U.S. v. Thomas, s. 90-1530

Decision Date23 May 1991
Docket NumberNos. 90-1530,90-1545 and 90-1554,90-1546,90-1555,s. 90-1530
Citation932 F.2d 1085
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Winston Gary THOMAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bryon SAMUELS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roy PLUMMER, a/k/a Gifford Plummer, a/k/a "Bully," Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anez Sutherland ROBINSON, a/k/a "Dave," Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mark Anthony PULLOCK, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Elizabeth Unger Carlyle, Randal Mathis, Dallas, Tex. (court-appointed), for defendant-appellant in 90-1530.

Delonia Watson, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Robert Udashen, Dallas, Tex. (court-appointed), for defendant-appellant in 90-1546.

Ronald L. Goranson, James D. McCarthy, Dallas, Tex. (court-appointed), for defendant-appellant in 90-1555.

Randy Adler, Dallas, Tex., for defendant-appellant in 90-1545.

John H. Martin, Dallas, Tex. (court-appointed), for defendant-appellant in 90-1554.

Appeals from the United States District Court for the Northern District of Texas.

Before GOLDBERG, SMITH, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendants, members of a cocaine importation ring, challenge the calculation of their sentences under the guidelines and contend that a recent Supreme Court case sharply curtails the discretion of a sentencing court to consider information contained in dismissed counts. Finding no error, we affirm.

I.

Between April 1988 and December 1989, the defendants imported cocaine into the Dallas area for distribution through their crack houses. One member of the ring Peter Lloyd Atkinson, admitted that between October 1 and December 20, 1989, the conspiracy distributed approximately six kilograms of crack cocaine per week, a total of approximately sixty-six kilograms. Atkinson also admitted that he and Prince Anthony Edwards distributed at least two kilograms of crack cocaine from New York to Dallas on two separate occasions and that he and several other non-indicted co-conspirators distributed about twelve kilograms of cocaine during 1989 from a separate, affiliated organization.

Roy Plummer originally was the manager of the distribution organization, responsible for picking up the crack cocaine and any money collected. He also prepared the payroll for the workers, with the remaining profits going to the leadership. Five to eight kilograms were sold each week in the houses directly supervised and operated by Plummer. Plummer also was involved in delivering between one and two kilograms of crack cocaine a week from the stash house, for what the PSI called a conservative total of eleven kilograms.

Byron Samuels was a worker who packaged crack for the original conspiracy. In 1988 he, along with a few cohorts, began to operate his own crack house. In 1989 Samuels and his uncle formed a new organization to sell crack on their own.

Winston Thomas allegedly began his career as a runner. In 1988, Thomas was arrested for the knowing possession, with intent to distribute, of 224 capsules (26.4 grams) of 93% pure cocaine base. After posting bond, he returned to New York to continue his work for Rafael Phillips, where he allegedly would pick up kilogram packs of cocaine, package it, and then give the crack to couriers for distribution for Edwards.

Anez Robinson admits that he knew Atkinson, Edwards, Plummer, and Mark Pullock and that he was involved in the distribution of cocaine base. Robinson rented or owned several residences used to prepare drugs for distribution and to store cash proceeds. Robinson also was the registered co-owner of an apartment complex where one of the crack houses was located. According to the PSI Robinson, along with Plummer, delivered crack twice a day to a storage house. Robinson also was a partner with two unindicted crack distributors who sold one to two kilograms of crack a week.

When the earlier partnerships dissolved, Robinson began to buy cocaine on his own. Police officers arrested Robinson when he attempted to purchase one kilogram of cocaine from them for $19,000. In an earlier meeting with an undercover officer, Robinson had agreed to purchase two kilograms of cocaine for $40,000.

Finally, Pullock was charged with conspiracy to distribute cocaine base, two counts of aiding and abetting travel in commerce to distribute cocaine base, and five counts of aiding and abetting deliveries of cocaine base. Pullock pleaded guilty to one count of aiding and abetting the delivery of cocaine base.

The presentence investigation report (PSI) for Pullock indicates that he was part of a conspiracy that included Edwards and Phillips, among others. Pullock contests this, stating that he conducted business in a smaller conspiracy involving only Walker and Samuels. Pullock thus disputes as clearly erroneous the district court's decision to charge him with conduct related to the entire conspiracy.

According to the investigating agents, all codefendants, with the exception of Polk, were in leadership or managerial positions at one time or another. In exchange for partial dismissals, the defendants pleaded guilty to various counts. The district court calculated their offense levels and assessed jail time to each of them. We deal with their appeals seriatim.

II.
A.

Our traditional rule concerning the proper calculation of drug quantities is that "in drug distribution cases quantities of drugs not specified in the count of conviction are to be included in determining the base offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." United States v. Byrd, 898 F.2d 450, 452 (5th Cir.1990) (per curiam); accord United States v. Taplette, 872 F.2d 101, 106 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989). At issue today is whether a recent Supreme Court decision curtails a sentencing court's discretion under the guidelines. We review this legal determination de novo.

In Hughey v. United States, --- U.S. ----, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), the Court confronted the Victim and Witness Protection Act of 1982 (VWPA). The Court held that the VWPA authorized a sentencing court to award restitution to a victim only for the specific conduct that was the basis of the offense of conviction. A sentencing court therefore cannot consider losses occasioned by conduct related to dismissed counts or uncharged conduct. Id. 110 S.Ct. at 1985.

Samuels and Plummer contend that wherever Congress used the phrase "commission of an offense," whether in the VWPA or the Sentencing Reform Act, it intended that it be used just as the Court has interpreted it in the VWPA. Because the Sentencing Commission has interpreted the language more broadly, the defendants contend that it has gone beyond the scope of its authority.

At issue is the definition of relevant conduct that appears in U.S.S.G. Sec. 1B1.3:

1B1.3. Relevant Conduct (Factors that Determine the Guideline Range)

(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:

(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense;

(2) solely with respect to offenses of a character for which Sec. 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. [Emphasis added.]

We have interpreted this provision very broadly, as have other circuits, so as to preserve the traditional discretion of a sentencing court. 1

Samuels and Plummer contend that the proper scope of the guidelines is no greater than that found in the VWPA wherever Congress used the phrases interpreted in Hughey. We reject this contention, however. Although we normally impart the same meaning to the same phrase throughout related statutes, see Sorenson v. Secretary of the Treasury, 475 U.S. 851, 860, 106 S.Ct. 1600, 1606, 89 L.Ed.2d 855 (1986), this argument is weakened considerably by the lineage of the statutes in question.

The VWPA was passed long before the Sentencing Reform Act and was reenacted as part of a recodification and overhaul of federal criminal law. We usually accord a similar meaning to similar language throughout a bill because it was drafted by one writer who presumably had a single meaning in mind. No such situation obtains here.

That the Sentencing Reform Act and the VWPA must be considered separately is reinforced by the language of Hughey. There the Court considered the VWPA in light of its own statutory language and goals--language and goals not present in the sentencing context. The Court's holding cannot be divorced from this language:

Given that the ordinary meaning of 'restitution' is restoring someone to a position he occupied before a particular event, ... the repeated focus in Sec. 3579 on the offense of which the defendant was convicted suggests strongly that restitution as authorized by the statute is intended to compensate victims only for losses caused by the conduct underlying the offense of conviction.

110 S.Ct. at 1982 (emphasis added, citations omitted). No such...

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