U.S. v. Prince
| Decision Date | 02 April 1997 |
| Docket Number | D,No. 202,202 |
| Parties | UNITED STATES of America, Appellee, v. Leroy PRINCE, Lowell Gallimore, Defendants-Appellants. ocket 95-1561(L). |
| Court | U.S. Court of Appeals — Second Circuit |
Michael Young, New York City, for Appellant.
Shari Leventhal, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY (Zachary W. Carter, United States Attorney, Timothy Macht, Assistant United States Attorney, of counsel), for Appellee.
Before: WINTER and CARDAMONE, Circuit Judges, and WARD, Senior District Judge. *
Leroy Prince ("Prince") appeals from a judgment of the United States District Court for the Eastern District of New York, Dearie, J., convicting him, upon his guilty plea, of conspiracy to distribute and possess with intent to distribute marijuana and possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 846 and 841. The district court sentenced Prince to sixty months imprisonment, a five year term of supervised release, and a $100 special assessment. On appeal, Prince argues that the district court's determination as to the amount of marijuana attributable to him was erroneous, that he was denied the effective assistance of counsel at sentencing, and that the district court's decision to sentence him at the upper end of the applicable guideline range deprived him of his constitutional rights to due process, equal protection, and fundamental fairness in sentencing. We disagree with each of Prince's contentions, and accordingly, affirm the judgment of the district court.
In May 1994, Prince began renting a room in the home of Sydney Griffith ("Griffith") at 116-43 227th Street in Queens, New York. Prince frequently helped Griffith move furniture from his house to Griffith's furniture store, S & G Furniture Trading, located in Brooklyn. In December 1994, Griffith asked Prince to help Griffith's brother Alvin Spencer ("Spencer") unload an upcoming shipment of furniture.
On December 28, 1994, during a routine United States customs examination of incoming cargo at Port Elizabeth in Newark, New Jersey, customs inspectors discovered forty-eight boxes hidden inside a shipping container of furniture consigned to S & G Furniture Trading. Delivery instructions accompanying the shipment indicated that the container was to be shipped to Griffith's home address. Customs inspectors opened one of the boxes and found marijuana inside.
A controlled delivery of the forty-seven unopened boxes was then arranged. The opened box was to be excluded from the delivery since it had been damaged during the customs search. On January 4, 1995, customs agents posing as truckers delivered the shipping container to 116-43 227th Street. Upon delivery, Prince, along with Spencer and two other individuals, unloaded the container, and brought the 47 boxes inside the house.
According to Prince, when the unloading was almost completed, he became suspicious because some of the boxes smelled like marijuana, and because one of the boxes was partially opened, revealing what he thought to be plastic bags filled with marijuana. Prince alleges that he thereupon insisted that all of the suspicious boxes be removed from the house, putting six of the boxes into a car owned by Lowell Gallimore ("Gallimore"), and taking all but three of the remaining boxes to the basement of a nearby grocery store. He claims then to have put the last three boxes into a van, intending to keep them for himself. Customs agents observed Prince and two other individuals carrying boxes from the house to the back entrance of a grocery store. When the agents entered the store, Prince allegedly attempted to flee, but was apprehended in the basement of the store near a partially opened box containing marijuana.
The agents found thirty-five boxes of marijuana in and around the grocery store. The six boxes which had been loaded into Gallimore's car were also seized. Six of the forty-seven boxes, however, were never recovered.
Prince, Gallimore, and Spencer were arrested. Thereafter, customs agents brought the forty-one remaining boxes back to a customs office. The agents removed and weighed the contents of these boxes, together with the contents of the box that had been excluded from the controlled delivery. The total net weight of marijuana contained in the forty-two boxes was 2,276.9 pounds, or 1,032.8 kilograms, and the government estimated that each box weighed between fifty and ninety pounds.
A federal grand jury indicted Prince, Gallimore, and Spencer on February 3, 1995, charging them with conspiracy to distribute and possess with intent to distribute marijuana and possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841. On May 4, 1995, Prince pleaded guilty to both counts of the indictment.
At Prince's first appearance for sentencing on July 31, 1995, the district court made a preliminary finding that Prince should be held accountable not only for the amount of marijuana found in the forty-one boxes seized on January 4, 1995, but also for the amounts of marijuana found in the box excluded from the controlled delivery and estimated to be in the six missing boxes. This resulted in a total estimated weight of 1168.88 kilograms, for a base offense level of thirty-two, the level assigned to offenses involving between 1000 and 3000 kilograms of marijuana.
On September 18, 1995, Prince appeared for sentencing. At sentencing, the court gave Prince a three-level reduction for acceptance of responsibility, a three-level downward adjustment because of his minor role in the offense, and a two-level downward departure based on his testimony at a Fatico hearing that he was unaware that the shipment contained marijuana until he was in the process of unloading the boxes. This resulted in a total offense level of twenty-four with a sentencing range of fifty-one to sixty-three months. The court then sentenced Prince to sixty months imprisonment, five years of supervised release, and a $100 special assessment. Included in the judgment is an order pursuant to 18 U.S.C. § 3583(d) that upon completion of his sentence of incarceration Prince is to be delivered to the Immigration and Naturalization Service for immediate deportation.
Prince first argues that the district court erred in its determination of the amount of marijuana attributable to him. Next, Prince contends that he was denied the effective assistance of counsel at sentencing. Finally, Prince claims that the district court abused its discretion in sentencing him at the upper end of the applicable guideline range. We will address each of these issues in turn.
Prince argues that the district court erred in finding him accountable not only for the weight of marijuana in the forty-one boxes seized after his arrest, but also for the weight of marijuana in the box excluded from the controlled delivery and the weight of marijuana estimated to be in the six missing boxes. According to Prince, this error increased his base offense level from level thirty, which encompasses offenses involving 700 to 1,000 kilograms of marijuana, to level thirty-two, which encompasses offenses involving 1,000 to 3,000 kilograms of marijuana. A district court's findings as to the quantity of narcotics involved in an offense are findings of fact subject to the clearly erroneous standard of review. United States v. Thompson, 76 F.3d 442, 456 (2d Cir.1996); United States v. Pirre, 927 F.2d 694, 696 (2d Cir.1991).
In order to prevail, Prince must prove that the district court clearly erred in including in its findings as to the amount of marijuana attributable to him both the weight of the marijuana in the box excluded from the delivery and the weight of marijuana estimated to be in the six missing boxes. Only the exclusion of the weight of all seven boxes would reduce the weight of marijuana attributable to Prince to under 1,000 kilograms, thereby reducing his base offense level to level thirty.
Prince first argues that because he was unaware that the shipment contained marijuana until he was in the process of unloading the boxes, he should not have been held responsible for the box of marijuana found by customs agents before the controlled delivery and excluded from that delivery. In support of his contention, Prince refers to the United States Sentencing Guidelines ("Sentencing Guidelines"), which provide that a defendant's relevant conduct "does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of that conduct." U.S.S.G. § 1B1.3, Application Note 2.
We need not address this argument, however, as Prince has failed to show that the district court clearly erred in finding him accountable for the weight of marijuana estimated to be in the six missing boxes. Initially, Prince contends that the district court improperly "speculated" that the six missing boxes were among those unloaded by Prince. A district court satisfies its obligation to make "findings sufficient to permit appellate review ... if the court indicates, either at the sentencing hearing or in the written judgment, that it is adopting the recommendations in the [presentence report ("]PSR[") ]." Thompson, 76 F.3d at 456. In the instant case, the district court in its written opinion adopted the factual findings in the PSR that Prince, along with two other individuals, unloaded and transported forty-seven boxes of marijuana that had been delivered by undercover agents to the 227th Street address. The record on appeal reveals that Prince's counsel suggested only once during sentencing that he had never been clear whether the boxes disappeared before or after delivery was completed. After apparently deciding that Prince's offense level would not be lower without the weight of the missing boxes, however, his couns...
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