U.S. v. Skinner

• Decision Date: 19 April 1993
• Docket Number: No. 92-1121,92-1121
• Citation: 986 F.2d 1091
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roger SKINNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1091

986 F.2d 1091

UNITED STATES of America, Plaintiff-Appellee, v. Roger SKINNER, Defendant-Appellant.

No. 92-1121.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 18, 1992.

Decided Feb. 17, 1993.

As Amended April 19, 1993.

K. Tate Chambers, Asst. U.S. Atty., Peoria, IL (argued), for plaintiff-appellee.

David W. Gleicher, Chicago, IL (argued), for defendant-appellant.

Before BAUER, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Defendant Roger Skinner was charged in a three-count indictment with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846 (1988), use of a telephone to facilitate a drug felony in violation of 21 U.S.C. § 843(b) (1988), and attempt to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. On the morning that his trial was to begin, Mr. Skinner entered into a plea agreement in which he pleaded guilty to the attempt charge in exchange for dismissal of the remaining two counts.

The defendant appeals from the district court's application of the Sentencing Guidelines in arriving at his sentence. Specifically, the defendant alleges that the sentencing court clearly erred in (1) calculating the drug amount under U.S.S.G. § 2D1.4; (2) ruling that the defendant played an aggravating role under U.S.S.G. § 3B1.1; and (3) finding that he was not entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.

I BACKGROUND

In June of 1990, a DEA task force began a drug investigation in the Quad Cities area of Illinois that targeted the defendant Mr. Skinner. A confidential informant introduced Special Agent Brett Final to Mr. Skinner. Agent Final negotiated with Mr. Skinner to purchase cocaine. As the negotiations progressed, Agent Final and Mr. Skinner agreed that Final, the undercover agent, would provide the defendant with 100 pounds of marijuana that Mr. Skinner would broker to different persons over several days. They also agreed that Mr. Skinner would obtain ten ounces of cocaine for Agent Final after the marijuana transaction was completed. During the course of the negotiations, Mr. Skinner revealed that he had a buyer for fifty of the 100 pounds of marijuana. Mr. Skinner also stated that he could sell the remaining fifty pounds within two days.

On July 24, 1990, Agent Final brought the marijuana to a motel room in Moline The defendant's sentencing hearing was held on January 3, 1992. Using the total 100 pounds of marijuana and ten ounces of cocaine that the government alleged was the amount involved in the transaction, the district court determined that Mr. Skinner's base offense level was 26. The court rejected the defendant's claim that it was only appropriate to consider the twenty pounds of marijuana that was to be sold to Mr. Mangels in calculating his base offense level. Over the defendant's objection, the court imposed a two-level increase in the offense level pursuant to U.S.S.G. § 3B1.1 because of Mr. Skinner's aggravated role in the offense. The court also rejected the defendant's claim that he was entitled to a two-level adjustment downward for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The final adjusted offense level was 28, which was cross-referenced to a criminal history category of III, yielding a sentencing range of 97 to 121 months. The district court sentenced Mr. Skinner to 98 months' imprisonment to be followed by five years of supervised release.

                Illinois, and met with Mr. Skinner.   After Agent Final refused to provide Mr. Skinner with a sample of the marijuana, the defendant came forward with a different buyer for twenty pounds.   This buyer was David Mangels, who was eventually indicted with Mr. Skinner.   Shortly after Mr. Mangels appeared at the motel room, both Mr. Skinner and Mr. Mangels were arrested
                

II DISCUSSION

A. Calculation of the Drug Amount

On appeal, Mr. Skinner alleges that he was merely "puffing" when he told Agent Final that he could arrange the purchase of 100 pounds of marijuana and the sale of ten ounces of cocaine. Mr. Skinner maintains that the proper amount of drugs involved in the offense should be reduced to twenty pounds of marijuana and no cocaine. Relying on United States v. Ruiz, 932 F.2d 1174 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 151, 116 L.Ed.2d 116 (1991), and United States v. Richardson, 939 F.2d 135 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 942, 117 L.Ed.2d 112 (1992), Mr. Skinner maintains that he was incapable of producing either the money for purchase of the marijuana or the ten ounces of cocaine he had agreed to sell to Agent Final.

The sentencing court determines the quantity of drugs involved in an offense by a preponderance of the evidence. United States v. Hughes, 970 F.2d 227, 237 (7th Cir.1992). We review the sentencing court's findings for clear error. United States v. Cea, 963 F.2d 1027, 1030 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 281, 121 L.Ed.2d 208 (1992). "[T]he sentencing court should consider negotiated amounts of drugs absent a determination that the defendant did not intend to or could not produce those amounts." United States v. Buggs, 904 F.2d 1070, 1079 (7th Cir.1990).

The defendant's claim that the record indicates that he was merely bragging when he discussed drug amounts and was incapable of following through on his deal is contradicted by the record. On this issue, Agent Final testified at the sentencing hearing, and the government played tapes of the recorded negotiations between Agent Final and Mr. Skinner. Agent Final testified that he was introduced to Mr. Skinner by a confidential informant who had sold cocaine for Mr. Skinner in the past. As in the present case, Mr. Skinner had acted as a "middleman" who arranged the purchase of drugs for other persons from whom he extracted a profit.

Agent Final initially attempted to purchase cocaine from Mr. Skinner. When they could not come to terms on the cocaine deal, and after Mr. Skinner complained about the relative scarcity of marijuana in Rock Island, Agent Final decided to offer to sell marijuana to Mr. Skinner. After a series of negotiations, Mr. Skinner agreed to purchase the 100 pounds of marijuana. The understanding between Mr. Skinner and Agent Final was that the agent would sell the marijuana to Mr. Skinner for $900 a pound. Mr. Skinner in turn would sell the product to his customers for $1,000 a pound. Mr. Skinner informed Agent Final that fifty pounds would be sold to the person who would supply the cocaine and that two lots of twenty pounds would be sold to other persons. Mr. Skinner intended to use his $9,000 profit, essentially his brokerage fee, to purchase the remaining ten pounds. Mr. Skinner informed Agent Final that he then would supply the ten ounces of cocaine for $10,000.

After the government agent refused to allow Mr. Skinner to take a sample of the marijuana, complications developed and Mr. Skinner placed several telephone calls to work out the problems. Agent Final overheard Mr. Skinner talking on the telephone to someone and informing that person that Agent Final wanted "ten osbournes" after the marijuana deal was complete. Agent Final testified that "ten osbournes" was a code phrase for ten ounces of cocaine. After he hung up the telephone, Mr. Skinner informed Agent Final that he had been speaking to the cocaine supplier. During further negotiations, Mr. Skinner identified the person who wanted to buy the fifty pounds of marijuana as the cocaine supplier. Mr. Skinner also stated his belief that he could arrange the sale of 100 pounds of marijuana every two weeks. Finally, Mr. Skinner produced Mr. Mangels, a purchaser seeking only twenty pounds rather than the buyer who planned to purchase fifty pounds of marijuana and provide the ten ounces of cocaine.

To support his argument that he did not intend or have the ability to purchase the marijuana or produce the cocaine, Mr. Skinner claims that the details of the sale were never worked out and that his statements to Agent Final concerning the transactions were empty promises designed to impress and that he could never fulfill. Mr. Skinner characterizes his statements as mere puffery or braggadocio, which this court found to be an insufficient basis for establishing the quantity of drugs in United States v. Ruiz, 932 F.2d 1174 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 151, 116 L.Ed.2d 116 (1991). Ruiz, however, is readily distinguishable from Mr. Skinner's case. In Ruiz, a government informant who participated in a cocaine purchase became upset after receiving only one of two kilograms of cocaine that the defendant had promised to deliver to him. In an attempt to appease an unhappy customer, the defendant Ruiz told the informant, "I'll get you the other kilo. And if you want, even ten more I can get." Id. at 1184. We found that the district court erred in using the ten kilogram amount when calculating the amount of drugs involved in the conspiracy. We noted in Ruiz:

Ruiz's single comment was not sufficient to establish that the conspiracy had as its goal the consummation of a deal for upwards of ten kilograms. Such an amount never had been mentioned to Agent Guerra; there was no evidence of other buyers for such an amount; no price had been set or even quoted for such an amount; indeed, there was no evidence of any kind that Ruiz had in his possession or had access to that amount of cocaine.

Id.

In the present case, Mr. Skinner and Agent Final negotiated the amount and price of cocaine and marijuana that would be involved in the separate transactions; Mr. Skinner dictated the timing of the transactions; there were extensive negotiations leading up to the delivery of 100 pounds of marijuana to the motel room; Mr. Skinner produced a buyer for a portion of the marijuana and stated that he would produce the remaining buyers within two days; Mr. Skinner contacted likely...