*1 pas- the church paid been burn question little that he There is thus
tor. the nature of the church’s con-
knew of heavy structures on
struction and of
the roof. balance, simply it to me that it
On seems say degree not that this clear error danger indeed “a substantial risk bodily injury.” degree
... of While may risk not have been unusual for a commercial-type
fire in a structure that a
professional department fire would re- to, reasonably I
spond am confident question quite did not feel
the firemen sanguine the risk as does the about bodily injury risk of
court. Because the compared case was substantial (even compared if
general run of arson not general run of arson of moderate- structures), commercial-type
sized I would judgment
affirm the of the district court. respectfully
I therefore DISSENT. America,
UNITED STATES of
Plaintiff-Appellee, CAMPBELL; Carpenter;
Neil E. Paul
Rickey Jones, D. Defendants-
Appellants. 00-3089,
Nos. 00-3233 00-3235. of Appeals, States Court
Sixth Circuit.
Argued and Submitted Nov. 2001. and Filed
Decided Feb. 2002. *3 (briefed), E. Hunt Office of U.S.
William Cincinnati, OH, Attorney, for U.S. (briefed), Bernard & Lucian J. Pearson Bernard, KY, Covington, Camp- for Neil bell. briefed),
Raymond (argued T. Faller Cincinnati, OH, Carpenter. for Paul Rosenberg (argued E. Robert Ravenna, briefed), OH, Rickey D. Jones. MOORE, KEITH, BOGGS,
Before Judges. Circuit KEITH, J., opinion delivered court, MOORE, J., joined. in which RE- Carpenter’s sentence and 402), separate VACATE BOGGS, delivered (p. J. the in- the district court with dissenting MAND concurring part opinion find- particularized that it make struction part. Carpenter’s co- the acts of ings on whether OPINION of his conspirators were within jointly in the con- agreement to undertake KEITH, Judge. Circuit illegal activities. spiracy’s Camp- E. Defendants-Appellants Neil Rickey D. Jones (“Campbell”), bell AND PROCEDURAL I. FACTUAL (“Carpen-
(“Jones”), and Paul HISTORY ter”) and sen- their convictions appeal *4 for use of a guilty pleas tences entered 1999, Davon early May 1996 to From conspira- a narcotics telephone to facilitate brother, Josué, operat- his Rodriguez and in his single a issue cy. Campbell raises in the network ed a cocaine distribution erred the district court whether appeal: County During of Ohio. these Butler area carry Campbell did not it held that when par- Rodriguez years, three brothers showing that he entitled in was his burden obtaining reselling ap- and ticipated in pursuant to the adjustment to a downward kilograms of cocaine. fifteen proximately of United provision Role” “Mitigating 1999, En- Drug April agents of the In (“U.S.S.G.”) Sentencing Guidelines (“DEA”) began a 30- Agency forcement appeal: raises two issues on § Jones 3B1.2. Rodri- wiretap of Davon day authorized (1) court violated the district whether telephone. Based on these cellular guez’s a process and rights to due constitutional conversations, Ap- agents DEA identified sentencing him to 120 months jury trial core Carpenter pellants Jones and Supreme Court’s light in prison, in con- Rodriguez cocaine members Jersey, v. New Apprendi in recent decision identi- Campbell was Appellant spiracy. 147 L.Ed.2d 120 S.Ct. 530 U.S. as a customer. fied (2) (2000); One of whether Count and charged all three jury grand A federal indictment, him with charged which Jones’ distribute conspiracy to with Appellants marijuana, co- to distribute in cocaine, cocaine and crack marijuana, cocaine, caine, duplicitous a crack 841(a)(1) §§ of 21 U.S.C. violation Amend- in of his Sixth indictment violation 841(b)(1)(A). Moreover, Campbell unanimity. Carpenter jury right ment using a tele- counts of charged with two (1) appeal: whether issues on raises two of a the commission to facilitate phone it held Car- court erred when the district 843(b). § of 21 U.S.C. felony, in violation to- conspiracy’s responsible for penter charged with Carpenter were Jones of co- kilograms of fifteen tal distribution counts, respec- telephone three two and to the “Relevant Conduct” pursuant caine tively. (2) 1B1.3; § of U.S.S.G. provision his con- court violated the district whether vari- pled guilty to Appellants All three rights established stitutional exchange for dismissal charges in ous prison. him to 120 months by sentencing pled charges. Campbell remaining counts, Jones below, telephone guilty to the two set forth For the reasons charge, and guilty to pled order with court’s AFFIRM the district telephone three pled guilty to Jones’ Campbell. VACATE respect to sentenced The district counts. and REMAND 120-month prison, months twenty-four Campbell also resentencing. We district court $1,000 fíne, case, one-year and a term of su- a the district court held Jones was pervised Campbell release. sentenced for at accountable least but $4,000 fíne, prison, cocaine, months in and a grams less than 200 which was five-year supervised term of release. Car- drugs [Campbell] the “amount of ac- penter eighty-seven was sentenced to tually purchased and distributed or used.” (Joint (“J.A.”) $3,000 fine, 159). prison, months in and a one- Appendix full The year supervised Ap- term of release. The amount of cocaine conspira- involved pellants timely ap- each filed notices of cy kilograms. was fifteen Because the peals. Campbell court held accountable
only drugs for the attributable him, we hold that the district court II. ANALYSIS correctly request denied his for a down- Campbell’s Appeal adjustment pursuant ward to U.S.S.G. Campbell argues the district 3B1.2. grant court erred it refused to him a when Moreover, we have held that downward adjustment pursuant downward departures under 3B1.2 are available “Mitigating provision Role” of U.S.S.G. only party to a culpable who is “less than *5 § 3B1.2. a defendant is Whether entitled participants” most other and “substantial- § to departure a downward under 3B1.2 ly culpable less than average partici- depends determinations, heavily on factual pant.” Lloyd, United States v. 10 F.3d only
which we review for clear error. (6th 1197, Cir.1993) 1220 (citing U.S.S.G. Searan, 434, United States v. 259 F.3d 447 § (2001), 3B1.2 cmt. 3 background). n. (6th Cir.2001). For the reasons stated light holding, of our the district court below, we hold that the district court did concluded that: refusing grant not commit clear error in to Campbell may While Defendant estab- Campbell’s request adjust for a downward lish that culpable he was less than Da- pursuant ment 3B1.2. Rodriguez, von and Josué who acted as cocaine, suppliers of he is equally culpa- sentencing For purposes, “[t]he culpable ble as or more than of several salient issue is the role the defendant non-supplier the other participants. At played in activity relation to the for which best, the Defendant may culpable be less the court held him or her accountable.” approximately than one-half of par- 438, Salgado, United States v. 250 F.3d ticipants in underlying the offenses (6th Cir.2001) (quoting 458 Accordingly, case. the Court concludes (6th Roper, 430, Cir.), 135 F.3d 434 cert. that he cannot establish that he is less denied, 920, 2306, 524 U.S. 118 S.Ct. 141 culpable than most partici- other (1998)). L.Ed.2d 165 may Defendants of be pants in the charged in the participants minimal or minor in relation offenses indictment in this case. conspiracy whole, as a (J.A. they 75) but added). are not entitled to a mitigating (emphasis Nothing they role reduction if are held presented accountable appeal us on demonstrates only quantities for the of drugs attribut that clearly the district court erred it when Walton, able to them. United States v. finding made the Campbell that was not (6th 1289, Cir.), denied, 908 F.2d 1303 cert. culpable “less than most partici- other 990, 532, 498 U.S. 111 Therefore, S.Ct. 112 pants.” L.Ed.2d Campbell fails the first (1990); 542 see also United part States v. of the two-prong test that we set out Welch, (6th Cir.1996). 142, 152 Lloyd, in required we are to affirm the
397
jury
proved beyond a
to a
Camp-
submitted
grant
not to
decision
court’s
district
Ramirez at 351.
reasonable doubt.
adjustment pursuant
a downward
bell
§ 3B1.2.
appeal,
Ramirez to Jones’
Applying
120-month
that the district court’s
find
we
Appeal
Jones’
inappropriate.
pled
Jones
sentence was
Apprendi
A.
of
to distrib
to one count
guilty
light
marijuana,
in
argues
quantity
unspecified
first
an
Jones
ute
cocaine,
that is
Apprendi,
crack cocaine—a crime
Supreme Court’s decision
2348,
minimum
by mandatory
147 L.Ed.2d
a
accompanied
120 S.Ct.
not
530 U.S.
guilty to
Although
pled
violated his constitu
sentence.
Jones
court
the district
unspecified
an
jury
trial
to distribute
process and a
to due
rights
tional
narcotics,
prison.
sentencing
him to
months
kilograms
for fifteen
him accountable
challenges to a held
constitutional
We review
cocaine,
conspiracy’s
total distribu
Stray
de novo. United
determination,
Cir.2001).
amount. Based on this
tion
horn, 250 F.3d
was sub
district court held
Jones
below,
hold
the reasons set forth
For
ject
mandatory
minimum sentence
sen
its
district court erred
months).
(120
See
U.S.C.
years
ten
district court’s
thus vacate the
tence.
841(b)(l)(A)(ii).
re-sentencing.
remand for
order and
court’s decision to attribute
The district
was whether the
The issue
kilograms to Jones was
full fifteen
Due Process
Amendment’s
Fourteenth
determination,
than the fact
other
factual
that a
determina
requires
factual
Clause
conviction,
increased
prior
of a
maxi
increase in the
authorizing an
tion
*6
nonmandatory minimum to
a
penalty from
for an offense be
prison sentence
mum
minimum sentence.
mandatory ten-year
a
proof
of
jury on
basis
by a
the
made
Therefore,
jury,
that the
requires
Ramirez
Supreme
The
beyond a reasonable doubt.
court,
have deter-
district
should
not the
that the
Process Clause
held
Due
Court
attribut-
quantity
narcotics
the
of
mined
requirement,
this
impose
indeed
does
mandatory
a
By imposing
to Jones.
able
prior
fact of a
convic
than the
that “other
submitting the
sentence without
minimum
penalty for
tion,
that
any fact
increases
jury,
the dis-
of
question
statutory
prescribed
beyond the
a crime
process
due
court violated Jones’
trict
jury, and
to a
must be submitted
maximum
Ra-
by Apprendi and
rights as articulated
Ap
beyond a
doubt.”
proved
reasonable
reason,
we vacate
For this
mirez.
490,
Shortly
120
2348.
prendi at
S.Ct.
court’s 120-month sentence
decision,
Supreme Court’s
after the
resentencing.
remand
opportunity to determine
had the
Court
ex
should be
rule
whether
B.Duplicitous Indictment
mandatory mini
panded to increases
argues that Count
also
Ra
Jones
In
States v.
United
penalties.
mum
jury’s indictment was a
(2000),
grand
mirez,
that
348
we held
One
242 F.3d
of his
in violation
duplicitous indictment
increases in
apply to
Apprendi does indeed
jury
of
una
guarantee
Amendment
minimum
Sixth
mandatory
sentences
joined together
determination,
nimity because
count
other than a
any factual
conspiracy to dis
separate offenses:
conviction,
penalty
three
that increases
prior
to distribute
marijuana, conspiracy
tribute
nonmandatory minimum
a
from
crack
cocaine,
to distribute
conspiracy
must be
mandatory minimum sentence
to a
398
99,
(1942),
allega
Jones’ indictment was
cocaine. Whether
legal question
tion,
that we re-
duplicitous
single
conspiracy,
is
in a
count of
Smith,
States v.
39
view de
agreement
novo.
an
to commit several crimes
Cir.1994).
(6th
119,
For the rea-
F.3d
122
duplicitous,
is not
is itself
below,
set forth
we hold that Count
sons
crime.
See also United States v.
grand jury’s
(6th
indictment was not
Solimine,
One of the
703,
536 F.2d
711 n. 31
duplicitous.
Cir.1976). A single conspiracy may
objective
have as its
the distribution of
duplicitous
An indictment is
if it
drugs
rendering
two
without
it
different
“joins in a single count two or more dis
See,
duplicitous.
e.g.,
v.
United States
separate
tinct and
offenses.” United
Clark,
(5th
67 F.3d
Cir.
Hood,
Shumpert
210 F.3d
1995)....
The
count was not
(6th Cir.2000) (quoting
duplicitous, and the district court did not
Robinson,
Cir.
refusing
err in
to sever or dismiss the
1981)).
duplicity
The
that a
vice
is
count.
“jury may
guilty
find a defendant
on the
Dale,
(emphasis
It has been clear since Braverman v. pursuant base offense level at 32 States, 49, 54, 2D1.1(c)(4)1 § 317 U.S. 63 S.Ct. U.S.S.G. because the court 2D1.1(c)(4) states, § 1. U.S.S.G. part, in that a assigned base offense level of 32 shall be in by the concert with held taken defendant Carpenter should be concluded others, charged a or not as total dis- whether conspiracy’s for the responsible reasonably conspiracy), all foreseeable of cocaine.2 kilograms of fifteen tribution in further- acts and omissions of others level, ar- objected to base this criminal jointly undertaken ance of the have should guing that the district court activity, during the com- 2D1.1(c)(4)3 that occurred § pursuant it at 26 set conviction, the of mission of offense cocaine for which quantity the of because offense, for that or the preparation individually responsible was 1.5 he was attempting course of to avoid detection he claimed that kilogram.4 Carpenter responsibility or for that offense. only for one- held accountable should be pur- lB1.3(a)(l)(B) of cocaine the total § tenth of (emphasis add- U.S.S.G. pled he ed). the because chased occurring only on three
guilty to offenses of Application Note Two U.S.S.G. days wiretap. thirty of the two-pronged § test that 1B1.3 sets out a defendant is must be satisfied before Carpenter’s The district overruled for the conduct of others: accountable held jointly in the case of objection, noting that (1) the conduct must be furtherance activity, a defendant criminal undertaken activity; criminal jointly undertaken reasonably for all foresee- is accountable (2) reasonably the conduct must be in fur- omissions of others acts and able crimi- in connection with that foreseeable jointly criminal of the undertaken therance 1B1.3, n. 2. activity. § cmt. U.S.S.G. nal lB1.3(a)(l)(B) activity. See U.S.S.G. that: The Note further states (2001). court deter- Because In order to determine the defendant’s conduct of the “that the mined of others accountability for the conduct reasonably foreseeable to a whole was (a)(1)(B), the court under subsection knowledge of light of his [Carpenter] scope must first determine conspiracy,” scope and extent activity particular defen- criminal court concluded attribut- the district (i.e., jointly undertake agreed dant conspiracy’s total dis- ing Carpenter conduct and the specific kilograms of cocaine tribution of fifteen by the defendant’s objectives embraced ruling this proper. believe agreement). clearly erroneous. added). (emphasis Id. lB1.3(a)(l)(B),
According to U.S.S.G. level be determined Note, a base offense should Application light following: the basis of the “in or has Second Circuit stated for the to hold a defendant accountable jointly undertaken the case of der [I]n (a U.S.S.G. others plan, [under criminal acts *8 activity criminal lB1.3(a)(l)(B) ], must court scheme, endeavor, § district enterprise under- or g 500 but less kg person responsible for least responsible but “at any person “at least 5 for kg kg less than 15 of cocaine.” 2 of cocaine.” than adjustments, total offense Carpenter’s 2. After argues that his adjustments, Carpenter 4.After with his crimi- level was set at 27. Combined at 23. have been set offense level should total III, guideline history category of sen- nal history category with his Combined criminal range was 87 to months. tence 108 III, guideline argues that his Carpenter of 71 range been 57 to should 2D1.1(c)(4) have § that a base 3. U.S.S.G. states assigned any months. offense level of 26 shall be 400 lB1.3(a)(l)(B). 1B1.3, (1) § See § U.S.S.G. findings: that particularized two
make (2001) (“Because may be 2 a count cmt. n. scope of the de the were within the acts of (2) broadly include the conduct they and that worded agreement; fendant’s time, of period Unit many participants over to the defendant.” were foreseeable (2d jointly activity criminal scope of the Studley, 574 the ed States ... is not Studley by defendant the Cir.1995). the undertaken prong first of The scope of the necessarily the same as the co- between to differentiate serves test to deter- conspiracy.... In order culpabili entire degrees of varying conspirators’ Jenkins, accountability for the 4 mine the defendant’s F.3d ty. Cir.1993) under § of others subsection 1B1.3 conduct (holding 1347 (a)(1)(B), court must first determine the between co- that differentiation “instructs par- activity criminal the of the scope In order to the required”). conspirators is jointly under- agreed to ticular defendant defendant’s scope the of the determine (i.e., specific conduct scope of the may consid take court “the district agreement, embraced the defen- implicit objectives or any explicit agreement er Furthermore, be- agreement)”). dant’s fairly inferred the conduct agreement from condemna- Studley Supreme of the Court’s cause of the defendant others.” 2). 1B1.3, we choose to dragnet conspiracies, tion of cmt. n. U.S.S.G. (quoting 574 holding in Stud- adopt the Second Circuit’s is aware fact that the defendant The States, 417 ley. v. United Anderson U.S. operation is not scope of the overall 211, 224, prong the test S.Ct. L.Ed.2d satisfy the first of enough to (1974) (holding “conspiracies are not him therefore, enough to hold is not upon by piling out of the whole to be made inference the activities accountable for inference, dragnet to fashioning thus ... a Studley at 575. operation. crimes”). in all substantive draw the Second to follow choose Studley Applying the to the of rule interpretation Circuit’s case, lB1.3(a)(l)(B)5 of our find that district that this sub- facts and hold find particularized indeed make the district court court did requires that section foreseeability respect particularized findings respect ings with with make agree- prong. The court held that defendant’s both broader ment and foreseeability of his co-con- aware that merely than the three transactions with holding the de- spirators’ conduct before that, as a re scope of the was involved and which he fendant accountable sult, as a require- the conduct conspiracy. Without entire to him. reasonably make these whole was foreseeable ment that However, any indica expose the record is void findings, we de- particularized two specifically ad conspira- tion the district court being fendants to sentenced prong Studley the first they agree not to dressed whose activities did cies —wheth co-conspirators were er the acts of the jointly or not foresee. undertake could scope Carpenter’s agreement. conspir- within the Averting sentences based on such transcript of judgment nor the in Neither the potentially that are overbroad acies sentencing hearing demonstrate specific purposes scope is one of the *9 Bush, 1084, (11th Cir. 28 F.3d 1087 Studley accepted in States v. 5. The rule has also been Circuit, Evhuomwan, Circuit, 1994); and the D.C. the 992 F.2d the Eleventh Anderson, Cir.1993). 70, (5th Fifth Circuit. See United States 72-74 331, (D.C.Cir.1994); 351-52 39 F.3d
401 (6th Crozier, 259 F.3d 517 find- States v. particularized court made the district Cir.2001) (quoting United States v. Jer Carpen- respect scope ings with kins, 598, 602, 871 F.2d n. Cir. implicit agreements with explicit or ter’s 1989)). raise, Carpenter failed to Because government ar- co-conspirators. The his perfunctorily, Apprendi the issue even of the Carpenter’s awareness gues that brief, original argu we find that his prong the first satisfies broader procedural ment fails for reasons. argu- Studley test. find this of the We merit. The mere fact ment to without be Carpenter’s Appren- hold that We scope of the Carpenter that was aware Ap- fails on the argument di also merits. hold enough is not to operation the overall prendi rights triggered are when the court for activities of the him accountable the imposes “beyond a sentence that is the Studley at 575. operation. statutory prescribed Appren whole maximum.” 2348. In order to di at 120 S.Ct. district court’s Although we defer to the prescribed statutory calculate the maxi conduct co-conspirators’ finding that mum sentence for defendants who have Carpenter, reasonably foreseeable to was multiple on counts and who been convicted court’s sentence be- we vacate the district object making failed to to the district court particular- make the court failed to cause that would increase factual determinations scope of findings respect to the ized with sentence, have held that “the their remand the Carpenter’s agreement. We Sentencing would that require Guidelines specific court with the case to the district imposed on one or more of court determine instruction run the substantive counts consecutive to co-conspir- Carpenter’s whether the acts count, on the to the sentence agree- scope of his ators were within necessary produce extent a com jointly conspira- in the ment to undertake equal punish to the total bined sentence cy’s illegal activities. Page, States v. ment.” United (6th Cir.2000) (citing U.S.S.G. B. 5G1.2(d)). Thus, prescribed statuto reply in his Carpenter argues ry Apprendi purposes for would maximum him for by holding accountable brief statutory máximums for be the sum of the conspiracy without the acts of the entire upon of the counts which the defen each particularized finding as to making a convicted. dant was acts within the these were whether not ex Carpenter’s sentence did agreement jointly undertake of his statutory maximum. prescribed ceed the activities, dis conspiracy’s illegal Page, Carpenter the defendants Like rights trict court violated his constitutional failed multiple on counts and was convicted “jury him to a determination that entitle court, object to the fact that the district guilty every is element [he] jury, him accountable rather than the held charged, beyond is crime with which he conspiracy. of the entire acts Apprendi, doubt.” U.S. reasonable Therefore, statuto Carpenter’s prescribed 477, 120 2348. S.Ct. ry Apprendi purposes maximum for dispose argument of this both canWe statutory máximums for sum grounds and on the merits. procedural upon he each of the three counts which appellant cannot have held “the was convicted convicted. brief; reply telephone in a he can using raise new issues counts of of three felony, in of a only respond arguments raised for the facilitate the commission 843(b). Each of 21 U.S.C. violation appellee’s brief.” United first time *10 if an statutory general, agreement, maximum of four there is carries a count in a thus, statutory implicit, participate drug max- even if prescribed years; conspiracy, it is done so without limitation. Carpenter convictions was twelve imum for months). (144 By selling drugs part larger organi- as of a Carpenter’s Because years zation, “agreement” simply help than is sentence is less eighty-seven-month maximum, participate larger organization, in the statutory his the 144-month scope may large, be but foreseeable. rights triggered. were never whose Apprendi course, person It is that a possible, reasons, Carpen- we dismiss For these explicitly agree carry could state “I argument. ter’s marijuana, particular right load of but af- going Chicago I am Law ter that back III. CONCLUSION you again.” School and will never deal with above, set forth For the reasons However, such an occurrence would defi- court’s order with AFFIRM the district nitely exception, not the rule. If be respect Campbell. We VACATE plausible the defendant has a case that the 120-month sentence and REMAND Jones’ limited, agreement sufficiently may it was resentencing. to the district for application be that the such rule would RE- Carpenter’s sentence and VACATE However, make sense in that I instance. district court with the in- MAND to the general do not think that a rule is wise. particularized it find- struction that make Carpenter’s argument particularly is weak Carpenter’s acts of ings on whether the only in that his differentiation from the scope co-conspirators were within total amount distributed jointly in agreement to undertake simply wiretap that he was heard on a conspiracy’s illegal activities. only thirty days three of the of that wiretap. There no indication that he BOGGS, Judge, concurring Circuit withdrawn, inactive, had otherwise been or part dissenting part. segmented his activities from those of the agree I exception, one with all of With general conspiracy. opinion the court’s excellent this case. I conclusion, agree do not with the court’s 11-14,
pages adopt that we should as a
firm rule the Second Circuit’s decision in Studley. That case re- court,
quires determining that a district America, UNITED STATES of drug quantities which a defendant is Plaintiff-Appellee, responsible, particularized finding make a that “the acts were within the agreement.” say I defendant’s this not STUBBS, D. Michael Defendant- may because there not be some cases in Appellant. agreement sufficiently which an is limited No. 99-3726. appropriate that it be to limit would respon- for which the defendant is Appeals, Court sible, such but because instances will be Sixth Circuit. relatively simply laying rare. We are thus Argued April 2001. unwary judges poten- as trap for well Decided Filed Feb. 2002. tially opening huge the doors to a number merely upon ap- remands redundant peals pending upon corpus now or habeas
proceedings.