U.S. v. Williams, 88-5213
| Decision Date | 06 September 1989 |
| Docket Number | No. 88-5213,88-5213 |
| Citation | 880 F.2d 804 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Anthony K. WILLIAMS, a/k/a Tony, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Daniel Jefferson Post for appellant.
Thomas O. Mucklow, Asst. U.S. Atty. (William A. Kolibash, U.S. Atty., Lisa A. Grimes, Sp. Asst. U.S. Atty., John H. Reed, Asst. U.S. Atty., on brief) for appellee.
Before MURNAGHAN and CHAPMAN, Circuit Judges, and SMALKIN, United States District Judge for the District of Maryland, sitting by designation.
This appeal presents the question as to whether at a sentencing on a plea of guilty to one count of a five count indictment, each count charging distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1), the district judge may consider the quantities of cocaine not specified in the count to which the defendant enters his guilty plea in computing the defendant's base offense level under the sentencing guidelines. We find that such additional quantities of cocaine may be considered, and we affirm.
Anthony K. Williams was charged in a five count indictment with distributing cocaine on five different occasions between September 1987 and March 23, 1988 in the vicinity of Wheeling, West Virginia. The exact amount of cocaine covered by each count of the indictment is not stated therein, but the presentence report stated:
Based on the foregoing, utilizing the most conservative figures available, the government would estimate that it would have been readily able to prove that the defendant Williams distributed at least one gram or more of cocaine base. Accordingly, the government would respectfully suggest that the level of the defendant's overall offense should be denoted at level 18 under the Sentencing Guidelines.
Appellant argues that his base offense level should be 12 because he could only be sentenced for the amount of cocaine to which he pled guilty and this would produce a level of 12. The appellant was given a two level reduction because of his acceptance of responsibility.
The amounts of cocaine distributed on the occasions set forth in counts 1, 2, 3, and 4 of the indictment, which were dismissed when the plea of guilty to count 5 was accepted, represent relevant conduct that may be considered in determining the applicable guideline range under Sec. 1B1.3(a)(2) which provides:
The conduct that is relevant to determining the applicable guideline range includes that set forth below.
(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:
(2) solely with respect to offenses of a character for which Sec. 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction;
Section 3D1.2(d) does not require a grouping of the multiple counts in the present indictment and therefore the court may consider the acts contained in counts 1 through 4 as a part of the same course of conduct or common scheme or plan as the offense of conviction.
The Commentary to Sec. 1B1.3 explains subsection (a)(2) as follows:
Subsection (a)(2) provides for consideration of a broader range of conduct with respect to one class of offenses, primarily certain property, tax, fraud and drug offenses for which the guidelines depend substantially on quantity, than with respect to other offenses such as assault, robbery and burglary. The distinction is made on the basis of Sec. 3D1.2(d), which provides for grouping together (i.e., treating as a single count) all counts charging offenses of a type covered by this subsection. However, the applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged. Thus, in an embezzlement case, for example,...
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