U.S. v. Pitz, s. 92-1014

• Decision Date: 21 September 1993
• Docket Number: 92-1019,Nos. 92-1014,s. 92-1014
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John G. PITZ and David DuPont, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 723

2 F.3d 723

UNITED STATES of America, Plaintiff-Appellee, v. John G. PITZ and David DuPont, Defendants-Appellants.

Nos. 92-1014, 92-1019.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 14, 1993.

Decided Aug. 9, 1993.

Rehearing Denied Sept. 21, 1993.

David E. Risley (argued), Rodger A. Heaton, Asst. U.S. Atty., Office of the U.S. Atty., Springfield, IL, for plaintiff-appellee.

J. Steven Beckett, Beckett & Crewell, Urbana, IL (argued), for David B. DuPont.

Ronald J. Stone, Stratton, Dobbs & Nardulli, Springfield, IL (argued), for John G. Pitz.

Before COFFEY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

Defendants David DuPont and John Pitz were charged in a one-count indictment with conspiracy to distribute five or more kilograms of cocaine in violation of 21 U.S.C. Secs. 846, 841(a)(1), and 841(b)(1)(A). DuPont pled guilty to the charge. DuPont's written plea agreement recognized that the parties disputed the scope of the conspiracy for which the defendant was liable for sentencing purposes. Pitz, the other defendant, was later charged by information with conspiring to distribute 500 or more grams of cocaine in violation of 21 U.S.C. Secs. 846, 841(a)(1), and 841(b)(1)(B)(ii). Pitz pleaded guilty to the conspiracy charge in the information alleging distribution of 500 or more grams of cocaine in exchange for dismissal of the conspiracy charge alleging distribution of five or more kilograms of cocaine contained in the indictment.

The defendants appeal from the district court's application of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") in arriving at their sentences. Specifically, both defendants allege that the sentencing court clearly erred in (1) calculating the respective drug amounts attributable to each defendant under U.S.S.G. Sec. 2D1.4; (2) concluding that the defendants obstructed justice under U.S.S.G. Sec. 3C1.1; and (3) finding that the defendants were not entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1. In addition, Pitz alleges that the district court clearly erred in denying him a two-level reduction under U.S.S.G. Sec. 3B1.2 for his allegedly minor role in the offense. We affirm.

I. BACKGROUND

The defendants' cocaine distribution conspiracy originated with the visit of Chicago drug dealer Louis Isirov to an old drug customer in Carbondale, Illinois, during the Fall of 1988. During his visit, Isirov met Bruce Adelmann. Adelmann asked Isirov if he would supply him with cocaine on a consignment basis, and Isirov agreed. Adelmann thus became the initial Southern Illinois source of cocaine to others in the distribution chain, which included fellow college students David DuPont and John Pitz, and David Karr, Michael Rebeck, James Strauser, and Joseph Segobiano, residents of Springfield, Illinois.

Adelmann fronted cocaine to DuPont, who in turn fronted the drug to Karr. Karr testified at the sentencing hearing that he had purchased approximately twenty-five ounces of cocaine from DuPont between May and December of 1988. In late 1988, DuPont fronted Karr four ounces of cocaine on two occasions. In November of 1988, DuPont, his girlfriend, Karr, and Segobiano traveled to Fort Lauderdale, Florida, to attend a soccer game. During their sojourn, Karr renewed his erstwhile romance with DuPont's girlfriend. Shortly thereafter, DuPont and Karr returned to Carbondale and at this time Karr unsuccessfully attempted to buy a quarter pound of cocaine from DuPont. DuPont allegedly refused to conduct the transaction because the deal was alarmingly large and DuPont was upset at Karr's romantic usurpation.

Karr responded to DuPont's rebuff by bypassing DuPont in the distribution chain and began to purchase cocaine directly from Adelmann. Karr testified that he had to buy directly from Adelmann because Adelmann refused to supply cocaine to DuPont due to an outstanding drug debt. Karr stated that he wrote Adelmann a check for $1,200 to pay DuPont's drug debt and reopen the cocaine supply line. From December of 1988 to November of 1989, Karr purchased approximately seventy ounces of coke from Adelmann. DuPont then began to buy cocaine from Karr. In essence, Karr and DuPont switched places in the distribution chain.

In November of 1989, Karr decided to bypass Adelmann in the distribution chain and began to buy his cocaine directly from Isirov in Chicago. During this same time period, Pitz and DuPont formed a partnership and distributed the cocaine purchased from Karr. Karr testified that he sold Pitz at least twenty-four ounces of cocaine that Pitz in turn distributed to Rebeck and others. Pitz testified that the Pitz-DuPont partnership purchased only four ounces of cocaine from Karr for redistribution to others. Pitz testified that the partnership had received one ounce of cocaine the week prior to Christmas 1989, one ounce the week of Christmas 1989, and two ounces on New Year's Eve of 1989. Two and one-half of the four ounces were distributed to Rebeck, three-fourths of an ounce were sold to others, and the remainder was kept for Pitz's and DuPont's personal use.

After Karr was arrested, his cooperation with law enforcement officials led to Isirov's apprehension during a 1.7 kilogram cocaine transaction, as well as the arrest of Pitz and DuPont. Prior to the defendants' arrests, the conspiracy had distributed some 13.4 kilograms of cocaine. The probation office conducted a presentence investigation and concluded that under the Guidelines DuPont was responsible for distribution of 13.4 kilograms and Pitz was responsible for distribution of twenty-four ounces of cocaine.

The defendants' sentencing hearings were held on November 8, 1991, and December 16, 1991, respectively. Prior to the initial sentencing hearing, defense counsel and the government had filed written objections to DuPont's and Pitz's presentence investigation reports (PSR's). DuPont and Pitz objected to the amounts of drugs individually attributed to each of them in their respective PSR's. DuPont maintained that he was responsible for less than five kilograms and Pitz alleged that he was only responsible for four ounces. Pitz also objected to the probation office's refusal to recommend a two- or four-level reduction for his minor or minimal role in the offense. DuPont asserted that he should receive a two-level reduction for being a minor participant in the conspiracy. The government joined in DuPont's claim that he was a minor participant, and filed an objection stating that DuPont was entitled to a two-level reduction in his offense level pursuant to U.S.S.G. Sec. 3B1.2(b).

The district court agreed with DuPont's and the government's argument that DuPont played a minor role in the offense. The court thus gave DuPont a two-level reduction of his base offense level under U.S.S.G. Sec. 3B1.2(b) for his role as a minor participant in the offense. The court overruled all of the defendants' remaining objections to the PSR's. The district court also found that the defendants had perjured themselves during their sentencing hearings when testifying that they had distributed much smaller quantities of cocaine than was attributed to them in their PSR's. Accordingly, each defendant's base offense level was increased two levels pursuant to U.S.S.G. Sec. 3C1.1 for obstruction of justice. The court adopted the findings of the PSR and determined that based upon Pitz's adjusted offense level of 30 and his criminal history category of I, the Guideline range was 97 to 121 months imprisonment. Cross-referencing DuPont's adjusted offense level of 32 with his criminal history category of II yielded a sentencing range of 135 to 168 months imprisonment. The sentencing court granted the defendants' request that each of them receive the minimum sentence allowable. The court sentenced Pitz to 97 months of confinement, while sentencing DuPont to 135 months imprisonment.

II. DISCUSSION

A. Calculation of the Drug Amount

On appeal, Pitz and DuPont argue that the district court erred in calculating the amount of cocaine attributable to them under the Guidelines. The sentencing court determines the quantity of drugs involved in an offense by a preponderance of evidence. United States v. Hughes, 970 F.2d 227, 237 (7th Cir.1992); United States v. Banks, 964 F.2d 687, 692 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 460, 121 L.Ed.2d 377 (1992). We review the sentencing court's factual determination of the amount of drugs involved in a conspiracy for clear error. United States v. Goines, 988 F.2d 750, 775 (7th Cir.1993); United States v. Campbell, 985 F.2d 341, 346 (7th Cir.1993) (citing United States v. Cochran, 955 F.2d 1116, 1124 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 470, 121 L.Ed.2d 368 (1992)). Each conspirator is responsible for the amount of cocaine he actually distributed as well as the amount involved reasonably foreseeable to him. ¹ Goines, 988 F.2d at 775; see also United States v. Tolson, 988 F.2d 1494, 1502 (7th Cir.1993). We defer to the sentencing court's credibility determinations because the presiding judge while listening to the witnesses' testimony is in the best position to observe, weigh, and evaluate a witness' verbal as well as nonverbal behavior. Tolson, 988 F.2d at 1497 (quoting Churchill v. Waters, 977 F.2d 1114, 1124 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2991, 125 L.Ed.2d 686 (1993)).

1. Quantity Attributable to Pitz

Five witnesses testified as to the quantity of drugs attributable to Pitz at his sentencing hearing: Karr, Randy Mustread, Bruce Harmening, Bob Rutter, and Pitz. Karr testified that he had distributed a total of at least twenty-four ounces of cocaine to Pitz during thirty-five to forty transactions. Karr also testified that Pitz and Rutter had delivered sixty ounces of cocaine from Strauser's apartment to Karr's home. The court determined that Karr was the most...