U.S. v. Sailes, 88-5810

• Decision Date: 13 April 1989
• Docket Number: No. 88-5810,88-5810
• Citation: 872 F.2d 735
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jo Ann SAILES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 735

872 F.2d 735

2 Fed.Sent.R. 3

UNITED STATES of America, Plaintiff-Appellee, v. Jo Ann SAILES, Defendant-Appellant.

No. 88-5810.

United States Court of Appeals Sixth Circuit.

Argued Feb. 7, 1989.

Decided April 13, 1989.

Lawrence J. Laurenzi (argued), W. Hickman Ewing, Jr., U.S. Atty., Timothy R. DiScenza, Asst. U.S. Atty., Memphis, Tenn., for U.S.

Howard L. Wagerman, William B. Seligstein (argued), Wagerman & Seligstein, Memphis, Tenn., for Jo Ann Sailes.

Before ENGEL, Chief Judge, and MERRITT and NELSON, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

This case arises under the new Sentencing Guidelines, the constitutionality of which was recently upheld in Mistretta v. United States, 488 U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

Defendant Jo Ann Sailes was arrested after two batches of cocaine, weighing a total of 816 grams, were found at her place of residence. The cocaine had been placed there by Mrs. Sailes' oldest child, who, as she knew, was actively engaged in the drug trade. Mrs. Sailes was aware of the presence on her property of one packet of cocaine, weighing 36 grams, but she was unaware of the presence of the remaining 780 grams. She pleaded guilty to the possession, with intent to distribute, of under 500 grams of cocaine, being aided and abetted by another. The district court sentenced Mrs. Sailes to 45 months in prison--a sentence at the upper end of the "guideline range" for an offense involving .5 to 1.9 kilograms of cocaine.

Mrs. Sailes argues that the guidelines were applied improperly, because she did not know that as much as half a kilogram of cocaine was on her property and because the offense to which she pleaded guilty did not involve that large a quantity. She argues alternatively that the district court ought to have departed from the sentencing range dictated by the guidelines. Finding none of these arguments persuasive, we shall affirm the sentence imposed by the district court.

I

Appellant is the mother of seven children, the oldest of whom is an 18-year-old boy named Sol Sailes. Sol bought and sold cocaine with his mother's knowledge and approval. Mrs. Sailes would sometimes take telephone messages for Sol from his customers, and she would sometimes deliver packages for him.

On the night of January 13-14, 1988, police searched Mrs. Sailes' residence, pursuant to a warrant, and discovered 36 grams of cocaine in a lockbox in a bedroom of the house. They also found 780 grams in a gym bag inside a playhouse on the porch. Mrs. Sailes was arrested and indicted on one count of aiding and abetting possession, with intent to distribute, of 816 grams of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

At a hearing held before District Judge Jerome Turner on March 18, 1988, Mrs. Sailes indicated her intention to plead guilty to the lesser included offense of possession with intent to distribute under 500 grams of cocaine. (The guilty plea may have been prompted by a desire to avoid the application of 21 U.S.C. Sec. 841(b)(1)(B), which mandates a five-year prison term for offenses involving 500 grams or more of cocaine.)

Judge Turner questioned both Sol Sailes and his mother about the extent of Mrs. Sailes' involvement. He learned that Sol had placed the 780 grams in the playhouse on the porch without his mother's knowledge a few hours before the police arrived. Mrs. Sailes testified, however, that "I knew he was selling drugs, and I did on one or two occasions, I was taking phone messages. I knew he had the mobile phone and the beeper." In addition, the Assistant U.S. Attorney stated that he had witnesses prepared to testify that Mrs. Sailes herself made drug sales from her residence, including one to an undercover police officer.

Judge Turner referred the case to a probation officer for the preparation of a presentence report, as required under the Sentencing Guidelines. ¹ A sentencing hearing was scheduled to be held three months later.

At the sentencing hearing the judge addressed several issues raised by the presentence report. The first was the quantity of drugs to be taken into account in calculating the "base offense level." The second was the possibility of a departure from the guidelines because of Mrs. Sailes' lack of knowledge of the quantity of drugs on her property. Third, the judge questioned whether the guidelines adequately took into account Mrs. Sailes' background, character, conduct, and family responsibilities. Finally, a question existed as to whether she should receive a four-point reduction in her offense level for minimal participation.

With regard to the question of what quantity of drugs was to be used in calculating the offense level, the judge decided that 816 grams was appropriate because that was the quantity involved in the overall scheme. The Drug Quantity Table of Sec. 2D1.1 of the Sentencing Guidelines specified a base offense level of 26 for between .5 and 1.9 kilograms of cocaine.

Judge Turner deducted two points, under Sec. 3E1.1 of the guidelines, because of Mrs. Sailes' acceptance of her responsibility for the crime. He deducted another four points under Sec. 3B1.2, because of her minimal participation in the criminal activity. The latter deduction, unlike the two-point deduction for acceptance of responsibility and unlike the finding that the base offense level was 26, had not been recommended in the presentence report.

Once the deductions had been made, Judge Turner was left with an offense level of 20. Mrs. Sailes came within Criminal History Category II, because she had two prior offenses. Using the Sentencing Table in Part A of Chapter 5 of the guidelines, Judge Turner determined that the guideline range for the sentence of such a person was 37 to 46 months.

Before imposing a sentence, the judge verified through counsel that Mrs. Sailes understood her exposure and accepted the plea agreement in light of that understanding:

"THE COURT: Mr. Wagerman, I will hear from you in just a moment with respect to imposition of sentencing. But there is probably one other task we need to undertake prior to that time and that is the acceptance of the plea agreement that has been tendered to me by you and your client.... Based on the findings I have now made, the range of imprisonment sentence is 37 to 46 months. And I do not, at this time, intend to go outside of that range.

However, because of the unusual nature of all of this, I want to make sure. Is it your client's desire to go forward with this proceeding on a plea of guilty?

Mr. WAGERMAN: It is, your Honor. We discussed that prior to today.

THE COURT: Then on that basis, I will accept the plea agreement as has been proposed by the defendant in conjunction with the government and will now hear from the parties with respect to the imposition of sentence."

Counsel for Mrs. Sailes did not object to the 37 to 46 month sentencing range the judge had reached. Counsel merely asked the court to impose a sentence at the low end of that range, in light of the ages of the family members and the needs of Mrs. Sailes' children for maternal care. Mrs. Sailes spoke in support of this argument, adding, "the less sentence that is possible would be a real glory, because I really need to help take care of my kids."

Judge Turner then imposed a sentence of 45 months, explaining:

"The reason I have picked that figure, primarily, is because I think you have been extremely culpable in allowing your son to get to the position that he now finds himself in today. The boy is only 18 years old, and he is off to jail now for a number of years. And you know, I suspect, and I know that his going to jail is going to be a hard, hard experience and one that is not going to be easy for him to bounce back from. I attribute his involvement in that, in some significant part, to your failure to raise him the way he should have been raised and to exercise the role that you should have exercised over him in your home.

I am not suggesting that every parent has the ability to control all the conduct of 18-year-old children, but they certainly have the ability to control what goes on in their own home."

II

On appeal, Mrs. Sailes argues first that it was improper to use the entire 816 grams of cocaine in determining her base offense level under the guidelines.

Prior to an amendment that took effect on January 15, 1988, the "General Application Principles" of the guidelines contained this passage:

"The court shall apply the guideline in Chapter Two (Offense Conduct) most...