U.S. v. Ross
| Decision Date | 20 June 1990 |
| Docket Number | No. 89-2705,89-2705 |
| Citation | 905 F.2d 1050 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Aundre ROSS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Rocco J. DeGrasse, Laurie J. Barsella, and Barry R. Elden, Asst. U.S. Attys., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.
Walter Jones, Jr., Curiel & Jones, Chicago, Ill., for defendant-appellant.
Before WOOD, Jr., COFFEY, Circuit Judges, and NOLAND, Senior District Judge. *
Aundre Ross appeals the sentence imposed after he entered a guilty plea to conspiracy to possess with intent to distribute cocaine, 21 U.S.C. Sec. 846, and use of a communication device to facilitate the commission of a felony narcotics offense, 21 U.S.C. Sec. 843(b). The sentence was governed by the Sentencing Guidelines ("Guidelines") promulgated by the United States Sentencing Commission. Ross asserts that the Guidelines assign weight to various factors without permitting adjustment to reflect relative uncertainties about underlying facts, in violation of due process rights, and that the evidence adduced at the sentencing hearing did not support the conclusion that he was reasonably capable of participating in a six kilogram cocaine transaction. We affirm.
In late May and early June, 1988, defendant Aundre Ross agreed to participate in a narcotics transaction with a man named Willie Gibson because the defendant's video cassette business was in terrible financial condition. On June 2, 1988, the defendant and Gibson spoke about locating someone to supply cocaine to a friend of the defendant. Gibson made a telephone call to a potential source. Unbeknownst to either of the pair, the potential source was Ed Williams, a Drug Enforcement Administration ("DEA") informant. Defendant and Williams discussed the latter providing defendant with five kilograms of cocaine for $85,000. The defendant stated that he had received a price of "16-5" in the past and he agreed to pay $85,000 for five kilograms of cocaine. This conversation was tape-recorded.
The defendant and Gibson attempted to purchase the cocaine on June 7, 1988. Defendant told Gibson that he wished to purchase six kilograms of cocaine instead of five kilograms as discussed earlier. He inquired as to the price for six kilograms; Gibson replied that six kilograms would cost $100,000. The defendant told Gibson that this price was acceptable.
Gibson telephoned the defendant and arranged to meet at the Unbeatable Restaurant in Country Club Hills, Illinois. The defendant arrived alone with a bag containing $50,000 in cash. Together they drove in Gibson's automobile to a restaurant parking lot where they had arranged to meet Williams, the DEA informant. The location for the transaction was determined by the DEA informant. On the way to the site, defendant told Gibson that the remainder of the cash payment was in a blue Camaro parked in a nearby baseball park.
Gibson arrived at the restaurant parking lot and saw Williams with another individual. This individual was DEA Special Agent Thomas Kelly. The informant introduced Gibson and the defendant to Kelly. The defendant informed Kelly that he would be supplying the money for the cocaine. Kelly asked whether they would be dealing on a regular basis because he did not want to engage in a "one-time" deal. Defendant replied that there would be additional transactions if the quality of the cocaine was as good as Kelly claimed. Defendant also told Kelly that other individuals were watching the transaction.
Kelly asked if the defendant had the $100,000 on his person. The defendant replied that he had split the money for security reasons. He told Kelly the remaining $50,000 was in a vehicle nearby. Defendant asked to see the cocaine. Kelly sat on the front passenger seat of Gibson's vehicle and began to count the money that the defendant supplied to him. Kelly counted the bundles, placed them back into the bag, stood up, and gave a pre-arranged arrest signal. Gibson was arrested. Defendant attempted to flee.
Gibson cooperated with authorities at the scene. He told Kelly that he believed additional money was in a dark blue Camaro. Surveillance agents did not notice any other individuals or automobiles that appeared to be connected to the transaction. The transaction occurred at a major intersection in a suburban area; vehicles could be parked in the vicinity and remain undetected. Agents were unable to locate the vehicle that purportedly contained the remainder of the money. Gibson stated that defendant agreed to pay $100,000 for six kilograms of cocaine and never expressed concern over obtaining the money.
Defendant was indicted on two drug related charges. He pleaded guilty to both charges on September 6, 1988. Defendant, in his plea agreement, admitted telling Kelly that half of the cash payment was in a vehicle nearby. Defendant also admitted that he had discussed additional business he would have with Kelly, Williams, and Gibson in the future.
Defendant's original sentence did not apply the Sentencing Guidelines because the district court had adopted an order declaring the Guidelines to be unconstitutional. The court sentenced defendant to one year and one day imprisonment for use of a communication device to facilitate the commission of a felony narcotics offense, 21 U.S.C. Sec. 843, and five years probation for conspiracy to possess with intent to distribute cocaine, 21 U.S.C. Sec. 846. This sentence was vacated and defendant was resentenced on August 1, 1989, in light of the Supreme Court's holding in United States v. Mistretta, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), that the Guidelines were constitutional.
The district court conducted an evidentiary hearing to provide the defendant with an opportunity to challenge statements attributed to him during the attempted narcotics transaction. Defendant denied that he had ever engaged in narcotics trafficking prior to this offense. He also denied intending to purchase six kilograms, keeping $50,000 in a second automobile, or discussing future cocaine transactions with anyone. Defendant maintained that he intended to purchase three kilograms and that he had difficulty acquiring the money. He claimed that he discussed six kilograms in order to negotiate a better price.
At sentencing, the court noted that it had listened to tape cassettes of a number of conversations and that it had reviewed DEA case reports. The court found Special Agent Kelly's testimony to be more credible than the defendant's. It also found defendant to be a sophisticated person capable of negotiating narcotics transactions and not a mere intermediary. Finally, the court found by a preponderance of the evidence that the defendant was reasonably capable of participating in an attempted purchase of six kilograms of cocaine. The court then sentenced defendant to a term of 97 months imprisonment. This sentence was the minimum sentence under the Guidelines range. The court also placed defendant on three years supervised release following his imprisonment and levied a special assessment of $100.
Appellate review of a district court's sentencing determination is governed by 18 U.S.C. Sec. 3742(e) and (f). 1 Defendant initially contends that Guidelines Sec. 2D1.4 violates his due process rights by assigning weight to various factors without permitting adjustment to reflect the relative uncertainty about underlying facts. Guidelines Sec. 2D1.4 provides:
If a defendant is convicted of a conspiracy or an attempt to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy or attempt had been completed.
The Application Notes to this section provide in pertinent part:
If the defendant is convicted of an offense involving negotiations to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing.
Defendant relies primarily on United States v. Davis, 715 F.Supp. 1473 (C.D.Cal.1989), to support his contention that Sec. 2D1.4 violates the dictates of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). 2
In Davis, supra, the amount of money brought to the transaction by the defendants was insufficient to carry out the bargain. The district court was left to approximate the amount of drugs involved in the offense under Sec. 2D1.4. The court found that Sec. 2D1.4 violates the Due Process Clause because:
The difference between 10 months imprisonment and a life sentence can turn upon the accuracy of the court's assessment of the "scale of the offense," notwithstanding the lack of reliable information upon which to make that determination. Yet the Guidelines do not permit the judge to adjust the length of the sentence to reflect the degree of certainty by which the estimate is made. Almost no greater example of a sentencing factor in which the "tail wags the dog of the substantive offense" could be imagined.
Davis, 715 F.Supp. at 1479. The Davis court continued, "[A]ny attempt to control the basic nature of discretion by quantification and separation of the factors to be considered and preassignment of the weights to be given is ultimately doomed to failure." Id. at 1483. We, like the Second Circuit and Tenth Circuit, are not persuaded by the reasoning of Davis. 3 See United States v. Frederick, 897 F.2d 490, 493 (10th Cir.1990); United States v....
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