US v. Nelson, Cr. A. No. 89-20081-01.

• Decision Date: 25 May 1990
• Docket Number: Cr. A. No. 89-20081-01.
• Citation: 740 F. Supp. 1502
• Court: U.S. District Court — District of Kansas
• Parties: UNITED STATES of America, Plaintiff, v. William Daniel NELSON, Diana G. Nelson, Harvey Curry, Burlon Davis, James Moss, Damon Joe Nelson, and Dana Nelson, Defendants.

740 F. Supp. 1502

UNITED STATES of America, Plaintiff, v. William Daniel NELSON, Diana G. Nelson, Harvey Curry, Burlon Davis, James Moss, Damon Joe Nelson, and Dana Nelson, Defendants.

Cr. A. No. 89-20081-01.

United States District Court, D. Kansas.

May 25, 1990.

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Leon J. Patton, Asst. U.S. Atty., Kansas City, Kan., for plaintiff.

Vernon E. Lewis, Michael Harris, Asst. Federal Public Defender, Carl E. Cornwell, Thomas Boeding, Robert DeCoursey, Paul Dent, Kansas City, Kan., and Michael J. Waite, Leavenworth, Kan., for defendants.

SENTENCING MEMORANDUM

EARL E. O'CONNOR, Chief Judge.

In October of 1989, defendants were charged in an indictment with a series of drug offenses, including conspiring to possess with intent to distribute cocaine base. After a three-week trial, a jury found the defendants guilty of committing and conspiring to commit certain drug offenses. The court thereafter ordered the United States Probation Office to prepare and file a presentence investigation report on each of the defendants.

The parties objected to United States Probation Office recommendations contained in the presentence reports and filed presentence submissions with respect to the following sentencing factors and guideline computations: the quantity of drugs used to determine the base offense level, a two-level increase in offense level for the possession of a weapon, a two-level increase in offense level for restraint of a victim, a two-level increase in offense level for obstruction of justice, and various adjustments made for the respective defendants' roles in the offense. Defendant Burlon Davis additionally challenges the constitutionality of the Guidelines. Evidentiary hearings were held on the 5th, 6th and 10th days of April, 1990, with regard to the relevant sentencing factors which had been questioned by the parties. Oral findings were made and the defendants were sentenced on April 10 and April 11, 1990, pursuant to the United States Sentencing Commission Guidelines, see 18 U.S.C. §§ 3551 et seq. (Supp. V 1989) and 28 U.S.C. §§ 991-98 (Supp. V 1989) (hereinafter "Guidelines"). This sentencing memorandum shall memorialize, and to some extent supplement, those findings and sentences.

I. THE SENTENCING RECORD

In resolving the disputes about sentencing determinations, the court may consider "relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." U.S.S.G. § 6A1.3. The Commentary to Guideline § 6A1.3 notes that reliable hearsay evidence may be considered by the sentencing judge. See, e.g., United States v. Cuellar-Flores, 891 F.2d 92, 93 (5th Cir.1989) (use of hearsay statements made to probation officer by law enforcement official investigating defendant's case).

As to all of the defendants, except Diana Nelson, the court has reviewed records and testimony at an evidentiary hearing on the 5th and 6th days of April, 1990, in making its findings on disputed facts and applying the Sentencing Guidelines. More specifically, the court heard the testimony of United States Probation Officers William Martin and Clarence Wiedel, as well as ATF Agent James Carlson. Agent Carlson's testimony included the hearsay statements of Melissa Bolton, Debbie Crain, Jermiah Cramer, Michael Dale, Ed Mallory, Terresa Maupins, Jerry Mays, Cindy McKeon, Robert Nelson, Cornetta Newton, Gerry Smith, Michael Strathman, Kimberly Turner, Michael Wilson, Harold Sutton, and Twila Gatewood. The court read the trial transcript of the testimony of Eddie Russell and Michael Strathman. The court also considered trial exhibits 1, 2, 57, and 400.

The court considered the testimony of the same three witnesses — Martin, Wiedel, and Carlson — with regard to the sentencing of Diana Nelson on April 10, 1990. Testimony of Probation Officer Wiedel related hearsay statements of Kimilie Grazier, Eva Ridens, and Diana Nelson. Agent Carlson's testimony included the hearsay statements of Special Agent Rhonda Trahern, defense counsel Vernon Lewis, Melissa Bolton, Eddie Russell, Michael Strathman, Cornetta Newton, Jermiah Cramer, Jerry Mays, Gary Smith, William Nelson, Jr., Douglas Brantley, Debbie Crain, Kimberly Turner, Robert Nelson, Denise Davis, and Kimilie Grazier. In addition, the court read the September 12, 1989, affidavit of Robert Nelson, and a letter, marked exhibit 400, purportedly from William Nelson, Sr., to Diana Nelson. The court also read the transcripts of the grand jury testimony of the following witnesses: Diana Nelson, Dana Nelson, Robert Nelson, Jermiah Cramer, Edward Mayes, Terresa Maupins, Debbie Crane, and Toni Shuster.

The court, on its own initiative, has reviewed all of its trial notes and has used that testimony as a basis for the court's findings on disputed facts and factors in determining the appropriate sentencing guidelines as to all defendants. The court finds that the hearsay statements and otherwise inadmissible testimony at the evidentiary hearings are sufficiently corroborated by the facts as otherwise developed at the trial and other evidence before the court to give sufficient indicia of reliability to support their probable accuracy. Therefore, such evidence is admitted and has been utilized for sentencing purposes.

II. CONSTITUTIONALITY OF THE GUIDELINES

A. Delegation of Legislative Authority and Separation of Powers

Defendant Burlon Davis challenges the constitutionality of the Sentencing Reform Act of 1984, as amended (hereinafter "Act"), 18 U.S.C. § 3551 et seq. (Supp. V 1989), and 28 U.S.C. §§ 991-98 (Supp. V 1989), and the Guidelines promulgated thereunder, on grounds that they violate the separation-of-powers doctrine. We assume the defendant challenges the Act and Guidelines on separation-of-powers grounds because they place the Sentencing Commission in the judicial branch, require federal judges to serve on the Commission and share their authority with nonjudges, and empower the President to appoint Commission members and remove them for cause. See 28 U.S.C. § 991(a). Davis also argues that the Act provides for an unconstitutional delegation of legislative authority.

In January of 1989, the Supreme Court upheld the constitutionality of the Act and the guidelines against challenges on the same grounds asserted here. Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The Court admittedly stated that the Sentencing Commission is "an unusual hybrid in structure and authority," but concluded that in creating the Commission:

Congress neither delegated excessive legislative power nor upset the constitutionally mandated balance of powers among the coordinate Branches. The constitution's structural protections do not prohibit Congress from delegating to an expert body located within the Judicial Branch the intricate task of formulating sentencing guidelines consistent with such significant statutory direction as is present here. Nor does our system of checked and balanced authority prohibit Congress from calling upon the accumulated wisdom and experience of the Judicial Branch in creating policy on a matter uniquely within the ken of judges.

Id. 109 S.Ct. at 675. Accordingly, we hold that the Act and the Guidelines promulgated thereunder do not delegate excessive legislative power or violate the separation-of-powers principle.

B. Due Process Challenge to Guidelines

Davis also argues that the Guidelines eliminate the court's sentencing discretion and therefore are unconstitutional because they deny due process.¹ The Tenth Circuit recently held that Congress "may circumscribe the court's sentencing discretion through the Guidelines" because the legislative branch "has the power to completely divest the courts of their sentencing discretion to establish exact, mandatory sentences for all offenses." United States v. Thomas, 884 F.2d 540, 543 (10th Cir.1989). The court added that the statutory scheme created by the Act "permits departure in a proper case, and has not withdrawn all discretion from the sentencing court."² Id. at 542-43. We conclude that Davis' due process argument is without merit.

C. Constitutionality of Guideline § 3C1.1

Application Note 3 of the Commentary to § 3C1.1 relating to obstruction of justice states that "this section of the Guidelines is not intended to punish a defendant for the exercise of a constitutional right. A defendant's denial of guilt is not a basis for application of this provision."³ Defendant Davis contends that § 3C1.1 is unconstitutional because it "impedes his right to testify in his own defense." The Tenth Circuit recently rejected an appellant's argument that he should not receive an upward adjustment for obstruction of justice because § 3C1.1 "is unconstitutional in violation of ... his right to testify." See United States v. Beaulieu, 900 F.2d 1537, 1538 (10th Cir.1990). Other circuits have found similar arguments like Davis' to be unpersuasive.⁴ We likewise are not favorably impressed and hold that § 3C1.1 is constitutional.

III. STANDARD OF PROOF

Nothing in the Guidelines suggests that the Commission intended to require trial judges to articulate any particular standard of proof when finding facts in sentencing proceedings. Case law clearly establishes, however, that the parties need not prove the facts used for sentencing "beyond a reasonable doubt."⁵ The Supreme Court has held that the "preponderance standard satisfies due process." McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67 (1986) (noting that sentencing courts have "traditionally heard evidence and found facts without any prescribed burden of proof at all"). Accordingly, this court will employ the "preponderance of evidence" standard of proof when finding facts in sentencing proceedings.

IV. APPLICATION OF...