U.S. v. Silverman

• Citation: 889 F.2d 1531
• Decision Date: 21 November 1989
• Docket Number: No. 88-3826,88-3826
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ira SILVERMAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1531

889 F.2d 1531

UNITED STATES of America, Plaintiff-Appellee, v. Ira SILVERMAN, Defendant-Appellant.

No. 88-3826.

United States Court of Appeals Sixth Circuit.

Argued April 13, 1989.

Decided Nov. 21, 1989.

Terry Lehmann (argued), Office of the U.S. Atty., Cincinnati, Ohio, James E. Rattan, and John O. Braud, Asst. U.S. Attys., Office of the U.S. Atty., Columbus, Ohio, for plaintiff-appellee.

David H. Bodiker (argued), Bodiker & Holland, Columbus, Ohio, for defendant-appellant.

Before JONES, WELLFORD and GUY, Circuit Judges.

WELLFORD, Circuit Judge.

Defendant Ira Silverman appeals the sentence imposed by the district court pursuant to the Federal Sentencing Guidelines (Guidelines), the constitutionality of which was recently upheld in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). For the following reasons, we remand the case to the district court for further consideration as required by 18 U.S.C. Sec. 3742(f)(1).

On March 17, 1988, a grand jury indicted defendant, Ira Silverman, under 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, for possession with intent to distribute cocaine, and travel in interstate commerce to promote a narcotics business enterprise in violation of 18 U.S.C. Sec. 1952. On April 25, 1988, Silverman withdrew his previously entered plea of not guilty to count one of the indictment, and pursuant to a plea agreement with the government, entered a plea of guilty only to that count. The government agreed to dismiss count two of the indictment at the time of sentencing. The count one offense occurred on February 15, 1988. This case is therefore governed by the statutory sentencing guidelines which became effective November 1, 1987. Application of these guidelines to this case is the focus of this controversy on appeal.

The district court conducted a sentencing hearing with regard to a decision under the new sentencing guidelines. Defendant, concerned about waiving his fifth amendment rights, decided not to testify at the hearing and presented no evidence, but there was evidence presented bearing on Silverman's past drug activity.

The district court had before it, as did the prosecution and defendant, a presentence report which revealed that defendant was under investigation as a large scale cocaine distributor in the summer of 1987. On October 28, 1987, DEA agents in Columbus, Ohio were advised by a confidential informant that defendant was the head of a cocaine trafficking ring which distributed kilograms of cocaine in Columbus and Athens, Ohio. The informant further advised that in August of 1987, defendant supplied the informant and another co-conspirator with a kilogram of cocaine to sell. The informant and co-conspirator became indebted to defendant for this cocaine. Defendant was also implicated in cocaine distribution by a confidential informant reporting to the Athens Police Department and the Ohio Bureau of Criminal Investigation. The report goes on to state that on November 11, 1987, the DEA informant made a controlled purchase of cocaine from one of his co-conspirators. The cocaine was tested and found to be ninety-three percent pure. On February 14, 1988, the informant arranged to purchase a fourth of an ounce of cocaine from his co-conspirator. When he arrived on February 15, 1988, he was told that defendant had the cocaine, and that he would have to return later. When the informant met with defendant, defendant took the money from the informant and refused to give him any cocaine, saying that he was applying the money to a pre-existing debt. Defendant left the residence in a rented limousine and was stopped by narcotics officers. In defendant's gym bag was a bag containing 52.9 grams of cocaine which was ninety-three percent pure. Defendant admitted to the probation officer that he was going to Athens, Ohio that day to attempt to sell the cocaine, and that he had been involved previously in drug related activities in Athens and Meigs Counties. Defendant denied distributing multiple kilograms of cocaine in Central Ohio.

The district court determined that the offense involved in the guilty plea and the other reported 1987 drug offense involving a kilo of cocaine "were of the same character," and determined also that "the quantities of drugs would be combined for purposes of determining the offense level even though the offenses occurred on separate days." 692 F.Supp. 788. This was warranted, according to the district court, under Sec. 3D1.2(d) of the guidelines, which it described as providing for "grouping of counts where the offense level is determined largely on the basis of the quantity of the substance involved" including offenses such as trafficking in drugs and possession to commit trafficking.

The district court further determined that the alleged prior drug activity (involving the kilo of cocaine) and the offense to which Silverman pleaded guilty "were part of the same course of conduct or common scheme or plan" for purposes of Sec. 1B1.3(a)(2). Judge Graham reached this conclusion based on an analogy to admissibility of evidence of prior bad acts under Fed.R.Evid. 404(b).

He described the following additional "facts" from the presentence report:

In October of 1987, he learned from a confidential informant that the informant had been obtaining cocaine from defendant during the summer of 1987 for the purpose of selling it. The informant reported that in July and August of 1987, defendant gave a kilogram of cocaine to the informant and a co-conspirator, identified as James Michael Mourning, for the purpose of selling it. They had a hard time selling that quantity of cocaine and collecting from their distributors, and ended up owing money to defendant. The informant's information was corroborated by Mike Mourning upon his arrest on February 15, 1988. Mike Mourning told Agent Robins that he had been selling cocaine for defendant for two to three years and that he had been involved in the distribution of the kilogram of cocaine. Mike Mourning also stated that he had gone to New York on two occasions and obtained a half pound of cocaine from defendant each time. He stated that defendant owned the safe which was kept at the Mourning address.

The district court concluded, then, in light of these facts, that the "prior transaction which resulted in a debt owed to defendant thus became relevant.... It bore upon Silverman's motive and intent in the February [indictment] incident." The district court found that defendant admitted that he planned to sell the "two ounces of cocaine found in his possession" and "had been involved in previous drug related activities." Supporting his analysis, the district court found that the offenses might be subject to joinder under Fed.R.Crim.P. 8 "since the offenses were of the same type." The district court stated, in summary, that it was not required under guideline sentencing to "ignore evidence that the defendant was a major drug supplier just because he happened to be in possession of only a relatively small amount of cocaine" when arrested.

Deciding that the alleged prior drug activity was relevant, the district court found it to be "supported by reliable evidence" from the presentence report.

In addition, DEA agent Robins testified at the sentencing hearing that he had been investigating Silverman for drug dealing. His testimony indicated to the district court:

... that defendant is a drug dealer of major proportions. On the day of the offense, defendant, although allegedly a person of few assets, hired a limousine to travel to Athens, Ohio. When the informant arrived to purchase cocaine, defendant took control of the situation and exercised dominion over the cocaine and the money. His own admission that he intended to go to Athens, Ohio that day to sell the cocaine belies any notion that he had given up dealing in narcotics. The Court finds that far from being a casual bystander with minimal involvement in the offense, defendant was a central, controlling and highly culpable actor in the instant offense.

Robins further stated that his investigation revealed that the informant's information was consistently accurate, and that Silverman was also being investigated by other Ohio authorities and Athens, Ohio, police. By a preponderance of the evidence, then, the district court found the information and evidence submitted indicating substantial prior activity in drugs by Silverman to be "reliable" and "corroborated," and the "appropriate base offense level [to be] 26."

The district judge, after making these sentencing determinations, refused to allow Silverman to withdraw his guilty plea, holding that "[T]he fact that a defendant receives a higher sentence under the guidelines than he anticipated does not constitute grounds in this case for allowing defendant to withdraw his guilty plea." He overruled defendant's objections to the information, above related, contained in the pre-sentence report based on hearsay, irrelevance, and remoteness. He overruled most of the specific objections to consideration of the circumstances of the offense, specifically holding also that Silverman kept a safe at the Mourning residence, the combination of which Mike Mourning did not know. The district court added three points to the base offense for Silverman's degree of culpability as a "drug dealer of major proportions," and a "central, controlling and highly culpable actor in the instant offense." At the same time, the district court approved the recommendation that two points be dropped for acceptance of responsibility. ¹ Finally, the district court sentenced Silverman to 87 months, the highest level within the range of a total offense level of 27 (base offense level of 26, plus 3 as a major drug dealer, less 2 for admitting responsibility). This is not a departure case, then, but it involves a number of questions about the process by which the sentencing court reached an offense level much...