U.S. v. Taplette

• Decision Date: 17 April 1989
• Docket Number: No. 88-3505,88-3505
• Citation: 872 F.2d 101
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald R. TAPLETTE, Sr., Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 101

872 F.2d 101

UNITED STATES of America, Plaintiff-Appellee, v. Donald R. TAPLETTE, Sr., Defendant-Appellant.

No. 88-3505

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

April 17, 1989.

Francis King, Federal Public Defender, New Orleans, La., for defendant-appellant.

John P. Volz, U.S. Atty., Gerry Deegan, Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, JOHNSON and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this case we are asked to consider whether Donald R. Taplette, Sr. was improperly sentenced under the new sentencing guidelines enacted pursuant to 28 U.S.C. Sec. 994(a). Finding that the conduct charged in three counts of his indictment, later dismissed pursuant to a plea agreement, was properly considered in determining his sentence, we affirm. ¹

I

On February 5, 1988, a grand jury returned a four-count indictment against Taplette. Counts I, II and III charged him with knowingly, willfully and unlawfully distributing cocaine hypochloride, a Schedule II narcotic drug controlled substance in violation of Title 21 U.S.C. Sec. 841(a)(1), on the dates of November 15, November 17, and December 1, 1987. Count IV charged him with knowingly, willfully and unlawfully distributing marijuana, a Schedule I controlled substance in violation of 21 U.S.C. Sec. 841(a) on December 1, 1987.

Taplette entered into a plea agreement with the government under which he would plead guilty to Count IV, distribution of marijuana. In consideration for Taplette's willingness to acknowledge his guilt and accept responsibility for that conduct, the government agreed to move the court to dismiss Counts I, II and III at the time of sentencing. Taplette understood that the court was not bound to dismiss any count.

On July 13, the court considered and adopted the presentence investigation report's recommended findings of fact, and determined the applicable guideline ranges for Taplette's conduct to be six-to-twelve months imprisonment, two-to-three years supervised release, and a fine of $2,000 to $20,000. No fine was imposed because of Taplette's lack of financial resources.

On July 15, 1988, Taplette was found guilty under Count IV only, and sentenced under the sentencing guidelines, 28 U.S.C. Sec. 994(a), to the custody of the Bureau of Prisons for twelve months with two years supervised release, drug rehabilitation with urinalysis, and a $50 special assessment. Taplette appeals this sentence, arguing that the district court in applying the sentencing guidelines wrongly applied an offense level of ten to arrive at a sentencing range of six-to-twelve months, while it should have selected an offense level of four and found a sentencing range of zero-to-four months. Taplette traces this alleged error to the court's totalling of the amounts of cocaine charged in Counts I, II and III and the marijuana charged in Count IV of the indictment to arrive at offense level twelve, reduced by two offense levels for acceptance of responsibility. Taplette argues that because he pled guilty only to Count IV, and was found guilty only on that count, his offense level should have been based solely on the quantity of marijuana involved in Count IV. This would have resulted in offense level six when less than two hundred and fifty grams of marijuana are involved, less two offense levels for acceptance of responsibility. See Guideline Sec. 2D1.1(a)(3); Guidelines at 2.39 (October 1987). Taplette claims that his constitutional right to due process has been violated because he has been sentenced for acts that he has not been found guilty of by a jury, nor to which he has pled guilty.

II

Although Taplette's allegation of error may have superficial appeal, other courts have addressed and rejected virtually identical challenges to the application of the new sentencing guidelines. ² In United States v. Guerrero, 863 F.2d 245 (2d Cir.1988), a defendant was charged with conspiracy (count 1) and the substantive offense of distributing more 100 grams of cocaine on December 11, 1987 (count 2), and distribution of a small, unspecified quantity of a Schedule I narcotic drug on December 4, 1987 (count 3). His "purchaser" on December 4 had been a government informant. Guerrero pled guilty to count 3, and the government dismissed counts 1 and 2 against him. The prosecutor and defense counsel entered into a stipulation of facts to establish circumstances pertinent to sentencing that disclosed that Guerrero had held a series of conversations with the informant to make arrangements to have Guerrero introduce him to a supplier of heroin. Guerrero acknowledged that he had made the introduction, and then was present during the negotiation and sale of 698 grams of heroin resulting from that introduction.

At sentencing Guerrero argued that the appropriate base level for his offense was twelve, the level prescribed for narcotics offenses involving less than five grams of heroin, which with a two-level reduction for acceptance of responsibility, yielded a base level of ten for his conviction. Offense level ten results in a guideline range of six to twelve months. The prosecution contended that the base offense level should be determined from the quantity involved in the overall scheme in which Guerrero had participated, which resulted, after adjustments, in a guideline range of fifty-one to sixty-three months. The district judge agreed with Guerrero and selected base level ten, but then departed upward from the guidelines and selected a sentence of sixty-five months and a fine of $200,000. The court later reduced this sentence to sixty-three months and $55,000, to keep in line with the sentence that the convicted heroin supplier had received.

The Second Circuit, after a lengthy review of the sentencing guidelines prior to their January 15th amendments, held that the sentencing court should have based the offense level on the larger quantity of drugs in the overall scheme, citing versions of sections 1B1.2 and 1B1.3 in force at the time of Guerrero's offense. The court upheld Guerrero's sentence, though, because the sixty-three-month sentence imposed was within the higher base offense level guideline range. In the alternative, the court noted that even if its interpretation of the guidelines was wrong, in view of the large quantity of narcotics involved in the ultimate sale to the government informant which Guerrero admitted he had facilitated, the district court did not make an unreasonable departure from the guideline range of six to twelve months in selecting a sentence of sixty-three months. 863 F.2d at 250-51.

In United States v. Ruelas-Armenta, 684 F.Supp. 1048 (C.D.Cal.1988), a defendant argued that the court could not consider facts outside those inherent in his counts of conviction or those stipulated to at the time of the plea agreement in determining his guideline range. The court did not agree. It noted that

[s]ubsection 1B1.3(a)(2) states that determination of the guideline range solely with respect to offenses of a character for which Sec. 3D1.2(d) would require grouping of multiple counts, shall be based on "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." Crimes, such as defendant's, that fall under Sec. 3D1.2(d) are therefore governed by Sec. 1B1.3(a)(2). "... This subsection applies to offenses of types for which convictions on multiple counts would be grouped together pursuant to Sec. 3D1.2(d); multiple convictions are not required." Guidelines at 1.18 (January 15, 1988) (emphasis added).

684 F.Supp. at 1051. Although Ruelas-Armenta was convicted only for the possession of a single stolen check, in determining the offense level for his sentence the court took into account the amounts involved in all thirteen stolen checks charged in the indictment and found in the car when his arrest occurred. "[W]hile the conduct regarding the other checks is not contained in the count of conviction, that absence is not a bar to its consideration under subsection (a)(2)." Id.

In United States v. Silverman, an Ohio district court held that a plea agreement will not preclude consideration of prior unindicted criminal activity in determining the appropriate offense level under the sentencing guidelines, where the sentencing information the judge considers has sufficient indicia of reliability. 692 F.Supp. 788 (S.D. Ohio 1988).

Silverman was indicted for one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, and one count charging travel in interstate commerce to promote a narcotics business enterprise in violation of 18 U.S.C. Sec. 1952. He entered a plea of guilty to the first count, and the government agreed to request a dismissal of the second count of the indictment at the time of sentencing. His probation officer recommended that information concerning Silverman's involvement in narcotics activities prior to his offense of conviction, which occurred on February 15, 1988, be considered as relevant conduct under section 1B1.3(a) for the purposes of determining his base offense level. 692 F.Supp. at 791-92. The court noted that the prior offense, committed in August of 1987, was related to the February 1988 offense, and held that because under the sentencing guidelines the prior offense of distribution constituted part of the same course of conduct or common scheme or plan as the offense of conviction, it was therefore relevant conduct for the purpose of determining Silverman's offense level under section 1B1.3(a)(2). Id. at 793. After finding that it had been demonstrated by a preponderance of the evidence that Silverman had committed the August 1987 offense, the court went forward and considered that offense in calculating his base level offense. Id. at 794-95. ...