United States v. Hamilton

• Citation: 715 F.3d 328
• Decision Date: 23 April 2013
• Docket Number: No. 12–10899.,12–10899.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Maurice Lashane HAMILTON, a.k.a. Mo Bentley, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

715 F.3d 328

UNITED STATES of America, Plaintiff–Appellee,

v.Maurice Lashane HAMILTON, a.k.a. Mo Bentley, Defendant–Appellant.

No. 12–10899.

United States Court of Appeals,Eleventh Circuit.

April 23, 2013.

Yvette Rhodes, Anita M. Cream, Christopher Francis Murray, Robert E. O'Neill, Matthew H. Perry, David Paul Rhodes, Tonya L. Shotwell, U.S. Attys., Tampa, FL, for Plaintiff–Appellee.

Rosemary Cakmis, Donna Lee Elm, Fed. Pub. Defenders, Orlando, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Florida.

Before CARNES, HULL and ANDERSON, Circuit Judges.

HULL, Circuit Judge:

Appellant Maurice Hamilton appeals the district court's denial of his Motion for Modification or Reduction in Sentence under 18 U.S.C. § 3582(c)(2). Hamilton sought a reduction in his sentence based on Amendment 750 to the United States Sentencing Guidelines. After review and oral argument, we vacate the district court's February 2, 2012 order denying Hamilton's § 3582(c)(2) motion and remand for further proceedings.

I. FACTUAL HISTORY

This appeal is about what drug quantity the district court found Hamilton responsible for at his initial sentencing hearing in 2007. The district court needed to know those original drug quantity findings in order to determine if Amendment 750 actually lowered the guidelines range upon which Hamilton's original sentence was based.

The problem here is that upon receiving Hamilton's § 3582(c)(2) motion, the probation office in 2011 inaccurately advised the district court about what the fact findings were at the original 2007 sentencing. We recount the factual and procedural history in order to explain why the district court needs to consider again Hamilton's § 3582(c)(2) motion, this time based on the correct information about what findings were made at the original sentencing.

A. Indictment and Guilty Plea

In 2006, a federal grand jury indicted Hamilton and nine others. The nine-count Indictment included the four counts against Hamilton and others which we describe below.

Count One alleged a conspiracy to possess and distribute 50 grams or more of cocaine base (“crack cocaine”) and an unspecified amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), 841(b)(1)(C), and 846. Count One charged that the conspiracy began “at least in or about April 2006,” and continued “through on or about November 8, 2006.” Count Two alleged a conspiracy, for the same time period, to use and carry firearms during and in relation to drug trafficking, in violation of 18 U.S.C. §§ 924(c), 924( o), and 2.

Count Four alleged a substantive count of possession with intent to distribute, on or about July 26, 2006, “50 grams or more” of crack cocaine and “a quantity” of powder cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 841(b)(1)(C), and 18 U.S.C. § 2.

Count Seven alleged a substantive count of possession with intent to distribute, on or about July 26, 2006, “5 grams or more” of crack cocaine, “a quantity” of powder cocaine, and “a quantity” of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), 841(b)(1)(C), and 841(b)(1)(D), and 18 U.S.C. § 2.

Pursuant to a written plea agreement, Hamilton pleaded guilty to the substantive drug offense in Count Seven, and the government dismissed all other charges against Hamilton, including the conspiracy charges. Due to his prior felony drug conviction, Hamilton's Count Seven conviction subjected him to a mandatory minimum sentence of ten years' imprisonment and a statutory maximum of life imprisonment. See21 U.S.C. § 841(b)(1)(B)(iii) (2006).

B. 2007 Presentence Investigation Report

On September 6, 2007, the United States Probation Office (“probation”) issued a Presentence Investigation Report (“PSI”), which reported that during 2006, Hamilton actively participated in a drug distribution organization operating in Manatee County, Florida.

In paragraphs 26, 27, 31, and 34, the PSI reported these drug quantities as being found in the various defendants' possession. Specifically, the PSI stated that law enforcement officers found: (1) 59.771 grams of crack cocaine in Hamilton's possession when the officers arrested him on July 26, 2006; (2) 1.434 grams of crack cocaine and 27.650 grams of powder cocaine in a co-conspirator's possession when the officers arrested him on July 26, 2006; (3) 293.887 grams of crack cocaine and 221.279 grams of powder cocaine in the bedroom of a residence used in the conspiracy when the officers searched the residence on July 26, 2006; and (4) 22.4 grams of crack cocaine in the possession of three co-conspirators when law enforcement officers arrested them on September 28, 2006.

In paragraph 36, the PSI addressed the amount of drugs in the overall conspiracy. In paragraph 36, the PSI stated that the defendants in the conspiracy received “at least one kilogram of powder cocaine per week,” that the powder cocaine was cooked into crack cocaine, and that the conspiracy lasted from at least April 2006 through July 26, 2006, a total of approximately 16 weeks, as follows:

During the course of this conspiracy, the defendants received at least one kilogram of powder cocaine per week, which was then cooked into crack cocaine for distribution. Although the conspiracy began sometime before the investigation was initiated, it lasted from at least April 2006 through July 26, 2006, a total of approximately 16 weeks. Some of the defendants continued their involvement in the distribution of crack cocaine until November 2006. As all of the defendants in this case were part of a joint scheme to sell and deliver crack cocaine, each defendant is responsible for the entire amount distributed by the group.

In paragraph 43, the PSI stated that Defendant Hamilton's base offense level was 38 because he “was involved in the distribution of at least 1.5 kilograms of cocaine base,” as follows:

Base Offense Level: The guideline for drug offenses is found at USSG § 2D1.1, which provides that the base offense level is determined based on the amount of drugs involved in the offense as set out in the Drug Quantity Table found at USSG § 2D1.1(c)(1). That section provides that offenses involving 1.5 kilograms of cocaine base has [sic] a base offense level of 38. As the defendant was involved in the distribution of at least 1.5 kilograms of cocaine base, a base offense level of 38 is appropriate.

Under the then-applicable guidelines, a drug offense involving at least 1.5 kilograms of crack cocaine received the highest base offense level—38. SeeU.S.S.G. § 2D1.1(c)(1) (2006).

The PSI applied these adjustments to Hamilton's base offense level of 38: (1) a 2–level increase for possession of a firearm under U.S.S.G. § 2D1.1(b)(1); (2) a 2–level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a); and (3) a 1–level reduction for timely notice of intent to plead guilty under U.S.S.G. § 3E1.1(a)–(b). Hamilton's total offense level of 37 and criminal history category of VI yielded a guidelines range of 360 months' to life imprisonment.

In a letter to probation, Hamilton, through counsel, objected in writing “to the allegations” contained in paragraphs 17–36 of the PSI. His attorney's letter stated that “Mr. Hamilton ... maintains that he was not a member of the Cooper/Williams ‘group,’ ‘organization,’ ‘drug distribution network,’ or ‘conspiracy.’ ” His attorney's letter also objected to paragraph 43 of the PSI, stating Hamilton's base offense level should be 30.

Probation then filed an Addendum to the PSI (the “Addendum”). That Addendum, dated September 7, 2007, noted that, although Hamilton pled guilty only to the one substantive possession charge and the government dismissed the conspiracy charges, Hamilton's “relevant conduct” for sentencing purposes included all “conduct that was part of the same course of conduct or common scheme or plan as the offense of conviction, and all reasonably foreseeable acts of others in furtherance of the jointly undertaken criminal activity.”

As to the common scheme or conspiracy, the Addendum stated that the defendants received “one kilogram of powder cocaine per week” that was cooked into crack cocaine:

In this case, this group of individuals came to an agreement to buy powder cocaine, cook it into crack cocaine, package it for distribution, take cellular telephone orders for the crack cocaine, and to maintain firearms at the drug house to protect the drugs, the drug money, and the drug sales. Each defendant is held accountable for the amount of drugs distributed by the group. Witness statements and trial testimony reveal that the defendants received at least one kilogram of powder cocaine per week, that it was cooked into crack cocaine by various members of the group, that it was packaged for distribution, and that it was sold by the distributors to their customers. Despite the fact that this group operated for at least two months, only two weeks of activity is sufficient to establish at least 1.5 kilograms of crack cocaine, which establishes a base offense level of 38.

While paragraph 36 of the initial PSI reported the conspiracy operated for at least April through July 2006, a total of approximately 16 weeks, the Addendum stated the “group operated for at least two months.”

While the initial PSI never indicated how much powder cocaine this group used in order to cook a kilogram of crack cocaine, the Addendum now stated that two weeks of activity (i.e., two kilograms of powder cocaine) was sufficient “to establish at least 1.5 kilograms of crack cocaine.” Thus, the Addendum implicitly used a 0.75 conversion rate with 2 kilograms of powder cocaine yielding 1.5 kilograms of crack cocaine every two weeks.¹

C. 2007 Sentencing Hearing

Hamilton's original sentencing hearing occurred on September 17, 2007. At the hearing, the probation officer, who prepared the PSI, testified that Hamilton and his co-conspirators “maintained a drug house,” wh...