US v. Van Pelt
| Decision Date | 08 July 1996 |
| Docket Number | 92-40042-06-SAC and 92-40042-07-SAC.,No. 92-40042-01-SAC,92-40042-05-SAC,92-40042-04-SAC,92-40042-03-SAC,92-40042-01-SAC |
| Citation | 938 F. Supp. 697 |
| Parties | UNITED STATES of America, Plaintiff, v. Perl Glen VAN PELT, Lewis T. Wacker, aka "Louie", John Lee Wacker, Susan Mary Boyle, aka "Van Pelt", Leroy Allen Cooley and Michael L. Lipp, aka "Mike", Defendants. |
| Court | U.S. District Court — District of Kansas |
COPYRIGHT MATERIAL OMITTED
Stephen W. Kessler, Topeka, KS, for Perl Glen Van Pelt.
Michael L. Lewis, Topeka, KS, for Lewis Theodor Wacker.
F.G. Manzanares, Topeka, KS, Matthew B. Works, Works, Works & Works, P.A., Topeka, KS, for John Lee Wacker.
Dennis W. Moore, Moriarity, Erker & Moore, Olathe, KS, for Susan Mary Boyle.
James G. Chappas, Jr., Topeka, KS, for Leroy Allen Cooley.
Melanie J. Branham, Olathe, KS, for Michael Louis Lipp.
Gregory G. Hough, Office of United States Attorney, Topeka, KS, for U.S.
On January 27, 1993, the grand jury returned a superseding indictment which charged the defendants with conspiracy to possess with intent to distribute marijuana, possession with intent to distribute marijuana, and use of a firearm during and in relation to a drug trafficking crime. Certain defendants with prior felonies were also charged with felon in possession of a firearm.
On July 9, 1993, after 7 days of deliberation, the jury returned separate verdicts regarding each of the defendants. In summary, the jury found the following:
On August 17, 1993, the court denied the defendants' motions for new trial or judgment of acquittal. See United States v. Van Pelt, No. 92-40042-01, 03-07-SAC, 1993 WL 360329 (D.Kan. Aug. 17, 1993). On December 26, 1995, the Tenth Circuit entered an order affirming all of the defendants' convictions except that for those counts charging violations of § 924(c)(1).2 The § 924(c)(1) counts were reversed in light of the Supreme Court's decision in Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). See United States v. Wacker, 72 F.3d 1453 (10th Cir.1995). In Bailey, the Supreme Court defined the word "use" found in § 924(c)(1) in a manner substantially more narrow than the Tenth Circuit had previously construed the term. In Bailey, the Supreme Court held that "`use' must connote more than mere possession of a firearm by a person who commits a drug offense." ___ U.S. at ___, 116 S.Ct. at 506. In light of the Supreme Court's ruling, the Tenth Circuit reversed the convictions on Counts 2, 7 and 12, but remanded for a new trial only on Count 7. On February 13, 1996, the Tenth Circuit issued mandates in Cooley's and Edith Wacker's cases. On February 15, 1996, the Tenth Circuit recalled the mandates to correct a clerical error. On March 11, 1996, the Tenth Circuit entered an order denying rehearing but clarifying and correcting its December 26, 1995, opinion.
On March 21, 1996, the court received the mandate from the Tenth Circuit in each case. On April 15, 1996, the government filed a motion to dismiss count 7, which was granted by the court. See Fed.R.Crim.P. 48(a).
As the need for a new trial on Count 7 was obviated, the only remaining task for the court following the Tenth Circuit's remand is to resentence each of the defendants. Although each of the defendants benefit substantially from the vacation of the § 924(c)(1) convictions, in resentencing each of the defendants, the court must consider whether it is appropriate to enhance each sentence under USSG § 2D1.1(b)(1).3 See United States v. Pollard, 72 F.3d 66, 68 (7th Cir.1995) (); United States v. Johnson, 927 F.Supp. 399 (D.Kan.1996); see also United States v. Gary, 74 F.3d 304, 317 n. 11 (1st Cir.1996) (), cert. denied, ___ U.S. ___, 116 S.Ct. 2567, 135 L.Ed.2d 1084 (1996). Prior to vacation of the counts charging § 924(c)(1) violations, the court was precluded from enhancing the defendant's sentences pursuant to § 2D1.1(b)(1). See USSG § 2D1.1(b)(1); 2K2.4, comment 2; United States v. Bermudez, 82 F.3d 548, 550 (2nd Cir.1996) (); United States v. Lang, 81 F.3d 955, 963 (10th Cir. 1996). The § 924(c)(1) counts having been vacated, the court must decide whether it is now appropriate to enhance each defendant's sentence under § 2D1.1(b)(1).
On April 19, 1996, the court held a conference with counsel to discuss the issue of resentencing. Prior to the conference, the court sent a letter to counsel setting forth the court's preliminary observations regarding resentencing. The court did this to aid counsel in analyzing the supplemental presentence reports which would be prepared by the probation department and to focus counsel on the sole remaining issue in this case.
Based upon the evidence presented at trial and contained in each of the presentence reports, it appeared to the court that there is a factual basis to enhance each defendant's sentence pursuant to § 2D1.1(b)(1). From the evidence presented at trial it was clear that Edith Wacker, one of the defendants' coconspirators, possessed, used and carried a firearm to protect the marijuana harvesting operation. Because Edith Wacker's coconspirators are liable for her foreseeable acts taken in furtherance of the conspiracy under USSG § 1B1.3,4 a two level enhancement appeared upon initial observation to be appropriate.5 In reaching that tentative conclusion, the court compared the 1993 guidelines and the 1995 guidelines. No substantive difference exists which would benefit the defendants.
Based upon its preliminary assessment of the issue, it appeared to the court that there is both a legal and factual basis to enhance each of the defendant's sentences under section 2D1.1(b)(1). However, because the impact on Lipp's sentence is negligible in light of the mandatory minimum sentence the court was required to impose, and because the court would nevertheless impose a sentence of 120 months, the court will not enhance Lipp's sentence under § 2D1.1(b)(1). Cf. United States v. Coslet, 915 F.Supp. 271, 272 (D.Kan.1996) (); United States v. Fletcher, Case no. 92-40054-01-DES, 1996 WL 227781 (D.Kan. April 5, 1996) ().
Each of the defendants has filed objections to enhancing their respective sentences pursuant to § 2D1.1(b)(1). No defendant challenges the court's observation that a factual basis exists to enhance his or her respective sentence. Instead, the defendants' attacks center on the proposition that the Tenth Circuit's opinion and mandate limit the authority of this court to enhance their respective sentences. In short, the defendants contend that their respective drug convictions were affirmed by the Tenth Circuit and that the language in the Tenth Circuit's opinion and the limited scope of the mandate precludes this court from considering an enhancement pursuant to § 2D1.1(b)(1). The defendants also contend that enhancing their sentences will violate double jeopardy. The defendants also contend that the government, by failing to specifically request a remand from the Tenth Circuit to consider the issue of enhancement, waived the opportunity to seek enhancement.
In addition, counsel for Lipp advances one other argument which is without merit.6 Lipp argues that "neither his case nor count 7 has been remanded to this Court." Although accurate in regard to Count 7 in regard to him, such a contention is otherwise directly contrary to the Tenth Circuit's mandate in this case. Moreover, until this court resentences Lipp and vacates the § 924(c)(1) count from his sentence, the sentence originally imposed and as set forth in the "judgment in a criminal case" still contains the 5 year sentence imposed for his conviction of count 2.7
In the body of the Tenth Circuit's opinion, the court of appeals states:
Accordingly, we remand appellants Van Pelt, Boyle, Cooley, John Wacker and Lewis Wacker to the district court for retrial on the limited issue presented in Count 7 of whether Edith Wacker's gun was "used" within the meaning of section 924(c).
In the closing paragraph of the opinion, the Tenth Circuit states:
For the foregoing reasons, we REVERSE the convictions of Perl Van Pelt, LeRoy Cooley, Susan Boyle, Lewis Wacker and John Wacker of the firearms offense charged in Count 7, and we REMAND for a new trial only as to Count 7 in order to determine whether these five defendants "used" Edith Wacker's .22 pistol during and in relation to a drug trafficking offense within the meaning of 18 U.S.C. §...
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