U.S. v. Phillippi, 89-1410

• Decision Date: 15 August 1990
• Docket Number: No. 89-1410,89-1410
• Citation: 911 F.2d 149
• Parties: UNITED STATES of America, Appellee, v. Janet PHILLIPPI, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 149

911 F.2d 149

UNITED STATES of America, Appellee, v. Janet PHILLIPPI, Appellant.

No. 89-1410.

United States Court of Appeals Eighth Circuit.

Submitted March 14, 1990.

Decided Aug. 15, 1990.

Neal Shapiro, Minneapolis, Minn., for appellant.

Lester A. Paff, Des Moines, Iowa, for appellee.

Before McMILLIAN and BEAM, Circuit Judges, and HEANEY, Senior Circuit Judge.

HEANEY, Senior Circuit Judge.

Janet Phillippi appeals from a sentence of 124 months imprisonment for possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841. We affirm.

BACKGROUND

Phillippi was arrested in February 1988 outside a motel room in Bettendorf, Iowa, after receiving two kilograms of cocaine from Tracy Steele Penrod, a Drug Enforcement Administration (DEA) informant. Penrod, a courier in a cocaine distribution organization, had agreed to cooperate with drug enforcement officials after being arrested earlier that month in Garden Grove, California. Penrod received 9.5 kilograms of cocaine with written instructions for its delivery to Massachusetts, Missouri, and Iowa from the leader of the organization. In Iowa, Penrod contacted Phillippi and arranged to deliver two kilograms to her at the Holiday Inn in Bettendorf. DEA agents observed and videotaped the delivery, arrested Phillippi, and seized two one-kilogram packages of cocaine.

Phillippi was charged with one count of possession with intent to distribute two kilograms of cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)(ii), and 2. Phillippi pleaded not guilty and received a jury trial. Penrod testified at trial that she had delivered cocaine to Phillippi on numerous occasions in 1986 and 1987. Penrod described two transactions in which she gave Phillippi two brown packages similar to those she delivered at the Holiday Inn in Bettendorf, and a third transaction in which she provided Phillippi with four kilogram packages of cocaine. In addition to describing these transactions, Penrod testified that she sold Phillippi cocaine every two months during 1986 and 1987.

The jury found Phillippi guilty. A presentence investigation report (PSI) prepared by the United States Probation Office estimated the total amount of cocaine Phillippi possessed at ten kilograms and calculated a base offense level of 32. Phillippi objected to the inclusion in the calculation of amounts of cocaine which Penrod testified she had delivered to Phillippi before the occasion on which Phillippi was arrested. Phillippi argued that only the two kilograms of cocaine seized on her arrest should be considered, yielding a base offense level of 28. Phillippi also claimed that she should receive a reduction of either two or four points for being only a minor or minimal participant in the offense.

At sentencing, the district court found by a preponderance of the evidence, relying particularly on Penrod's testimony, that Phillippi had possessed at least ten kilograms of cocaine through transactions which were part of the same course of conduct as the offense of conviction. Additionally, the court found that Phillippi had been an average, rather than minor or minimal, participant in the offense. The base offense level for possession of 5-14.9 kilograms of cocaine is 32, which yields a sentencing range of 121-151 months for an individual with a criminal history category of I. Accordingly, the court sentenced Phillippi to 124 months imprisonment to be followed by four years of supervised release. Phillippi appeals.

DISCUSSION

On appeal, Phillippi argues that the evidence at trial did not support the inclusion of ten kilograms of cocaine in the calculation of her base offense level for sentencing purposes. ¹ She also claims that her position as a courier in the cocaine distribution organization entitled her to a two-point reduction in her base offense level as a minor participant in the offense.

I.

The Sentencing Guidelines provide:

The conduct that is relevant to determining the applicable guideline range includes ... all acts and omissions committed or aided and abetted by the defendant ... 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, or that otherwise were in furtherance of that offense[.]

U.S.S.G. Sec. 1B1.3(a)(1). The Commentary to section 1B1.3 notes that "in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." Id., background to commentary.

At the sentencing hearing, the district court found that the various cocaine deliveries about which Penrod testified were all part of a common scheme and that they involved at least ten kilograms. ² We review such findings under the clearly erroneous standard. United States v. Ehret, 885 F.2d 441, 444 (8th Cir.1989).

At trial, Penrod described making two deliveries to Phillippi consisting of two packages of cocaine similar in size and appearance to the two one-kilogram packages seized on Phillippi's arrest. Penrod could not, however, pinpoint the dates of these transactions, testifying only that she thought they occurred about six months apart sometime in 1986. Additionally, Penrod's only testimony as to the quantity involved in these transactions was that the packages resembled those she delivered to Phillippi in February 1988. Penrod also described a delivery she made in December 1987 in which she gave Phillippi four kilograms of cocaine. Phillippi's first name and the number "...