United States v. SwineyUnited States v. Swiney
Nos. 97-6493, 98-5011, 98-5012, 98-5015, 98-5016, 98-5017, 98-5018, 98-5019, 98-5341, 98-5343 and 98-5435.
United States Court of Appeals, Sixth Circuit.
Argued and Submitted: Aug. 12, 1999 Decided and Filed: Feb. 14, 2000
SUHRHEINRICH, Circuit Judge.
Dan R. Smith (argued and briefed), Assistant United States Attorney, Johnson City, Tennessee, for Plaintiff-Appellee/Cross-Appellant.
Clifton L. Corker (briefed), Johnson City, Tennessee, for Defendant-Appellant/Cross-Appellee Swiney.
William L. Ricker (argued and briefed), Ricker Law Office, Greeneville, Tennessee, for Defendant-Appellee Randy Glenn Isaacs.
Laura D. Perry (briefed), Perry & Perry, Morristown, Tennessee, for Defendant-Appellee Ronnie Wayne Isaacs.
C. Todd Chapman (briefed), King & King, Greeneville, Tennessee, for Defendant-Appellee Duran-Guzman.
R.B. Baird III (briefed), Law Offices of R.B. Baird III, Rogersville, Tennessee, for Defendant-Appellee Booker.
Michael David Guy, Morgantown, West Virginia, pro se.
David B. Hill (argued and briefed), Newport, Tennessee, for Defendant-Appellee Millett.
David L. Leonard (argued and briefed), Leonard & Kershaw, Greeneville, Tennessee, for Defendant-Appellant/Cross-Appellee Mullins.
Douglas L. Payne (briefed), Greeneville, Tennessee, for Defendant-Appellee Messer.
Before: NORRIS and SUHRHEINRICH, Circuit Judges; WEBER*, District Judge.
Defendants Georgia Belle Mullins and Andy Lee Swiney, two members of a heroin conspiracy, appeal on various grounds their jury convictions and sentences. The Government cross appeals Mullins’ and Swiney‘s sentences. The Government also appeals the sentences of seven other Defendants who pleaded guilty to conspiracy to distribute heroin.1 The Government argues that all of the Defendants should have received a statutory mandatory minimum of twenty years pursuant to
We reject the Government‘s theory of accountability because the scope of conduct for which a defendant can be held accountable under the Sentencing Guidelines is narrower than the conduct encompassed by conspiracy law. However, we agree that the district court misapplied the Sentencing Guidelines. We therefore RE
I. Background
On January 22, 1997, a grand jury returned a twenty-four count indictment charging twelve individuals with conspiracy to distribute heroin in Mountain City, Tennessee and related drug charges. Included were Defendants Michael Isaacs; his ex-wife Georgia Belle Mullins; their sons, Ronnie, Randy, Johnny, and Stevie Isaacs; Andy Lee Swiney; David Guy; Wendy Messer; Vanessa Booker; Nelson Millett; and Juan Duran-Guzman.
Nine defendants pleaded guilty to the conspiracy charge, of whom seven now appeal. A jury convicted Michael Isaacs, Swiney, and Mullins of conspiracy and related charges.
A. The Trial
The Government proved at trial that Michael Isaacs, the leader of the conspiracy, Mullins, Ronnie Isaacs, Randy Isaacs, and Swiney arranged for members of the conspiracy to travel from Mountain City to Philadelphia, Pennsylvania to purchase heroin from Defendants Nelson Millett and Juan Duran-Guzman, for resale in Mountain City. Michael Isaacs would then give the heroin to his distributors. Generally, heroin customers would contact Mullins, who would have her sons Johnny Isaacs and Stevie Isaacs deliver the heroin.
Several of the pleading Defendants testified at the trial. Randy Isaacs, Guy, Booker, and Messer all attested to making trips to Philadelphia for Michael Isaacs to buy heroin for resale in Mountain City.
The Government also established that, as charged in Count 9 of the indictment, a death resulted from the conspiracy‘s sale of heroin. Chad Rankin testified that on September 14, 1996, he and his friend Kristopher Phillips traveled to Mountain City to buy heroin. Rankin indicated that he and Phillips bought five bags for $150. Both Phillips and Rankin used the heroin purchased, and Phillips died that night of a heroin overdose. Rankin testified that Johnny Isaacs sold them the heroin.
Michael Glenn Isaacs was convicted at trial of distributing heroin, aided and abetted by Johnny Isaacs. It is undisputed that Johnny‘s sale of heroin resulted in Phillips‘s death.
B. The Plea Agreements
Ronnie Isaacs, Randy Isaacs, Guy, Messer, Booker, Duran-Guzman, and Millett each pleaded guilty to conspiracy to possess with intent to distribute heroin, in violation of
Each plea agreement acknowledged the statutory sentencing range from a five-year minimum to a forty-year maximum and recited a factual basis for the plea detailing the particular misconduct of each Defendant. The stipulated facts indicate that each Defendant knew that he or she was part of an agreement to distribute heroin. None of the plea agreements or agreed factual bases for these seven Defendants referred to the actual delivery of heroin to Kristopher Phillips or his death. None of the plea agreements referred to a mandatory minimum twenty years for a resulting death.
C. Sentencing
Neither the presentence reports of the pleading Defendants nor Swiney‘s and Mullin‘s presentence reports enhanced the sentences to reflect the death. The Government objected to each of the reports, contending that a death resulted from the use of heroin distributed by members of the conspiracy. In addendums to the presentence reports, the probation officer ac
The district court held Johnny Isaacs responsible for Phillips’ death under
The Government challenges this ruling as applied to all nine Defendants before this Court. Although Swiney and Mullins raise other issues in their respective appeals, we find them without merit and in no need of further discussion.
II. Analysis
A. Standard of Review
Several of the Defendants challenge the Government‘s right to appeal, claiming that the sentences imposed were within the district court‘s discretion and within the Guidelines. However, the Government has a limited right to appeal an otherwise final sentence if the sentence was imposed as a result of an incorrect application of the Sentencing Guidelines. See
We review a sentencing court‘s interpretation of the Sentencing Guidelines and sentencing statutes de novo and its factual findings for clear error. See United States v. Robinson, 167 F.3d 824, 830 (3d Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 118, 145 L.Ed.2d 100 (1999); United States v. Flowers, 55 F.3d 218, 220 (6th Cir.1995); United States v. Irvin, 2 F.3d 72, 76 (4th Cir.1993).
B. Mandatory Enhancement
All of the Defendants before this court were convicted of conspiracy under
The Government argues that under the Pinkerton doctrine all of the Defendants are responsible for Phillips’ death. In Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the Supreme Court held that a co-conspirator may be vicariously liable for the substantive offense committed by coconspirator if the act is done “in furtherance of the conspiracy” and is “reasonably foreseen as a necessary or natural consequence of the unlawful agreement.” Id. at 647-48, 66 S.Ct. 1180; United States v. Myers, 102 F.3d 227, 237 (6th Cir.1996); see also Paul Marcus, Criminal Conspiracy Law: Time To Turn Back From An Ever Expanding Ever More Troubling Area, 1 Wm. & Mary Bill Rts. J. 1, 7 (1992) (observing that the Pinkerton theory is one of imput
The Government‘s argument ignores the Sentencing Guideline‘s treatment of conspiracy.
[I]n the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction.
In the case of a jointly undertaken criminal activity, subsection (a)(1)(B) provides that a defendant is accountable for the conduct (acts and omissions) of others that was both:
(i) in furtherance of the jointly undertaken criminal activity; and
(ii) reasonably foreseeable in connection with that criminal activity.
Because a count may be worded broadly and include the conduct of many participants over a period of time, the scope of the criminal activity jointly undertaken by the defendant (the “jointly undertaken criminal activity“) is not necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the same for every participant. In order to determine the defendant‘s accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to undertake (i.e., the scope of the specific conduct and objectives embraced by the defendant‘s agreement). The conduct of others that was both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant is relevant conduct under this provision. The conduct of others that was not in furtherance of the criminal activity jointly undertaken by the defendant, or was not reasonably foreseeable in connection with that criminal activity, is not relevant conduct under this provision.
We have observed in an analogous context that “the scope of conduct for which a defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced by the law of conspiracy.” United States v. Okayfor, 996 F.2d 116, 120 (6th Cir.1993) (quoting United States v. Lanni, 970 F.2d 1092, 1093 (2d Cir.1992)) (quoting United States v. Perrone, 936 F.2d 1403, 1416 (2d Cir.1991)) (holding that for Sentencing Guidelines purposes, a defendant is chargeable for a co-conspirator‘s drug transactions if they were known to him or reasonably foreseeable to him under
As we previously have recognized, an important distinction exists between the
criminal law standard for convicting a defendant of conspiracy and the Guidelines standard for sentencing a defendant convicted of conspiracy. Under conspiracy law, a defendant may be convicted of conspiracy even though he is unaware of all the conspiracy‘s unlawful aims, as long as he has knowledge of some of those aims. See United States v. Lanza, 790 F.2d 1015, 1022-23 (2d Cir.), cert. denied, 479 U.S. 861, 107 S.Ct. 211, 93 L.Ed.2d 141 (1986). The Guidelines’ approach is narrower than the standard for establishing guilt of the conspiracy offense itself. A defendant convicted of conspiracy may be sentenced for relevant conduct committed by a co-conspirator in furtherance of the conspiracy only if that conduct was reasonably foreseeable by the defendant. See Guidelines § 1B1.3 , Application Note 1; United States v. Perrone, 936 F.2d 1403, 1416 (2d Cir.) (footnote omitted), clarified on other grounds, 949 F.2d 36 (2d Cir.1991).
Lanni, 970 F.2d at 1093. The concurring opinion in Lanni clarified the point:
[I]n describing the narrower standard of guideline sentencing for conspiracy, [the majority opinion] helpfully and precisely contrasts that standard with the broader standard applicable only to conviction for the conspiracy offense itself. When the relevant conduct guideline speaks of “all acts and omission ... for which the defendant would be otherwise accountable ... that otherwise were in furtherance of the offense,” Sentencing Guidelines,
§ 1B1.3(a)(1) , it calls to mind the Pinkerton standard, which holds a conspirator liable, in some circumstances, for substantive offenses committed by a co-conspirator. The Commission has apparently recognized the force of the Pinkerton analogy since it has limited sentencing for relevant conduct of “others in furtherance of jointly-undertaken criminal activity” to conduct that was reasonably foreseeable “by the defendant.”Id. , comment, (n.1). See United States v. Joyner, 924 F.2d 454, 458-59 (2d Cir.1991) (section 1B1.3 commentary reflects Pinkerton standard); see also United States v. Andrews, 953 F.2d 1312, 1319 (11th Cir.1992) (section 1B1.3 standards “roughly approximate” Pinkerton standards), cert. denied, 505 U.S. 1210, 112 S.Ct. 3007, 120 L.Ed.2d 882 (1992).The broader aspect of conspiracy law, permitting conviction of a defendant who knew some but not all the aims of the conspiracy, see United States v. Lanza, 790 F.2d 1015, 1022-23 (2d Cir.), cert. denied, 479 U.S. 861, 107 S.Ct. 211, 93 L.Ed.2d 141 (1986), applies only to conviction for the conspiracy offense itself, and not to vicarious liability for substantive offenses committed by a co-conspirator.
Id. at 1095 (Newman, J., concurring).3
Moreover, in a 1990 article, William W. Wilkins, Chairman of the United States Sentencing Commission, and John R. Steer, General Counsel for the Commission, explained:
The remaining portion of the “otherwise accountable” definition in Application Note 1 refers to conspiratorial-type activity within the realm of what is commonly referred to as the ”Pinkerton” rule. Two key points should be noted. First, the guidelines specifically employ this doctrine to cover any “criminal activity undertaken in concert with others, whether or not charged as a conspiracy.”
A second key point regarding construction of the “otherwise accountable” language in concerted activity situations
is that this rule is a sentencing rule and not necessarily co-extensive with the Pinkerton rule of co-conspirator liability. Thus, in determining the outer limits of the attribution dimension under this aspect of Relevant Conduct, courts should focus on the language in Application Note 1 addressing conduct of others that was “within the scope of the defendant‘s agreement” or “in furtherance of the execution of the of the execution of the jointly-undertaken criminal activity” or “that was reasonably foreseeable by the defendant ... in connection with the criminal activity the defendant agreed to jointly undertake.” As the note further explains, in a broad conspiracy the relevant conduct considered in constructing the guideline range may not be the same for every defendant in the conspiracy, although each may be equally liable for conviction under Pinkerton. This potential differentiation among co-conspirators is consistent with the multiple purposes of sentencing articulated in the Sentencing Reform Act....
Thus, in applying the Relevant Conduct guideline, the Commission intended that courts would, in necessary instances, make differing determinations among co-conspirators. If the Pinkerton rule of conviction liability were strictly mirrored at sentencing, the result might be different.
William W. Wilkins & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L. Rev. 495, 508-10 (1990).4 Thus, it is clear that the Sentencing Guidelines have modified the Pinkerton theory of liability so as to harmonize it with the Guidelines’ goal of sentencing a defendant according to the “seriousness of the actual conduct of the defendant and his accomplices.”
The district court did not apply the Guideline test set out in
In support of its position the Government cites United States v. Patterson, 38 F.3d 139 (4th Cir.1994). There, one of the defendants pleaded guilty “to unlawful distribution of a controlled substance which resulted in a death, in violation of
Quite simply, the plain language of
§ 841(b)(1)(C) does not require, nor does it indicate, that prior to applying the enhanced sentence, the district court must find that death resulting from the use of a drug distributed by a defendant was a reasonably foreseeable event.... The statute puts drug dealers and users on clear notice that their sentence will be enhanced if people die from using the drugs they distribute.... Where serious bodily injury or death results from the distribution of certain drugs, Congress has elected to enhance a defendant‘s sentence regardless of whether the defendant knew or should have known that death will result. We will not second-guess this unequivocal choice.
Id. at 145 (footnote omitted). The court also rejected the defendants’ analogy to drug conspiracy cases, in which the defendants are sentenced according to the quantity of drugs reasonably foreseeable to each defendant as required under
We do not find Patterson persuasive. As the Patterson court itself pointed out, the defendants’ conduct—distributing, and aiding and abetting in the distribution of, morphine and meperidine—was encompassed within the subsection (A) of
Furthermore, we perceive no difficulty in reconciling the mandatory minimum language of
On remand, the district court is directed to determine whether Johnny Isaacs’ distribution of heroin was “reasonably foreseeable” as defined in
Defendants’ remaining arguments are without merit.
III. Conclusion
For the foregoing reasons, the district court‘s ruling regarding