U.S. v. Rosenthal

• Decision Date: 09 June 2003
• Docket Number: No. CR 02-0053 CRB.,CR 02-0053 CRB.
• Citation: 266 F.Supp.2d 1091
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Edward ROSENTHAL, Defendant.

Page 1091

266 F.Supp.2d 1091

UNITED STATES of America, Plaintiff, v. Edward ROSENTHAL, Defendant.

No. CR 02-0053 CRB.

United States District Court, N.D. California.

June 9, 2003.

COPYRIGHT MATERIAL OMITTED

George Bevan, U.S. Atty's Office, San Francisco, CA, for Plaintiff.

Robert V. Eye, Topeka, KS, Dennis P. Riordan, San Francisco, CA, Joseph D. Elford, San Francisco, CA, William M. Simpich, LAw Offices of William M. Simpich, Oakland, CA, for Defendant.

SENTENCING MEMORANDUM

BREYER, District Judge.

A jury convicted defendant Edward Rosenthal of violating the federal Controlled Substances Act. The charges arose out of the defendant's cultivation of marijuana at 1419 Mandela Parkway in Oakland, California. Prior to sentencing the parties filed two memoranda each on the issues to be decided and identified the evidence they wanted the Court to consider. See Unit States Sentencing Guideline ("USSG") § 6A1.3. The Court also reviewed the sentencing recommendation of the United States Probation Office. On June 4, 2003, after oral argument from the parties, the Court sentenced the defendant to a one-day term of imprisonment. This Memorandum sets forth the Court's findings and reasoning in addition to what was stated in open court at the time of sentencing.¹

DISCUSSION

In a federal criminal proceeding, such as this, a defendant's sentence is determined by the United States Sentencing Guidelines ("USSG"). See Koon v. United States, 518 U.S. 81, 85, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). "A district court must impose a sentence within the applicable Guideline range, if it finds the case to be a typical one." Id. The first step, then, is to determine the applicable Guideline range. The Guideline range is determined by calculating the defendant's "offense level."

A. Calculation of the offense level

1. Drug quantity

The base offense level for the defendant's crimes corresponds to the quantity of marijuana at issue. USSG § 2D1.1. The Probation Office found that the defendant is responsible for 673 plants, the number of plants found at 1419 Mandela Parkway, plus the marijuana found in the defendant's residence and vehicle. For sentencing purposes, each plant is equivalent to 100 grams of marijuana. The Mandela Parkway plants plus the plants found in the defendant's vehicle and residence total 67.4 kilograms. Under the Guidelines, a drug quantity of at least 60 kilograms but less than 80 kilograms results in a base offense level of 22.

The government objects to the Probation Office's finding. It contends that the defendant is also responsible for 405 plants purchased by Drug Enforcement Agency ("DEA") agents from the Harm Reduction Center ("HARM") in January 2002, plus 628 plants the government seized from HARM in February 2002, for a total drug quantity of more than 1000 plants totaling 107.70 kilograms. The government's theory is that Rosenthal had a supervisory role in the cultivation of marijuana at HARM and therefore is responsible for all the marijuana connected to HARM. Such a quantity would result in a base offense level of 26.

The defendant also argues against the Probation Office's drug quantity finding. At trial the government urged the jury to find that the number of marijuana plants exceeded 1,000. The jury disagreed and found that the number of plants the defendant conspired to cultivate was more than 100 but less than 1,000. Based on this finding, the defendant argues that the Court may not attribute more than 100 plants to him.

The Court agrees with the Probation Office that the government has not proved by a preponderance of the evidence that the drug quantity for which the defendant is responsible is 80 kilograms or more. While there is evidence that some of the plants seized from HARM came from the defendant, the Court is not persuaded that more than 120 of the plants came from the defendant. In fact, the government acknowledges that many of the plants at HARM came from sources other than the defendant, and it does not offer any evidence as to how many plants are attributable to the defendant and how many are attributable to other sources. The Court also finds, based on what it observed at trial, that the defendant did not supervise the cultivation of marijuana at HARM. Therefore the defendant is not responsible for all the marnuana the government obtained from HARM. The jury's finding that Rosenthal conspired to cultivate more than 100 but less than 1000 plants does not require a contrary conclusion. The fact that the jury did not find that the defendant conspired to cultivate more than 1000 plants suggests it rejected the government's argument that the defendant is responsible for all the plants at HARM.

The Court also disagrees with the defendant's assertion that the drug quantity should be limited to 100 plants based on the jury's drug quantity finding. The jury found that the defendant was responsible for more than 100 plants but less than 1000; it did not find that the defendant was responsible for no more than 100 plants.

Accordingly, the Court agrees with the Probation Office that the base offense level is 22.

2. Role in the Offense

The Guidelines provide for an upward adjustment to the offense level based on the defendant's role in the offense:

(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. USSG § 3B1.1. In its Sentencing Memorandum the government urged that the evidence supported an adjustment by as much as four levels. At sentencing, however, the government in effect withdrew its contention that the evidence supports a three or four-level adjustment and instead asserted that only a two-level adjustment is warranted. See Transcript of June 4, 2003 Sentencing at 8-9. In other words, the government no longer contends for the purposes of sentencing that the defendant's activity involved five or more participants or that it was otherwise extensive.

The government still claims that the defendant was an organizer, leader, manager or supervisor of others who assisted him in the cultivation of marijuana at 1419 Mandela Parkway. "When a defendant supervises other participants, she or he need exercise authority over only one of the participants to merit the adjustment." United States v. Maldonado, 215 F.3d 1046, 1050 (9th Cir.2000). The government relies primarily on the testimony of James Halloran who testified that he visited 1419 Mandela Parkway on occasion in 1999, 2000 and 2001 and observed persons other than the defendant performing the daily chores of watering, cloning, planting and boxing up the marijuana. Another witness testified that he met someone named Doug at 1419 Mandela Parkway and that Doug once delivered marijuana to HARM.

The Probation Office recommended that no adjustment be made, that is, that Rosenthal was not an organizer, leader, manager or supervisor.

The Court accepts that there were others assisting with the cultivation of marijuana at 1419 Mandela Parkway. The Court does not find, however, that Rosenthal directed or exercised authority over their conduct. See United States v. Munoz, 233 F.3d 1117, 1136 (9th Cir.2000) (role adjustment requires showing that defendant "exercised some measure of control and responsibility" over others). There is no evidence, for example, that the "to do" lists offered by the government were prepared by Rosenthal. To the contrary, based on the Court's review of this evidence, it appears the lists were prepared by others. As is stated above, the Court also finds that the defendant did not supervise others at HARM. Accordingly, it agrees with the Probation Office that no upward adjustment for role in the offense is warranted.

3. Acceptance of responsibility

The Probation Office recommended decreasing the defendant's offense level by two for acceptance of responsibility pursuant to USSG § 3E1.1. The Commentary to this Guideline explains:

Conviction by trial ... does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.

USSG § 3E1.1, comment.(n.2); see also United States v. Ochoa-Gaytan, 265 F.3d 837, 842 (9th Cir.2001) (holding that "a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility") (citation and internal quotation omitted).

The government argues that Rosenthal is not entitled to the decrease because he has not shown contrition. The case upon which it relies—United States v. Davis, 36 F.3d 1424 (9th Cir.1994)—was applying an earlier version of the guidelines that is no longer applicable. That version permitted a decrease only if the defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." Id. at 1435-36. It was amended in November 1992 to eliminate any reference to "a recognition and affirmative acceptance of personal responsibility." Id. In United States v. Ochoa-Gaytan, 265 F.3d 837 (9th...