U.S. v. Young, 93-3551

• Decision Date: 02 September 1994
• Docket Number: No. 93-3551,93-3551
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark YOUNG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 500

34 F.3d 500

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

No. 93-3551.

United States Court of Appeals Seventh Circuit.

Argued April 6, 1994.

Decided Sept. 2, 1994.

Donna Eide (argued), Office of U.S. Atty., Indianapolis, IN, for U.S.

Thomas M. Dawson (argued), Leavenworth, KS, for defendant-appellant.

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

RIPPLE, Circuit Judge.

In September 1991, Mark Young was convicted of conspiracy to manufacture and distribute marijuana in a quantity in excess of 1,000 plants in violation of 21 U.S.C. Sec. 841(a)(1). He was also convicted of possession with intent to distribute more than 100 kilograms of marijuana in violation of Sec. 841(a)(1). Mr. Young appealed. We affirmed his conviction but reversed the sentence and remanded the case to the district court for resentencing. Mr. Young now appeals his new sentence. For the reasons that follow, we vacate Mr. Young's sentence and remand to the district court for resentencing.

I BACKGROUND

The facts underlying Mr. Young's conviction are set forth fully in United States v. Young, 997 F.2d 1204, 1206-07 (7th Cir.1993) ("Young I" ). We therefore need not repeat them here. In brief, Mr. Young brokered the sale of approximately 600 to 700 pounds of marijuana that was grown and harvested At his first sentencing proceeding, the district court found Mr. Young responsible for all 12,500 marijuana plants involved in the conspiracy, despite the fact that Mr. Young was not part of the conspiracy at the time the marijuana plants were brought to the farm, grown, and cultivated. The district court based its finding on four points:

from 12,500 marijuana plants on an Indiana farm. He received for his efforts between $60,000 to $70,000 ($100 per pound).

1. The defendant joined the conspiracy while the marijuana was being prepared and when the whole quantity was not known. Tr. Sentencing at 28.

2. The defendant undertook the role of primary distributor and undertook the responsibility "to get rid of whatever marijuana was produced from this operation, because he was the distributor." Id. at 29. He "knew that they were producing marijuana and that his obligation was to sell what they were producing." Id.

3. The defendant was to receive for this service "a rather substantial commission," a commission that "reflects his major role in the conspiracy." Id.

4. The amount that the co-conspirators were prepared to deliver every week indicates an ongoing operation. Id. The district court then addressed specifically the fact that the defendant actually brokered only "one batch of marijuana" that weighed approximately 700 pounds and stated emphatically that limiting Mr. Young's participation in the conspiracy to that amount "understates his involvement in the conspiracy, and certainly understates the scope of his agreement." Id. at 30.

Young I, 997 F.2d at 1211-12. Based on its finding that Mr. Young was responsible for all 12,500 marijuana plants, the district court applied the mandatory sentencing provision of 21 U.S.C. Sec. 841(b)(1)(A)(vii) ¹ and sentenced Mr. Young to life imprisonment without release for the conspiracy conviction. On the possession with intent to distribute conviction, the district court sentenced Mr. Young to a concurrent sentence of 405 months. This sentence included a three-level enhancement under U.S.S.G. Sec. 3B1.1(b) ("Aggravating Role") for the district court's finding that Mr. Young served as a manager or supervisor.

In Young I, we affirmed Mr. Young's conspiracy conviction but reversed the district court's sentence. We noted that, under United States v. Edwards, 945 F.2d 1387, 1391 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1590, 118 L.Ed.2d 308 (1992), a district court must calculate a Sentencing Guidelines offense level based on the quantity of drugs the defendant could have reasonably foreseen to have been part of the conspiracy. We thus concluded in Young I that Edwards applies to statutory mandatory minimum sentences. 997 F.2d at 1210. We held that, "in imposing a sentence for conspiracy under the mandatory provisions of section 841(b), the district court must determine the quantity of drugs that the defendant could have reasonably foreseen." Id.; accord United States v. Martinez, 987 F.2d 920, 923-26 (2d Cir.1993); United States v. Jones, 965 F.2d 1507, 1517 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 346, 121 L.Ed.2d 261 (1992).

We then turned to the district court's sentence of Mr. Young and its corresponding findings of fact. We concluded that the district court's determination that Mr. Young was responsible for 12,500 marijuana plants lacked "support in 'the evidence before the court.' " Young I, 997 F.2d at 1212 (quoting Edwards, 945 F.2d at 1399). We stated:

Neither the district court nor the parties in their submissions to us indicate how the record supports the inference, central to the district court's determination, that Mr. Young had any reason to know that the conspiracy involved more than the amount of marijuana he actually brokered.

Id. Although the record demonstrated that Mr. Young had been advised that the marijuana farm's production rate would be 100 At the resentencing hearing on remand, the government called Claude Atkinson as its only witness. Atkinson and Earnest Montgomery had been the founding members of the conspiracy to grow, cultivate, and sell marijuana of which Mr. Young was convicted of being a member. See United States v. Atkinson, 979 F.2d 1219 (7th Cir.1992), aff'd on appeal from remand, 15 F.3d 715 (7th Cir.1994). Atkinson testified that, although he was sure that Mr. Young had been informed that there were other buyers for the marijuana in addition to Mr. Young's buyers, he could not recall whether Mr. Young had been informed as to how much marijuana those buyers would receive. Atkinson also estimated that, under optimum conditions, a marijuana plant on his farm would yield .25 pounds of marijuana. ² On cross-examination, Atkinson conceded that Mr. Young had been informed only that other buyers were purchasing "very small quantities." Sent. Tr. 32. He also stated that Mr. Young had not been involved in growing and cultivating the marijuana, and that he did not know whether Mr. Young knew anything about marijuana cultivation in general. Atkinson also stated on cross-examination that Mr. Young had no decision-making authority in the organization.

pounds per week, there was nothing in the record concerning the ultimate duration of the production beyond the 600 to 700 pounds he initially was asked to broker. As a result, we remanded the case to the district court for resentencing; we expressly noted that additional evidence of Mr. Young's knowledge and activities might be necessary. We also stated that the district court would have to revisit on remand its determination that Mr. Young was a manager or supervisor because its analysis on the issue explicitly relied on its findings with respect to the quantity of marijuana for which it found Mr. Young responsible.

Following the presentation of evidence, the district court discussed its findings of fact. Although the district court made no finding concerning whether Mr. Young had reason to know Atkinson's production ratio, the district court imputed to Mr. Young knowledge of the one-plant-equals-.25 pounds ratio. Sent. Tr. 112-13. As a result, the district court found that Mr. Young could have reasonably foreseen that the conspiracy entailed more than 1,000 marijuana plants, and that he therefore was eligible for the mandatory statutory minimum under Sec. 841(b)(1)(A)(vii):

As defendant was adjudicated guilty of Conspiracy to Manufacture and Distribute Marijuana in Excess of 1,000 Plants in count 1, the court found the defendant was responsible for 2,800 plants of marijuana based on 4 plants per pound. The defendant brokered 700 pounds of marijuana which was being processed at 100 pounds per week. Therefore, the mandatory statutory penalty of life imprisonment was applicable and the court sentenced the defendant to life as to count 1.

Statement of Reasons (Appellant's App. at 5). As for the aggravating-role enhancement in connection with the substantive conviction for possession with intent to distribute, the court stated:

The court determined a 3-level enhancement was warranted for Role in the Offense as the defendant received a larger share of the fruits of the crime and he recruited at least 2 accomplices to buy the marijuana. Additionally, the organizers of the conspiracy trusted his judgment in recruiting buyers, therefore allowing him to exercise decision making authority in deciding Id.

who would be recruited to buy the marijuana.

II DISCUSSION

On appeal, Mr. Young submits that the district court erred in its calculation concerning the quantity of marijuana for which he was found responsible as a member of the conspiracy. He also argues that the district court erred in increasing his offense level by three for his role in the offense under U.S.S.G. Sec. 3B1.1(b). We shall address each issue in turn. We review a district court's findings of fact at sentencing for clear error. United States v. Abdelkoui, 19 F.3d 1178, 1183 (7th Cir.1994). We review its interpretation of a statute and the Guidelines de novo. United States v. Haynes, 969 F.2d 569, 571 (7th Cir.1992).

A. Marijuana Quantity Calculation

1.

Mr. Young argues that, as in Young I, the record fails to support the district court's finding concerning the quantity of marijuana he could have reasonably foreseen to have been involved in the conspiracy. ³ He contends that the district court had no basis to find that he could have reasonably foreseen any quantity of marijuana beyond the 700 pounds he brokered. This is clear, Mr. Young states, from the fact that no evidence was presented at his resentencing hearing about which this court was not already aware when it...