U.S. v. Thompson
| Decision Date | 06 April 1994 |
| Docket Number | No. 94-1138,94-1138 |
| Citation | 32 F.3d 1 |
| Parties | UNITED STATES, Appellee, v. Everton THOMPSON, Defendant-Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Owen S. Walker, Federal Defender Office, by Appointment of Court, for appellant.
Michael J. Pelgro, Asst. U.S. Atty., Organized Crime Drug Enforcement Task Force, with whom Donald K. Stern, U.S. Atty., was on brief, for appellee.
Before TORRUELLA, CYR and STAHL, Circuit Judges.
A federal grand jury returned an eleven-count indictment which charged seven defendants, not including defendant/appellant Everton Thompson, with conspiracy to distribute cocaine base from September 1991 to June 1992, and other substantive drug distribution counts. Count Ten of the indictment charged Thompson, and three other defendants, with the knowing possession of a handgun with an obliterated serial number in violation of 18 U.S.C. Sec. 922(k). Thompson pled guilty to Count Ten. At the sentencing hearing, the court determined that the applicable guideline was U.S.S.G. Sec. 2K2.1 (1990), and found that Thompson "used or possessed the firearm in connection with the commission or attempted commission" of the drug offenses. The court therefore applied the cross-reference provision set forth in Sec. 2K2.1(c)(2) and imputed to Thompson a series of drug offenses committed by the alleged conspiracy. Thompson now challenges the district court's interpretation and application of U.S.S.G. Sec. 2K2.1(c)(2). We affirm.
We cull the facts from unobjected to portions of the Presentence Report ("PSR") and from the government's statement of evidence at the plea hearing. United States v. Garcia, 954 F.2d 12, 14 (1st Cir.1992).
This case involves a 1991 Drug Enforcement Administration ("DEA") investigation of drug trafficking in Dorchester, Massachusetts. Codefendant David Jackson was the leader of a group of persons who were running a cocaine and cocaine base distribution enterprise out of an apartment at 49 Theodore Street in Dorchester. During the investigation, the DEA utilized a confidential informant ("CI") who purchased large quantities of cocaine and cocaine base from various codefendants at 49 Theodore Street, engaged in negotiations with various codefendants to purchase a machine gun and other firearms, and purchased a handgun with an obliterated serial number.
The evidence established the following facts linking Thompson to his codefendants. On August 15 and September 9, the CI made his first two cocaine purchases, totalling approximately 250 grams, from two men, one of whom was defendant Charles Brown. On September 24, 1991, Brown sold the CI 68 grams of cocaine base and 43 grams of cocaine. Brown told the CI that he might be able to get him a Tech-9 firearm for $1000 and would contact "the man with the guns." On September 25, 1991, the CI placed a drug order with Brown, and Brown mentioned that he was going to check about obtaining the gun.
On October 2, 1991, Brown took the CI to the first floor apartment at 49 Theodore Street, where the CI observed drug transactions and other drug activity. Brown introduced the CI to Jackson, and told the CI that Jackson was the "boss." The CI paid Jackson $8,500 and was thereupon given 227 grams of cocaine base by defendant Roy Gray, who was also in the apartment.
On October 3, 1991, the CI and Brown had a telephone conversation in which they discussed the "crack" which the CI had purchased the day before, and the firearm Brown had mentioned. On October 6, 1991, the CI telephoned the Theodore Street apartment and spoke to a man named "Henry." The CI then told Henry to tell Brown to get a firearm for him.
On October 9, 1991, the CI went to the Theodore Street apartment, but neither Brown nor Jackson was there. Brown then arrived at the apartment with Thompson, and Thompson told the CI that Jackson was not there, and asked the CI for his beeper number. Shortly thereafter, Jackson arrived. The CI asked Jackson if he could buy a quarter kilogram of crack and Jackson replied that it would be no problem. Jackson told the CI that he could get the CI anything he wanted and that he could get a 9 millimeter pistol for the CI immediately. Jackson stated that he had to have guns, and that all of his boys had guns. Jackson further informed the CI that a Jamaican soldier sold guns to him and was supposed to bring him a machine gun. Jackson told the CI that he would sell a Tech-9 (firearm) to the CI for $1000. Jackson asked the CI for his beeper number, and the CI told Jackson that he had given the number to Thompson.
On October 11, 1991, Jackson, who presumably received the beeper number from Thompson, paged the CI. The CI telephoned Jackson, and Jackson said that he had to go somewhere and that the CI would have to deal with his brother, "Dean." Jackson said that he could get the CI any type of gun, and that he had spoken with his gun contact the previous night. Later that day, the CI went to the Theodore Street apartment and bought 227 grams of crack from Dean for $8000. Thompson and Gray were present at the apartment, and the CI asked Gray about the firearm. Gray talked to Thompson, and Thompson stated that he did not know anything about it. That night, the CI spoke with Jackson, and Jackson told the CI that he could pick up the gun from defendant Michael Shields the following morning at Theodore Street.
On October 12, 1991, the CI went to Theodore Street, where he met Shields. The CI told Shields that he was there to pick up a gun. Shields told the CI that he was going to make a call to Henry's house, so that Henry would bring the gun to the CI at Theodore Street. The CI then observed Shields make a telephone call. Shields handed the telephone to the CI and said that Jackson was on the phone. Jackson told the CI to wait a while until Shields woke up Henry who would get the gun for the CI. Shields then asked Thompson to take a cab to Henry's home, and to get the gun from him. Thompson left the apartment, and later returned with Henry. Henry handed the CI a 9 millimeter firearm with an obliterated serial number. Thompson handed Henry a box containing 50 rounds of ammunition and Henry gave the box of ammunition to the CI.
During the following three or four weeks, the CI had more contact with the defendants at Theodore Street. On October 15, the CI went to Theodore Street. Thompson opened the kitchen door for him and led him to an adjacent room where the CI met with Jackson. The CI paid Jackson $650 for the handgun he had previously purchased. While in the apartment, the CI observed Dean engage in a drug transaction involving what appeared to be cocaine.
On October 18, the CI telephoned Theodore Street and Thompson answered the telephone. The CI then talked to Shields about a future crack cocaine transaction.
On October 21, Thompson was present at Theodore Street when the CI arrived to purchase more crack. Shields and Henry arrived later to sell the CI the crack. Acting at the instruction of Shields, Henry left the apartment and returned with 223 grams of cocaine base, and sold it to the CI for $8000. The CI also had a discussion with Shields about purchasing machine guns.
After early November 1991, there was less contact between the CI and the defendants. On November 5, Jackson paged the CI through his beeper. The CI then telephoned Jackson, at which point Jackson asked him when he was going to purchase more cocaine. Jackson informed the CI that his gun supplier was getting weapons and that the CI could purchase them when Jackson received them.
On December 10, the CI went with Shields to the Theodore Street apartment and had a discussion with Jackson concerning future narcotics transactions. While there, the CI saw Thompson at the apartment. In early January 1992, the CI went to a second location, 973 Blue Hill Avenue in Boston, to purchase more cocaine base, and he spoke with Gray. After a while, the CI went to the Theodore Street apartment, where he met with Thompson and Gray. The CI told Thompson that he was there to buy something from Jackson, and Thompson responded that the CI would have to deal directly with Jackson.
On January 20, 1993, the grand jury returned an eleven-count indictment against eight defendants. The only count in which Thompson was charged, Count Ten, alleged that on or about October 12, 1991, Jackson, Shields, "Henry," and Thompson knowingly possessed a 9-millimeter pistol with a removed, obliterated or altered serial number, in violation of 18 U.S.C. Sec. 922(k). The other counts, alleging a cocaine base distribution conspiracy, and substantive cocaine and cocaine base distribution charges, concerned conduct of the other defendants over a six-month period from late September 1991 through March 1992.
Thompson pled guilty to Count Ten on October 20, 1993. Pursuant to a plea agreement, the government agreed to recommend a 30-month prison sentence. The agreement provided that if the court decided to sentence Thompson to more than 30 months, Thompson would be permitted to withdraw his guilty plea.
The PSR was issued on December 15, 1993. The PSR recommended that the guideline applicable to the offense was U.S.S.G. Sec. 2K2.1, and that the 1990 guidelines applied, rather then the guidelines in effect when the report was prepared, because applying the latter version might create an ex post facto problem. Because the PSR determined that "defendant used or possessed the firearm in connection with the commission or attempted commission" of the overall drug conspiracy, the PSR applied the "cross-reference" provision set forth in Sec. 2K2.1(c)(2) and imputed to Thompson a series of drug offenses committed by the alleged conspiracy in October 1991. Finding that the conspiracy was responsible for 122.5 grams of cocaine and 450.9 grams of cocaine base during that period, the PSR calculated Thompson's base offense level...
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