U.S. v. Wise

• Decision Date: 12 February 2008
• Docket Number: No. 06-4926.,No. 06-4928.,06-4926.,06-4928.
• Citation: 515 F.3d 207
• Parties: UNITED STATES of America v. Jaycee WISE, Appellant in 06-4926 Edwin Michael Brown, Appellant in 06-4928.
• Court: U.S. Court of Appeals — Third Circuit

515 F.3d 207

UNITED STATES of America v. Jaycee WISE, Appellant in 06-4926 Edwin Michael Brown, Appellant in 06-4928.

No. 06-4926.

No. 06-4928.

United States Court of Appeals, Third Circuit.

Argued January 3, 2008.

Filed: February 12, 2008.

Dennis E. Boyle, Boyle & Wenger, Camp Hill, PA, for Appellant Jaycee Wise.

Ronald A. Krauss, [Argued], Office of Federal Public. Defender, Harrisburg, PA, for Appellant Edwin Brown.

Theodore B. Smith, III, [Argued], Eric Pfisterer, Michael A. Consiglio, Office of United States Attorney, Harrisburg, PA, for Appellee.

Before: FUENTES, JORDAN, Circuit Judges and DuBOIS^*, District Judge.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Edwin Michael Brown and Jaycee. Wise were each convicted of possession with intent to distribute crack cocaine, possession of a firearm in furtherance of a drug trafficking offense, and possession of a firearm by a convicted felon. On appeal, Brown and Wise challenge their convictions as well as the sentences of imprisonment imposed on them by the District Court. Beyond the obvious significance of these appeals to the appellants themselves, these appeals are of particular note because they represent the first cases in this Circuit to address the differential in the powder cocaine and crack cocaine Sentencing Guidelines since the Supreme Court's recent decision in Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) and the United States Sentencing Commission's recent amendment to the Guidelines ranges for crack cocaine offenses. For the reasons set forth below, we will affirm.

I. Background

In the Spring of 2005, the Harrisburg Bureau of Police began receiving citizen complaints regarding illegal drug dealing in the house located at 328 Hummel Street in Harrisburg, Pennsylvania. On May 27, 2005, after confidential informants provided further information about the illicit activities at that address, and after one of the informants purchased cocaine using marked bills, officers entered the house pursuant to a search warrant. An officer found defendant Wise standing on the second floor, near the stairway. Wise ran into a nearby bedroom when he saw the officer, but was eventually taken into custody. The officers found a plastic bag containing 21 individually-wrapped packets of crack cocaine on the stairway close to where Wise had been standing. The officers also discovered a loaded semiautomatic pistol laying on a mattress in the bedroom into which Wise had fled.

The officers found defendant Brown lying on a bed in a third-floor bedroom. He was also taken into custody. The officers discovered a sawed-off shotgun between the mattress and the box spring of the bed on which Brown had been lying. In addition, they found in Brown's pocket two bills from the marked currency that had been used by the confidential informant to purchase cocaine.

Brown and Wise were charged with possession with intent to distribute 50 or more grams of crack cocaine (in violation of 21 U.S.C. § 841(a)(1)), possession of a firearm in furtherance of a drug trafficking offense (in violation of 18 U.S.C. § 924(c)), and possession of a firearm by a convicted felon (in violation of 18 U.S.C. § 922(g)(1)). The counts of the superseding indictment charging possession with intent to distribute crack cocaine and charging possession of a firearm in furtherance of that offense also charged Brown and Wise as alders and abettors in those offenses (in violation of 18 U.S.C. § 2).

At trial, the government presented testimony from a number of witnesses who identified Brown and Wise as armed crack cocaine dealers. Among the witnesses was Mr. Carter Chilson, the lessee of 328 Hummel Street. Chilson testified that, in exchange for receiving drugs over a six to eight week period, he allowed Brown and Wise to live in and sell crack cocaine from his home. According to Chilson, Brown and Wise received from their supplier on nearly a daily basis a $1,000 package of crack cocaine, which contained approximately 100 individual packets of crack cocaine similar in size to the 21, individual packets the officers had recovered from the stairway at 328 Hummel Street.

At trial, Brown and Wise stipulated that the total amount of crack cocaine contained in the 21 packets recovered from the house was 3.1 grams. Thus, based on Chilson's estimate that 100 such packets were provided to Brown and Wise almost daily, the amount of crack cocaine that had been delivered to and sold by the defendants over the six to eight week period amounted to substantially more than 300 grams. Chilson also testified that, while selling drugs, the defendants possessed and displayed firearms, namely, the semiautomatic pistol and the sawed-off shotgun.

A jury found Brown and Wise guilty on all charges. The jury also found, through special interrogatories, that each defendant had possessed with the intent to distribute more than 50 grams of crack cocaine and had brandished a firearm in furtherance of a drug trafficking offense.

As a result of the jury's verdict, each of the defendants was subject to a statutory range of imprisonment of 17 years to life: 10 years to life for the drug offense, a maximum of 10 years for possessing a firearm as a convicted felon, and a consecutive term of 7 years to life for brandishing a firearm in furtherance of a drug trafficking offense. In order to determine the appropriate sentences to impose within that range, the District Court first calculated the applicable sentencing ranges under the United States Sentencing Guidelines (the "Guidelines").¹ Consistent with instructions in the Guidelines, U.S.S.G. § 3D1.2, the Court, grouped together the drug offense and the § 922(g)(1) firearm offense, i.e., felon in possession of a firearm. Finding that each of the defendants was responsible for possessing with intent to distribute more than 150 grams of crack cocaine, the Court then assigned each of the defendants a base offense level of 34 for those two offenses, in accordance with the version of the Guidelines then in effect. See U.S.S.G. § 2D1.1(c)(3) (Nov. 1, 2006) (offenses involving more than 150 grams but less than 500 grams of crack cocaine are categorized at a base offense level of 34); § 3D1.3(a) (offense level applicable to group is offense level for most serious offense).

Brown's criminal history category of IV, combined with an offense level of 34, yielded a Guidelines range of 210 to 262 months. U.S.S.G. Ch. 5 Pt. A, Sentencing Table. Brown was also subject to a consecutive term of 84 months for brandishing a firearm in furtherance of a drug trafficking offense. See U.S.S.G. § 21(2.4(b). Accordingly, his aggregate Guidelines range was 294 to 346 months.

As required by our case law, the District Court then exercised its discretion in determining Brown's sentence by considering the factors set forth in 18 U.S.C. § 3553(a). Brown's counsel urged the Court to take into consideration the disparity in the Guidelines ranges for offenses involving crack cocaine compared to those for powder cocaine. The Court concluded that while the circumstances of Brown's offenses would make the imposition of a sentence "at the very top" of the Guidelines range appropriate, the disparity in the treatment of crack cocaine offenses and powder cocaine offenses under Guidelines warranted a lower sentence:

I heard the testimony in the case. It was very powerful testimony. The nature and the circumstances of the offense are probably the most serious of all the drug cases I've heard. It wasn't a hand-to-hand occasional sale on a street corner, but it was a long-term drug trafficking operation that took place in a person's private home.

The defendant and his co-defendant took the house over and turned it into a crack house. And as people said, it was like Grand Central Station in there. Drug selling was going on 24 hours a day, and there were weapons. It's serious. It's as serious as a drug case can get.

I consider that and balance it against the history and characteristics of the defendant. He's relatively young, and that would militate toward a lesser sentence, but I have to note that he has a long history of violent crime beginning at age 17. Records indicate he's had drug involvement, trafficking, since 18 years of age. He's been dealing drugs since the age of majority.

I think the highest sentence is necessary to reflect the seriousness of the offense, to promote respect for the law, and to deter this defendant and to protect the public from his future conduct.

I do consider the powder/crack cocaine disparity. I think the Court should. I think the guideline range is much higher, much, much higher than it would be had the defendant been dealing powder cocaine, so I consider that in the calculations. I'm also considering the fact that the defendant is going to be serving an 84 consecutive-month sentence [for the 18 U.S.C. § 924(c) violation].

Everything about this case suggests to me that a guideline sentence at the very top of the range is warranted. I can't picture a case in this guideline range that would be—would represent worse conduct than what we saw here.

But I am looking at the defendant's age. I'm looking at the disparity between powder and crack cocaine. So I'm going to sentence him in the middle of the guideline range.

(Brown App. at 790-91.) Ultimately, the Court sentenced Brown to 324 months in prison and five years of supervised release.²

The District Court undertook the same process with respect to Wise, who was sentenced on the same day. Wise's criminal history category of III, combined with an offense level of 34, yielded a Guidelines range of 188 to 235 months. U.S.S.G. Ch. 5 Pt. A, Sentencing Table. Wise was also subject to a consecutive term of 84 months for brandishing a firearm in furtherance of a drug trafficking offense. See U.S.S.G. § 2K2.4(b). Accordingly, his aggregate Guidelines range was 272 to 319 months.

As it had done with Brown, the...