U.S. v. Wilson, s. 88-5215

• Decision Date: 21 February 1990
• Docket Number: 88-5216,Nos. 88-5215,s. 88-5215
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lisa WILSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gary Ray RIGNEY, a/k/a Gary Russ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 856

896 F.2d 856

UNITED STATES of America, Plaintiff-Appellee, v. Lisa WILSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gary Ray RIGNEY, a/k/a Gary Russ, Defendant-Appellant.

Nos. 88-5215, 88-5216.

United States Court of Appeals, Fourth Circuit.

Argued June 8, 1989.

Decided Feb. 21, 1990.

John A. Dusenbury, Jr. (Smith, Patterson, Follin, Curtis, James & Harkavy, Asheville, N.C., on brief), Charles Allen Lloyd, Greensboro, N.C., for defendants-appellants.

David Bernard Smith, Asst. U.S. Atty. (Robert H. Edmunds, Jr., U.S. Atty., on brief), Greensboro, N.C., for plaintiff-appellee.

Before POWELL, Associate Justice, United States Supreme Court, Retired, sitting by designation, and WIDENER and CHAPMAN, Circuit Judges.

WIDENER, Circuit Judge:

Gary Ray Rigney pleaded guilty to charges of conspiring to distribute cocaine and possessing a firearm during an attempt to acquire cocaine. He was sentenced under the Sentencing Reform Act to a total of 138 months in prison and six years of supervised release. Lisa Wilson pleaded guilty to a charge of interstate travel in aid of an unlawful business involving controlled substances and was sentenced to 24 months in prison, followed by 24 months of supervised release.

Both defendants appeal, challenging the correctness of their sentences under the Sentencing Guidelines. ¹ We affirm in Rigney's case but require resentencing for Miss Wilson.

We first consider Rigney's appeal. The dispute between Rigney and the government centers on the quantity of cocaine involved. The pre-sentence report stated that Rigney was responsible for 21 kilograms of cocaine. Pursuant to Sec. 6A1.2 of the Sentencing Guidelines, Rigney objected to the pre-sentence report and asserted responsibility for no more than 10 kilograms of cocaine, and the government adopted the pre-sentence report. None of the drug transactions described in the pre-sentence report occurred in August 1987. At the sentencing hearing, Rigney admitted on direct examination responsibility for 13 kilograms of cocaine, including a 2 kilogram purchase in August 1987 made in Virginia. On cross examination, Rigney admitted to an additional purchase of 2 kilograms in August 1987 in Florida. On redirect examination, Rigney recanted his testimony on direct examination about the August purchase in Virginia. The district court credited Rigney's testimony on direct and cross examinations, and found an involvement with a minimum of 15 kilograms. ²

Rigney argues that it is error for the district court to rely on Rigney's admission of two deliveries in August, when the pre-sentence report did not report the August deliveries and the government made no objection to the report. Rigney relies on Sec. 6A1.2 of the Guidelines, which requires each party, upon receipt of the pre-sentence report, to file a written statement of the sentencing factors to be relied on at sentencing. Section 6A1.2 allows either side to assert sentencing factors not in the pre-sentence report if written notice is filed with the court within a reasonable time before sentencing. Alternatively, the section allows a party to adopt the pre-sentence report. In this case, the government adopted the findings of the pre-sentence report. Rigney argues that once the government accepted the pre-sentence report it was prevented from using sentencing factors not included in the report and that the August 1987 drug transaction, standing alone, is a sentencing factor. We do not agree. The sentencing factor at issue here is the overall amount of cocaine involved in the offenses for which Rigney was responsible. ³ The amount is what fixes the base offense level under Sec. 2D1.1 of the Guidelines. Once any factor is in dispute, under Sec. 6A1.3, both parties are to be given adequate opportunity to present information regarding that factor. Rigney put the amount of cocaine involved in dispute by challenging the conclusion of the pre-sentence report that 21 kilograms of cocaine were involved. At that point, both the government and Rigney were free to present to the district court information concerning the amount of cocaine involved. ⁴ Sec. 6A1.3. We, therefore, see no error in the district court considering all the evidence before it regarding the amount of cocaine involved. Its finding was certainly not clearly erroneous.

We next consider Miss Wilson's appeal. She was Rigney's girlfriend, and her involvement in the conspiracy was limited. In November 1987, she made a round trip from Danville, Virginia, to Greensboro, North Carolina, to pick up John William Houk, the group's drug supplier. Her November trip is the basis of the interstate travel count to which she pleaded guilty. Miss Wilson had no prior criminal record. During her pre-trial release, she had joined Narcotics Anonymous and Alcoholics Anonymous. She participated in a drug abuse program in which she submitted herself to weekly drug screening tests, and she remained drug free. She had been regularly employed throughout the pre-trial release period, and she enrolled in an educational program to work toward an equivalency diploma. The district court found her base offense level to be thirty-four. ⁵ It reduced the level four points because she was a minimal participant and two points for accepting responsibility, bringing the level to twenty-eight. Additionally, the government made a motion pursuant to 18 U.S.C. Sec. 3553(e) that the district court depart downward because of her substantial assistance. At a base offense level of twenty-eight, the relevant Guidelines range is 78 to 97 months. However, the statutory maximum for a violation of 18 U.S.C. Sec. 1952(a)(3), the crime to which she pleaded guilty, was 60 months. The district court departed downward and sentenced her to 24 months' imprisonment and 24 months of supervised release.

In sentencing Miss Wilson, the district court made several statements that she argues show that it thought its ability to depart was limited. ⁶ While the remarks of the district court are not altogether clear as to whether or not it thought its discretion as to the amount of departure from the Guidelines sentence was limited, in this criminal case we are bound by the rule of leniency and must construe its remarks favorably to the defendant. That is to say, we consider the remarks of the district court to be a construction by it of the sentencing statutes which would have forbidden such a departure from the Guidelines on its part so as to simply place the defendant on probation.

In this, the district court erred. The government made its motion under 18 U.S.C. Sec. 3553(e) to impose a sentence below a level established by statute so as to reflect the defendant's substantial assistance in the investigation or prosecution of others. Under the literal terms of that statute, there is no lower limit placed on the court's authority, and no straining of the statute is necessary to arrive at that conclusion. The provision of Sec. 3553(e) that "such sentence shall be imposed in accordance with the Guidelines and Policy Statements issued by the Sentencing Commission ..." does not have any effect on the court's authority to impose merely a probationary sentence, should it be so advised, for the Sentencing Commission has not placed any limit on the amount of a sentence a district court may impose under Sec. 3553(e). Should the government take issue with the amount of downward departure...