U.S. v. Willard, 89-5244

• Decision Date: 18 July 1990
• Docket Number: No. 89-5244,89-5244
• Citation: 909 F.2d 780
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Irvin WILLARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 780

909 F.2d 780

3 Fed.Sent.R. 210

UNITED STATES of America, Plaintiff-Appellee, v. Michael Irvin WILLARD, Defendant-Appellant.

No. 89-5244.

United States Court of Appeals, Fourth Circuit.

Argued March 9, 1990.

Decided July 18, 1990.

Margaret Brooke Murdock, Asst. Federal Public Defender, Baltimore, Md., argued (Fred Warren Bennett, Federal Public Defender, Baltimore, Md., on the brief), for defendant-appellant.

Gregory Welsh, Asst. U.S. Atty., Baltimore, Md., argued (Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on the brief), for plaintiff-appellee.

Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

MURNAGHAN, Circuit Judge:

The Second Circuit, in United States v. Bermingham, 855 F.2d 925 (2d Cir.1988), enunciated the overlapping guidelines doctrine, whereby disputes as to applicable sentencing guidelines ranges need not be resolved when the sentence imposed would be the same under either of the potentially applicable ranges. We previously have accepted the overlapping guidelines doctrine. See United States v. White, 875 F.2d 427, 432-33 (4th Cir.1989). We are here asked whether a judge could properly impose sentence within an overlap and avoid resolving a factual dispute solely because of the existence of that overlap. We answer the question in the negative; rather, in situations such as are here presented, before imposing sentence within an overlap, the judge must make an express determination that the sentence would be the same under either of the potentially applicable ranges in the absence of any dispute as to which range applies.

Michael Willard pleaded guilty to one count of conspiracy to distribute narcotics. The plea bargain with the Government, without containing an agreement as to what the proper sentencing guideline range should be, indicated that the Government would recommend a sentence at the low end of whatever range was deemed applicable. The appropriate guideline range was, therefore, of considerable importance and depended on resolution of a factual question as to the extent of Willard's involvement in the drug conspiracy.

When Willard's sentencing came before the United States District Court for the District of Maryland, the parties adopted conflicting views as to the applicable range. Willard claimed that he entered the conspiracy some time after its commencement and was not responsible for all of the drugs distributed by the conspiracy. On that view of things, he argued for a range of 70 to 87 months (adjusted offense level of 26). A defendant is not necessarily held responsible at sentencing for the entire criminal conduct of the conspiracy. Rather, he is held accountable only for the criminal conduct in furtherance of the conspiracy which was either known to him or "reasonably foreseeable" by him. See Sentencing Guidelines Secs. 2D1.4 and 1B1.3 commentary; see also United States v. Vinson, 886 F.2d 740, 742 (4th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990). The Government, on the other hand, attempted to hold Willard responsible for the entire criminal conduct of the conspiracy and contended that the range should be 87 to 108 months (adjusted offense level of 28).

The sentencing judge felt it unnecessary to make a determination as to Willard's foreseeability of the extent of the conspiracy, although we have previously held "the determination of the foreseeability of the extent of the overall conspiracy is often critical." Vinson, 886 F.2d at 742. The judge's rationale was that the overlap of 87 months made for "a classic case where I have a perfect situation where I don't have to even rule." ¹ He went on to say: "I'm not going to make any findings of facts on that [foreseeability] issue and I've got a perfect reason not to [do so]." The judge thereby finessed altogether the question of where, within the guidelines, the sentence should fall. The sentence he chose, 87 months, was the very highest on one theory but the lowest on the other.

If the judge had determined that 87 months was the appropriate penological decision based on his belief as to its appropriateness and that he would impose such a sentence under either of the ranges regardless of which range applied, the imposition of 87 months imprisonment would have been appropriate without deciding between the ranges. See United States v. White, 875 F.2d 427, 432-33 (4th Cir.1989); United States v. McCrary, 887 F.2d 485, 489 (4th Cir.1989). But the judge did not clearly state that the sentence would definitely be 87 months under either of the ranges in the absence of any dispute as to which range was applicable. ² Rather, the fact of overlap and the desire to avoid resolving disputed facts apparently were the sole motivations behind the sentence imposed on Willard.

The judge, after eliminating any need to choose between the ranges, did belatedly state that resolving the dispute "wouldn't really make any difference one way or another I think under the facts of this case." But, for several reasons, we conclude that the judge did not fulfill his responsibility to satisfy himself that, if there had been no dispute about the applicable range, the sentence imposed would have been the same under either of the ranges presented to him.

First, the equivocality of the judge's denial of "any difference" contrasts sharply with earlier unequivocal statements that he imposed an 87-month sentence primarily because the existence of the overlap allowed him to avoid resolving the dispute. The sentencing record contains ample information to conclude that the overlap itself was the motivation for the sentence, not the fact that the sentence would be the same under either of the ranges in the absence of any dispute.

Second, the judge did not express any appreciation for the factual differences between the Government's and the defendant's sentencing positions. The Government's position was that Willard should be held responsible, as a coconspirator, for the illegal distribution of drugs with the heroin equivalency of over 8 kilograms. Successfully proving that contention, or responsibility for any amount between 3 and 9.9 kilograms, would have resulted, after various calculations, in an applicable sentencing range of 87 to 108 months imprisonment.

Willard, however, contended that the extent of the entire conspiracy was not known or reasonably foreseeable by him. Apparently, he tried to show that he should be held accountable only for the distribution of narcotics with the heroin equivalency of about 1 kilogram. If Willard were successful in limiting his responsibility, as a coconspirator, to 1 kilogram, or indeed any amount less than 3 kilograms, the applicable sentencing range, after adjustments, would have been 70 to 87 months. Given these facts, the culpability of Willard would seem significantly to depend on whether the Government or Willard is right as to a basic fact that has never been resolved. It is by no means apparent why Willard's sentence would be the same regardless of who is right in the dispute. Not only did the sentencing judge fail to articulate why he considered 87 months to be appropriate irrespective of the applicable range, he failed even to mention his awareness of the factual differences, as discussed above, between the Government's and the defendant's positions.

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