US v. Abney, Crim. A. No. 90-32.

• Decision Date: 17 December 1990
• Docket Number: Crim. A. No. 90-32.
• Citation: 756 F. Supp. 310
• Parties: UNITED STATES of America, Plaintiff, v. Danny Lee ABNEY and Ronnie W. Story, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

756 F. Supp. 310

UNITED STATES of America, Plaintiff, v. Danny Lee ABNEY and Ronnie W. Story, Defendants.

Crim. A. No. 90-32.

United States District Court, E.D. Kentucky, Lexington.

December 17, 1990.

Mark A. Wohlander, Asst. U.S. Atty., Lexington, Ky., for U.S.

Andrew M. Stephens, Lexington, Ky., for Abney.

John Kevin West, McCoy, Baker & Newcomer, Lexington, Ky., for Story.

MEMORANDUM OPINION AND ORDER

FORESTER, District Judge.

The Defendants, Danny Lee Abney and Ronnie W. Story, have plead guilty to a two-count indictment and now await sentencing on December 18, 1990. Abney and Story have raised objections to their presentence reports relating to the appropriate offense level under the United States Sentencing Guidelines. On December 7, 1990, this Court ordered the parties to file briefs in support of their respective positions on the sentencing issues. Having carefully considered the arguments of counsel in light of the law commanding the sentencing issues, this Court holds that the total offense level for Abney and Story is level 11.

BACKGROUND

Abney and Story plead guilty to a two-count indictment: Count 1 provides that they "knowingly conspired to unlawfully distribute and possess with the intent to distribute marijuana" in violation of 21 U.S.C. section 846; according to Count 2, they "knowingly and unlawfully distributed and possessed with intent to distribute a measurable quantity of marijuana" within one thousand feet of a public elementary school in violation of 21 U.S.C. sections 841(a)(1) and 845a, and 18 U.S.C. section 2.

The indictment also charged Ronald G. Noe with the same offenses. On December 5, 1990, a jury returned a verdict finding Noe guilty of both counts. As a result of that trial, this Court was able to consider evidence relevant to the sentencing of Noe's co-defendants, Abney and Story. Based on that evidence, this Court made several findings during a hearing on December 7, 1990, and those findings are written in this Court's Order of the same date.

Specifically, this Court found:

(1) that the quantity of marijuana which the co-conspirators contracted to sell to the undercover agent was 200 pounds.

(2) that the amount of material delivered by the three defendants, Abney, Story, and Noe, was 107 pounds.

(3) that the material was delivered in 4 bales; 3 bales consisted of either hay or straw; and 1 bale consisted of either hay or straw with less than 1 ounce of marijuana packed on top of the bale.

(4) that it was not the intent of the defendants, Abney and Story, to produce 200 pounds of marijuana, nor were they reasonably capable of producing 200 pounds of marijuana.

Counsel for the parties agreed during the December 7 hearing that the evidence from Noe's trial established the basis for those findings and that no contradictory evidence exists. This Court, therefore, must determine the appropriate offense level for Abney and Story by examining the Sentencing Guidelines in light of those findings.

DISCUSSION

Guidelines section 2D1.4(a) establishes the base offense level for conspiracies: "If a defendant is convicted of a conspiracy ... to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy ... had been completed." Commentary 1 of that section provides:

If the defendant is convicted of a conspiracy that includes transactions in controlled substances in addition to those that are the subject of substantive counts of conviction, each conspiracy transaction shall be included with those of the substantive counts of conviction to determine scale. If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing.

Under Guidelines section 2D1.4 and its commentary, therefore, the offense level is based on "the weight under negotiation" unless "the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount." This Court found that Abney and Story did not intend to produce 200 pounds of marijuana and that they were not reasonably capable of producing that amount. Pursuant to the commentary, therefore, this Court "shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing."

This Court finds that Abney and Story intended to produce and were reasonably capable of producing the amount they in fact delivered: four bales weighing 107 pounds and consisting of three bales of hay or straw and one bale of hay or straw with less than one ounce of marijuana packed on top of the bale. To determine the base offense level for the conspiracy count, this Court must examine the Drug Quantity Table based on the weight of the controlled substance. An explanatory note following that table provides: "Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." Ascertaining the appropriate offense level for Abney and Story, therefore, depends upon whether the hay or straw and the marijuana were a "mixture."

The United States contends that the weight of the marijuana is 107 pounds because it asserts that the four bales contained 107 pounds of a "mixture" of marijuana. Abney and Story argue that the small amount of marijuana and the hay or straw were not a "mixture" because the substances were not mingled or blended together.

While this Court has carefully considered the United States' argument that the marijuana weight is the 107 pounds of all four bales and the alternative possibility that the weight is solely the amount of the one bale containing the small amount of marijuana, this Court must conclude that the marijuana and the hay or straw did not form a "mixture" under the Guidelines. In the Order of December 7, 1990, this Court found that one of the bales consisted of hay or straw "with less than 1 ounce of marijuana packed on top of the bale." Commentary 1 following the Drug Quantity Table provides that "`mixture or substance' as used in this guideline has the same meaning as in 21 U.S.C. § 841." Apparently, however, neither section 841...