United States v. Melvin C. Cross
900 F.2d 66
6th Cir.
1990
Check Treatment

*1 struggling she’s view the Court's making a I she’s think

make due.... effort, ill objection I think

sincere objection is overruled and the

founded plan will order

and the court

firmed as amended. record, includ- considering the entire

After she testimony about how

ing Killough’s 10and the fact money she earns uses the put yet able to aside has not been

that she plan budgeted in her per month

the $100 education, can- continuing we

for her own bankruptcy court’s

not conclude that clearly erroneous.

judgment was

IV. reasons, we affirm the foregoing

For the court, up-

judgment of bankruptcy court. judgment

held recognize that there holding, income obtained

be instances can and should

through working overtime in a included debtor’s

appropriately be for the disposable income

projected and Chapter plan. This is

purposes of a

such a case.

AFFIRMED. America, STATES

UNITED

Plaintiff-Appellee, CROSS, Defendant-Appellant.

Melvin C.

No. 89-1865. Appeals, Court of

Sixth Circuit. Feb. 1990.

Submitted 27, 1990.

Decided March Killough anticipated plan. Killough in her $115.33 that her herself stated 10. We note Also, discrepancy her explained as the result of budget very Kil- understated. food (due inability loan to her payments to obtain a tuition lough her to the Delta testified that son) anticipated (tuition bankruptcy filing) at that she had are for her School of Business month, plan. Chapter her time she made out approximately rather than $489.44 each *2 MERRITT, Judge, and Before Chief RYAN, Judges. Circuit JONES PER CURIAM.

Defendant, Cross, appeals his Melvin C. and sentence for distribution of conviction feet of a school. For cocaine reasons, following we affirm. I. 25, 1989, grand January a federal

On Michigan jury for the Western District of charging an indictment Cross and returned one co-defendant Gina D. Mancha with conspiracy to distribute cocaine count (1982) and six violation of 21 U.S.C. 846 § of cocaine in violation counts 841(a)(1). three of 21 U.S.C. Counts § charged through seven of the indictment place within that the distribution took a school in violation of 21 U.S.C. During plea negotiations, the As- 845a. § inquired Attorney sistant United States guilty count plead would whether Cross exchange for three of the indictment in cocaine. Cross revealing his sources of willing his sources be- to reveal was safety resulting threat to the cause of the family. April On of himself and his where- plea agreement was reached a plead guilty and by Cross However, testimony. truthful sources, the not reveal his Cross would called off. deal was trial, adopted Man- prior to Just through quash counts three cha’s motion to grounds indictment on seven of the 845a is unconstitutional. that 21 U.S.C. § prior denied this motion district court The trial, plaintiff-appellee, At the to trial. (government), of America the United States cocaine that Cross sold introduced evidence police or an undercover an informant three of these On officer on six occasions. Davis, LaVille, A. Asst. Donald Jeanine place in the occasions, took the transactions Smietanka, Atty., Attys., A. U.S. U.S. John school; transac- two of the of a parking lot Mich., Rapids, Delaney, Grand Brian K. location within at another place took tions plaintiff-appellee. 21, 1989, April 1,000 feet of a school. On trial, found four-day jury Phelan, Rapids, after J. Grand Lawrence counts. guilty on all Mich., defendant-appellant. pur- tolerated. The court added sentencing hearing,

At the pose of the statute is clear: the recommendation agreed with court deny re- Cross’s probation officer drug-free Congress sought to create a adjustment of two quest for a downward schools; whether it chose to zone around *3 responsibility for points for particu- directly indirectly is not do (1) to reveal sources two reasons: refusal According sponsor, to its larly relevant. cocaine; (2) refusal to finan- and designed drug to ‘deter provision such, the to the court. As cial information schools,’ in- and around impris- to 36 months court sentenced Cross place ‘take cluding transactions which count, with the sentences on each onment areas, hangouts, remote outdoor at local concurrently. to run nearby apartments,’ homes or or at thereby helping to ‘eliminate outside II. negative influences’ around schools. 845a, the court can 21 Under U.S.C. § 50, quoting Id. at Cong.Rec. S559. 130 anyone found to penalty for double the Holland, v. In 810 F.2d in violation of section distribute cocaine denied, (D.C.Cir.1987), cert. 481 U.S. 841(a), person sold the cocaine where 2199, (1987), 1057, 107 S.Ct. 95 L.Ed.2d 854 1,000 feet of a school. Cross within arguments rejected the court both of of counts three tends that his conviction case, by in the instant and presented Cross improper because sec- through seven was rationally held that “the statute is struc unconstitutional. tion 845a is purpose reduc tured to effectuate that [of Id. at 1219. The ing drugs near schools].” A. is explained that the statute D.C. Circuit argues that section 845a Cross first conse not over-inclusive because “[t]he equal protection clause. While violates the inevitably quences of such transactions section 845a is not concedes that Cross dwellings onto the flow from inside the heightened scrutiny, he main subject to directly streets and contribute to vio rationally effectuate that it does not tains Congress sought dangerous lent and milieu it is under- Congress’ purpose because both proximity to eliminate in the of schools.” Cross contends that and over-inclusive. Id. The court also rejected argument section 845a is under-inclusive because section 845a is under-inclusive because drug apply to deals that statute does not require equal protection of the law does not play non-school occur in areas such as every possi Congress legislate against danger though the to chil grounds, even drugs may be sold to situation where ble alleges that sec great. dren Cross also reasoning Id. adopt We children. ap because it tion 845a is over-inclusive Holland thereby hold that section 845a place take be plies to transactions equal protection. does not violate dwellings private tween adults schools, they even if occur B. are in ses during schools times when sion. next contends that section test, it estab relationship process 845a violates due sec

Using the rational pre and irrational upheld as not violative lishes an irrebuttable been tion 845a has 1,000 feet of a by sumption that a sale within equal protection clause both subject to a substantial United school should and Second Circuits. D.C. Falu, 46, (2d punishment than would ordi greater 776 F.2d 48-50 Cir. States argues narily that the 1985), legislative be tolerated. Cross examined the court there punishment appropriate is not where the statements of Sen history, particularly chil Hawkins, sell cocaine to school sponsored the is no intent who ator Paula dren, are not school children 845a was that section bill. concluded doubling that a involved. He maintains signal drug dealers intended to send a upon whether punishment depending will not be presence that their near schools prove government feet had to that the defen- occurred within drug transaction acquisition dant knew that his of food radius outside that or one foot of a school stamps by was in a manner unauthorized Leary cites v. Unit- rational. Cross is not “requir- The noted that the statute. Court 6, 1532, States, 89 S.Ct. 395 U.S. keeping long- ing mens rea is with our States, (1969)and Tot v. United L.Ed.2d 57 standing recognition principle 1241, 87 L.Ed. 1519 63 S.Ct. 319 U.S. ‘ambiguity concerning the ambit of crimi- argument. (1943) support as for his in favor nal statutes should be resolved pre- Tot, statutory held that Court lenity’ the rule of ... [unless it] importing a firearm sumption guilt in- implied expressed conflict with the the fact that the defendant based Congress.” tent of Id. at 105 S.Ct. at process. a firearm violated due possessed *4 omitted). (citation 2089 Cross maintains that a statu- Leary, In the Court decided present that the intent of the statute is importation unlawful tory presumption of unclear; thus, knowledge proximity of the that the marijuana upon the fact based of the school should be read as an element marijuana violated possessed defendant of the offense. process. due Falu, that In the Second Circuit held the Holland, rejected a the D.C. Circuit In Congress intent of is clear: section 845a challenge to section process due similar rea; expressly require not mens does Leary, not distinguished Tot 845a. purpose deterring drug statute — cases, the stat ing in those two Court suggests or around schools— presumed based guilt could not be incorporate any Congress did not F.2d at facts. 810 upon another set of requirement into the statute. mens rea contrast, does not section 845a 1220-21. Moreover, 776 F.2d at 50. the court noted instead, it increases the guilt; presume that section 845a does not criminalize oth- particular set of facts punishment where a activity, erwise innocent for the statute school) found near a (drug transactions applies only persons who have violated 841(a)(1), that Con already The court concluded con- to exist. 21 which U.S.C. § greater penalties requirement “knowingly provide tains a rea gress’ decision to mens — intentionally ... a con- ... distribute selling drugs those within for Thus, the court held trolled substance.” pur reasonably related to a school was federal 845a “resembles other that section protecting the children in schools pose of laws, pen- criminal which enhanced at 1221. drugs. crime and Id. See from obviously anti- allow conviction for alties or 123, 779 F.2d Agilar, v. also United States of a fact of upon proof social conduct (2d Cir.1985), denied, 475 U.S. 125-26 cert. need not be aware.” which the defendant (1986) 1385, 1068, 89 L.Ed.2d 609 106 S.Ct. Congress in- Id. The court concluded (section process does not violate due 845a bear the burden tended that dealers rationally goal related to it is because located and ascertaining where schools are drugs near a reducing availability of from those ar- removing operations their Therefore, school). hold that section Holland, Similarly, in the D.C. eas. Id. pre an 845a does not establish irrational appro- that it would not “be Circuit stated pro guilt in violation of due sumption of here, lenity rule of priate apply cess. ‘undercut the application would where the design’ of the sec- unambiguous legislative C. omitted). (citation F.2d at 1223 tion.” 810 upon analysis in Holland also contends that section Based knowledge Falu, that the lack process it does we hold due because 845a violates does not vio- proximity of a school knowledge of the require him to have not process. late due feet that the school was fact relies drug transaction. Cross III. 419, States, 471 U.S. Liparota v. United Guidelines, (1985), Sentencing 2084, L.Ed.2d 434 Under the 105 S.Ct. 85 two- 3E1.1, may receive a a defendant held that Supreme Court § 70 of the defendant’s (g)the timeliness level his base offense reduction acceptance of manifesting duct Whether responsibility. acceptance of responsibility. accepted responsibility has

not a defendant determination, to factual is a for his crime added). (emphasis at 3.21 Manual “clearly erroneous” reviewed under be Luster, F.2d v. Wilson, 878 States United standard. Cir.1989), an (6th court held that this Cir.1989). (6th sentenc- “The F.2d found guilty be pled who individual to evaluate unique position ing judge is accepted responsibility not to have responsibility. a defendant’s to authori- promptly surrender he did not reason, determination For this initially. cooperate ties or great defer- entitled sentencing judge is case in the instant court The district disturbed not be and should on review ence any of the did meet that Cross not found Id., quot- it is foundation.” unless without First, two reasons. criteria for above Sentencing Commis- ing States United responsibility to admit refused {Manual), Com- Manual Guidelines sion conduct, includes his related at 3.22. mentary to 3E1.1 § Second, Cross did of cocaine. sources *5 nec- that was argues that information provide financial in re- two-point discharge reduction its essary a the court to denial of for court’s of acceptance appro- for level to assess an base offense order sponsibilities. his ability Un without foundation. to responsibility was Cross’s priate fine based Guidelines, the of the financial possess 3E1.1 this der Section court had to pay, the when he accepts responsibility defendant information. recognition and af a “clearly demonstrates court’s determi- that the district We hold responsi personal acceptance of

firmative to a not entitled that Cross was nation conduct.” The Com his criminal bility for foun- was “without two-point reduction sets the 3E1.1 forth mentary to Section any of the not meet Cross did dation.” determining for following considerations responsibility list- acceptance of for factors accepted responsi whether defendant commentary the Guidelines. in the to bility: Moreover, provide finan- refused to or withdrawal (a) voluntary termination the court could so cial information associations; conduct from criminal ability to to his proportional fine assess a pri- (b) voluntary payment of restitution was there asserts that because pay. Cross guilt; adjudication of or to against proceeding action civil forfeiture a admission (c) voluntary time, of the finan- his truthful him at the disclosure in the involvement to authorities fifth violate his cial information conduct; related silent. How- right to remain amendment offense (d) voluntary implicated to authorities ever, surrender is not fifth amendment the of- commission of promptly matters, argued never after and Cross in civil fense; incriminated information financial any way.1 in him in (e) to authorities voluntary assistance and instrumen- recovery of the fruits offense; talities IV. resignation from office (f) voluntary reasons, AFFIRM foregoing we For during commission position held court. judgment district offense; and investigation and to unwillingness is directed reveal assistance to respect Cross’s 1. With to by persons sources, prosecution is an that this of criminal activities are uncertain his appropriate determining in defendant while consideration than the other two-point for ac- reduction a af- whether award the defendant’s responsibility is directed to responsibility. be more ceptance of responsibility recognition for his firmative 5K1.1, which section properly in considered own conduct.” commentary ''[s]ubstantial provides in its RYAN, Judge, concurring Circuit Margaret

separately. Laverne Charles W. BEARD, Plaintiffs-Appellants, in the I concur without reservation While dispo- in case and its judgment court’s this part II. of issues discussed

sition of the LINES, CARIBBEAN NORWEGIAN III., part I concur opinion, as to Defendant-Appellee. agreement with only. My limited result No. 89-1212. reasoning part III. is a result the court’s Appeals, United States Court of the district court my disagreement that Sixth Circuit. holding the defen- justified identify govern- for the refusal to dant’s Argued Feb. 1990. persons “up the ladder” who are ment the April Decided 1990. drug suppliers his is a sound basis refusing to award the defendant a two relevant base offense

point reduction of the “acceptance responsibility.”

level for case,

my judgment, on the facts this suppli- identify his

defendant’s refusal to refusal based on the defendant’s

ers—a “might do be a death

claim that refusing

sentence”—is not basis “accept- a two reduction for

award responsibility,” and a conclusion

ance of

that it is “without foundation.” the court observes a footnote to

While is “uncertain that this is opinion that it determining appropriate consideration

an point reduction for

whether to award two responsibility,” go I

further and hold that it is not. Neverthe-

less, the district court declined to since point reduction for the addi-

award the two refused to

tional reason that the defendant circumstances, a basis

disclose his financial justifies refusal entirely the court’s reduction, I concur

to award the two judg- judgment affirming

in the court’s

ment of the district court.