U.S. v. White

• Citation: 875 F.2d 427
• Decision Date: 22 May 1989
• Docket Number: 88-5614,Nos. 88-5613,s. 88-5613
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tracey Donell WHITE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clarence JACKSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 427

875 F.2d 427

2 Fed.Sent.R. 58

UNITED STATES of America, Plaintiff-Appellee, v. Tracey Donell WHITE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Clarence JACKSON, Defendant-Appellant.

Nos. 88-5613, 88-5614.

United States Court of Appeals Fourth Circuit.

Argued April 14, 1989.

Decided May 22, 1989.

James Riley Parish (Parish, Cooke & Weeks on brief); Ronald D. McSwain, Fayetteville, N.C., for defendants-appellants.

Thomas Ernest Booth, Arlington, Va., (Margaret P. Currin, U.S. Atty., R. Daniel Boyce, Asst. U.S. Atty., Raleigh, N.C., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, and WIDENER and WILKINS, Circuit Judges.

WILKINS, Circuit Judge:

Tracey Donell White appeals the sentence imposed after he entered guilty pleas to possession with intent to distribute cocaine and possession of a firearm during the commission of a drug trafficking offense. 21 U.S.C.A. Sec. 841(a)(1) (West 1981); 18 U.S.C.A. Sec. 2 (West 1969); 18 U.S.C.A. Sec. 924(c)(1) (West Supp.1989). Clarence Jackson appeals the sentence imposed after he entered a plea of guilty to possession with intent to distribute cocaine. 21 U.S.C.A. Sec. 841(a)(1); 18 U.S.C.A. Sec. 2.

Since the offenses were committed after November 1, 1987, the sentences were governed by the Sentencing Reform Act of 1984, 18 U.S.C.A. Secs. 3551, et seq. (West 1985 & Supp.1989), and the sentencing guidelines promulgated by the United States Sentencing Commission. These appeals present several issues, including whether White's guideline sentencing range should have been reduced by 2 levels for acceptance of responsibility under Guideline Sec. 3E1.1(a) and whether Jackson's guideline sentencing range was properly enhanced 2 levels for possession of a firearm during the commission of an offense under Guideline Sec. 2D1.1(b)(1). Also at issue is whether Jackson should have been sentenced as a minor participant under Guideline Sec. 3B1.2(b). We affirm.

I.

In January 1988 law enforcement officers in Fayetteville, North Carolina, received information that an individual (Jackson) arriving on an Amtrak train would be transporting cocaine. The information provided to the officers included the fact that another individual (White) would meet the traveler at the train station. The officers, who were given a description of White and his automobile, established surveillance at the train station at midnight on January 27, 1988. A short time later an automobile matching the description arrived at the station. White, who was driving the vehicle, parked at the farthest end of the parking lot for approximately five minutes and then circled the lot with the car headlights off. When the train arrived, White stopped the vehicle near the passenger ramp. He then exited the car and greeted Jackson, who had just disembarked the train. After the two men shook hands, they entered the vehicle and began to exit the parking lot. The officers stopped the vehicle, arrested and searched the two men and the vehicle. Over 300 grams of cocaine were discovered in Jackson's jacket pocket. The search of the vehicle revealed a loaded .25 caliber pistol under the driver's seat, which had been occupied by White.

II.

White and Jackson were subsequently charged in a four-count indictment returned on February 23, 1988. The first count charged them with conspiring to traffic in cocaine in violation of 21 U.S.C.A. Sec. 846 (West 1981 & Supp.1989), and the second count charged Jackson with interstate travel with intent to carry on a drug trafficking business in violation of 18 U.S.C.A. Sec. 1952 (West 1984 & Supp.1989). Count 3 charged White and Jackson with possession with intent to distribute cocaine in violation of 21 U.S.C.A. Sec. 841(a)(1) and 18 U.S.C.A. Sec. 2, and count 4 charged both men with possession of a firearm during commission of a drug trafficking offense in violation of 18 U.S.C.A. Sec. 924(c)(1). Pursuant to plea agreements, White pleaded guilty to counts 3 and 4 and Jackson pleaded guilty to count 3. White received a sentence of 41 months on the drug charge and a 60-month mandatory consecutive sentence on the firearm charge. Jackson received a 44-month sentence.

A.

The guidelines hold both defendants accountable for the 307 grams of cocaine physically possessed by Jackson. Guideline Sec. 1B1.3(a)(1). Thus, the presentence report correctly provided that under Guideline Sec. 2D1.1 White's base offense level was 22. ¹ It further recommended that 2 levels should be deducted for White's acceptance of responsibility under Guideline Sec. 3E1.1(a). Since White was being sentenced under 18 U.S.C.A. Sec. 924(c)(1) which requires a mandatory 60-month consecutive sentence, the 2-level enhancement of Guideline Sec. 2D1.1(b) for possession of a dangerous weapon did not apply. Guideline Sec. 3D1.2, Application Note 1.

Based on information that White had attempted to influence the testimony of a potential witness, the government argued to the probation officer writing the presentence report that White's offense level should be increased by 2 through application of Guideline Sec. 3C1.1 (Willfully Obstructing or Impeding Proceedings). The probation officer declined to amend the presentence report "due to inability to confer with investigators due to time constraints."

At the sentencing hearing, the government presented evidence of the alleged obstruction through the testimony of the investigating officer. The court refused to apply the 2-level enhancement for obstruction, finding that "its failure to be included in the presentence report and the presentence conference is a sufficient procedural ground for me not to consider it."

The court then raised the issue of whether it should accept the probation officer's recommendation to apply the 2-level reduction for acceptance of responsibility. After hearing from both parties, the court refused to apply the reduction. Thus, instead of an offense level of 20 and guideline range of 33-41 months as recommended in the presentence report, White's offense level was 22 with a resulting guideline range of 41-51 months. In addition to a 60-month consecutive sentence under 18 U.S.C.A. Sec. 924(c)(1), the court sentenced White to 41 months, the low end of the range for offense level 22, which was the same as the high end of the range for offense level 20.

B.

The presentence report on Jackson provided that his guideline range was 41-51 months, based on a total offense level of 22. ² Jackson's total offense level was determined by starting with a base offense level of 22 for possession of 307 grams of cocaine, Guideline Sec. 2D1.1(a)(3), with an increase of 2 levels for possession of a firearm during the commission of the offense, Guideline Sec. 2D1.1(b), and with a reduction of 2 levels for acceptance of responsibility, Guideline Sec. 3E1.1(a). The presentence report also stated that the investigating officer considered Jackson to be a "messenger" and less culpable than White.

At the sentencing hearing Jackson contended that the 2-level increase for possession of a firearm was improper because there was no evidence that he was possessing the pistol which was discovered under the seat of the vehicle. Jackson also argued that he was entitled to a 2-level reduction as a minor participant in the offense, Guideline Sec. 3B1.2(b). He therefore asserted that this, coupled with acceptance of responsibility, entitled him to a sentencing range of 27-33 months, based on a total offense level of 18. The district court rejected his arguments and sentenced him to 44 months.

III.

Guideline Sec. 3E1.1(a) provides for a 2-level reduction of the offense level for acceptance of responsibility "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." Appellate review of a district court's determination of whether to reduce a defendant's offense level for acceptance of responsibility is governed by 18 U.S.C.A. Sec. 3742(e), which provides:

(e) Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

(3) is outside the applicable guideline range, and is unreasonable, having regard for--

(A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and

(B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or

(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.

Application Note 5 of the Commentary to Guideline Sec. 3E1.1 explains that "[t]he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility," and that his determination "is entitled to great deference on review and should not be disturbed unless it is without foundation." White contends that the "great deference" instruction conflicts with the "unreasonable" standard of section 3742(e)(3). ³ This contention is without merit for subsection (e)(3) addresses the review of sentences imposed outside the appropriate guideline ranges and has no application to cases such as this, where the district court does not depart from the guideline range. See United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989). In contrast, the issue presented here is whether the guidelines were correctly applied, which is reviewed under section 3742(e)(2), aided by the last sentence of that section. In Daughtrey, this court...