United States v. Wyche, s. 12–3034

• Decision Date: 09 April 2014
• Docket Number: 12–3058.,Nos. 12–3034,s. 12–3034
• Citation: 741 F.3d 1284
• Parties: UNITED STATES of America, Appellee v. Gary WYCHE, also known as Gary Gunter, also known as Drago, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

741 F.3d 1284

UNITED STATES of America, Appellee

v.Gary WYCHE, also known as Gary Gunter, also known as Drago, Appellant.

Nos. 12–3034, 12–3058.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 18, 2013.

Decided Jan. 31, 2014.

Rehearing En Banc Denied April 9, 2014.

Appeals from the United States District Court for the District of Columbia (No. l:89–cr–00036).

Tony Axam Jr., Assistant Federal Public Defender, argued the cause for appellant Gary Wyche. Jonathan S. Zucker, appointed by the court, argued the cause for appellant Richard A. Smith. A.J. Kramer, Federal Public Defender, was on brief.

Jay Apperson, Assistant United States Attorney, argued the cause for the appellee. Ronald C. Machen, Jr., United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt and Mary Ann Snow, AssistantUnited States Attorneys, were on brief.

Before: HENDERSON and SRINIVASAN, Circuit Judges, and SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

Opinion concurring in part and dissenting in part filed by Circuit Judge SRINIVASAN.

KAREN LeCRAFT HENDERSON, Circuit Judge:

In 1989, Appellants Gary Wyche (Wyche) and Richard Smith (Smith) were convicted of drug and firearms offenses for their participation in a Washington, D.C., drug distribution ring. The district court sentenced them to life in prison. In 2008, Wyche and Smith moved for sentence reductions after amendments to the United States Sentencing Guidelines (Sentencing Guidelines) lowered the sentencing ranges for cocaine base crimes. The district court granted Smith's motion but did not then rule on Wyche's motion. Wyche and Smith subsequently filed resentencing motions in 2011 after the United States Sentencing Commission (Sentencing Commission) once again lowered the sentencing ranges for cocaine base offenses. On May 21, 2012, the district court denied Smith's most recent resentencing motion and both of Wyche's motions, concluding that neither was eligible for a sentence reduction under the amended guidelines. We affirm.

I. Background

A. Gary Wyche

In 1989, Wyche was arrested and charged with multiple narcotics and firearm offenses resulting from his involvement in a drug conspiracy operating in Washington, D.C. On July 17, 1989, a jury convicted Wyche on six counts of a twenty-three count indictment ¹: conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a), 846 (Count One); conspiracy to carry and use firearms during and in relation to drug trafficking offenses in violation of 18 U.S.C. §§ 371, 924(c) (Count Three); use of juveniles in drug trafficking in violation of 21 U.S.C. § 845b (1988) (Count Four); assault with a dangerous weapon in violation of D.C.Code § 22–502 (1981) (Count Thirteen); use of a firearm in aid of drug trafficking in violation of 18 U.S.C. § 924(c) (Count Fourteen); and possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) (Count Fifteen).

Following trial, the United States Probation Office prepared a presentence report (PSR) for the district court. The PSR indicated that the conspiracy began as early as January 1987, with Michael Palmer, Tony Flow and Anthony Watson selling cocaine base as partners in various Washington, D.C., neighborhoods. According to the PSR, which relied on trial testimony, sometime after December 1, 1987, Wyche acted as Flow's right-hand man in the conspiracy and continued to do so until at least June 1988, when Flow was killed. The PSR indicated that after Flow's death, Wyche continued to participate in the conspiracy through September 1988.² Regarding the conspiracy's distributed drug quantity, the PSR stated that “testimony indicated the [conspiracy] to be selling two pounds of cocaine base every two to three days” and “bringing in approximately one pound of cocaine base every two or three days.” PSR ¶ 17, United States v. Wyche, Crim. No. 89–0036–05 (D.D.C. Aug. 21, 1989) (Sealed Appendix (SA) 40). “Projecting a conservative estimate from testimony at trial,” the PSR continued, “the U.S. Attorney's Office indicated that the group distributed in excess of 150 kilograms of cocaine base from January 1987 until July 1988.” Id.

At the original October 18, 1989 sentencing hearing, the district court found that Wyche was “a principal member of the ... conspiracy” and “a major participant in all the activities of the ... conspiracy, including the distribution of 100 to 200 kilos of crack in the District of Columbia.” Sentencing Hr'g Tr. 2–3 (Wyche Sentencing Tr.), United States v. Wyche, Crim. No. 89–0036–05 (D.D.C. Oct. 18, 1989) (Appendix for Appellants (AA) Tab 2 at 2–3). “On the basis of the distribution of crack alone, over 500 grams,” the district court assigned Wyche the then-highest base offense level of 36, as 500 grams or more of cocaine base triggered that offense level under the Sentencing Guidelines. Id. at 4 (AA Tab 2 at 4); seeU.S. Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1(a)(3)(tbl.) (1988). The district court added a three-level enhancement because Wyche played a managerial role in the conspiracy, a two-level increase for the conspiracy's restraint of a victim during the period in which Wyche was involved and a two-level enhancement for possession of a firearm by a felon, making the offense level 43. With a total offense level of 43 and a criminal history category of 5, Wyche's guideline range was life imprisonment. The district court sentenced Wyche to life in prison plus a consecutive five-year term based on his conviction of unlawful use of a firearm in aid of drug trafficking. See18 U.S.C. § 924(c).

Wyche appealed his convictions following sentencing and we affirmed. United States v. Harris, 959 F.2d 246, 264 (D.C.Cir.1992), abrogated on other ground by United States v. Stewart, 246 F.3d 728 (D.C.Cir.2001). We did, however, remand to the district court for resentencing, concluding that “verification of the correct drug amount” was necessary because language in Wyche's PSR indicated that Wyche may have been responsible for only 250 grams of cocaine base, which would not have triggered a base offense level of 36. Id. at 264–65. We also determined that the district court erred by imposing a two-level increase for possession of a firearm during a drug conspiracy. Id. at 266–67. We affirmed the two-level enhancement for the conspiracy's restraint of a victim and the three-level enhancement for Wyche's managerial role in the conspiracy. Id. at 265–66. With respect to the district court's conclusion that Wyche “was a major participant in all the activities of the ... conspiracy, including the distribution of 100 to 200 kilos of crack,” we concluded that the finding was not clearly erroneous. Id. at 266 (quotation marks omitted).

On remand, the Probation Office prepared a revision of the original PSR (Revised PSR). The Revised PSR, dated July 15, 1992, stated that Wyche was “Tony Flow's right hand man, and that Mr. Wyche had a number of individuals who were working for him.” Mem. 1 (Revised PSR), United States v. Wyche, Crim. No. 89–0036–05 (D.D.C. July 15, 1992) (SA 59). Although the Revised PSR did not indicate precisely when Wyche joined the conspiracy, it concluded that Wyche actively participated until September 1988. It also clarified the original PSR's drug quantity finding:

[T]estimony at the trial indicate[d] that the organization received at least two pounds of cocaine base a week (453.6 grams per pound or 907.2 grams per week) from January 1987 to September of 1988. Therefore, a conservative calculation provides that this organization received at least 70.761 kilograms of cocaine base during this 78–week time span. As a member of the conspiracy at this time, the defendant is held accountable for all of the drugs the organization received.

Id. at 2 (SA 60). Wyche did not contest the Revised PSR's drug quantity calculation ³ but instead claimed that he did not play a managerial role in the conspiracy and that there was no evidence linking him to the conspiracy before December 1987.

Wyche was resentenced on January 12, 1993. Based on the evidence at trial, the original sentencing district judge found that 500 grams or more of cocaine base were attributable to Wyche. Accordingly, the court assigned Wyche a base offense level of 36 and again added a three-level enhancement for Wyche's role as a manager and a two-level enhancement for the conspiracy's restraint of a victim, bringing the total offense level to 41. An offense level of 41 and a criminal history category of 5 produced a guideline range of thirty years to life and the district court again sentenced Wyche to life plus five years consecutive. Wyche again appealed and we affirmed the sentence. See United States v. Wyche, No. 93–3003, 1993 WL 478952, at *1 (D.C.Cir. Nov. 12, 1993) (per curiam).

In November 2007, the Sentencing Commission lowered various guideline ranges for cocaine base offenses, see U.S.S.G. suppl. to app. C, amends. 706, 711 (Nov. 1, 2007), and later made the reductions retroactive. Id. amend. 713 (Nov. 1, 2009). While 500 grams or more of cocaine base had triggered a base offense level of 36 at Wyche's 1993 resentencing, seeU.S.S.G. § 2D1.1(a)(3)(tbl.) (1988), the 2007 amendment provided that between 500 grams and 1.5 kilograms of cocaine base produced a base offense level of 34, see U.S.S.G. suppl. to app. C, amend. 706 (Nov. 1, 2007); U.S.S.G. § 2D1.1(c)(3) (2007). In light of the lower guideline range, Wyche moved pro se for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Wyche subsequently supplemented his motion through appointed counsel. Before the district court ruled on the motion, however, the guideline ranges for cocaine base offenses were further reduced so that 500 grams of cocaine base now results in a base offense level of 32. See U.S.S.G. suppl. to app. C, amend. 750 (Nov. 1, 2011) (repromulgating temporary amend. 748); U.S.S.G. §...