U.S. v. Warters

• Decision Date: 29 September 1989
• Docket Number: No. 89-2155,89-2155
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny R. WARTERS, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1266

885 F.2d 1266

UNITED STATES of America, Plaintiff-Appellee, v. Danny R. WARTERS, Defendant-Appellant.

No. 89-2155

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 29, 1989.

Roland E. Dahlin, II, Federal Public Defender, Marjorie A. Meyers, Houston, Tex., for defendant-appellant.

Frances H. Stacy, Asst. U.S. Atty., Paula Offenhauser, John Crews, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Danny R. Warters (Warters) pleaded guilty to a charge of misprision of felony, 18 U.S.C. Sec. 4, and was sentenced to three years' confinement, to be followed by a one-year term of supervised release, and a $50 special assessment. He brings this appeal, raising only challenges to his sentencing. We remand.

Facts and Proceedings Below

Warters was initially charged in a two-count indictment. Count one charged a conspiracy, from August 16, 1988 to September 8, 1988, in the Southern District of Texas and elsewhere, between Warters, James Joseph Yocono, Denver Lee Wright, Lloyd Donald Hailey, and unnamed others to import more than 100 kilograms of marihuana into the United States from Mexico, contrary to 21 U.S.C. Secs. 963, 952(a), and 960(b)(2). Count two charged that in the same period and places, Warters, Yocono, Wright, Hailey, and unnamed others conspired to possess with intent to distribute more than 100 kilograms of marihuana, contrary to 21 U.S.C. Secs. 846, 841(a)(1), and 841(b)(1)(B).

Pursuant to a plea agreement with the prosecution, Warters pleaded guilty to a criminal information charging misprision of felony, 18 U.S.C. Sec. 4, in that on September 8, 1988, Warters, in the Northern District of Ohio, "having knowledge of the actual commission of a felony cognizable by a court of the United States, namely a conspiracy to possess with intent to distribute a quantity of marijuana in the amount of 20 pounds between James Joseph Yocono, Denver Lee Wright, Lloyd Donald Hailey, and Danny R. Warters, did not as soon as possible make known the same to" the authorities. The plea agreement called for dismissal of the indictment as to Warters and for Warters to waive, inter alia, venue rights, to cooperate with the prosecution respecting its case against his co-defendants. The agreement also indicated that for sentencing guidelines purposes, Warters should be entitled "to the benefits of acceptance of responsibility" but "not ... to any further reduction in his sentencing guidelines 'score' for 'minor' or 'minimal' participation." The statement respecting minor or minimal participation appears to have been made in recognition of the sentencing guidelines provision that such adjustments are "normally inapplicable" to misprision "because an adjustment for reduced culpability is incorporated in the base offense level." See Guidelines Sec. 2X4.1, application note 2.

During the December 2, 1988 hearing at which Warters' guilty plea was accepted, the plea agreement was disclosed, and the court advised Warters that the court was not bound by the agreement even were it to accept the plea. At this hearing, the prosecution in its statement of facts supporting the plea recited that Warters was "also a member of the conspiracy which had overt acts committed here within the Southern District of Texas, in the Northern District of Ohio Mr. Warters furnished $20,000 for the purchase of approximately 20 pounds of marijuana, which he was going to then distribute," and Warters' response, answering the immediately following inquiry of the court respecting his having "failed to report that to an authority when you knew that a crime was being committed," can be understood as indicating Warters' agreement to the prosecutor's statement as well as the court's.

Sentencing was set for February 10, 1989, and in the interim, the presentence report (PSI) was submitted. It determined an offense level of 15 and a criminal history category of I, producing a guideline imprisonment range of eighteen to twenty-four months. It noted that no information was identified "which would warrant a departure from the guidelines in this case."

Of particular significance here was the offense level determination. Under the guidelines, the base offense level for misprision of felony is "9 levels lower than the offense level for the underlying offense, but in no event less than 4, or more than 19." Id. Sec. 2X4.1. ¹ The PSI accordingly calculated the offense level for the underlying conspiracy. Under Guidelines Sec. 2D1.4, for a controlled substance conspiracy, "the offense level shall be the same as if the object of the conspiracy ... had been completed," and application note 1 provides that for "an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount." The PSI thus turned to Guidelines Sec. 2D1.1(a)(3) which governs drug manufacturing, importing, exporting, or trafficking offenses (including possession with intent to commit those offenses) under 21 U.S.C. Secs. 841 and 960, and which in turn refers to the drug quantity table. From the drug quantity table, the PSI chose the base offense level of 26, which is appropriate for offenses involving 100 to 399 kilograms (approximately 220 to 880 pounds) of marihuana. It then deducted nine points as appropriate to misprision, and a further two points for acceptance of responsibility (Guidelines Sec. 3E1.1(a)), and arrived at the above-noted adjusted offense level of 15.

The PSI based its application of the drug quantity table on the basis that the underlying offense--the conspiracy, presumably that to possess marihuana with intent to distribute it--involved 500 pounds (or about 227 kilograms). It recognized, however, that the information alleged the underlying offense as a 20 pound conspiracy, and that Warters' counsel had submitted a sentencing statement in essence taking the position that all he was involved with or knew about was 20 pounds, or approximately 9 kilograms of marihuana. ² The PSI then calculated that if this smaller quantity were determinative, the conspiracy base offense level would be 14, and with deduction of nine points for misprision and two points for acceptance of responsibility, would produce an adjusted offense level of 3, which, with a criminal history category of I, would result in a guideline imprisonment range of zero to three months.

In the subsequent "sentence recommendation" portion of the PSI, a twenty-one month sentence is recommended, it being stated that Warters "was a member of a group that had negotiated for, and completely expected to receive, 500 pounds of marihuana" and that he "was well aware of his involvement in the instant offense." ³

The initial portion of the PSI recounts the facts involved, which we summarize as follows: Yocono contacted a confidential informant of the Drug Enforcement Administration (DEA) stating that he was interested in purchasing a large quantity of marihuana. On August 20, 1988, the informant called Yocono, then in Akron, Ohio, from the DEA office in Brownsville, Texas, telling Yocono that he had located a source of supply and the source wished to meet with Yocono to discuss the details. On August 22, 1988, an individual named Breach met with the informant and a DEA agent in Brownsville. He agreed to purchase 500 pounds of marihuana at a price of $375 per pound. The agent informed Breach that he would have to provide a vehicle to transport the marihuana from Texas to Ohio.

Breach delivered a 1988 Ford Bronco to the agent in Harlingen, Texas on September 1, 1988. The informant telephoned Yocono, who agreed to surrender title to the Bronco to cover transportation costs, and further agreed to pay $97,000 as a down payment on the marihuana. The bill of sale indicated the Bronco was owned by Yocono and Wright, whom Breach indicated was aware that the vehicle was to be used to transport marihuana.

The agent and the informant flew into Cleveland on September 8, 1988, and, as Yocono had told them on September 6 that they would be, they were met by a man named "Dan," later identified as Hailey. Hailey explained that his people were experiencing some money problems, but assured the agent and the informant that he and his friends wished to go through with the deal. Hailey promised to contact the agent at the Sheraton Hopkins Hotel, and before leaving gave him a hand-drawn map showing the location of the warehouse to which the marihuana was to be delivered.

Hailey met with Yocono at his home in Akron and then went to the Red Pepper Steak House to meet Warters. Hailey and Warters rented several hotel rooms in Medina, Ohio, and then drove to the Cleveland airport in separate cars. Hailey and Warters met the informant and the agent at the Sheraton Inn. Hailey showed the agent $30,000 in United States currency, and Warters showed the agent $20,000 in United States currency. Hailey provided the agent with the title to the Ford Bronco. Arrangements were made for the delivery of the marihuana to the warehouse, and Hailey and Warters were arrested as they left the Sheraton. Yocono and Wright were arrested later.

In his referenced sentencing statement, Warters asserts that he planned "to purchase 20 pounds of marihuana from Hailey" and "to resell the marihuana on his own," and further that:

"[T]he question of defendant's knowledge of the entire amount of marihuana involved in this case, is raised. If this case would have gone to trial, the defendant would have produced evidence that his dealings in this matter were with Lloyd Hailey, a codefendant herein. Hailey approached defendant with the proposition of purchasing marihuana and defendant agreed to purchase 20 pounds. Hailey informed defendant that the...