U.S. v. Roman, s. 96-1962
| Decision Date | 27 June 1997 |
| Docket Number | Nos. 96-1962,96-1963,s. 96-1962 |
| Citation | 121 F.3d 136 |
| Parties | UNITED STATES of America v. Samuel ROMAN, a.k.a. Samuel Mercado Samuel Roman, Appellant. UNITED STATES of America v. Oscar ROMAN, a.k.a. Oscar Mercado, Appellant. . Submitted Pursuant to Third Circuit LAR 34.1(a) |
| Court | U.S. Court of Appeals — Third Circuit |
Rocco C. Cipparone, Jr., Haddon Heights, NJ, for Appellant Oscar Roman.
Jeffrey M. Lindy, Philadelphia, PA, for Appellant Samuel Roman.
Michael R. Stiles, United States Attorney, Walter S. Batty, Jr., Assistant United States Attorney, Chief of Appeals, Kristin R. Hayes, Assistant United States Attorney, Philadelphia, PA, for Appellee.
Before: GREENBERG and MCKEE, Circuit Judges, GREENAWAY, * District Judge.
In this consolidated appeal, we are asked to review the sentences of Samuel Roman, who pled guilty to possession with intent to distribute cocaine base and aiding and abetting, and Oscar Roman, who pled guilty to possession with intent to distribute and distribution of cocaine base as well as carrying a firearm in connection with a drug trafficking crime. The district court sentenced both Samuel and Oscar Roman to 188 months of imprisonment for the drug related offenses and imposed a consecutive sentence of five years on Oscar Roman for the firearm offense. Both defendants contend that the district court erred by imposing enhancements for "crack cocaine" and concluding that the government had not breached their plea agreements by refusing to file a downward departure motion. Samuel Roman raises the additional argument that the district court erred by refusing his request for funds to retain a psychologist to testify on his behalf at sentencing. For the reasons that follow, we will affirm.
These prosecutions are based on three separate incidents. On September 2, 1994, during surveillance of the 4400 block of North 4th Street, Philadelphia police officers observed Bobby Rodriguez and an unknown purchaser engage in a drug transaction with Samuel Roman. After the purchaser paid Rodriguez for the drugs, he handed the money to Roman. The police stopped Rodriguez and Roman and seized fifty vials of crack cocaine from Rodriguez and $494 in cash from Roman.
On November 7, 1994, Philadelphia police officers, again surveilling the 4400 block of North 4th Street, saw William Serrano engage in a drug sale. An undercover officer then approached and purchased two vials of crack from Serrano. Serrano then handed the money to Oscar Roman, who was seated in a nearby car. Backup officers arrested Serrano and Roman. They seized eleven vials of crack from Serrano and a loaded weapon and $259 in cash from Roman. A subsequent search of the car disclosed additional "bundles" containing numerous vials of crack cocaine.
On November 22, 1994, police officers were once again surveilling the same block of North 4th Street when they saw Samuel Roman hand a brown paper bag to Oscar Roman and another individual. Oscar Roman and the other individual then hid the paper bag in a vacant lot. Samuel collected money from the two and left. Police apprehended Samuel in a car shortly thereafter. They found $1,494 on his person and a bundle of suspected crack cocaine in the car. The officers searched the vacant lot and found the brown paper bag that Oscar and the other individual had hidden. It contained fourteen bundles of crack, and three more bundles were found nearby.
Samuel and Oscar Roman both were charged with possession with intent to distribute crack cocaine (21 U.S.C. § 841(a)(1)), and Oscar Roman was also charged with distribution of crack cocaine (21 U.S.C. § 841(a)(1)) and carrying a firearm in connection with a drug-trafficking crime (18 U.S.C. § 924(c)). Defendants were initially named in an indictment that specifically charged them with offenses involving "crack cocaine." However, the government obtained a superseding indictment that identified the controlled substance at issue as "cocaine base."
Both defendants pled guilty to all of the offenses in the superseding indictment pursuant to standard written plea agreements. In those agreements, each defendant agreed "to provide truthful, complete, and accurate information," "to provide all information concerning his knowledge of, and participation in, the distribution of cocaine base and any other crimes about which he has knowledge," and not to "protect any person or entity through false information or omission." App. at 19a-20a, 26a-27a. During the change-of plea hearings that followed their initial plea of not guilty, the government clarified their obligations under the plea agreements by acknowledging that defendants could provide historical information only, and did not have to "engage in affirmative investigative techniques." App. at 59a.
A sentencing hearing was held on October 16, 1996. Both defendants argued that the government had the burden of proving that the controlled substance involved in this case was crack cocaine. To meet its burden, the government only presented the testimony of Officer Wilbert Kane, the officer assigned to the case. Kane had twelve years of experience in investigations and prosecutions of persons charged with crack cocaine distribution and had trained state and federal narcotics officers. Over defense objections, Kane testified that the substance seized from defendants was crack cocaine. His conclusion was based solely upon the way the substance was packaged. Kane conceded that the substance seized from the defendants did not contain sodium bicarbonate, a residue common in crack cocaine. However, he explained that the head of the police laboratory had told him that the absence of sodium bicarbonate did not mean the substance was not crack because, if the "cook" was good, sodium bicarbonate would not be found in the finished crack. App. at 74a.
Kane testified that he had seen crack cocaine cooked and that he had seen the substance that was seized from the defendants. For some reason, he was not asked to compare that crack's appearance with the substance seized from the defendants. He did, however, testify that the drugs taken from the defendants was in vials with color caps which is how crack cocaine is typically packaged for sale in Philadelphia. He testified that "powder cocaine," in contrast, is usually packaged in ziplock bags. App. at 75a. Based solely upon the packaging, Kane concluded that the substance seized from the defendants was crack. The court accepted that conclusion and sentenced the defendants accordingly over defense objections.
Defendants also objected to the government's decision not to file a downward departure motion. They argued that this decision breached their plea agreements and that government investigators were angry because they were only able to provide "historical" information. The defendants maintained that they only had historical information and that their agreements did not require them to provide more. The government, however, argued that it was the Romans who breached the agreement by not providing complete information. In support of its argument, the government again presented the testimony of Officer Kane who testified that "the accumulation of intelligence that [the Romans] would have gathered while in the business far exceeded what they were willing to tell us in the proffer." App. at 83a. Kane conceded, however, that the information the Romans had provided was accurate. The district court concluded that the government had not breached the plea agreements.
Samuel Roman was sentenced at the bottom of the applicable guidelines range to 188 months imprisonment. Oscar Roman was also sentenced to 188 months on the narcotics offenses as well as to a consecutive sentence of 60 months stemming from his 924(c) conviction. These appeals followed.
This Court has jurisdiction to review final sentences pursuant to 18 U.S.C. § 3742(a).
Defendants contend that the district court erred in finding that the controlled substance involved in their case was crack cocaine and sentencing them pursuant to the guideline enhancement for that drug. 1 The district court's determination that the substance seized from defendants was crack cocaine is a finding of fact that we review for clear error. See United States v. Johnson, 12 F.3d 760, 765 (8th Cir.1993). "Factual findings are clearly erroneous if the findings are unsupported by substantial evidence, lack adequate evidentiary support in the record, are against the clear weight of the evidence or where the district court has misapprehended the weight of the evidence." Davin v. United States Dep't of Justice, 60 F.3d 1043, 1049 (3d Cir.1995)(internal quotations omitted). However, "[t]his court has plenary review of issues of law raised by the district court's application of the Sentencing Guidelines." United States v. James, 78 F.3d 851, 855 (3d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 128, 136 L.Ed.2d 77 (1996).
In support of their argument, defendants cite our recent decision in United States v. James. There, the defendant was charged with distribution and possession of a "substance containing a detectable amount of cocaine base." Id. (emphasis added). He plead guilty to that charge and stipulated for sentencing purposes that "the relevant quantity of cocaine base is 57.4 grams." Id. at 856 (emphasis added). At his plea colloquy the court asked "Now Mr. James, did you, as charged in Count One of the indictment ... knowingly, intentionally and unlawfully distribute in excess of five grams of a mixture and substance containing a detectable amount of cocaine base? " Id. (emphasis added). James answered this question affirmatively. However, during the plea colloquy, the government made several casual references to "crack":
The parties agree that the relevant quantity of cocaine base ... is 57.4 grams. That's the total net weight of the crack cocaine that was...
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