U.S. v. Rutter, 89-1015

Citation897 F.2d 1558
Decision Date13 March 1990
Docket NumberNo. 89-1015,89-1015
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ervin Earl RUTTER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Kathryn Meyer, Asst. U.S. Atty. (Michael J. Norton, Acting U.S. Atty., with her on the brief), Denver, Colo., for plaintiff-appellee.

Jeffrey S. Pagliuca, of Holland, Seelen & Pagliuca, Denver, Colo., for defendant-appellant.

Before McKAY, LOGAN and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Ervin Earl Rutter appeals from the sentence entered on his plea of guilty to distribution in excess of 500 grams of cocaine. 21 U.S.C. Sec. 841(a)(1); 841(b)(1)(B)(ii). The maximum statutory penalty is a term of imprisonment of not less than five years nor more than forty years, a $2,000,000 fine, or both. Id. In the plea agreement, the parties stipulated that, pursuant to the Sentencing Guidelines, the defendant's base offense level was twenty-six. This level then was reduced by two points for defendant's acceptance of responsibility, with a resulting offense level of twenty-four. See United States Sentencing Comm'n, Guidelines Manual [hereinafter referred to as Guidelines ] Secs. 2D1.1 (less than two kilograms of cocaine), 3E1.1 (acceptance of responsibility) (1988). Accordingly, the guideline range was fifty-one to sixty-three months. Id. at ch. 5.

Relying upon information contained in the presentence report, the trial court applied the Sentencing Guidelines in effect as of the date of the relevant conduct (July- August 1988) and determined that more than two kilograms of cocaine was involved, thereby indicating a base offense level of 28, not 26. The court then added two levels, finding that defendant had a supervisory role in the offense, namely, the use of his codefendant Thomas Shelton as a "mule" in obtaining the cocaine from a distant source. Guidelines Sec. 3B1.1. Finally, the court deducted two levels, finding that defendant had accepted responsibility for his conduct by pleading guilty and in his conversations with the probation officer. Id. Sec. 3E1.1(a). As calculated by the trial court, the resulting offense level was 28 with a guideline range of seventy-eight to ninety-seven months. Id. ch. 5.

This discrepancy between the parties' stipulation and the sentence actually imposed is largely the subject of this appeal. Defendant contends that the district court erred in computing the base offense level by considering amounts of cocaine encompassed in other counts to which defendant did not plead guilty. Defendant also contends that the district court's characterization of him as a supervisor in this cocaine transaction is erroneous. Pursuant to Fed.R.Crim.P. 32, defendant also suggests that the district court's findings are insufficient concerning the amount of cocaine involved and defendant's role in this transaction. Finally, defendant argues that application of the sentencing guidelines deprived him of due process. Our jurisdiction to review this sentence arises under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742. We find no merit to defendant's contentions and affirm, but remand to the district court so it may accomplish the ministerial task of attaching its findings concerning disputed factual issues to the presentence report.

I.

We review the factual findings of the district court under the clearly erroneous standard and while we give due deference to the district court's application of the sentencing guidelines to the facts, when that application involves contested issues of law, we review de novo. 18 U.S.C. Sec. 3742(e); United States v. Kirk, 894 F.2d 1162, 1163 (10th Cir.1990); United States v. Smith, 888 F.2d 720, 723 (10th Cir.1989). We recently decided that the quantum of proof required for factual determinations under the Sentencing Guidelines is a preponderance of the evidence and the burden of proof generally is allocated to the government for sentence increases and to the defendant for sentence decreases. Kirk, at 1164.

A.

Defendant's first contention raises the legal issue of what quantity of drugs the district court may consider when imposing sentence. According to the defendant, the district court could only consider the amount of cocaine (some 1.887 kilograms) 1 associated with the count in which defendant admitted guilt. Under this argument, the district was not permitted to consider the quantities (some 116.94 grams) 2 that defendant admitted were associated with other counts later dismissed given the plea agreement. Aggregating these amounts puts the quantity of cocaine involved slightly in excess of two kilograms.

The defendant reasons that the district court may only select the guideline section applicable to the offense of conviction, absent a plea agreement establishing a more serious offense. Therefore, the district court likewise is precluded from considering conduct described in other counts or offenses contained in the indictment in selecting the base offense level, absent a plea agreement establishing such conduct. Defendant is confusing the legal effect of pleading to one offense, but stipulating, as part of the plea agreement, to facts which establish a more serious offense under Guidelines Sec. 1B1.2(a), with the legal effect of pleading to one offense, and admitting other facts subsequent to the plea agreement which may be used to determine relevant conduct in selecting the base offense level for the pled offense. When the government and defendant, as part of the plea agreement, stipulate to facts which establish a more serious offense, the district court may apply the guideline section applicable to the stipulated offense. Guidelines Sec. 1B1.2(a). "But once the Government agrees to a plea bargain without extracting such an admission, facts admitted by the defendant to shorten or obviate a sentencing hearing do not establish a 'stipulated offense' within the meaning of section 1B1.2(a)." United States v. Guerrero, 863 F.2d 245, 248 (2d Cir.1988). Those admitted facts do establish, however, relevant conduct under Guidelines Secs. 1B1.2(b) & 1B1.3(a), which will be used in determining the appropriate guideline range for the statutory offense to which the defendant pled guilty. Guerrero, 863 F.2d at 248-49.

This is not a case in which the defendant stipulated to a more serious offense than the offense of conviction and the district court then applied the sentencing guideline for the more serious offense, Guideline Sec. 1B1.2(a), limited only by the statutory maximum for the offense of conviction. See, e.g., United States v. Strong, 891 F.2d 82, 83-85 (5th Cir.1989); United States v. Garza, 884 F.2d 181, 183-84 (5th Cir.1989). Rather, the district court selected the guideline section which deals with the offense of conviction; here, Guideline Sec. 2D1.1 which pertains to trafficking in drugs. Defendant does not quarrel with the district court's selection of Sec. 2D1.1 as the offense guideline section most applicable to the offense of conviction. See Guidelines Sec. 1B1.2(a).

B.

The district court is required first to select the applicable guideline section. Id. Sec. 1B1.1(a). The Guidelines then instruct the court to determine the applicable base offense level, Sec. 1B1.1(b), which is an important determinant of the guideline range: "After determining the appropriate offense guideline section pursuant to [Sec. 1B1.2(a) ], determine the applicable guideline range in accordance with Sec. 1B1.3 (Relevant Conduct)." Id. Sec. 1B1.2(b). Section 1B1.3 indicates that, in determining the guideline range for distribution of cocaine, the district court was not restricted only to the quantity associated with the offense of conviction. In determining the guideline range applicable to this drug offense, which would require the grouping of multiple counts under Sec. 3D1.2(d), relevant conduct includes "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." Guidelines, Sec. 1B1.3(a)(2).

We turn next to the commentary to the Guidelines, which we consider essential in correctly interpreting and uniformly applying the guidelines on a national basis. 18 U.S.C. Sec. 3553(a)(5); Fed.R.Crim.P. 32(c)(2)(C); Guidelines Sec. 1B1.7; United States v. Anderson, 895 F.2d 641, 647 (9th Cir.1990) (Kozinski, J., dissenting) (commentary is an integral portion of the Guidelines and is entitled to more deference than legislative history or other secondary source); United States v. Smeathers, 884 F.2d 363, 364-65 (8th Cir.1989); United States v. Ofchinick, 877 F.2d 251, 257 (3rd Cir.1989). The commentary to the Guidelines could not be any clearer: "[I]n a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." Guidelines, commentary to Sec. 1B1.3 at 1.19. Accord id., commentary to Sec. 2D1.1, application n. 11 ("Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.").

Thus, under the Sentencing Guidelines, the district court properly considered quantities associated with not only the offense of conviction, but also those quantities which facilitated the commercial relationship between the defendant as drug dealer and the DEA agent as drug purchaser. 3 In United States v. Shorteeth, 887 F.2d 253, 255 (10th Cir.1989), we recognized that overall quantity of drugs is used in computing the base offense level. We agree with those circuits which have indicated that Guidelines Secs. 1B1.3(a)(2) and 3D1.2(d) require aggregation of quantities from drug offenses encompassed by Sec. 2D1.1 "that were part of the same course of conduct or common scheme or plan as the offense of conviction," regardless of whether the defendant was convicted of the underlying offenses...

To continue reading

Request your trial
127 cases
  • US v. Nelson, Cr. A. No. 89-20081-01.
    • United States
    • U.S. District Court — District of Kansas
    • May 25, 1990
    ...but need not have been convicted. Application Note 1 to the Commentary of Guideline section 3B1.1. 23 See, e.g. United States v. Rutter, 897 F.2d 1558 (10th Cir.1990) (recruitment of accomplice to transport drugs creates permissible inference that defendant's role was transformed from indiv......
  • U.S. v. Phelps
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 28, 1994
    ...of the prior offenses by a preponderance of the evidence. See Johnson, 973 F.2d at 861 (citations omitted); cf. United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir.) (noting that "the quantity of proof required for factual determinations under the Sentencing Guidelines is a preponderance......
  • U.S. v. Morrow
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 7, 1992
    ...than a lesser amount identified in the indictment. See, e.g., United States v. Lawrence, 915 F.2d 402 (8th Cir.1990); United States v. Rutter, 897 F.2d 1558 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990); United States v. Alston, 895 F.2d 1362 (11th Cir.1990);......
  • U.S. v. Saucedo
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 13, 1991
    ...the commentary is "essential in correctly interpreting and uniformly applying the guidelines on a national basis." United States v. Rutter, 897 F.2d 1558, 1561 (10th Cir.) (citations omitted), cert. denied, --- U.S. ----, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990). See also Brunson, 907 F.2d at 11......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT