U.S. v. Vold

• Decision Date: 02 October 1995
• Docket Number: 95-1522,Nos. 95-1521,s. 95-1521
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence E. VOLD and Joel R. Cox, Defendants-Appellants. . Seventh Circuit
• Court: U.S. Court of Appeals — Seventh Circuit

Page 915

66 F.3d 915

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence E. VOLD and Joel R. Cox, Defendants-Appellants.

Nos. 95-1521, 95-1522.

United States Court of Appeals.

Seventh Circuit.

Argued June 7, 1995.

Decided Oct. 2, 1995.

Timothy O'Shea (argued), Office of United States Attorney, Madison, WI, for United States.

Iris M. Christenson (argued), Madison, WI, for Lawrence E. Vold.

David A. Geier (argued), Larowe, Gerlach & Roy, Madison, WI, for Joel R. Cox.

Before BAUER, COFFEY, and MANION, Circuit Judges.

BAUER, Circuit Judge.

Lawrence E. Vold was convicted by a jury of conspiracy to manufacture methcathinone, a Schedule I controlled substance. 21 U.S.C. Secs. 841(a)(1), 846; 21 C.F.R. Sec. 1308.11(f)(4). Joel R. Cox pleaded guilty to the same offense. Vold and Cox appeal their sentences. Cox challenges the quantity of methcathinone attributed to him by the district court in determining his base offense level under the Sentencing Guidelines. Vold challenges the district court's two-level enhancement in his offense level for possession of a firearm pursuant to Guideline Sec. 2D1.1(b)(1). We affirm Cox's sentence but vacate Vold's sentence and remand for resentencing.

I.

Cox learned how to make methcathinone ¹ in the winter of 1991-1992 from William Angeloff and Frances Pascenti, two residents of Michigan's Upper Peninsula. Cox met James Dean, a methcathinone addict, in the fall of 1992 in Iron River, Michigan, in the Upper Peninsula. Cox and Dean soon formed a partnership for making and distributing methcathinone. Dean assisted Cox in manufacturing methcathinone in Cox's trailer in Long Lake, Wisconsin. Dean claimed in an interview with Wisconsin police officers to have manufactured methcathinone with Cox at least thirty to forty times between November 1992 and June 1993. According to Dean, each manufacture, or "cook," produced a minimum of five to six ounces of methcathinone. Dean also claimed that Cox had several loaded firearms available during each "cook." Dean knew that Cox possessed several rifles, shotguns, and handguns at his residence, including a .38 caliber derringer which Cox always carried with him.

Lauren Goss, Cox's girlfriend, moved into Cox's trailer in January or February 1993. Goss, an exotic dancer and a methcathinone addict, objected to the smell produced during the "cooks" and forced Cox to stop making methcathinone in the trailer. Cox and Dean ended their partnership in February or March 1993. Cox made methcathinone with John Sebero on two occasions in the late winter or early spring of 1993 in Cox's trailer and in Goss's absence. Vold was present during the second "cook."

Cox and Vold formed a partnership for making methcathinone in the summer of 1993. Vold's wife, Beverly, supplied them with ephedrine pills, an ingredient of methcathinone. Cox and Vold made methcathinone together at least four times during the summer of 1993. The first two "cooks" occurred in a shed behind Vold's residence in Eagle River, Wisconsin, and in Vold's kitchen. Eagle River is approximately thirty miles from Long Lake. Two other "cooks" occurred in the garage of Richard Peters, a friend of Vold's, in Eagle River. Goss was present during all four "cooks."

Goss was interviewed by Wisconsin police officers on November 4, 1993. Goss told the officers that Cox and Dean manufactured methcathinone two times after she moved into Cox's trailer. Goss said that Cox told her that Cox and Dean made methcathinone twelve times before she moved in. Cox sold methcathinone for $1,000 an ounce and told Goss that his yield from each "cook" with Dean was between $5,000 and $6,000. Goss also said that "Cox always carries a Derringer [sic] handgun with him," and Cox had told her that "he would rather shoot it out with police than be arrested."

Cox was questioned by Wisconsin police officers on November 11, 1993, outside Vold's residence in Eagle River. Cox was not carrying a derringer. The officers recovered a loaded .38 caliber derringer from Cox's trailer in Long Lake later that day.

Cox and Vold were charged in a one-count indictment with conspiracy to manufacture methcathinone. 21 U.S.C. Secs. 841(a)(1), 846; 21 C.F.R. Sec. 1308.11(f)(4). The indictment alleged that the conspiracy occurred "from on or about May 1, 1993, until on or about September 1, 1993." Cox pleaded guilty. Vold pleaded not guilty and was convicted by a jury after a one-day trial.

The Probation Office in Cox's presentence investigation report ("PSR") recommended that the quantity of methcathinone attributed to Cox for purposes of calculating his base offense level include 150 ounces which Cox manufactured with Dean between November 1992 and February 1993. This quantity was based on Dean's statement that Dean and Cox engaged in at least thirty "cooks" and that each "cook" produced at least five ounces of methcathinone. The government and Cox objected to this recommendation. The government suggested that the district court find that Cox and Dean had engaged in fourteen "cooks" which each produced four ounces of methcathinone. Cox asserted that he had engaged in only ten "cooks" with Dean, and each "cook" produced three to four ounces of methcathinone. The district court found that Cox had engaged in fourteen "cooks" with Dean and that each "cook" produced five ounces of methcathinone. The district court therefore concluded that Cox's relevant conduct included seventy ounces of methcathinone which Cox manufactured with Dean. The district court sentenced Cox to 122 months' imprisonment followed by five years of supervised release.

Vold's PSR recommended that Vold receive a two-level enhancement in his offense level for possession of a firearm under Guideline Sec. 2D1.1(b)(1). Vold objected to this recommendation. The district court overruled Vold's objection and imposed the enhancement. The district court sentenced Vold to 110 months' imprisonment followed by five years of supervised release.

II.

Cox challenges the district court's finding that his relevant conduct included seventy ounces of methcathinone which Cox manufactured with Dean. The district court's determination of the quantity of methcathinone involved in Cox's offense is a finding of fact which we review for clear error. United States v. Ferguson, 35 F.3d 327, 332-33 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1832, 131 L.Ed.2d 752 (1995); United States v. Montgomery, 14 F.3d 1189, 1196 (7th Cir.1994). The government bears the burden of establishing the quantity of methcathinone involved in Cox's offense by a preponderance of the evidence. United States v. Beler, 20 F.3d 1428, 1431 (7th Cir.1994).

In determining a defendant's base offense level under the Guidelines, the district court must consider "all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction." United States Sentencing Commission, Guidelines Manual, Sec. 1B1.3(a)(2) (Nov. 1994). " 'The defendant need not have been either charged with or convicted of carrying out these other acts.' " Beler, 20 F.3d at 1431 (quoting United States v. Thomas, 969 F.2d 352, 355 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 274, 121 L.Ed.2d 202 (1992)). The acts may also be outside the period of the conspiracy. Ferguson, 35 F.3d at 334.

A criminal defendant " 'has a due process right to be sentenced on the basis of reliable information.' " Beler, 20 F.3d at 1432 (quoting United States v. Campbell, 985 F.2d 341, 348 (7th Cir.1993)). Guideline Sec. 6A1.3(a) provides that the district court "may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." In Beler, we held that the reliability standard of Guideline Sec. 6A1.3(a) "must be rigorously applied" and "[u]nreliable allegations must not be considered." Id. at 1433.

The evidence upon which the district court relied in finding that Cox manufactured seventy ounces of methcathinone with Dean is twofold. First, Dean told Wisconsin police officers that he and Cox made methcathinone at least thirty to forty times between November 1992 and June 1993 in Cox's trailer, and each "cook" produced at least five to six ounces of methcathinone. Second, Goss stated in her interview that Cox told her that Cox and Dean made methcathinone together twelve times before she moved into Cox's trailer. Goss observed Cox and Dean manufacture methcathinone two times after she moved in. Cox also told Goss that his yield from each "cook" with Dean was between $5,000 and $6,000, and Goss knew that Cox sold methcathinone for $1,000 an ounce.

The government asserted that Dean's statement should be discounted under Beler. Dean was a methcathinone addict who had a lengthy criminal history. The amount of methcathinone estimated by Dean would have required approximately 360,000 ephedrine pills to produce, and the government had no evidence that either Cox or Dean had received this many pills. Dean told the officers that his partnership with Cox lasted from November 1992 until June 1993. The government had strong evidence that the partnership ended at least three months earlier. Cox's PSR simply compressed Dean's total estimate into a smaller time frame. Under the PSR's estimate, Cox and Dean would have manufactured methcathinone twice a week every week for approximately fifteen weeks. This estimate conflicted with a statement by Dean to the officers that he and Cox only sometimes manufactured methcathinone twice a week.

The district court agreed with the government and accepted Dean's estimate only to the extent that it was corroborated by Goss. According to Goss's statement, Cox and Dean had engaged in fourteen "cooks." The district court observed Goss testify against Vold and stated that it found her to be "believable, credible, [and] reliable." Cox...