United States v. Pennick
| Decision Date | 02 August 2021 |
| Docket Number | 17-CR-15-A |
| Parties | UNITED STATES OF AMERICA, v. TYRONE PENNICK, Defendant. |
| Court | U.S. District Court — Western District of New York |
The defendant, Tyrone Pennick, is awaiting sentencing after having been convicted by a jury of three drug-related offenses. After the parties failed to resolve certain sentencing-related disputes, the Court held a Fatico[1] hearing during which five witnesses testified over parts of two days. The hearing primarily concerned whether alleged drug trafficking by defendant Pennick in 2006 through 2009 was “part of the same course of conduct, ” U.S.S.G. § 1B1.3(a)(2), as the much more recent offense conduct in this case. If so, the defendant's relevant drug-quantity calculation and criminal history score under the Sentencing Guidelines must reflect any earlier conduct that was proven during the hearing. The hearing also addressed the applicability of some upward adjustments to defendant's offense level under the Guidelines.
The Court assumes the parties' familiarity with the prior proceedings in this case and in a dismissed case against defendant Pennick at docket number 10-CR-191-A, the evidence presented during the hearing, and the issues that have been raised. After due consideration, the Court finds that the evidence introduced during the Fatico hearing was insufficient to prove by a preponderance of the evidence that the earlier alleged drug trafficking by the defendant was part of an ongoing series of offenses and single course of conduct. The earlier proven conduct is therefore not "relevant conduct'' in this case as that term is defined in Guidelines § 1B1.3 and will not be counted in calculating the defendant's base offense level or criminal history category.
At this time, the Court does not consider an alternative request of the United States for an upward departure to a higher criminal history category pursuant to Guidelines § 4A1.3 on the ground that the defendant's criminal history category substantially under-represents the seriousness of his criminal record and the likelihood that he will commit other crimes. That request is unripe until the Court has the information required to determine the defendant's total adjusted offense level and criminal history category. For similar reasons, the Court does not address an alternative request for an upward variance. Finally, the Court addresses whether the United States has established that certain upward adjustments under the Guidelines are applicable.
Drug-Quantity Relevant Conduct. On October 17, 2018, defendant Pennick was convicted of three drug-related offenses after a four-day jury trial. He was convicted of one Count of conspiracy to possess with intent to distribute, and to distribute, more than 500 grams of cocaine in violation of 21 U.S.C. § 846; one Count of possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. §§ 841 (a)(1), 841 (b)(1)(B), and 18 U.S.C § 2; and one Count of maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1).
The evidence at trial showed that law enforcement officers executed a search warrant at the defendant's residence on November 17, 2016 and seized a kilo-sized drug press, $49 990 in cash, a digital scale, and other drug-trafficking paraphernalia. At the time, the defendant was being electronically monitored on home incarceration as a condition of federal pretrial release in his related case.
Just before the search warrant was executed, two kilogram-sized bricks of cocaine were seized from a tote bag of a friend of the defendant's, Geneva Smith, shortly after she drove away from the defendant's residence. She had stopped there for about ten minutes and picked up the bag. Some of her clothes were also in the bag.
The evidence showed that Smith picked up the two bricks of cocaine, weighing a total of nearly two kilograms, from the defendant at his residence. The defendant was convicted of possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2, on the day these two kilograms of cocaine were seized. Because possessing the two kilograms with intent to distribute them is conduct that the defendant committed, he is accountable for the conduct pursuant to Guidelines § 1B.3(a)(1)(A).
After the defendant was arrested, he was told by a law enforcement officer that a significant amount of money had been found during the search of his residence. The defendant responded that it is not illegal to keep a large sum of money and said that the money came from the IRS. The defendant then mentioned something about a clothing line. The $49, 990 in cash was vacuum sealed in plastic and was found inside a dishwasher.
The trial testimony of a cooperating witness, Donnell Cherry, was admitted into evidence during the Fatico hearing. Cherry testified credibly about cocaine transactions he had with the defendant in the four or five months prior to the defendant's arrest, including that the defendant delivered multi-ounce quantities of cocaine on certain days of the week that corresponded with days when defendant was authorized to leave his residence by the terms of his pretrial release. Cherry was purchasing from the defendant for himself and acted as a middleman between the defendant and another person whom the defendant did not know and did not want to deal with face-to-face. Dkt. No. 125, pp. 8-9[2]. Cherry was paying the defendant for the cocaine only after he and the other person sold it. Id., p. 26.
Typically, Cherry received two “Bigs, ” or a total of nine ounces of cocaine, from the defendant. He first received only one Big. Dkt. No. 125, p. 25. The price was $5, 500. Id. at pp. 29-30. He received two Bigs priced at $11, 000 three or four times. Id., pp. 23, 29. Then, just before the defendant's arrest, Cherry received three Bigs for $16, 000. Id., pp. 6-9, 31. Based upon this testimony, the Court concludes Cherry purchased between 36 and 45 ounces of cocaine, or a total of at least one kilogram, from the defendant in the months before the defendant's arrest. These sales of cocaine by the defendant were relevant conduct because they were within the scope of the conspiracy to possess with intent to distribute, and to distribute, charged in Count 1 of the Indictment, were in furtherance of the conspiracy, and were certainly foreseeable in connection with the conspiracy. U.S.S.G. § 1B.3(a)(1)(B). Alternatively, they were part of the same course of conduct or a common scheme or plan as the offenses of conviction. U.S.S.G. § 18.3(a)(2).
During the trial, FBI Special Agent Mark Schirching testified that $49, 000 was the equivalent cost of approximately two kilograms of cocaine at the November 2016, prevailing price kilogram. Based upon this credible evidence, the Court could infer that the $49, 000 that was vacuum sealed and hidden in the dishwasher of the defendant's residence equate to another two kilograms of cocaine.
Defendant Pennick was charging Donnell Cherry $5, 500 per Big, or 4.5 ounces of cocaine. That price equates to proceeds of approximately $43, 000 for each kilogram of cocaine the defendant sold. His possession of a kilo-press used to form powder cocaine into bricks, and of the other drug-trafficking paraphernalia seized from his residence, tends to corroborate that the defendant was dealing in kilogram quantities. Based upon this more conservative assessment of the evidence, the Court infers that the $49, 000 that was vacuum sealed and hidden in the dishwasher of the defendant's residence were proceeds of drug trafficking equating to at least another kilogram of cocaine. See United States v. Jones, 531 F.3d 163, 175 (2d Cir. 2008).
At this point of the analysis, the relevant drug quantity for which the defendant is accountable under the Guidelines includes approximately two kilograms seized from Smith, at least one kilogram sold to Donnell Cherry, and more than one kilogram as evidenced by the $49, 000 in currency seized from the defendant's residence. The total is approximately four kilograms. Because this total is greater than 3.5 kilograms but less than 5 kilograms, the defendant's base offense level pursuant to Guidelines §§ 2D1.1(a)(5) and (c)(6) is at least 28.
Earlier Alleged Conduct as Relevant Conduct. Defendant Pennick was arrested on December 16, 2009 on a criminal complaint charging him and 26 other persons with cocaine-related drug-trafficking offenses in violation of 21 U.S.C. §§ 841(a)(1), 843(b), and 846, and with participating in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (a “CCE"). The criminal complaint was supported by a 281-page affidavit of a law enforcement agent. The defendant was detained pending trial.
Approximately six and a half months later, on June 29, 2010, the defendant and nine others were indicted. The defendant was charged in a CCE count in violation of 21 U.S.C. § 848, and in a controlled-substances conspiracy count in violation of 21 U.S.C. § 846 allegedly involving more than five kilograms of cocaine and more than 50 grams of cocaine base. The time frame of the alleged conspiracy was about January 2007, through December 16, 2009.
Ten months later, defendant Pennick and 19 others were charged in a Superseding Indictment returned on May 3, 2011. The defendant remained charged with participation in a CCE and the cocaine-related conspiracy but faced no new charges. Of the 19 other defendants charged in the Superseding Indictment, 18 pled guilty.
On May 20, 2014, a Second Superseding Indictment was returned against only defendant Pennick. He was charged in a CCE count and a cocaine-related conspiracy count...
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