U.S. v. Reese

• Decision Date: 26 October 1995
• Docket Number: No. 93-8843,93-8843
• Citation: 67 F.3d 902
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lenzy REESE, Jr.; Mary Johnson, a/k/a "Lady Red"; James O'Bryant, a/k/a "Boo-Boo"; Tyrone Davis; Benjamin LaShawn Cooper; Lucious Johnson, a/k/a "Humpy"; Pamela Cooper; Willie Norton; Lester Bell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 902

67 F.3d 902

UNITED STATES of America, Plaintiff-Appellee, v. Lenzy REESE, Jr.; Mary Johnson, a/k/a "Lady Red"; James

O'Bryant, a/k/a "Boo-Boo"; Tyrone Davis; Benjamin LaShawn

Cooper; Lucious Johnson, a/k/a "Humpy"; Pamela Cooper;

Willie Norton; Lester Bell, Defendants-Appellants.

No. 93-8843.

United States Court of Appeals, Eleventh Circuit.

Oct. 26, 1995.

Edward Cage Brewer, III, Atlanta, GA, for LR.

John J. Ossick, Jr., Kingsland, GA, for MJ.

Harry W. Bassler, Atlanta, GA, for JOB.

James S. Stokes; Alston & Bird, Atlanta, GA, for TD.

Alan I. Begner, Atlanta, GA, Kent P. Smith, Peter M. Crofton, Smith & Fleming, Atlanta, GA, for BLC.

Charles David Joyner, Blackshear, GA, for LJ.

Charles E. Bagley, Jr., Alma, GA, for PC.

Howard B. Slocumb (retained), Homerville, GA, for WN.

Sandra J. Popson, Macon, GA, for LB.

Thomas M. Gannon, Dept. of Justice, Criminal Div., Appellate Section, Washington, DC, for appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before HATCHETT, DUBINA and BLACK, Circuit Judges.

HATCHETT, Circuit Judge:

The nine appellants in this criminal appeal raise numerous issues challenging their convictions and sentences for participation in a drug trafficking conspiracy. With the exception of one sentencing issue, we find that all of the appellants' contentions lack merit and do not warrant discussion. The one issue requiring discussion is whether the district court misapplied section 1B1.3 of the United States Sentencing Guidelines in attributing quantities of cocaine to four of the appellants: Lenzy Reese, Jr., Lester Bell, Tyrone Davis, and Mary Johnson. ¹ We affirm the convictions, vacate the sentences, and remand for resentencing.

BACKGROUND

In the late 1980s and early 1990s, Eugene Edmond led a drug trafficking organization in Waycross, Georgia. Reese, Bell, and Davis were "street-level" dealers for Edmond's organization. Johnson was married to Edmond's partner. The organization used Johnson's house as a storage and distribution center for cocaine.

On April 16, 1993, a jury convicted the appellants of conspiring to distribute controlled substances in violation of 21 U.S.C. Sec. 846. ² The United States Probation Office then prepared a presentence investigation report (PSR) for each of the appellants. Each PSR included a determination of the amount of cocaine attributable to each of the appellants under the Sentencing Guidelines. In making these determinations, the PSRs calculated that the Edmond conspiracy distributed approximately one kilogram of crack cocaine and three ounces of cocaine hydrochloride per month. The PSRs then multiplied this figure to the number of months each appellant was involved in the Edmond conspiracy to arrive at an overall determination.

The appellants objected to the determinations in their PSRs. In response, the probation office prepared an addendum to each PSR. The addenda rejected the appellants' objections and adhered to the original determinations. Subsequently, in June 1993, the district court held individual sentencing hearings for each of the appellants.

At Reese's sentencing hearing, defense counsel objected to the PSR's assertion that Reese had participated in the Edmond conspiracy for five months. Counsel contended that Reese "should be attributed with the amount of cocaine that would be applicable for a three-month period as opposed to a five-month period." The district court overruled Reese's objection and adopted the finding contained in the addendum to his PSR, which stated:

According to Eugene Edmond, Reese was a distributor for his organization from May, 1991 to September, 1991. Even though Reese may have personally distributed only one to two ounces of crack cocaine per week for Edmond, he should be held accountable for the entire quantity distributed by the Edmond organization based on his knowledge of the organization. Reese knew that ... others were also selling quantities of crack cocaine for Eugene Edmond. As such, pursuant to U.S.S.G. Sec. 1B1.3 (relevant conduct), the defendant should be held accountable for all controlled substances distributed by the Edmond organization during the period of time in which Reese was a member of the Edmond organization.

The district court ultimately sentenced Reese to life imprisonment.

At Bell's sentencing hearing, his counsel objected to the PSR's determination that Bell worked for Edmond for seven months and was therefore accountable for seven kilograms of crack cocaine. Counsel contended that Bell worked for Edmond for less than five months, and therefore, was only accountable for less than five kilograms of crack cocaine. In response to Bell's objection, the district court adopted, with one exception, the finding in the addendum to his PSR. The addendum stated:

The probation officer ... interview[ed] Eugene Edmond who identified the defendant as having been employed in the organization from June, 1991, through January, 1992. Edmond acknowledges that his organization dealt at least one kilogram of crack cocaine and three ounces of cocaine hydrochloride per month. Because of Bell's knowledge of the Edmond organization and the fact that his (Bell's) activities were in furtherance of the criminal conspiracy, the defendant is attributed with at least seven kilograms of cocaine hydrochloride.

The district court took exception with the seven-kilogram total; instead, it found that Bell was only responsible for "in excess of five kilos." The district court ultimately sentenced Bell to 360 months of imprisonment.

At Davis's sentencing hearing, his counsel objected to the quantity attributed, arguing that Davis had no "knowledge of any part of [Edmond's] organization." The district court overruled the objection and adopted the finding in the addendum to Davis's PSR, which stated:

[A]lthough the defendant worked under the direction of Cedric Smith, he was still a part of the Edmond organization. According to Eugene Edmond, Tyrone Davis was fully knowledgeable of the scope and extent of the Edmond organization and participated in the distribution of cocaine over an extended period of time. The cocaine distributed by Davis was cocaine provided to Cedric Smith through Eugene Edmond. Based on the knowledge that Davis had of Smith's role in the Edmond organization, Davis is attributed with the amount of drugs attributed to Smith during the defendant's six month period of involvement. Since Smith was culpable for six kilograms of crack cocaine and 18 ounces of cocaine hydrochloride during the six month period, Tyrone Davis is accountable for the same.

The district court then sentenced Davis to 360 months of imprisonment.

At Johnson's sentencing hearing, counsel challenged the credibility of the evidence indicating that Johnson stored and distributed cocaine. The district court overruled Johnson's objection and adopted the finding in the addendum to her PSR, which stated:

[T]he defendant is culpable for 33 kilograms of crack cocaine and 48 ounces of cocaine hydrochloride. The evidence in this case showed Lucious Johnson and Eugene Edmond stored quantities of crack cocaine and cocaine hydrochloride at the defendant's residence. According to Eugene Edmond, Mary Johnson would provide Ultimately, the district court sentenced Johnson to life imprisonment.

Edmond and other members of the conspiracy with quantities of crack cocaine and cocaine hydrochloride to be distributed in the Waycross area. Further, portions of the crack cocaine and cocaine hydrochloride which were stored at the defendant's residence were transported to Douglas, Georgia, by Lucious Johnson to be distributed in the Douglas area. Since the defendant stored and distributed quantities of crack cocaine and cocaine hydrochloride to members of the Edmond organization, pursuant to U.S.S.G. Sec. 1B1.3 (relevant conduct), she is held accountable for the entire quantity of controlled substances distributed by this organization.

CONTENTIONS

Appellants contend that the district court did not properly apply the amended version of U.S.S.G. Sec. 1B1.3 in attributing quantities of cocaine to them. ³ The government responds that the appellants' sentences were correctly calculated under both the old and amended versions of section 1B1.3.

ISSUE

The only issue we discuss is whether the district court misapplied U.S.S.G. Sec. 1B1.3 in attributing quantities of cocaine to the appellants.

DISCUSSION

A. Application of section 1B1.3 in drug conspiracies

U.S.S.G. Sec. 2D1.1 sets the base offense level for conspiring to distribute controlled substances. See United States v. Butler, 41 F.3d 1435, 1442 (11th Cir.1995). Calculating the base offense level under section 2D1.1 "requires a determination of the quantity of illegal drugs properly attributable to a defendant. This, in turn, requires an assessment of the conduct of others for which a defendant is accountable under section 1B1.3." Butler, 41 F.3d at 1442.

Before November 1, 1992, section 1B1.3(a) held defendants accountable for

all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, 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 are otherwise in furtherance of that offense....

U.S.S.G. Sec. 1B1.3(a)(1) (1991) (emphasis added). The commentary to section 1B1.3 clarified the emphasized language: "In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant 'would be otherwise accountable' also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant." U.S.S.G. Sec. 1B1.3 comment. (n. 1) (1991). On the other hand, the commentary explained that a...