U.S. v. Randolph, 95-4086

• Decision Date: 03 December 1996
• Docket Number: No. 95-4086,95-4086
• Citation: 101 F.3d 607
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ronnell B. RANDOLPH; Willie Mitchell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 607

101 F.3d 607

UNITED STATES of America, Plaintiff-Appellant, v. Ronnell B. RANDOLPH; Willie Mitchell, Defendants-Appellees.

No. 95-4086.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1996.

Decided Dec. 3, 1996.

Christina Y. Tabor, argued, Kansas City, MO, for appellant.

Larry C. Pace, argued, Kansas City, MO, for appellee.

Before LOKEN, HEANEY, and JOHN R. GIBSON, Circuit Judges.

LOKEN, Circuit Judge.

The government appeals sixty-month sentences imposed upon Ronnell B. Randolph and Willie Mitchell after they were convicted of cocaine distribution offenses. Concluding that the district court did not adequately explain its drug quantity findings, we reverse and remand for resentencing.

I.

In June 1993, police obtained a warrant to search the Kansas City apartment of Kenneth Hulett, a suspected drug dealer. They arrested Randolph and Mitchell leaving Hulett's apartment and seized from Mitchell a brown paper bag containing 250 grams of cocaine. Entering the apartment, police found Hulett cooking a large batch of "crack" cocaine. Though Randolph and Mitchell were released, Hulett pleaded guilty to drug and firearm offenses and began cooperating with authorities to obtain a lighter sentence.

Nearly two years later, Randolph and Mitchell were indicted on charges stemming from the June 1993 arrests. Mitchell pleaded guilty to a drug conspiracy offense. His plea agreement stipulated that the drug quantities attributable to him for sentencing purposes should be between fifteen and fifty kilograms of powder cocaine plus 150 to 500 grams of crack cocaine, and recited that those quantities would appear to result in a sentencing range of 188 to 235 months in prison, or 135 to 168 months if Mitchell received a reduction for acceptance of responsibility.

At Randolph's trial, Hulett was a government witness. He testified that he purchased cocaine from a west coast supplier and resold it to Kansas City distributors. Randolph purchased cocaine from Hulett and also helped make deliveries to Hulett's other customers. Beginning in March 1993, Mitchell worked for Randolph running errands and carrying drugs. Regarding drug quantities, Hulett testified that Randolph purchased both crack and powder cocaine during 1992 and up until the arrests in June 1993. These purchases were initially about two to three ounces a week, but "it expanded from him getting two to three ounces at a time to him getting nine ounces at a time to him selling kilos at a time." According to Hulett, he had sold Randolph the 250 grams of cocaine found on Mitchell the day of the arrests. Randolph also testified at trial, admitting that he was friends with Hulett but denying any involvement in Hulett's drug trade.

The jury convicted Randolph of two drug offenses. His presentence report (PSR) attributed to him 2011 grams of cocaine powder and 820 grams of crack cocaine seized in June 1993. In addition, citing "DEA intelligence information," the PSR held Randolph accountable for forty-two kilograms of cocaine purchased from Hulett from September 1992 until the arrests in June 1993, estimating these quantities to be 60% crack and 40% powder cocaine. Similarly, Mitchell's PSR attributed to him the powder and crack cocaine seized in June 1993, plus eighteen kilograms of powder and crack cocaine Randolph purchased from Hulett from late March until June 1993, when Mitchell was helping Randolph distribute cocaine. Both Randolph and Mitchell objected to the drug quantity paragraphs in their respective PSRs.

At Randolph's sentencing hearing, the district court first asked if defense counsel had any additional objections to the PSR. The court then stated: "Well, I'm going to make a finding there was over 500 grams of powdered cocaine involved .... but less than two kilograms." The government objected to that finding. Twenty minutes later, the court commenced Mitchell's sentencing hearing. After inviting comments from Mitchell and his attorney, the court stated, "Well, let's see. I'm going to make a finding that there's over 500 grams of powdered cocaine." Again, the government objected. The court sentenced both men to sixty months in prison and five years' supervised release. The government appeals both sentences, claiming that the district court's drug quantity findings are clearly erroneous.

II.

The government must prove at sentencing the type and quantity of drugs attributable to a defendant by a preponderance of the evidence. See United States v. Tauil-Hernandez, 88 F.3d 576, 579 (8th Cir.1996). Once challenged, a PSR "is not evidence and is not a legally sufficient basis for making findings on contested issues of material fact." United States v. Wise, 976 F.2d 393, 404 (8th Cir.1992) (en banc) (quotation omitted), cert. denied, 507 U.S. 989, 113 S.Ct. 1592, 123 L.Ed.2d 157 (1993). If defendant objects to the PSR's drug quantity recommendation, the sentencing court must make a specific finding "on the basis of evidence, and not the presentence report." United States v. Greene, 41 F.3d 383, 386 (8th Cir.1994). The court may rely on evidence presented at trial, see United States v. Thompson, 51 F.3d 122, 125 (8th Cir.1995), and on stipulations made at trial or in a plea agreement, see United States v. Bender, 33 F.3d 21, 23 (8th Cir.1994); United States v. Dailey, 918 F.2d 747, 748 (8th Cir.1990).

Without explanation, the district court found...