United States v. Alan Louis Bashara

ease, diction over this I leave would intact, consent decree this mat- remand

ter to original assigned panel to consider propriety of the district Orders of court’s March 12 April Alternatively, 1992. given that majority the Olim resurrects

issue, I remand would the matter to allow the district apply court to doctrine in Rufo

the first Alternatively, given instance. majority opinion has the effect of invad-

ing the province regard district court’s applying Rufo, I apply would least two-step test way

Rufo’s Supreme intended, by Court first conducting hearing parties argue allow the

whether circumstances changed have so Rufo,

under modification of the consent de- appropriate, then, cree is if it were found they had, by carefully tailoring the mod- changed ification to the circumstances.

Along way, I would address Plaintiffs’ argument inapposite Olim insofar as present upon case is based substantive merely procedural rather than Finally, law.

if the court were to find that Plaintiffs’ feder-

al claim lacking, is somehow a remand would

be in order for the district court to consider supplemental

whether to jurisdiction exercise

over the law state claims. reasons,

For foregoing respectfully

dissent. America,

UNITED STATES of

Plaintiff-Appellee, BASHARA,

Alan Louis Defendant- Appellant.

No. 93-2020. Appeals, Court of States

Sixth Circuit.

Argued March 1994. July

Decided

Rehearing Suggestion for Rehearing

En Banc Aug. Denied 1994.* * Merritt, Judge, grant Chief rehearing would the reasons stated in his dissent. pleaded guilty, improp- and that the court

erly calculated his total offense level under sentencing guidelines. For the reasons below, set forth we affirm. promoting Bashara was in the business of music Rapids, Michigan. concerts Grand promoted Luigi He also Buzzitta’s hair salon. time, In drugs he and Buzzitta together. used July In person Buzzitta and another charged were arrested conspiracy with possess marijuana. to Buzzitta entered into government, a deal with offering help them marijuana uncover a trafficker of agreed purchase heroin. He cocaine from Bashara, and his efforts led to Bashara’s arrest and conviction.

Through investigation, police their marijuana learned that Bashara sold in Mich- igan proceeds and used purchase her- Okane, oin from Daniel supplier in Califor- Delaney (argued), Brian K. James R. Red- paid nia. by wiring money Okane (briefed), ford Atty., Office of the U.S. Grand through Western shipped Union. Okane MI, Rapids, plaintiff-appellee. for compact-disc heroin in cases and film-reel Judy briefed), E. Bregman (argued and tins guise under the of Bashara’s concert- Haven, MI, defendant-appellant. Grand for promotion business. Bashara made at least sixty-five payments, such transferring at MERRITT, Judge; Before: Chief GUY $41,000 pay least grams for more than 130 BOGGS, Judges. Circuit heroin, perhaps grams. more than 200 Bashara conceded that pur- some of those BOGGS, Judge, Circuit delivered the chases were pooled transactions in which he opinion court, of the in which RALPH B. money together his with they others so that GUY, Jr., joined. MERRITT, Judge, Circuit could receive a part volume discount. As Judge (p. 1186), Chief separate delivered a marijuana his dealing, Bashara drove alone dissenting opinion. Texas, at least two or three times to loaded BOGGS, Judge. Circuit his trunk marijuana obtained on behalf Sillman, supplier Leonard Rap- in Grand Alan charged Louis Bashara was in a two- ids, Michigan, to whom Bashara owed debts count indictment for his role con- prior loans for drug buys, and drove the spiracy that also laundering. involved Michigan back to Although for him. days Five begin, before his trial was to Bash- marijuana most of transported way this pleaded guilty However, ara to both counts. by was sold people Sillman’s in Michigan, eight days before his sentencing, he moved to Bashara was sold some of the for plea. rejected withdraw his The court his his own account. motion and sentenced him to a 97-month term, years’ followed super- five Police executed a search warrant on Bash- appeals vised release. Bashara premises from his con- ara’s April 1992 and seized some viction and claiming later, drugs. Days he should voluntarily he visited IRS permitted have been plea, Agent Jurkas, withdraw his investigating who was properly he was not notified the money-laundering charges, and he told her court that he would mandatory face a mini- about his involvements with Buzzitta and Ok- mum sentence for one of the crimes to which ane. He concedes that she warned him not pleaded have charge, that he would never lawyer present and without a speak drug charge known for his he had guilty in return nothing offered he was June, re- again spoke to Jur- minimum sentence carried he revelations. voluntarily, this that he en- drug agents cooperation, his gardless and federal kas pressure He elaborated under because accompanied counsel. into the time tered statements, naming individu- Attorney was not suffi- previous felt that Mitchell on his trial, to whom buying, sought ciently prepared he was als from whom re- marijuana. Again, However, selling, guilty plea. he was withdraw promises. no found that he ceived denied that motion and understood, adequately and had been well charged on November Bashara was of, implications apprised Count in a two-count indictment. it. plea when he entered charged any quantities, specifying without to distrib- possess with intent conspiracy to Bashara, sentencing the court enhanced In distribute, marijuana. ute, to conspiracy for offense level of 26 three levels base his 841(a)(1), Count §§ 846. 21 U.S.C. manager supervisor of a role as a his laundering, in connection charged activity five or more that included criminal his mari- proceeds from his use of the with 3Bl.l(b), § then re- people, U.S.S.G. himself heroin for juana dealing purchase accep- for his two levels level duced people. U.S.C. other 3El.l(a), § re- id. responsibility, of tance 1966(a)(1)(A)©. 27. Bashara sulting in a total offense level of 11,1993, days manager before his or leader February five that he was not a On claimed guilty to begin, pleaded anything, Bashara were not even was to and that there trial However, eight April He also activities. people both counts. involved his five sentencing, attorney, Mitch- his a days before should have received he contended plea, and ell, guilty accepting responsi- to withdraw moved for reduction three-level coun- as defense moved to withdraw was more bility he also total offense level because his 3El.l(b). However, to allow with- court refused sel. The district the court 15. Id. than permit guilty plea, but did drawal had rejected Bashara that claim because attorney A to withdraw. second Mitchell prior to trial be- days until the final waited Present withdrew. appointed and later finally accepted re- pled guilty and fore May appointed counsel was defense sponsibility. unsuccessfully withdraw his seeking and a level of 27 a total offense With that, although guilty plea, Bashara claimed II, category of history writing and did nothing he had received sentencing range of 78-97 guideline a faced agreement, he un- any into formal not enter him to two court sentenced The months. government that neither from the derstood months, followed sentences concurrent mandatory minimum a of his crimes carried terms of supervised release by concurrent hoped that Apparently, sentence. years. years and five three acceptance of re- his the court would view him a com- give as a reason sponsibility II pre- further light and he parativély pleaded guilty from a formal would benefit sumed At the time that Bashara responsi- accepting him: sentencing February, for asked reduction the district court a two-level bility. Ultimately, he did receive charges these you understand Do responsibility,” “acceptance of for reduction I must advise carry penalties which certain sentencing that his but he also learned conspira- of, for you penalty that is the five-year minimum required crime intent to distribute cy possess with a mini- offender and sentence for first-time marijuana carries [conspiracy distribute to] years prior offender. of ten for mum up to 40 sentence of possible prison million up to a years $2 fully understand Claiming that he did not and/or provision[,] release special fine with guilty plea, that he did implications of his confinement[,] years up five money-laundering there really understand the not you following involving confinement. Do understand ers crimes at least 100 than but less marijuana, this? a maximum sentence? kilograms equiva- As or its five-year That a minimum lent.2 statute sets “Yes, responded Your Honor.” sentence. attorney, The court later asked Bashara’s any sentencing provisions “[A]re there other time, appeal, On this first you’re which aware of that should be dis- Bashara claims that he would not have volun attorney cussed here at this time?” tarily right to a trial if waived the district “No, responded, Your Honor.”1 pleading court had notified him that he was pleaded The first count to which Bashara to a crime that carried a guilty charged conspiring possess him with five-year prison minimum term. Because he distribute, conspiring intent to and with objection earlier, did not raise this Bashara’s distribute, marijuana. 21 U.S.C. plain appeal is reviewed for error. The Fed 841(a)(1), §§ specify 846. The count did not require eral Rules of Criminal Procedure quantity marijuana involved. Sections guilty plea that a defendant who enters a 841(a)(1) and 846 do mandate mini- not apprised only penalty of the maximum mum prison terms for the offense itself. statutory that he faces but also mini However, 841(b)(l)(B)(vii), under 21 U.S.C. mum: kilograms if the crime involves 100 of mari- (c) Advice to Defendant. ac- juana, Before equivalent, mandatory or its there is a cepting plea guilty of sentence, the court must five-year minimum to be followed personally mandatory four-year open address the defendant in minimum term of (1) release, supervised court and inform the defendant of ... the first time that a person is charge convicted of such a violation. The the nature of plea to which the mandatory offered, minimums are doubled for subse- is pen- minimum quent A involving law, offenders. violation alty provided by any, and the maxi- quantity of also carries a maximum possible penalty law, mum provided by prison forty years sentence of and a maxi- including any special parole the effect of or $2,000,000 mum fine. supervised term.... release government suggests that the district yet court had not quantity determined the of (h) Any Harmless Error. variance marijuana in involved Bashara’s crime at the procedures required by from the this rule plea. time that Bashara entered his Fur- which does not rights affect substantial thermore, Bashara himself “never admitted disregarded. shall be having kilograms been involved with 100 added). (emphasis Fed.R.Crim.P. 11 of Where has contested the issue every opportunity.” judge a district fails to Appellee’s advise defendant of Brief at 4. hand, faces, On the minimum description the other the court’s sentence that he this of facing the maximum remand with sentence Bashara indi- will instructions to vacate See, cates permit that the court did in fact the sentence and to plea. know at the new Wolak, e.g., 164, time that Bashara plea entered his United States v. 510 F.2d (6th Cir.1975). However, ultimate sentence could be based on the 166 we will disre- quantities 841(b)(1)(B), § listed in gard which cov- such an omission where find we colloquy 1. The marijuana, equivalent, text of the relevant at the or its he would have faced (R. 37, 9-10), pp. interpretation on whose twenty years a maximum sentence of $1,000,000 and a disagree, Appendix court and the dissent is 841(b)(1)(C). Thus, § fine. Id. if the opinion. to this judge definitively could tell Bashara that he faced forty years a maximum sentence of and a maxi- If Bashara were to have been convicted of $2,000,000, judge mum fine of it seems that the involving kilograms marijuana, crimes 1000 of had determined that Bashara's sentence could equivalent, its carrying mandatory he would have faced a sentence statutory fall under framework of minimum term of 841(b)(1)(B), § which deals with crimes involv- years, possible ten with a maximum of life im- 100, 1000, kilograms at least but less than $4,000,000 prisonment, and a fine. 21 U.S.C. marijuana, equivalent. or its 841(b)(1)(A). If he were to have been convict- involving kilograms ed of crimes less than 100

H79 years years, pursuant affected from three to five to 18 it has not harmless because error (3) 3583(e)(2); supervised have his U.S.C. rights. United substantial the defendant’s (6th day Williams, 1526, on the last of that five- release revoked F.2d 1531 899 States v. (4) term; year supervised release have Cir.1990). States v. generally United See every day of (6th Cir.1984), to serve his additional three- Stead, cert. 746 F.2d 356 year imprisonment super- after revocation denied, 105 84 470 U.S. S.Ct. release, pursuant vised U.S.C. (1985) Congres (noting L.Ed.2d 3583(e)(3). scenario, In that worst-case that enacted Rule amendment sional years the defendant would serve 18 and one 11(h) approach this Court has “alter[ed] prison, nearly years month but seven less reviewing guilty pleas” be must now use than maximum sentence he could have incorporated into Rule 11 the harm cause it that, received. 934 F.2d at 1353. We stated 52(a) of the Fed error standard of Rule less circumstances, Syal’s Baehynsky’s unlike Procedure). In this Rules of Criminal eral rights were such that his substantial had not context, stated that we have “Substantial at 906. been affected. F.2d a defendant rights not be affected when penalty and that informed of the maximum In this the court warned Bash markedly penalty the penalty exceeds the statutory ara that he could have faced a received, including period of forty years prison. maximum term of incar supervised additional release ninety-seven received a sentence months might time that result from violation ceration years supervised to be five followed supervised release condition.” Unit [the] Following example of the Ba release. (6th Syal, ed States scenario, chynsky we note worst-case Cir.1992). under Bashara’s he could serve as informed a Syal, district court had long years pris as sixteen and one month pleaded guilty that his sen- on, defendant who approximately which would still be twen years’ maximum of five tence could be a ty-four years statutory than maxi less the neglected to no- imprisonment, mum, but the court a for the defendant result even better tify him would include a that the sentence Bachynsky: in than the result mandatory period supervised release. Ul- Furthermore, we that the district note timately, the defendant was sentenced maximum court sentenced Bashara to the eighteen imprisonment months’ and three by sentencing guidelines the for a term set years’ supervised vacated the release. We history category II in criminal sentence, noting that “the five defendant’s Therefore, of 27. it with total offense level year maximum the District sentence Court received at least is clear that he could have Syal markedly greater not than warned of is if his total years’ imprisonment five even he received when the effects of the sentence much as four levels offense level had been as for.” supervised release are accounted We Indeed, at the time that he entered lower.3 that case with States v. contrasted history category plea, his with a (5th Cir.), Bachynsky, 934 F.2d 1349 cert. separate admitting guilt II to two and — denied, -, 116 U.S. S.Ct. crimes, carries a base offense each of which (1991). L.Ed.2d 351 facing possible level of Bashara was of 70-87 months under Bachynsky, possi- prison faced a term is, sentencing guideline That 25-year guidelines. his ble maximum sentence. received pleaded guilty, range, time that he imprisonment at the a sentence of months’ that he would receive term of years’ supervised The Ba- indicated three release. months, years ten even chynsky least five court calculated the worst (1) defendant, impose a minimum inclined to he would serve court were case for the to con- penalty. if he had been able every day prison; 121-month Even his term (2) sentencing to reduce his supervised vince the have his release extended II, tory category, level of 23 indicates history category a total offense an offense 3. Under criminal ranging ranges level of 27 indicates a term between 78- between 51-63 months. a term that imprisonment. that his- months’ Under same levels, mandatory minimum issue acceptance for of mentioned range two offense above, indeed, enhancing indicated the mandato- responsibility, and to refrain from as reasons, range for other Bashara would likeli- ry provision minimum had almost no sentencing range of affecting have faced a 57-71 it is hood of his sentence.5 While months, adequately warning him that he judge comply did not unfortunate that 11(h) going prison statute, at least five could be portion of the Rule with that years. plea, his Bashara When he entered designed specifically for circumstances counsel, accompanied his and the sentencing portion which stat- some court informed him that “there are certain with, complied declaring is not utes rules [sentencing guidelines] govern federal “[a]ny ... which not af- variance does impose, this must the sentence Court rights disregarded.” shall fect substantial required to consult this Court is ease, only In our did the sentence as might depart guidelines and this those Court actually mandatory min- given mean that the guidelines from those under certain enumer- any impact, imum had no but reasonable ated and narrow circumstances.” analysis of the situation at the time of the stated that he understood that. guilty plea indicated the same would have totality of the circumstances of this under the thing: it was this is not ease where say we cannot that Bashara’s substan- surprise that actual sentence exceeded rights tial were violated the district mandatory minimum. We thus believe neglected court’s error when it to advise him said, that it cannot be without some risk of minimum that he faced a sentence of inexactitude, terminological that Bashara was years. five “affirmatively misled.”' Indeed, during hearing on his motion guilty plea, engaged

to withdraw his III revealing colloquy in a with the district judge, explained appeals which he the reason also district go Despite he wanted to to trial. the conclu- rejection court’s of his motion to withdraw dissenting opinion sion that defendant guilty plea. We review district pled guilty only because he understood that court’s decision for abuse of discretion. would not seek Spencer, United States v. sought (6th Cir.1987). minimum sentence and that he guilty plea withdraw his when he learned subject plea “If a motion for withdrawal of a

that he a was such the guilty ... strongly implies record At the is made before sentence is otherwise. 117-18, hearing, Appendix imposed, may permit at the court withdrawal of Joint solely clarify plea upon showing focused on desire to his the his just culpability” “level of con- based on what he fair and reason.” Fed.R.Crim.P. 32(d). tended were lies told Buzzitta.4 He never Honor, me, I was involved in the use of agents Your he lied to the and lied to fact federal drugs very heavily during period. time this then there are issues need to be discussed at actions, using my I'm not that as an excuse for trial. but ... lied later I out that [Buzzitta] trafficking drugs, I'm not innocent of in found but agents regarding my background, the federal being not to the extent that I'm indicted for. And me, purpose hearing why and so the this I establish, only way I that’s what I want to and the asked this situation withdraw the [to can see to do that is to have trial. trial, plea] get is so that I could and that these added). (emphasis JA 117-18 brought elements would be in a out trial situa- jury culpabili- tion to decide the level of ruling 5. The relevant text the court's district ty responsible that I am for. And that's basi- guilty plea, withdraw the motion to inso- just frankly cally I cannot—I cannot be- it. mínimums," "mandatory far as it mentions is lieve some of the allegations presentence in the 50, (R. 113-14). Appendix opinion pp. toII this they and that report, were —and this is after It court is clear to this writer the district is but my my plea, made decision to withdraw referring to avoidance of state habitual criminal they just further that tells me that fuel fire charges carry penalties would such as one of investigation predicated this whole is based—is pleading guilty. defendant's reasons for on lies the informant And in [Buzzitta]. if

H81 counsel, that the aim of the rule without the assistance of have noted the court Courts hastily plea postponed hearing entered made with following to allow a until is morning, and confused mind to be at which unsure heart time a new defense coun- undone, sel, Chamberlain, a defendant “to make not allow was at Bashara’s side. plea, to enter a wait a tactical decision Attorney claimed that he felt that weeks, and then obtain a withdraw- several pressured plead guilty Mitchell had him to if he believes he made a bad choice al attorney adequately because the pre- pleading guilty.” pared to conduct a defense.6 Mitchell testi- Alexander, 1002, States v. 948 F.2d that, day fied on the pleaded even that he (6th Cir.1991) (quoting United States v. 1004 guilty, Bashara continued to feel that (5th 339, Cir.1984)), Carr, 740 F.2d 345 cert. very had a weak ease. Howev- — denied, -, 112 117 U.S. S.Ct. er, hearing Bashara conceded at the that he (1992). determining In whether L.Ed.2d 465 drugs very “was involved the use of heavi- 32(d) invoking has shown a a defendant Rule ly during period_ this time I’m not inno- reason,” just “fair and this court considers trafficking drugs, cent of but not to the those set forth in Alexander such factors as being I’m extent that indicted for.” Head, 927 F.2d and United States Under this court’s analy- Alexander/Head (6th Cir.) (citing Spenc- United States v. 1375 sis, although regretted have his (6th Cir.1987)), er, cert. plea it, days entering a mere eleven after — denied, -, U.S. S.Ct. pass filing allowed six weeks to before (1991). (1) These include: L.Ed.2d explained formal motion to it. withdraw elapsed plea amount of time that between the delay by difficulty was caused (2) it; pres- motion to withdraw and the attorney, contacting his the court but found (or absence) of a valid reason for the ence convictions, prior with two Bashara am- to move for withdrawal in the failure earlier ply how to contact knew counsel he want- (3) proceedings; the defendant has whether ed. court observed that Bashara admit- (4) innocence; asserted or maintained his ted substantial involvement and did not underlying entry circumstances addition, assert his innocence. the court (5) guilty plea; the defendant’s nature and long, found that Bashara’s detailed answers (6) background; degree to which the questions to brief about his involvement in experience prior has had with the pleaded, the crimes to which he had reflected (7) justice system; potential “intelligent” acknowledgement guilt. an prejudice government if to the the motion to found that Bashara’s granted. withdraw plea hastily was not the result of “a entered days In this eleven after enter an or a made with unsure heart con- February plea, Bashara com mind.” find no of discretion. fused We abuse plained probation assigned to the officer PSI, regretting that he had en prepare his IV plea. attorney, tered the He called his but plea. not Bashara also contests the court’s he was advised withdraw hospitalized then for two weeks. On determination that his crime involved more was kilograms marijuana equiv or March Bashara wrote a formal letter to than 100 of its court, not a district court’s explaining the reasons that he alent. We will reverse clearly plea. April findings they fact are erro wanted to withdraw his On of unless formally plea. moved to A neous. The district court found that Bashara he withdraw heroin; hearing April paying gram At a was held on the hear was Okane $200 $41,000 therefore, having ing, the court Bashara to waive the wired more than allowed California, purchased attorney-client privilege and Attor Bashara would have ordered However, testify. grams if he ney Mitchell to because more than 200 of heroin. Even hearing paying 50% more than this find- Bashara was about to conduct his were Okane practice to criminal had been of his was devoted 6. At the time of this Mitchell 95% attorney practicing years, and cases. as an for twelve partici- or more activity that involved five wit, would grama $300 —Bashara —to finding. appeals from that pants. Bashara grams. Under purchased over still have comment, (n.10) (“Drug for clear error. 2D1.1, We review § U.S.S.G. Table”), gram of heroin is one Equivalency emphasizes activity in marijuana. kilogram one equivalent to powerful not a he was involved was which addition, at Buzzitta’s the court looked drug organiza- conspiracy sophisticated or acknowledged that testimony. The court Rather, compelled says he that he was tion. testified, testimony given one else has “[n]o marijuana in on behalf of pick up Texas Buzzitta. except for this Mr. under oath here Sillman, Rapids supplier in who a Grand individual, a rather eva- very a credible Not essentially controlled him because Bashara individual, might add for the record.” sive prior substantial debts from owed Sillman However, noted Buzzitta’s consis- the court Therefore, merely drove down to loans. told him testimony that Bashara had tent times, picked up ship- two or three Texas shipments car that he had driven delivery, and drove back to ments for then Michigan, two or three from Texas marijuana for the Michigan to sell Sillman’s occasions, approxi- transporting each time his own heroin addic- cash he needed feed By marijuana. com- mately pounds 80-90 Essentially, portrays himself tion. amount of figures Buzzitta’s with the paring individual, grand an indicted alone as pur- spent on his heroin that Bashara consuming drug personally ruined jury, Okane, the court found chases from addiction, “manager” not involved as a but were more credible than Buzzitta’s numbers words, “drug ring.” In Bashara’s “The claim of Bashara.7 the alternative chairman of the board of General Motors Indeed, delivery trucks.” does not drive argues purchases that his “organizer him to an the court did not find be drug traf part of his from Okane were leader,” or which would have added another rather, ficking; purchases for his those were sentencing offense level to the enhancement. Therefore, personal he maintains use. 3Bl.l(a). § U.S.S.G. are not relevant the Western Union records crime for which he has been indicted. to the “It established in this Circuit that is well However, are Union records Western requires pursuant ‘enhancement 3B1.1 money-laundering directly pertinent to the culpable participation of at least two indi- count, they provide strong circumstantial leadership viduals so that of some quantity alleged in support evidence minimal, organization, enterprise or however marijuana-conspiracy count. principles can be claimed.’ But these do court’s calculations we do not find the district directly not mean that the defendant must clearly to be erroneous.8 partnership or enter- employ or control Schultz, 14 prise.” States v. F.3d

V Cir.1994) (citations omitted). (6th 1093, 1099 found, manager, drug “To a defendant under U.S.S.G. manage 3Bl.l(b), conspiracy need not control or Bashara deserved a three- co-conspirators is suffi- sentencing because he activities level enhancement —it a criminal that the facts show that the manager supervisor cient proceeds the funds were the on each of his two or fendant knew that 7. Bashara maintained Texas, 2S1.1(b)(1). transported only trips activity. 15-20 three unlawful Therefore, Id. pounds per trip. well, 2 under count as Bashara would starting a sentence with a base of- have faced event, it is not clear that Bashara would 8. Consequently, even his mari- fense level of 26. perceptibly by proving conspired that he benefit trafficking juana 100 kilo- had involved less than kilograms buy and than 100 of mari- sell less emerged grams, the he would have still with 1, marijuana-trafficking juana. count the Under sentence, although the same 97-month conspiracy charge, level is 26. the base offense period supervised subsequent release under 2, 2D1.1(c)(9). money- Count the U.S.S.G. laundering years, count 2 alone would have been for three crime, carries a base offense level of rather than five. 2S1.1(a)(1), an auto- 23 under U.S.S.G. with because the de- matic three-level enhancement

1183 cocaine], activity.” grams drugs [of United as far as those managed the (8th Lawrence, 68, taken, being drugs being F.2d 72 the amounts of v. 918 States denied, 941, up Cir.1990), periodically.” 111 taken here from Florida 499 U.S. cert. (1991) Martinez, v. (emphasis L.Ed.2d 455 States 951 F.2d 113 S.Ct. Cf. — (8th added). Cir.1991), denied, Indeed, 890 “manager” can or cert. one U.S. -, (1992) playing a role S.Ct. 118 L.Ed.2d 407 “supervisor” even when subor (holding a participants activity: manager in the defendant to be a to other be dinate in traveling cause of his role to Miami to language of the refers Guideline [T]he acquire bringing cocaine and then it back to “participants,” but to not to “subordinates” Minnesota, possession where he maintained encompassing equal those on an foot- thus itof and acted as the source of the cocaine ing superior to in a criminal or distributed). co-conspirators that he and his hierarchy as those below. as well (6th Dean, 187,197 v. 969 F.2d United States In this the record shows that — denied, -, Cir.1992), cert. U.S. Bashara was involved with Buzzitta in obtain (1993); 1852, 123 L.Ed.2d 475 accord S.Ct. selling drugs. provided and Buzzitta Jones, v. 933 F.2d 1546- United States pounds Bashara with as much as ten of mari Cir.1991). (11th occasions, juana separate on three and Bash marijuana ara ten-pound sold to Buzzitta in commentary to 3B1.1 lists U.S.S.G. quantities Later, on various other factors that be considered in de- occasions. seven marijuana Buzzitta sold some of termining of a role in the that he the extent defendant’s (1) purchased activity: party, had from Bashara to a the criminal the exercise of deci- third (2) authority; par- Andrew Sinadinos. sion-making the nature of offense; ticipation in the commission of the Buzzitta, dealings Besides his with Bash- (4) (3) accomplices; the recruitment ara in worked Sillman Texas to obtain right larger claimed to a share the fruits marijuana transport Michigan, and he crime; (5) degree participation personally transported those or two (6) offense; planning organizing in three occasions. He concedes that he was activity; scope illegal nature and involved in the sale and of mari- distribution (7) degree authority control and exer- juana Rapids Lansing, in both Grand comment, (n.3). cised over others. Id. As Rapids and that he used his Grand residence noted, recently no “[t]here we have re- staging point selling point “a as or a or a however, quirement, that each factor be storing marijuana.”9 point Ap- for the Joint Ospina, met.” United 18 F.3d States pendix at 86. He further that he concedes (6th Cir.1994). 1332, 1337 pooled proceeds his funds and the of his Barrett, 855, marijuana money provided by In United States v. sales with oth- (6th Cir.1989), users, upheld this court a deter- er and then handled their trans- own, played helping “drug mination that mana- actions as well as his role, gerial findings pool” prices based on that he was the obtain discounted from Okane. Appendix people source of cocaine for three or four Joint at 115-16. He made at least transfers, supplied, brought drugs sixty-five wiring whom he that he different obtaining marijuana in in proceeds into Tennessee after them Flori- to Okane California da, fairly dealing exchange shipments and that “we’re here with a for new heroin that were scheme, large drugs, packaged, amount of at kilo- least accordance with his Interestingly, challenging judge’s copy) ed find- at 24. It seems from the record that ings that he had been involved in the sale and heavily court relied on the Western Union trans- Rapids, Okane, distribution of in Grand Lan- bragging actions with and the “mere elsewhere," "[tjhis sing, "and Bashara states monetary puffing” merely corroborated the hard wholly supported by conclusion is un noting statistics. It is also worth charac- (corrected Defendant-Appellant's record." Brief terizing “bragging puffing” comments as added). copy) (emphasis n. 9 does, inadvertently lends credence to Similarly, attempts to characterize testimony did in fact utter such Buzzitta's that he bragging what he told Buzzitta as “mere words to Buzzitta. (correct- puffing.” Defendant-Appellant's Brief findings are district court’s film-reel tins. cases and compact-disc clearly mari- erroneous. deals with California also transacted named Scott Weaver.10 juana supplier facts of this case consider the

As we VI in the com- factors listed light of the seven Finally, appeals from the 3B1.1, § observe mentary we to U.S.S.G. by to reduce his sentence court’s decision decision-making au- exercised that Bashara levels, three, by only rather than two offense by role coordinat- thority playing a central responsibility for his ac accepted after buyers’ collecting “drug pool,” ing the 3El.l(a), § a defen U.S.S.G. tions. Under funds, price with negotiating purchase “clearly acceptance dant who demonstrates Okane, wiring payments to Califor- and may responsibility for his offense” receive Furthermore, conceived and nia. Moreover: two-level sentence reduction. disguise strategic decision authorized qualifies If for decrease Michigan as were sent (a), de- the offense level objects relating concert-promotion under subsection to his operation prior was all- to the of subsec- personal participation termined business. His (a) up greater, ranging picking is level 16 or and encompassing, tion Texas, transporting it in the marijuana in has assisted authorities street, selling prosecution it on the and to of his own Michigan, investigation or suppliers. buying by taking the heroin from California one or more of the misconduct including members accomplices, following steps: He recruited derived drug-purchasing pool. He of the (1) timely providing complete informa- ship- profits from the Sillman significant concerning his government to the tion activity ranged scope ments. The offense; in the or own involvement Michigan to geographically from Texas to (2) timely notifying authorities of his in- selling It included California. thereby guilty, tention to enter transporting buying heroin. It called for government pre- permitting the to avoid wiring funds goods interstate car and paring permitting the court trial for. via Union. interstate Western efficiently, to allocate its resources de- Schultz, previous opinions our As by 1 the offense level additional crease Dean, clear, and Barrett make it was not level. necessary court to find that for the district 3El.l(b). Id. working for accomplices had five application considered Bashara’s The court justify enhancing his sen him in order to 3El.l(b) a three-level reduction under levels because “the tence three offense “very carefully it as a close and described manager supervisor or defendant was a However, ultimately question.” it decided to activity involved five or and the criminal reduction, limit reduc- grant him a but to 3Bl.l(b). participants_” more U.S.S.G. levels, because Bashara waited tion to two its commen- The text of the Guidelines days his trial to until the last five before activi- tary require does not that five of the guilty plea. By waiting long to enter his so ty’s participants to the defen- be subordinate compelled accept responsibility, Bashara dant; activity merely requires it prepare ease for its entire participants. In this involve five or more Afterwards, attempted trial. when participated in people least five guilty plea, again withdraw his his motion drug activity, and he Bashara’s criminal government and the court to may catego- required the played properly a role that hearings, and review briefs “manager supervisor.” that of conduct research rized as Weaver, Weaver, Maty respon- many Fannin were 10. There have been as as five more sending receiving sending money involved individuals Western Union transfers sible for According the Western Union transfers. were received to California where those monies Investigation Report, re- Weaver, ''[a] to the Presentence 0[]kane, David either Dan Scott investigative file also indicates that view Weaver, or Dave Sadler." individuals!!,] Felice, Joan three other Richard

H85 counsel, today and render a decision. these two counts as of in addition to findings regard in this these that the court’s factual I’ve enumerated. clearly erroneous.

were today, MR. REDFORD: Not as of Your Honor, I’m not that aware of. VII Mitchell, Okay. THE COURT: Mr. are reasons, foregoing judgment For any sentencing other provisions there which the district court is AFFIRMED. you’re aware that should be discussed here

at this time? I APPENDIX No, MR. MITCHELL: Your Honor. PLEA GUILTY HEARING APPENDIX II any questions THE there COURT: Are charges about that I could answer for these HEARING ON MOTION TO you at this time? WITHDRAW GUILTY PLEA No, DEFENDANT BASHARA: Your Honor. THE I Ap- COURT: want the Court of peals go plea to further back to the that was you

THE COURT: Do understand that 11th, February my entered on both carry own charges penalties these certain which I matter, my of, memory worksheets on this own you penalty must advise and that is the proceedings, my of these the refreshment of conspiracy possess to with intent to dis- memory transcript, that the go which will to tribute and distribute carries a well, Appeals, Court as which is some possible prison up years sentence of to 40 long, 24 pages contains. It contains rather up ato million fine with a $2 and/or lengthy colloquy. might I add it’s to the special provision if release there confine- point. unnecessary not a lot of There’s ver- up years following ment of to five confine- biage clearly in it. But it that indicates youDo As a maxi- ment. understand this? himself, professed counsel knew and both mum sentence? counsel, both the and defense Yes, DEFENDANT BASHARA: Your counsel, exactly they to know what intended Honor. do, plea and that is a towas be entered to charge THE that I COURT: As to the will Court, and the indictment was to be money laundering, refer to as the second ready, plea agreement and that there was no count, you po- do understand this carries sought placed that was be the record. years’ penalty up imprison- tential to 20 appears agreement Now it that the which $500,000 up to a ment fine with a and/or part was had that was not to be made supervised release should there be confine- apparently record and for which there has up years? you ment of to three Do under- objection any no been nor evidence to stand this? contrary, plea is that this indictment DEFENDANT BASHARA: Yes. satisfy liability this indictment might have to state court on THE COURT: And that this Court would placing jeopardy another matter as well as required be to assess as a $50 upon any might further indictments special assessment for each count for a total issued, particularly go indictments your guilty plea accept- were to be $100 status, carry certain habitual criminal which you ed this Court this matter. Do mandatory mínimums. And if that in fact is understand this? objection I the case and find no then do, DEFENDANT BASHARA: Your certainly to this would demonstrate Honor. from, Court that at least the defen- Redford, certainly THE perspective, COURT: Mr. are there dant’s there was an special sentencing provisions pertains as it to enter the to the defendant. incentive Jaramillo-Suarez, 1368, 857 F.2d v.

States (9th Cir.1988) (same). under I do not Now, at some was read the indictment principle or the rationale such stand clearly indicated the defendant length and openly permit the Rule to be why should we following the indictment colloquy violated. went plead guilty. The Court intended to every of the Rule through each and one simply based on cannot be Harmless error length, and in each one requirements some assumption that the court’s clearly he under- Mr. Bashara indicated and will receive if he is tried will be convicted them. stood mandatory mini- longer than the a sentence always harmless er- There would be mum. MERRITT, dissenting. Judge, Chief assumption. The defen- if we make this ror establishes, clearly record this case The his constitutional entitled to exercise dant is found, that the defen- court and the district jury knowing of “the right by trial after guilty specific on the understand- pled dant mandatory penalty provided minimum not seek a government would for the Rule. Not law.” That is the reason mandatory minimum case; sentence he was only not advised in this was he subjecting himself run the risk of would not affirmatively a defendant en- misled. When (See Appendix II and R. a sentence. to such something that is guilty plea is told tering a 113-14.) 50, prosecutor Both the pp. (viz., mandatory mini- risk of a true no lawyer specifically advised defendant’s case), I no “risk of in this see mum sentence “special arraignment that no such court at inexactitude,” terminological as the (See present in this case. provision” was it, saying that he was “misled.” Here puts 4-10.) Upon Appendix pp. I and R. right af- denying the defendant the we are mandatory learning minimum of the risk of a in combination with the forded the Rule sought to withdraw offering a rea- Amendment without Sixth proceed to trial. plausible explanation. Our obli- soned requires more than gation to the Rule of Law obviously violated its The district court giving in this case. are the accused we 11(c), to “in- duty under Rule Fed.R.Crim.P. mandatory of ... form the defendant penalty provided

minimum law....” The mandatory, not within

language of the rule is court. Once the

the discretion of the district court learned that it had violated the

district the defendant to

rule it should have allowed guilty plea, especially light

withdraw his that it that the defendant the fact is clear America, UNITED STATES of believing misled into that there would be was Plaintiff-Appellee, mandatory minimum sentence involved. no majority that the district court finds mandatory aware of the minimum and Timothy JOHNSON, Moses it. yet failed to inform the defendant of Nev Defendant-Appellant. ertheless, majority apparently follows the No. 93-5071. provision Rule 11 principle that this ignored by judges district if the sentence Appeals, Court of United States longer mini imposed is than the Sixth Circuit. adopted circuit has mum sentence. No other Sept. Argued 1993. principle. v. Hour such a See United States (11th Cir.1991) (in ihan, July Decided to invoke harmless error order independently defendant knew must show mandatory min likely receive

that she would misled);

imum sentence and was not

Case Details

Case Name: United States v. Alan Louis Bashara

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 18, 1994

Citation: 27 F.3d 1174

Docket Number: 93-2020

Court Abbreviation: 6th Cir.