U.S. v. Sheffer

• Decision Date: 17 April 1990
• Docket Number: Nos. 89-5573-,s. 89-5573-
• Citation: 896 F.2d 842
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Clyde SHEFFER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George SHEFFER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clotilda RAINS, a/k/a Co Rains, a/k/a Coco Rains, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ralph RAINS, Defendant-Appellant. to 89-5575, 89-5578.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 842

896 F.2d 842

UNITED STATES of America, Plaintiff-Appellee, v. David Clyde SHEFFER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. George SHEFFER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Clotilda RAINS, a/k/a Co Rains, a/k/a Coco Rains,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ralph RAINS, Defendant-Appellant.

Nos. 89-5573-to 89-5575, 89-5578.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 8, 1989.

Decided Feb. 20, 1990.

Rehearing and Rehearing In Banc Denied April 17, 1990.

Richard William Wineland, John David Ash, Paul R. Kramer, Phillip Leventhal, for defendants-appellants.

James R. Alsup, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty.; Billy S. Bradley, Steven L. Purcell, Asst. U.S. Attys., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges.

ERVIN, Chief Judge:

Defendants David Sheffer, George Sheffer, and Clotilda Rains appeal their sentences following their pleas of guilty to charges of conspiracy to possess with intent to distribute and distribution of 1000 kilograms or more of marijuana. Ralph Rains appeals his conviction for the same offense after a jury trial, and his sentence. Specifically, all of the defendants contend that the ex post facto clause of the Constitution bars the application of the Sentencing Reform Act Guidelines ("Guidelines") to an ongoing conspiracy begun before November 1, 1987, and terminated after that date. David and Clotilda ¹ also appeal their individual sentences under the Guidelines. For the reasons discussed below, we affirm the sentences and Ralph's conviction.

I.

On August 31, 1988, the four appellants, along with David's wife, Donna Sheffer, George's wife, Patti Sheffer, their aunt Patricia Hamilton, and Clotilda's friend, Rebecca Ann White, were indicted by a federal grand jury in Baltimore, Maryland. They were charged with conspiracy to possess with intent to distribute and distribution of 1,000 kilograms or more of marijuana in violation of 21 U.S.C. Sec. 841(a)(1) (1981).

On December 12, 1988, David, George, Patti Sheffer and Clotilda tendered pleas of guilty to the conspiracy charge. The indictment was dismissed as to Patricia Hamilton. The next day, the trial of Ralph commenced with the other members of the family testifying for the Government. The jury returned a verdict of guilty, convicting Ralph.

In March 1989, the district court rejected the defendants' attacks on the Sentencing Guidelines and sentenced the defendants as follows: David, 96 months; George, 63 months; Clotilda, 78 months; Ralph, 78 months; Rebecca Ann White, 30 months; Donna Sheffer, 3 months; Patti Jane Sheffer, 1 month. Thereafter, David, George, Clotilda, and Ralph filed this appeal.

II.

Appellate review of a sentence imposed under the Guidelines is limited to a determination of whether it is either "in violation of law ... or as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. Sec. 3742(e). During sentencing, the district court's findings of fact should be based upon a preponderance of the evidence. United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989); United States v. Vinson, 886 F.2d 740, 741 (4th Cir.1989). The court of appeals should "give due regard to the opportunity of the district court to judge the credibility of the witnesses, and [must] accept the findings of fact of the district court unless they are clearly erroneous." 18 U.S.C. Sec. 3742(d).

III.

The defendants argue that the Sentencing Guidelines promulgated pursuant to the Sentencing Reform Act of 1984 and effective November 1, 1987, should not apply to this case in which the conspiracy commenced prior to November 1, 1987, and continued after that date. ² They maintain that application of the Guidelines to a conspiracy beginning before the Act's effective date violates the ex post facto clause of the United States Constitution. Cf. Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (A law violates the ex post facto clause if it changes the legal consequences of the defendant's acts completed before its effective date and it disadvantages the offender affected by it.).

Conspiracy is an ongoing crime, and "once a criminal conspiracy is established, it is presumed to continue until its termination is affirmatively shown." United States v. Portsmouth Paving Corp., 694 F.2d 312, 318 (4th Cir.1982). According to Professors Lafave and Scott:

The problem of determining the date of the offense for ex post facto purposes may also be present when the offense is of a continuing nature, as with an ongoing conspiracy.... If the conduct ... continues after the enactment or amendment of the statute in question, this statute may be applied without violating the ex post facto prohibition. Thus, a statute increasing the penalty with respect to a conspiracy may be applied to a conspiracy which commenced prior to but was carried on and continued beyond the effective date of the new act.

W. Lafave & A. Scott, Criminal Law 94 (1972).

In United States v. Vinson, 886 F.2d 740 (4th Cir.1989), the defendant was sentenced under the Guidelines for conspiracy to possess cocaine with intent to distribute and conspiracy to distribute thirty kilograms of cocaine from about April 1, 1987, through about January 18, 1988. In that case, the conspiracy began before the Guidelines became effective but continued until after November 1, 1987. Even though not directly addressing the ex post facto issue, the court did affirm the sentence for conspiracy under these facts.

The Eighth Circuit has explicitly held that "since conspiracy is an ongoing act, an increased penalty 'may be applied to a conspiracy which commenced prior to but was carried on and continued beyond the effective date of the Act.' " United States v. Lee, 886 F.2d 998, 1003 (8th Cir.1989) (quoting United States v. Corn, 836 F.2d 889, 898 (5th Cir.1988) (Davis, J., concurring in part, dissenting in part; quoting W. Lafave & A. Scott, Criminal Law 94 (1972)); see also United States v. Walker, 885 F.2d 1353 (8th Cir.1989) (per curium).

Likewise, the Fifth Circuit has held:

Conspiracy is a continuing offense. Assuming that the [sentencing] guidelines prescribe a sentence for the [defendant's] drug conspiracy greater than the previous norm, the Ex Post Facto clause, which bars an increase in the punishment for an offense after it has been committed, is not violated by applying an increased penalty to [the] conspiracy that continued after the effective date of the increased penalty.

United States v. White, 869 F.2d 822, 826 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989).

We agree with our sister circuits that the application of the Guidelines to an ongoing conspiracy does not in any way violate the ex post facto clause. The defendants either pled, or were found to be, guilty of a conspiracy that existed on November 2, 1987, and every day thereafter until the conspiracy was affirmatively terminated. This offense therefore occurred after November 1, 1987, and clearly falls within the savings provision of the Sentencing Reform Act. See supra note 2.

The defendants also assert that the ex post facto clause bars sentencing consideration of the quantity of drugs that was distributed prior to November 1, 1987, during the course of the conspiracy. To support their position, they cite cases in which courts have held that convicted defendants could not be ordered to pay restitution under the Victim and Witness Protection Act of 1982, 18 U.S.C. Secs. 3579-3580 (1985), for crimes committed before the effective date of the statute. See, e.g., United States v. Oldaker, 823 F.2d 778 (4th Cir.1987). But see, e.g., United States v. Bortnovsky, 879 F.2d 30, 42 (2d Cir.1989) (restitution may be ordered for any act committed as part of a conspiracy if at least one offense occurred after the Act's effective date). Unlike victim restitution payments, however, a drug conspiracy is one unity offense whereas the losses for which victims are to receive restitution must be, by necessity, separately identified. Penalties for controlled substance offenses are based on the aggregate total weight of the mixture or substance containing detectable amounts of the controlled substance. See 21 U.S.C. Sec. 841 (1984). To exclude part of the aggregate total weight would be inconsistent with the overall approach of the Sentencing Guidelines. The weight of authority and better reasoning supports the inclusion of these amounts in sentencing determinations, and we therefore uphold the district court's application of the Guidelines in this case.

IV.

In this appeal, Clotilda also contends that the district court should have made an adjustment and departed downward based on her status as a first-time offender. ³ Under the Sentencing Reform Act, a district court may depart from the Guidelines if it "finds that there exists an aggravating or mitigating circumstance of a kind or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines that should result in a sentence different from that described." 18 U.S.C. Sec. 3553(b) (1985). The court, however, is under no obligation to consider a departure when the circumstances have adequately been considered by the Sentencing Commission. See United States v. Uca, 867 F.2d 783, 786 (3d Cir.1989).

In considering the criminal history of the defendant, the Sentencing Guidelines do take into account a defendant's status as a first-time offender. Clotilda asserts that her offense was a single act of aberrant behavior that, as a mitigating factor, justifies a downward departure. ⁴ A defendant who advances a mitigating factor, however, bears the burden of proof to establish that factor by a preponderance of...