together under § 3D1.2(d), inter alia,

[w]hen the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.

USSG § 3D1.2(d). Section 3D1.2(d) also lists guidelines to which the section applies. The offense level in drug distribution cases is, of course, determined on the basis of quantity, and § 2D1.1 — the guideline containing the murder cross-reference — is specifically listed as a guideline to which § 3D1.2(d) applies. Accordingly, the district court properly looked to § 1B1.3(a)(2) in determining the scope of "relevant conduct."

Under § 1B1.3(a)(2), in sentencing Pauley on one count of aiding and abetting the possession with intent to distribute methamphetamine and marijuana, the district court was required to determine the applicability of the murder cross-reference based on "all acts and omissions committed, aided, [and] abetted" by Pauley "that were part of the same course of conduct or common scheme or plan as the offense of conviction...." Ultimately, then, whether the murder cross-reference should have been applied depends on whether the murders occurred during conduct that was "part of the same course of conduct or common scheme or plan as" the May 10, 1998 drug-related robbery of James Facemeyer. See William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C. L.Rev. 495, 514-15 (1990) (...