U.S. v. Young, 95-1097

• Citation: 66 F.3d 830
• Decision Date: 14 September 1995
• Docket Number: No. 95-1097,95-1097
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark YOUNG, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 830

66 F.3d 830

UNITED STATES of America, Plaintiff-Appellee, v. Mark YOUNG, Defendant-Appellant.

No. 95-1097.

United States Court of Appeals,

Seventh Circuit.

Submitted June 21, 1995.

Decided Sept. 14, 1995.

Donna Eide (submitted), Office of the United States Attorney, Indianapolis, IN, for plaintiff-appellee.

Thomas M. Dawson, Leavenworth, KS, for defendant-appellant.

Before CUMMINGS and RIPPLE, Circuit Judges, and CRABB, District Judge. ^*

RIPPLE, Circuit Judge.

This case is before us for the third time. Mark Young's principal contention is that our remand order following the second appeal was limited in scope. He submits that our order permitted the district court to revisit only its calculation of the quantity of marijuana attributable to him. Therefore, he contends, the district court exceeded its authority when it ordered an upward departure on resentencing. For the reasons that follow, we affirm in part and dismiss in part for lack of jurisdiction.

I BACKGROUND

The facts and procedural background of this case are set forth in our two prior opinions. See United States v. Young, 34 F.3d 500, 501-04 (7th Cir.1994) (Young II ); United States v. Young, 997 F.2d 1204, 1206-07 (7th Cir.1993) (Young I ). We assume familiarity with these decisions and repeat only those facts necessary to the disposition of this appeal.

Mr. Young was part of a marijuana conspiracy. Two men, Claude Atkinson and Ernest Montgomery, had planted and cultivated 12,500 marijuana plants on an Indiana farm. Montgomery learned that Mr. Young could find buyers for the marijuana. He and Atkinson elicited Mr. Young's aid, promising him $100 for every pound Young sold and informing him that approximately 600 to 700 pounds would be available for sale. Mr. Young subsequently obtained buyers for the marijuana. He later was arrested, charged, and convicted of conspiring to manufacture and to distribute marijuana in excess of 1,000 plants and for possession with intent to distribute more than 100 kilograms of marijuana. See 21 U.S.C. Sec. 841(a)(1).

A. The Original Sentencing and First Appeal

At the original sentencing hearing, the district court determined that Mr. Young reasonably could have foreseen that the conspiracy involved 12,500 marijuana plants. Based on this finding, it sentenced him on the conspiracy conviction to "life imprisonment without release." See 21 U.S.C. Sec. 841(b)(1)(A)(vii). ¹ The court imposed a concurrent 405 month sentence on the possession with intent to distribute count. This sentence included enhancements for Mr. Young's role as manager or supervisor of the distribution scheme, U.S.S.G. Sec. 3B1.1(b), as well as for obstruction of justice, id. Sec. 3C1.1. The district court also addressed the possibility that its life sentence for the conspiracy count was erroneous. In that case, the court noted, it would order an alternative sentence of 405 months, which was at the upper end of the applicable guideline range. It reasoned that this sentence would be appropriate because of the nature of the conspiracy and because of Mr. Young's role in it. Moreover, the court continued, sentencing at the high end of the guideline range was proper because Mr. Young's criminal history category of I understated his actual criminal history. The court noted that Mr. Young's prior felony convictions were too remote in time to be included.

On appeal, we affirmed Mr. Young's conviction but reversed the district court's sentence and remanded for re-sentencing. United States v. Young, 997 F.2d 1204, 1206-07 (7th Cir.1993) (Young I ). We noted that nothing in the record indicated that Mr. Young could have foreseen that the conspiracy involved more than the 600 to 700 pounds of marijuana he was asked to broker. We also noted that the district court "necessarily" would have to revisit its decision to order an enhancement under U.S.S.G. Sec. 3B1.1(b) because its findings on that issue were predicated upon its determination that Mr. Young reasonably could have foreseen that the conspiracy involved 12,500 plants.

B. The Second Sentencing and Second Appeal

At the resentencing hearing, the government called Claude Atkinson, who testified that each marijuana plant on his farm could yield 0.25 pounds of marijuana under optimal conditions. The district court made no finding that Mr. Young knew of this plant-to-pounds of marijuana ratio. Nevertheless, it determined that Mr. Young was responsible for 2,800 plants on the ground that the 700 pounds of marijuana he brokered converted, under Atkinson's estimate, into four plants per pound. Based upon this finding, the court again imposed a sentence of life imprisonment. With respect to Mr. Young's sentence on the possession with intent to distribute count, the court once again ordered an enhancement under U.S.S.G. Sec. 3B1.1(b) for Mr. Young's role in the offense. The court held that the enhancement was appropriate for three reasons. First, Mr. Young received a large share of the crime's proceeds--$60,000 to $70,000--yet he had contributed no capital to the criminal enterprise. Second, he had recruited accomplices to purchase the marijuana. Third, he possessed decision-making power within the organization.

On the second appeal, we again vacated the district court's sentence and remanded for resentencing. United States v. Young, 34 F.3d 500, 501-04 (7th Cir.1994) (Young II ). We held that the district court had committed two principal errors. First, we stated that the court erred in concluding that it was not required to find that Mr. Young had reason to know that the 700 pounds of marijuana he brokered corresponded to the 2,800 plants for which he was held responsible. More fundamentally, we noted that, because the government had failed to demonstrate how many plants Mr. Young reasonably could have foreseen, "the district court should have sentenced Mr. Young based on the weight for which it found him responsible in the first place, 700 pounds." Young II, 34 F.3d at 506. We determined that, in light of these errors, we would "vacate the district court's sentence and remand the case for resentencing consistent with this opinion." Id.

Also on the second appeal, Mr. Young again challenged the enhancement, under U.S.S.G. Sec. 3B1.1(b), of his sentence for his aggravating role in the offense. In addressing this contention, we noted initially that we already had held that the district court's sentence "must be vacated and remanded for resentencing." 34 F.3d at 506. We then expressly stated that "[b]ecause 'the effect of a vacation is to nullify the previously imposed sentence,' the district court on remand will be writing 'on a clean slate.' " Id. at 506-07 (quoting United States v. Atkinson, 979 F.2d 1219, 1223 (7th Cir.1992)). For reasons of judicial economy, however, we chose to address Mr. Young's contention, noting that the district court was "unlikely" to revisit the issue on remand. We then held that the district court did not clearly err in ordering the enhancement. See id. at 507-08.

C. The Third Sentencing Hearing

Prior to the third sentencing hearing, the district court notified the parties that the court, on its own motion, was considering ordering an upward departure pursuant to U.S.S.G. Sec. 4A1.3. The court explained that an upward departure might be appropriate under this guideline because Mr. Young's criminal history category understated both the seriousness of his past criminal conduct and his likelihood of recidivism.

At the subsequent sentencing hearing, the district court determined that Mr. Young was accountable for 700 pounds (320 kg) of marijuana. This quantity corresponded to an offense level of 26. See U.S.S.G. Sec. 2D1.1(c)(7). The court ordered Mr. Young's sentence enhanced two points for obstruction of justice and three points for his aggravating role in the offense, yielding a total offense level of 31. This total offense level, along with Mr. Young's criminal history category of I, corresponded to a guideline range of 108-135 months. The mandatory statutory minimum sentence, however, was 120 months. See 21 U.S.C. Sec. 841(b)(1)(B)(vii). ² However, the In reaching its decision, the district court rejected Mr. Young's argument that our remand in Young II limited the scope of the resentencing hearing to a recalculation of the quantity of marijuana attributable to him. The court focused upon the language in Young II indicating that it would be "writing on a clean slate." The court stated that this command required it to "start back at the beginning, to make the appropriate calculations." Sent.Tr. at 3. It indicated that such an approach was, in its view, "particularly appropriate in this case ... because under the prior understandings and rulings of the court there was a mandatory life sentence that Mr. Young was facing, which mooted certain other issues." Id.

district court departed upward from criminal history category I to II. The court reasoned that Mr. Young's criminal history category did not reflect adequately the seriousness of his past criminal conduct. It emphasized that Mr. Young had three prior convictions for drug offenses in 1973, 1975, and 1978 that were not counted in his criminal history calculation because they were too remote in time. The court noted that, were they not remote, these offenses would have been assigned one criminal history point each. The court also noted that the similarity of these crimes to the instant offense suggested that Mr. Young was likely to commit future drug crimes. Moreover, Mr. Young's conviction for theft in 1976, while he was on probation for a misdemeanor drug offense, further suggested that the likelihood of recidivism was high.

Based upon the upward departure, Mr. Young faced a sentencing range of 121-151 months. The district court sentenced him to 151 months of imprisonment and to eight years of supervised release. It listed a series of reasons, not challenged on appeal, for its decision to sentence Mr....