U.S. v. Prescott
| Decision Date | 28 November 1990 |
| Docket Number | D,No. 64,64 |
| Citation | 920 F.2d 139 |
| Parties | UNITED STATES of America, Appellee, v. Philip PRESCOTT, Defendant-Appellant. ocket 90-1156. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael Shapiro, New York City (Slotnick & Baker, New York City, of counsel), for appellant.
Denis M. King, Asst. U.S. Atty., D. Connecticut, Bridgeport, Conn. (Stanley A. Twardy, Jr., U.S. Atty., D. Conn., New Haven, Conn., of counsel), for appellee.
Before FEINBERG and CARDAMONE, Circuit Judges, and RE, Chief Judge. *
This appeal by a defendant alleging violation of his due process rights implicates the scope of discretion trial courts possess in determining the facts that affect a sentence. Once the time comes to set a defendant's sentence, a district court's range of discretion is confined by the Sentencing Guidelines; yet, it need not tread a narrow path to arrive at that day, for the course it follows in resolving disputed facts at sentencing remains within the district court's broad discretion.
Philip Prescott appeals from a February 16, 1990 judgment entered in the United
States District Court for the District of Connecticut (Burns, Ch.J.) sentencing him to 20 years imprisonment, 3 years supervised release, and fining him $25,000 upon his plea of guilty to a one-count indictment charging him with conspiracy to possess with the intent to distribute and to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1988). Although the underlying conviction is not challenged, appellant raises several arguments regarding various aspects of his sentencing that he believes were in error. Because none of these arguments are persuasive, we affirm.
A joint investigation by the U.S. Drug Enforcement Administration, the Federal Bureau of Investigation, the Statewide Narcotics Task Force of the Connecticut State Police, and the Police Department of the City of Stamford, Connecticut produced evidence that appellant was involved in the distribution of cocaine. The evidence included controlled purchases by undercover agents arranged by Prescott, consensually recorded conversations that involved him, and drugs and paraphernalia attributable to him found by police while executing search warrants.
On October 6, 1989 appellant waived his right to an indictment and pled guilty to the one-count charge. Two of the controlled purchases were the subject of a stipulation, under which it was agreed that appellant's relevant conduct would be considered by the district court at sentencing that was scheduled two months later on December 6, 1989.
In response to requests and motions the district court postponed the date of sentencing several times, ultimately moving it from December 6 to February 16, 1990. After a request by the U.S. Marshal, the district court on December 1 ordered Prescott to undergo a psychiatric examination and directed a hearing be held on January 2, 1990 to determine whether he suffered from a "mental disease or defect" requiring commitment for treatment rather than incarceration. See 18 U.S.C. Sec. 4244(a) (1988). Sentencing was put over until completion of the hearing. The district judge later rescheduled the mental status hearing to January 30, 1990 in response to a request from the Warden of the Federal Correctional Institution at Butner, North Carolina where Prescott was being examined.
Appellant filed two successful motions for continuances. The first, filed on November 30, 1989 and aided by the Warden's December 27 request, resulted in the January 30 rescheduled date. After Prescott changed lawyers on January 5, 1990 a second continuance was applied for on January 12 so that new counsel could familiarize themselves with the matter and obtain an independent psychiatric evaluation. The mental status hearing and sentencing were thereupon adjourned by Chief Judge Burns from January 30 to February 16, 1990.
When on January 12 the district court granted Prescott's application to make him available for an evaluation by Dr. Alden Whitney to be conducted on February 11--five days before sentencing--the court stated that further motions to postpone the February 16 hearing would not be entertained. Prescott nonetheless filed on February 9 two more motions for adjournments: one so that his new counsel could review the government's sentencing memorandum received on February 7; the other to give Dr. Whitney time to prepare his report and for counsel to review it prior to sentence. Both motions were denied. Prescott made a final unsuccessful oral request for a continuance for the purpose of obtaining more evidence on February 16 at the mental status and sentencing hearing, after the district court had ruled that the evidence before it did not warrant a downward departure under United States Sentencing Guidelines Sec. 5K2.13 (Guidelines).
At the mental status hearing the government submitted the Forensic Evaluation of Drs. Edward Landis and Gregory Caesar--
both of Butner Correctional Institution--who prepared their report in response to the court's December 1, 1989 order. The evaluation concluded Prescott was not suffering from a mental disease or defect. The defense presented the report and testimony of Dr. Whitney, who diagnosed Prescott as suffering from a severe borderline personality disorder which he averred was a mental disease or defect, but who testified at the hearing that such disorder is not viewed as a mental disease or defect within the mental health community. The trial court found Prescott was not suffering from a mental disease or defect that would qualify him for commitment to a suitable facility, rather than imprisonment, under 18 U.S.C. Sec. 4244(d).
On completion of the mental status hearing, the district court held a sentencing hearing, in part to determine the reliability and accuracy of the information contained in the presentence report. Prescott objected to the report's reliance on hearsay evidence in arriving at a figure of 150 kilograms of cocaine attributed to him. This quantity was based on an estimate that he was involved in the sale or distribution of one kilogram of cocaine per week over a period of three years.
The presentence report based its conclusion on information obtained from several sources. The report's conclusion that Prescott distributed approximately a kilogram of cocaine per week for 150 weeks was supported by Prescott's admission of those facts and was corroborated by an informant. This estimate of quantity was further buttressed by information obtained from seven individuals, three of whom testified before a grand jury. The information in the presentence report obtained from defendant's former business partner in an auto repair business stated that in their best week they moved ten kilograms of cocaine. Another of defendant's associates told an undercover agent that Prescott sold two and one-half to three kilograms of cocaine per week. His girlfriend--later married to, then separated from defendant--told the investigators that 16 named individuals worked for appellant in a business selling four to five thousand dollars worth of cocaine a day. Perhaps most telling was the fact that in the two and one-half months that Prescott owned a cellular telephone from August 2 to October 19, 1989, he ran up an unpaid telephone bill of $5,139.38. The telephone company records revealed a total of 12,611 incoming and outgoing calls in 79 days or nearly 160 calls a day on average.
The district court approximated the quantity of cocaine involved in the offense, see Commentary to Guidelines Sec. 2D1.4, and found the information in the pre-sentence report credible, relying on the fact that several people gave substantially the same information regarding the nature and scope of Prescott's drug activity.
Appellant's original base offense level of 36 under Sec. 2D1.4 of the Guidelines--based on the distribution of 150 kilograms of cocaine--was increased by four levels because Prescott was the leader of the drug conspiracy, and was reduced by two points for his acceptance of responsibility under Guidelines Sec. 3E1.1(a), yielding a final base offense level of 38. Prescott had a previous conviction for assault on a police officer for which he received a two-year suspended sentence and probation. To this one point for a prior sentence, two points were added because the instant offense was committed while he was on probation. See Guidelines Sec. 4A1.1(e). This placed Prescott in Criminal History Category II with a sentencing range of 262 to 327 months. The district court declined to downwardly depart under Sec. 5K2.13, stating it could not find that Prescott's personality disorder contributed to the offense.
Prescott raises four issues on appeal with respect to his sentence contending: first, the procedures followed in determining his base offense level violated due process; second, the refusal to depart downwardly from the Guidelines under Sec. 5K2.13 was error; third, the failure to sentence him under 18 U.S.C. Sec. 4244(d) was clearly
erroneous; and, fourth, the denial of his three motions for continuances was an abuse of discretion. We discuss each of these contentions in turn.
The challenge to the procedure by which the district court determined appellant should be sentenced for a base offense level of 38--the level assigned by the Guidelines to a conviction for distribution of 150 kilograms of cocaine and conspiracy to possess cocaine with the intent to distribute--is premised on the presentence report's allegedly erroneous reliance on hearsay evidence. Prescott urges that we require the sentencing court to hold a full-blown evidentiary hearing when the presentence report relies on hearsay testimony in order to fix a base offense level. He contends that because the resolution of disputed sentencing factors may...
To continue reading
Request your trial
-
U.S. v. Wise
...U.S.S.G. § 6A1.3, comment. (citation omitted). The procedure to be followed rests in the sound discretion of the district court. Prescott, 920 F.2d at 144. A "presentence report is not evidence and is not a legally sufficient basis for making findings on contested issues of material fact." ......
-
US v. Shonubi
...space, prior to trial). In another estimation case, the court relied heavily on the defendant's phone bill. See United States v. Prescott, 920 F.2d 139, 142 (2d Cir.1990) (in finding that defendant distributed 150 kilograms of cocaine, "perhaps most telling was the fact that in the two and ......
-
U.S. v. Jewel, s. 90-2001
...hearsay may be considered at sentencing); United States v. Inigo, 925 F.2d 641, 660 (3d Cir.1991) (same); United States v. Prescott, 920 F.2d 139, 143-45 (2d Cir.1990) (same); cf. United States v. Barnes, 907 F.2d 693, 696-97 (7th Cir.1990) (remanding for resentencing because district court......
-
Tineo v. U.S.
...consistency of the three hearsay accounts lent substantial indicia of reliability to the testimony. See e.g., United States v. Prescott, 920 F.2d 139, 145 (2d Cir.1990) (finding hearsay testimony sufficiently reliable because numerous and independent accounts had "high degree of intercorrel......