US v. Sumner, PLAINTIFF-APPELLEE
| Decision Date | 07 September 2001 |
| Docket Number | No. 00-3680,PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,00-3680 |
| Citation | 265 F.3d 532 |
| Parties | (7th Cir. 2001) UNITED STATES OF AMERICA,, v. THOMAS J. SUMNER, |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Illinois. No. 99 CR 40079--J. Phil Gilbert, Judge. [Copyrighted Material Omitted] Before Coffey, Rovner and Diane P. Wood, Circuit Judges.
Thomas J. Sumner pled guilty to three counts of distributing cocaine, in violation of 21 U.S.C. sec. 841(a)(1). Although Sumner was charged with distributing a total of 9.4 grams of powder cocaine (which is equivalent under the Sentencing Guidelines to 1.88 kilograms of marijuana), the district court sentenced him based on an additional distribution of 57.6 grams (about two ounces) of crack cocaine, under the relevant conduct provision of the Guidelines. Two ounces of crack translate to an astonishing 1,213.72 kilograms of marijuana equivalent under the Guidelines, and Sumner's sentencing range rose from 8-to-14 months to 121-to-151 months. Because Sumner is 76 years old, this is a significant difference. The district court sentenced Sumner to 132 months of incarceration. He now challenges his sentence on the grounds that the government did not meet its burden of showing that his distribution of crack cocaine was sufficiently related to his offense of conviction, and thus should not be included as relevant conduct. Because the district court did not make adequate findings tying the crack sales to the offense of conviction, we vacate and remand for resentencing.
Sumner was arrested in his home after selling cocaine to a confidential informant on three separate occasions in September 1999. In addition to the 9.4 grams of cocaine that Sumner sold to the informant, the police seized more powder cocaine and 34.4 grams of marijuana from Sumner's residence. After waiving his Miranda rights, Sumner told an FBI agent that he had been selling cocaine for some time. He estimated that he sold an ounce of cocaine each month between January 1998 and July 1998, and that he sold an equal amount between April 1999 and September 1999. Although he later disputed the dates and amounts of his admitted crack dealing, the district court ultimately found that Sumner also told the agent he sold two ounces of crack in the winter of 1997. He told the agent that he voluntarily stopped selling crack when one of his customers smoked the substance in his presence and had a seizure. Because three different drugs were involved (cocaine, crack cocaine and marijuana), the district court converted all of the amounts into marijuana equivalents. The Guidelines treat crack much more harshly than powder cocaine or marijuana, and the effect on Sumner's sentencing range was significant.
Sumner pled guilty without a plea agreement in place. A probation officer prepared a Presentence Investigation Report ("PSR"), detailing Sumner's admissions to the agent, and calculating the amount of drugs used for sentencing. According to the PSR, Sumner began purchasing quarter ounce quantities of crack in the winter of 1997. He bought and sold one-fourth of an ounce of crack each week for approximately two months. At some point, he voluntarily ceased selling crack and decided to sell powder cocaine instead. He told authorities that he did not sell marijuana but kept it in his house for guests. Sumner objected to the PSR, claiming that he never told the agent he sold two ounces of crack; rather, he claimed he bought 7 grams of crack, sold 4"" grams and then returned the other 2"" grams to his supplier after the seizure incident. He also maintained that he stopped selling drugs during a period of time that he was driving a bus for a living. He contested Paragraphs 14 and 15 of the PSR, which described his sales of crack and powder cocaine at various times, contending that the information was without sufficient indicia of reliability to support its probable accuracy. The probation officer responded that the information was accurate because it was supplied by Sumner himself during a voluntary post-arrest interview. The court ultimately adopted the probation officer's position. Paragraph 24 of the PSR details the calculation of the amount of drugs distributed, and Sumner filed the following objection to Paragraph 24:
The defendant objects to Paragraph 24 of the presentence report and suggests that the relevant conduct should be based on seven grams of crack cocaine, six ounces of powder cocaine, and 34 grams of marihuana.
Addendum to Presentence Report, at 3. Again citing Sumner's voluntary post-arrest interview, the probation officer responded that "[t]he defendant's relevant conduct includes 56.7 grams of crack cocaine, 396.9 grams of powder cocaine, and 34.3 grams of marihuana." Id. Although Sumner lodged a number of other objections to the Presentence Report, none are relevant to the issues he now raises on appeal.
At his sentencing hearing, Sumner represented to the court that, other than the objections filed by his attorney, there were no other errors, corrections, alterations or additions that he wished to make to the PSR. After the trial judge remarked that most of Sumner's objections were related to statements Sumner allegedly made to law enforcement, Sumner's attorney summarized his objections to the PSR thusly:
There is no plea agreement. Essentially correct, Your Honor, in terms of summarizing what the objections are. The objections go to the relevant conduct, the amount of crack cocaine, the amount of powder cocaine and how that would affect the sentencing. It would also go to some extent to the acceptance of responsibility and would also go toward in terms of timing whether or not he committed this offense or certain relevant conduct while he was on probation.
Sentencing Tr. at 4. When asked specifically what Sumner's position on relevant conduct was, his attorney replied,
Your Honor, our position on relevant conduct is that Mr. Sumner, it's Mr. Sumner's position that the amount of crack cocaine that's indicated in the report that's been objected to that could be attributed to him as relevant conduct ought to be 7 grams, and that the powder cocaine ought to be 6 ounces.
Sentencing Tr. at 5. In response to the government's question about where the figure of 7 grams of crack came from, Sumner's attorney responded, in relevant part,
Mr. Sumner's position and testimony would be that he sold crack cocaine in the early 90s. He possessed it, had it to sell. He had 7 grams. 3 and a half grams on two separate occasions where he distributed 4 and a half grams and gave 2 and a half grams back to the guy who fronted him, and that would be the only point in time he was involved with crack cocaine.
The court then held a hearing at which both Sumner and the agent who interviewed him after his arrest testified about his admissions that day. According to the agent, Sumner informed him that "in what he remembered to be possibly the winter of 1997 he had started to sell crack cocaine, and after a couple of months, he felt like he was doing bad things to people, didn't want to deal with it anymore so he switched to powder cocaine and began to sell it instead." Sentencing Tr. at 10.
In its findings, the court noted that the timing and amount of the alleged relevant conduct were both at issue:
With respect to the issues of the relevant conduct which kind of interplays in with the criminal history as to whether or not this defendant in his post-arrest statement was dealing crack cocaine and cocaine in '97 in which he would have been on probation, and if the Court finds that the--that the post-arrest statement is valid, that the Criminal History Category of II would be appropriate. Plus the relevant conduct in terms of the amount of drugs the defendant in his post-arrest statement said that what he was selling and acquiring during that time period would be factored into the total relevant conduct.
Sentencing Tr. at 42. The court noted it was a classic battle of credibility between the agent and the defendant, that the defendant's testimony contained internal inconsistencies, and that "it's difficult for this Court to believe that this agent just pulled these numbers out of and these dates out of thin air." Sentencing Tr. at 42-43. The court found that the defendant did tell the agents the information that they put into their reports. The court concluded, therefore, that the amount of drugs for relevant conduct purposes was 1,213.72 kilograms of marijuana equivalent as found by the PSR. The court adopted the PSR in its entirety with the exception of the PSR's recommendation against a reduction for acceptance of responsibility. The court sentenced Sumner to 132 months of incarceration. Sumner appeals.
On appeal, Sumner protests that the district court did not explain why any of the crack was included as relevant conduct. He asserts that the crack transactions occurred more than two years prior to the offense of conviction, lasted for at most two months, and were voluntarily terminated. Sumner also complains that there was no evidence linking the crack transactions to the offense of conviction by commonality oF.Supp.lier or customers. He asks us to conclude that the crack transactions were not part of the same course of conduct or common scheme or plan as the offense of conviction and are therefore not relevant conduct. He requests that we vacate his sentence and remand so that the district court can recalculate the sentence without the 56.7 grams of crack. The government contends that Sumner waived the issue of whether the crack was part of the same course of conduct, or in the very least forfeited that issue. We may not review a waived issue and we may review a forfeited issue for plain error only. The government maintains there was no error, plain or otherwise, in finding that...
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