U.S. v. Reynolds

• Citation: 900 F.2d 1000
• Decision Date: 16 April 1990
• Docket Number: 89-2430,Nos. 89-2258,s. 89-2258
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Nick P. REYNOLDS, Defendant-Appellant, Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1000

900 F.2d 1000

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Nick P. REYNOLDS, Defendant-Appellant, Cross-Appellee.

Nos. 89-2258, 89-2430.

United States Court of Appeals Seventh Circuit.

Argued Jan. 16, 1990.

Decided April 13, 1990.

As Amended April 16, 1990.

Joseph R. Wall, Francis D. Schmitz, Asst. U.S. Attys., Milwaukee, Wis., for plaintiff-appellee cross-appellant.

Thomas E. Brown, Marna M. Tess-Mattner, Jeffrey A. Kaufman, Gimbel, Reilly Guerin & Brown, Milwaukee, Wis., for defendant-appellant cross-appellee.

Before BAUER, Chief Judge, and CUDAHY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

This is an appeal from the judgment in a criminal case where the sentence was imposed pursuant to the Sentencing Guidelines. Defendant Nick P. Reynolds challenges the constitutionality of Sec. 2D1.1 of the Guidelines as applied to a conspiracy charge under 21 U.S.C. Sec. 846. The government appeals the district court's grant of a two point reduction in offense level for acceptance of responsibility. We find the application of Sec. 2D1.1 constitutional, but find the district court erroneous in granting a reduction for acceptance of responsibility. Accordingly, we vacate the sentence, and remand for resentencing.

I.

Beginning in the spring of 1988, and lasting until December of 1988, Nick Reynolds engaged in selling cocaine to his friend, Royal Warrington. Warrington, in turn, sold the cocaine to Lisa White Komanekin, who in turn sold the cocaine on or near the Monominee Indian Reservation in Shawano County, Wisconsin. Warrington and Komanekin were arrested and both turned informant. On the basis of their testimony, Reynolds was arrested and charged with distribution of two ounces of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, and conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 and 18 U.S.C. Sec. 2. After a three day trial, Reynolds was convicted. Prior to sentencing, Reynolds raised a number of objections to the presentence report, including objections to the amount of cocaine used in the Guideline calculations and to the denial of an adjustment for acceptance of responsibility pursuant to Sec. 3E1.1 of the Guidelines.

Reynolds' objection to the amount of cocaine used in the Guideline calculations was based on the disparity between the amount of cocaine he was convicted for and the amount used to calculate his sentence. Although Reynolds was convicted of distributing two ounces of cocaine (56 grams), the government maintained that ample evidence existed to sentence Reynolds for transactions involving 300 to 399 grams of cocaine, which would yield a base offense level of 20. Reynolds argued that based on the amount for which he was convicted, the amount included in the Guidelines should be under 100 grams, so that the proper base offense level should be 16.

The evidence at trial concerning the amounts of cocaine was varied. Warrington testified that he purchased cocaine from Reynolds on a number of occasions in various amounts. According to Warrington's testimony, the first time that he purchased cocaine from Reynolds was on Memorial Day, 1988, when he bought approximately one-quarter of a pound. Immediately after his arrest in November, 1988, however, Warrington told authorities that on that occasion Reynolds had sold him only one-quarter of an ounce. Warrington was uncertain as to the number of times he had purchased cocaine from Reynolds after this incident, but testified that he usually purchased one-half to two ounce quantities of cocaine. Again, this is contradicted by Warrington's post-arrest interview and grand jury testimony that he had purchased one-quarter ounce quantities from Reynolds. Lisa Komanekin also testified that Reynolds sold cocaine, but her testimony was sketchy. She did not directly purchase cocaine from Reynolds, but testified that she had seen Warrington purchase various small amounts from Reynolds. Finally, the government seized approximately 336 grams of cocaine from Warrington. It is known that Reynolds supplied Warrington with cocaine, but it is not known whether Warrington had a second source of supply or whether Reynolds supplied him with all of this cocaine.

The government contended that this evidence was sufficient for finding that the quantity of cocaine involved was 336 grams. The court largely accepted the government's argument; based on the length of the conspiracy, and the inaccuracy of the actual drug quantities seized and measured, the court found that there was sufficient evidence to sentence the defendant for the distribution of 200-299 grams of cocaine, which placed the defendant's base offense level at 20. The government proved that Reynolds distributed this amount by a preponderance of the evidence standard, but it did not prove this beyond a reasonable doubt.

Reynolds also argued that he should be given a two point reduction for acceptance of responsibility. The pre-sentence report indicated that he should not receive such a reduction on the basis that Reynolds continued, after conviction, to deny his guilt under Count Two of the indictment for possession with intent to distribute two ounces of cocaine. The government attempted to buttress the report's findings by maintaining that the defendant was not entitled to a two point reduction for acceptance of responsibility because Reynolds attempted to obstruct the proceedings ¹ and because Reynolds did not in fact accept responsibility. The government contended that reduction was prohibited by note 4 of Guideline 3E1.1 which, it claimed, precluded a reduction for acceptance of responsibility where the defendant also obstructs the proceedings. In addition, the government vigorously argued that Reynolds was not actually remorseful and that he did not voluntarily assist the government in other investigations.

The court rejected the presentence report and the government's arguments, finding that Reynolds was entitled to a two point reduction based on his withdrawal from criminal activity, and "significant alteration in terms of his lifestyle, where he resided, at work, and so forth." The court, however, stated that it was uncomfortable with a two point reduction, feeling that only a one point reduction was warranted. Under the present Guideline structure the only available adjustment is a two point reduction and the court determined that it "would rather err in the interests of the defendant" by over-adjusting in the point level and compensating for the over-adjustment by sentencing the defendant at or near the top of the lower Guideline range than err against the defendant.

The reduction for acceptance of responsibility placed Reynolds' level at 18. The court also found that Reynolds obstructed the proceedings, which gave Reynolds a two point enhancement, leaving his level at 20. The sentencing range for level 20 with a criminal history category I is 33-41 months. The court sentenced Reynolds to forty months in prison. Reynolds appeals the constitutionality of Sec. 2D1.1 of the Guidelines as applied to a conspiracy charge under 21 U.S.C. Sec. 846, and the government appeals the two point reduction for acceptance of responsibility.

II.

A. The Constitutionality of Sec. 2D1.1 as Applied to 21 U.S.C. Sec. 846

It is well established that the prosecution must prove beyond a reasonable doubt all facts constituting the crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). While the due process clause requires the prosecution to prove beyond a reasonable doubt all the elements of the charged offense, the prosecution need not prove beyond a reasonable doubt exculpatory or mitigating facts which affect the severity of the punishment. Patterson v. New York, 432 U.S. 197, 207, 97 S.Ct. 2319, 2325, 53 L.Ed.2d 281 (1977). The government is not without constitutional limits on its power to dictate the burden of proof merely by manipulating the definitional elements of the offense and sentencing factors, see Jones v. Thieret, 846 F.2d 457, 462 (7th Cir.1988), but in determining which facts the prosecution must prove beyond a reasonable doubt, the definition of the elements of the offense is usually dispositive. McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67 (1986).

Reynolds contends that Sec. 2D1.1 creates an element of the offense under 21 U.S.C. Sec. 846 which must be proven beyond a reasonable doubt. Section 846 makes it illegal to conspire to violate Sec. 841, which outlaws possession of cocaine with intent to distribute. No overt act is required under Sec. 846. Under pre-Guideline sentencing, Sec. 846 called for identical penalties as those under Sec. 841, which includes various enhancement provisions depending on the quantity and type of narcotic. In our case, Sec. 841(b)(1)(C) would provide for a sentence of not more than 20 years. Under this section the judge was entitled to consider the quantity of narcotics which were to be distributed, but an exact determination was not necessary. Penalties for violation of Sec. 846 are now calculated in accordance with Sec. 2D1.1 of the Guidelines. Under Sec. 2D1.1, sentencing for violation of Sec. 846 is largely determined by the quantity of drugs involved and the type of narcotic as outlined in Sec. 2D1.1(c). Under Sec. 2D1.1(c), the judge is required to make a finding of the approximate amount of drugs involved in order to apply the Guidelines. It is this finding, which was not necessary in pre-Guideline sentencing, that Reynolds claims is an additional element of Sec. 846 which must be proven beyond a reasonable doubt.

In United States v. Acevedo, 891 F.2d 607, 611 (7th Cir.1989), we held that Sec. 841(b), much like Sec. 2D1.1, is an enhanced penalty provision rather than a separate substantive offense. See also United States v. Ocampo, 890 F.2d 1363, 1372 (7th Cir.1989). Section 841(b) provides for...