Case Information
*3 Before McMILLIAN, LAY, and HANSEN, Circuit Judges.
_____________
HANSEN, Circuit Judge.
Thomas McCarthy, Clarence Houston, John Piner, Carl Thompsen, Michael Ness, and Stephen Labrie appeal from judgments entered against them by the district court on various drug and drug-related charges. The appellants [1]
raise numerous issues concerning their convictions and sentences. After carefully considering the merits of their individual claims, we affirm the judgment of the district court in each case.
I.
This case involves a large and intricate marijuana importation and distribution network in which each appellant played a role. The network comprised a conspiracy to import marijuana into the United States from Colombia and another conspiracy involving distribution and possession with intent to distribute marijuana in the United States. Ron Scoggins, a cooperating witness for the government, had been involved in importing and selling marijuana for at least 20 years, and his business associate, appellant Carl Thompsen, was the primary underwriter of the operations. Scoggins organized the entire network, planning the importation scheme as well as the delivery of the marijuana to brokers and dealers at various points around the United States once it was safely within our borders.
The importation conspiracy entailed the shipment of an approximately 5,000-pound load of marijuana from sources in Colombia. The cache was transported by a sailboat, The Delphene,
The Honorable James M. Rosenbaum, United States District 1
Judge for the District of Minnesota.
up the Pacific coastline and offloaded at a site near Santa Barbara, California, in July 1989. The shipment was then transported to Scoggins' [2]
Templeton, California, ranch for further processing and distribution throughout the United States.
The distribution conspiracy involved the July 1989 marijuana offload in California, which was then distributed throughout the United States; the distribution of a quantity of marijuana that had been imported into Florida in late 1988; and also a large quantity (7,500 pounds) distributed from a subsequent California importation in 1992. Sizeable quantities from the California offloads were shipped to Thompsen in Minnesota, where he and others distributed the drug to local dealers for further distribution.
On September 28, 1993, Thompsen and Scoggins were arrested by federal law enforcement officers in Minnesota. A federal grand jury subsequently indicted 24 individuals, including each of the appellants, on various drug and asset forfeiture charges. Thompsen, McCarthy, and Labrie pleaded guilty to drug charges. Houston, Piner, and Ness proceeded to trial on the charged drug offenses and wеre each found guilty of at least one count.
II.
On appeal, Houston, Piner, and Ness challenge their convictions; Thompsen challenges the basis for his guilty plea; and Ness, Thompsen, McCarthy, and Labrie challenge their sentences.
2 The civil forfeiture of The Delphene was recently affirmed by a different panel. See United States v. One 1970 36.9'
Columbia Sailing Boat,
A.
Houston, Piner, and Ness challenge the sufficiency of the evidence
to sustain their convictions. In reviewing these claims, we view the
evidence in the light most favorable to the guilty verdict, granting the
government every reasonable inference therefrom. United States v. Jenkins,
Ness was convicted of conspiracy to distribute and possess with
intent to distribute marijuana. Piner was convicted of conspiracy to
import marijuana into the United States. Houston was convicted of both.
To prove that Houston, Piner, and Ness were participants in the respective
drug conspiracies, the government was required to show evidence that two
or more people, including the named defendant, reached an agreement and the
purpose of the agreement was a violation of the law. Jenkins,
The appellants do not argue that the government's proof, if believed,
was insufficient to prove the existence of the charged
*6
conspiracies (and after reviewing the evidence, we agree); instead, they
contend that the evidence was insufficient to establish their involvement
and participation in those conspiracies. Once a conspiracy is established,
however, "only slight evidence linking thе defendant to the conspiracy is
required to prove the defendant's involvement and support the conviction."
Jenkins,
After reviewing the evidence in the light most favorable to the verdict, we conclude that the evidence with respect to each appellant is sufficient to support each conviction. We begin with Houston. Houston was involved with Scoggins in the planning, execution, and distribution of a late 1988 Florida offload, which initially proved to be unsuccessful. Ultimately, Scoggins sold some of the quantity they did manage to bring on shore, but instead of paying Houston his agreed upon share, Scoggins invested Houston's money in the California import venture, which took place the next year.
Houston agreed to transport Scoggins' power boat from Florida to California to be used in the California importation operation. Scoggins made a series of phone calls to Houston in June of 1989 to organize the logistics of the boat's transportation. Scoggins later sent two packages to Houston via Federal Express containing a total of approximately $10,000 as partial payment on the amount Scoggins owed Houston for the earlier Florida deal, and the remainder was for the рurchase of a trailer to transport the boat across the country.
Houston transported Scoggins' boat to Oxnard, California, arriving on July 3, 1989. While there, he stayed in a hotel room paid for by Scoggins and worked with others preparing the boat for the offloading operation. Houston also discussed with Scoggins the possibility of piloting a small sailboat as a precautionary
auxiliary craft during the offloading operation. During a two-hour excursion test of Scoggins' boat after it had been transported to California, Scoggins, Houston, and others discussed the details of the upcoming offloading operation. Houston was to receive a three-to-one return on the money that Scoggins had invested in the California operation without Houston's permission.
Medical problems prevented Houston from sailing the auxiliary boat during the July 15, 1989, importation and unloading operation as planned, but he returned to California in September to pick up a share of the imported marijuana. He met with Scoggins, Thompsen, and another coconspirator, Timothy Tyler. Scoggins instructed Tyler to give Houston 300 pounds of marijuana. Tyler took Houston to a storage locker in Shingle Springs, California, which was filled with marijuana, аnd Houston took a truckload of marijuana without making any payment.
Houston testified at trial that he brought the boat to Oxnard, California, and he admitted that he associated with Scoggins and others involved in the operation. He also admitted that he went out on the two- hour boat ride with Scoggins and others. He stated that he knew that Scoggins and the others lived in Northern California and did not know why the group was in Oxnard, which is in Southern California. He testified that he suspected that Scoggins' group was into some sort of illegal operation. Houston admitted at trial that he had returned to California in September 1989 and that he met with Scoggins and Tyler at that time. While he was in custody for this case, Houston bragged to another coconspirator that he had taken marijuana from the imported load without paying Scoggins.
Viewing the evidence in the light most favorable to the verdict, we have no difficulty concluding that the government offered much more than the evidence necessary to link Houston with
the conspiracy that undoubtedly existed. A reasonable fact finder easily could have concluded that Houston was an active participant in the importation and distribution conspiracies.
Piner's challenge to the sufficienсy of the evidence is similarly unpersuasive. Piner was convicted of conspiracy to import marijuana into the United States. Scoggins began developing plans for the 1989 California importation operation in late 1988. Scoggins planned to ship the marijuana from Central America or South America up the Pacific Coast to California, and consequently needed a boat and a captain. An unindicted coconspirator, Bob Brewer, provided Piner's name to Scoggins as someone who was capable of performing the task. Brewer told Scoggins that Piner had a sailboat, that Brewer had previously assisted Piner in such an operation, and that Piner had proven to be quite competent.
Scoggins later met Brewer and Piner in Panama, where they discussed the possible methods of transporting marijuana from Colombia into California. They discussed the possibility of moving a 5,000-pound load, which Scoggins estimated to be worth $3,000,000 wholesale, and splitting the profits from the venture. They also settled on a destination -- a place off the coast of California near Santa Barbara. Various credit card bills and Piner's passport reveal that he was in Panama during the time when the alleged meеting took place.
The first attempt failed when the Colombian marijuana suppliers failed to show up to meet Piner and his sailboat at a rendezvous island. Scoggins was told that the shipment was lost at sea, an explanation he disbelieved. Scoggins and Piner later met in Costa Rica to discuss the reasons for the failure and to plan a second operation. Arrangements were made for Piner to acquire a load of approximately 5,000 pounds of marijuana at Monterosa, an island off the coast of Costa Rica. Piner was to deliver the
marijuana in mid-July to the same destination as previously agreed upon, near Santa Barbara. As scheduled, Piner delivered a load of approximately 5,000 pounds of marijuana to the designated site on July 15, 1989. Scoggins, Brewer, and others were prepared for Piner's arrival. Scoggins and his cohorts took Scoggins' power boat and a number of life rafts out to sea to meet Piner. Piner and Tyler handed marijuana bales from The Delphene overboard to Scoggins, who was standing in his power boat tied alongside. Scoggins then handed the bales to others for packing on the life rafts. The marijuana load was taken to shore and thereafter transported in trucks to Scoggins' nearby ranch.
After completing the unloading process, Piner joined Scoggins and others at the Black Oak Hotel in Paso Rables, California, which was near Scoggins' ranch. Hotel records from the Black Oak Hotel confirm that Piner registered there on July 25. Piner's address book contained an entry listing a "Ron" (Scoggins' first name) at the Black Oak Hotel in room 355. The entry also contained the Black Oak's telephone number and Scoggins' home telephone number. Hotel records confirm that Scoggins stayed in room 355. Piner and Scoggins later went to Scoggins' ranch where the marijuana was stored. Scoggins paid Piner for transporting the marijuana, tendering payment both in currency and a quantity of marijuana.
Viewing the record in the light most favorable to the verdict, we conclude that the government presented overwhelming evidence of Piner's participation in the conspiracy to import marijuana into the United States.
Ness also challenges the sufficiency of the evidence. Ness was convicted of conspiracy to distribute and possess with intent to distribute marijuana. Ness's activities were limited solely to distribution of the marijuana in Minnesota. Thompsen's testimony was the primary evidence against him. Thompsen testified that, in
Minnesota in December 1989, he received a shipment of the California marijuana that had been imported in July 1989, delivered in a pickup truck camper. Thompsen parked the marijuana-filled pickup truck in front of the residence of another coconspirator. Thompsen and Ness had previously agreed that Ness would obtain portions of the shipment for local distribution. Consequently, Thompsen personally delivered to Ness numerous portions of the shipment, ranging in size from 30 to 50 pounds, until the quantity in the pickup truck was exhausted. Thompsen testified that it took Ness approximately two weeks to sell all of the marijuana in the pickup truck. After Ness had disposed of the entire quantity, Thompsen collected the proceeds from Ness and drove to California to split the proceeds with Scoggins.
This process was repeated on two subsequent occasions, with Thompsen receiving a shipment of marijuana in Minnesota from Scoggins in California. One additional shipment originated from the 1989 California import operation, and another shipment originated from the 1992 California operation.
Thompsen, who had agreed to cooperate with law enforcement officers after his arrest in September 1993, met with Ness on two subsequent occasions. These two meetings were tape-recorded by law enforcement officers and played for the jury at trial. On one of the tapes, Ness indicated that he would like to purchase a 50-pound quantity of marijuana to sell to a new customer. Ness also made other statements in this tape that referred to Ness's drug buyers as well as to prior transactions between Thompsen and Ness. At times, Thompsen and Ness used code names to describe various drugs. Thompsen testified at trial concerning his understanding of the meaning of the code words spoken by him and Ness.
Ness argues that this evidence does not establish that he knew of or intended to join the large marijuana distribution conspiracy *11 in this case. Rather, he contends that the extent of his involvement was limited to his transactions with Thompsen, which consisted of independent buyer-seller transactions that were not part of the overall distribution conspiracy. He claims that he knew nothing about the extent of the conspiracy or the identity of other coconspirators, and that he was not acting to further the conspiracy. Ness in effect argues that at most he entered into a separate conspiracy with Thompsen, which was different in kind and purpose from that charged in the indictment and, as such, his conspiracy to distribute conviction must be vacated for insufficient evidence. We disagree.
"One does not have to have contact with all of the other members of
a conspiracy to be held accountable as a conspirator." Bascope-Zurita, 68
F.3d at 1061. Notwithstanding a defendant's lack of knowledge of the
identity of all of the other coconspirators or his failure to appreciate
the extent of the enterprise, a defendant can be held liable as a
coconspirator if he shares the same common purpose or goal of the other
conspirators. Id. "To determine whether multiple conspiracies exist when
a single large conspiracy has been charged by the government, this Court
considers the totality of the circumstances, `including the nature of the
activities involved, the location where the alleged events of the
conspiracy took place, the identity of the conspirators involved, and the
time frame in which the acts occurred.'" United States v. Darden, 70 F.3d
1507, 1518 (8th Cir. 1995) (quoting Bascope-Zurita,
In this case, the totality of the circumstances leads to the conclusion that sufficient evidence is present to link Ness to the conspiracy to distribute marijuana as charged in the indictment. Viewing the evidence in the light most favorable to the verdict, the evidence shows that Ness had knowledge that Thompsen obtained the marijuana through the large distribution framework already in place. Ness was aware of the identity of several other coconspirators who were dealing with Thompsen, and Ness shared a common purpose with the other members in the distribution scheme -- to distribute the marijuana which had been obtained in the 1989 California import operation. Ness's local distribution in Minnesota of large amounts of marijuana facilitated the endeavors of other coconspirators, specifically Thompsen, as well as the venture as a whole. On the facts of this case, we conclude that the government offered sufficient evidence to link Ness to the charged conspiracy which he admits existed. [3]
Houston, Piner and Ness also attack the credibility of the government witnesses who testified against them, arguing that no reasonable juror could have found the government witnesses' testimony to be credible. They point to discrepancies in the
Ness also claims that his conspiracy conviction must be 3
vacated because the government failed to prove that he actually
possessed marijuana. This argument is without merit. Proof of a
conspiracy under 21 U.S.C. § 846 requires only proof of an
agreement to engage in distributing drugs; proof of an overt act
in furtherance of the conspiracy is not required under § 846.
United States v. Shabani ,
"We recognize that the testimony of the witnesses may have been inconsistent at times. It was the jury's duty, however, to weigh the credibility of the defendant's co-conspirators regarding the day-to-day transactions of the operation." Jenkins, 78 F.3d at 1287. "[W]e must resolve issues of credibility in favor of the verdict, and we decline to invade the province of the jury as [the appellants] would have us do." Fregoso, 60 F.3d at 1323. The jury was fully informed of all factors bearing on the credibility of the government witnesses. After having heard all of the testimony and arguments, the jury credited the testimony of the government witnesses, as it was entitled to do. Based upon our own independent review of the record, we reject the appellants' claims that a reasonable fact finder would have rejected the testimony of the government witnesses. Accordingly, we hold that the evidence was more than sufficient to sustain the conspiracy convictions of Houston, Piner, and Ness, and the district court properly denied their motions for judgment of acquittal.
B.
Piner contends that the district court abused its discretion when it admitted evidеnce of other crimes and bad acts attributed to him. Specifically, Piner challenges the district court's admission of testimony that Piner had previously been involved in smuggling marijuana in Trinidad and had previously offloaded marijuana with Brewer and Tyler at the same spot that was used for the 1989 marijuana smuggling operation, as well as in San Francisco. The district court admitted this testimony as relevant *14 to establishing Piner's intent to join the conspiracy, his knowledge of marijuana smuggling in general, his knowledge of this conspiracy's objectives, and Piner's marijuana business relationship with Brewer, Scoggins, Tyler, Nelson, and others.
Federal Rule of Evidence 404(b) governs the admissibility of other
crimes or bad acts. Rule 404(b) permits introduction of this evidence to
prove "motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake," but prohibits the admission of such evidence to
establish the character of the defendant in an effort to show that he acted
in conformity with that character. Fed. R. Evid. 404(b). We have adopted
a four-part test to determine whether other crimes evidence is admissible
under Rule 404(b). Such evidence is admissible when it is "(1) relevant
to a material issue; (2) proved by a preponderance of thе evidence; (3)
higher in probative value than in prejudicial effect; and (4) similar in
kind and close in time to the crime charged." United States v. Shoffner,
Piner challenges the admission of the other crimes or bad acts evidence on four grounds. First, he contends that the government did not establish the prior bad acts or crimes by clear and convincing evidence. This claim is specious. This circuit has repeatedly held that other crimes or prior acts need only be proved
by a preponderance of the evidence and not by clear and convincing
evidence. See, e.g., Baker,
Second, Piner claims that Scoggins' testimony, which included out-of-
court statements by unindicted coconspirator Brеwer concerning Piner's
prior acts, was unreliable and not probative. Piner argues that Scoggins'
testimony concerning Brewer's statements to Scoggins about Piner's
involvement in transportation of marijuana lacks reliability because
Scoggins is a coconspirator and because Piner did not have the opportunity
to examine Brewer about these points. Piner does not explicitly claim that
the evidence is hearsay but relies on hearsay principles in arguing the
unreliability of the testimony. Whatever the basis of Piner's reliability
argument, we reject it. To the extent that Brewer's out-of-court
statements pose a hearsay issue, we are convinced they are statements made
by a coconspirator during the course and in furtherance of the conspiracy
and thus are admissible under Federal Rule of Evidence 801(d)(2)(E). See
United States v. Lenfesty,
Third, Piner argues that the other acts were not substantially similar to, or close in time to, the offenses charged in this case. The claim that the acts were not similar to the crimes charged in this case is, charitably speaking, meritless. The other acts concerned the transporting, unloading, and dealing of marijuana that Piner transported by himself on his sailboat, conduct which is identical to that charged in the instant offenses. Further, this similar conduct culminated at the same offloading site near Santa Barbara as was used in this case.
The timeliness argument, on the other hand, presents a more difficult
question. Scoggins testified that Brewer informed him that Piner had been
involved in an offloading marijuana operation in 1978. This was some 17
years before the trial in this case, but only 10 or 11 years prior to the
inception of the conspiracy with which Piner is charged in this case.
Tyler testified that he had been involved in a drug import operation with
Brewer in 1973, at the same location involved in this case. We have upheld
the introduction of evidence relating to acts or crimes which occurred 13
years prior to the conduct challenged. See United States v. Engleman, 648
F.2d 473, 479 (8th Cir. 1981). We have been reluctant to go beyond
Engleman's 13-year time frame. See Mejia-Uribe,
The testimony in this case, while pushing hard the outside boundary
of our ideas of timeliness, did not involve a single, isolated bad act, but
instead it involved a continuous series of events leading up to the conduct
charged in this case. The conspiracy charged in the count of the
indictment of which Piner was convicted began in 1988, but continuous
similar conduct by some of the defendants, including Piner, had been
ongoing for years, stretching back into the 1970s. These prior bad acts
were not simply remote, unrelated events as in Mejia-Uribe,
Fourth, Piner claims that the evidence was unduly prejudicial.
Federal Rule of Evidence 403 defines "unfair prejudice" as that which has
"`an undue tendency to suggest decision on an improper basis.'" Yellow,
C.
Ness, who distributed throughout Minnesota large amounts of the
marijuana imported in California, challenges his sentence, contending that
the district court erred in failing to grant him either a two- or four-
level downward adjustment to his base offense level for bеing a minor or
minimal participant in the offense, pursuant to the United States
Sentencing Commission, Guidelines Manual, § 3B1.2(a)-(b) (Nov. 1994).
Section 3B1.2 permits a court
*18
to grant a defendant a four-level decrease in his base offense level if it
finds that the defendant is a minimal participant in the offense and a two-
level decrease if the defendant is a minor participant within the meaning
of the Guidelines. We review the district court's factual determinations
regarding a participant's role in the offense for clear error. United
States v. Flores,
Ness argues that his allegedly de minimis role in the context of this extensive conspiracy entitles him to a reduction under USSG § 3B1.2. Ness's relevant conduct involved distributing marijuana in Minnesota. The evidence at trial indicated that the overall conspiracy imported and attempted to distribute in excess of 5,000 pounds of marijuana. However, the district court did not hold Ness accountable for the entire amount chargeable to the conspiracy. Rather, the court attributed to Ness 220 pounds of marijuana, which is the actual amount that the district court determined Ness obtained from Thompsen and distributed. Ness's argument would have considerable force if the district court had attributed to Ness the entire 5,000-plus pounds imported and distributed by the conspiracy. As it is, however, Ness actually seeks a double reduction to his base offense level. He would have us attribute only 220 pounds to him in calculating his base offense level and yet consider the entire 5,000 pounds attributable to the conspiracy in determining his role in the offense. We conclude that this would be contrary to the Guidelines.
When a defendant is part of jointly undertaken criminal activity with others, the sentencing court must determine what the defendant's relevant conduct was in that activity using the provisions of USSG § 1B1.3, "Relevant Conduct (Factors that Determine the Guideline Range)." Once a defendant's relevant conduct for sentencing purposes has been determined, that same
relevant conduct is used not only in determining the defendant's base offense level, but also for any role in the offense adjustments made pursuant to Chapter 3 of the Guidelines. USSG § 1B1.3(a)(iv).
With respect to Ness, the district court held him accountable at sentencing only for the relevant conduct of distributing 220 pounds of marijuana in Minnesota, even though the jury had found him guilty of the larger conspiracy charged in Count I of the Indictment. Having determined that his relevant conduct for sentencing purposes was the distributions made in Minnesota, the court, in determining whether or not to grant Ness a downward adjustment for being a minor or minimal participant, was required by USSG 1B1.3(a)(iv) to assess Ness's role within the context of that already defined relevant conduct (i.e., the Minnesota distributions). It is clear from the evidence that Ness was a principal actor in the Minnesota distributions, and accordingly he was not entitled to the benefit of a downward adjustment for being either a minor or minimal participant in the relevant conduct for which he is being held accountable at sentencing, even though that same relevant conduct is and was sufficient for the jury to find him guilty of the much larger conspiracy charged in Count I. His case is a clear example of the difference between what the Sentencing Commission calls "sentencing accountability" and criminal liability determined by the substantive criminal law, in this case the law of conspiracy. See USSG § 1B1.3, comment. (n.1) (Nov. 1994). Accordingly, a further reduction for role in the offense is not warranted, and we find no error in the district court's refusal to do so.
D.
Thompsen claims that his guilty plea was defective. Thompsen pleaded
guilty to one count of conspiracy to distribute marijuana, in violation of
21 U.S.C. § 846, and one count of money laundering, in violation of 18
U.S.C. § 1956(a)(1)(A). Thompsen claims that he should be allowed to
withdraw his guilty plea because the district court failed to advise him
that he would not be permitted to withdraw from his plea of guilty if the
district court did not accept the government's recommendation concerning
his sentence. See Fed. R. Crim. P. 11(e)(2). The government responds that
Thompsen's was not a Rule 11(e)(1)(B) guilty plea, which is required to
trigger the warning requirement under Rule 11(e), and even if it was, any
error was harmless under Rule 11(h). We review these claims de novo.
United States v. Vaughn,
We note at the outset that the district court did not give the warning required under Rule 11(e)(2). Rule 11(e)(1)(B) states that a defendant contemplating a plea of guilty may enter into an agreement that, in return for the defendant's plea of guilty, the government will "make a recommendation, or agree not to oppose the defendant's request, for a particular sentence . . . ." Rule 11(e)(2) in turn states that, before the court accepts a plea, if the plea agreement is of the type set forth in Rule 11(e)(1)(B), the district court must inform the defendant that the defendant will not be permitted to withdraw his plea if the court does not follow the governmеnt's recommendation or the defendant's request for a particular sentence. The government contends that promising to make a recommendation for a downward departure is not recommending a "particular sentence" within the meaning of Rule 11(e)(1)(B) that triggers the warning requirement.
We need not decide in this case whether the government's promise to
recommend a downward departure is a "particular sentence" (although we
doubt that it is), because the district court's failure to expressly give
the required warning can be harmless error. See Fed. R. Crim. P. 11(h)
("Any variance from the procedures required by this rule which does not
affect substantial rights shall be disregarded.") See also United States
v. Lowery,
Although we have not had occasion to address what constitutes Rule
11(h) harmless error in the context of a failure to give the required Rule
11(e)(2) warning, we adopt the analysis set forth by our sister circuits.
"In addressing the harmless error rule of subsection 11(h), the district
court's error warrants reversal only if it had a significant influence on
[the defendant's] decision to plead guilty." Vaughn,
Under the facts of this case, we conclude that if the district court erred in failing to give the required Rule 11(e)(2) warning, the error was harmless. We reach this conclusion because, after fully and carefully reviewing the record, we believe that even if Thompsen would have been given a Rule 11(e)(2) warning, he still would have pleaded guilty, because the warning would have added precious little to the knowledge he already possessed about the plea process. Thompsen has offered no record evidence that he was confused аt the time of his plea concerning the possible sentences he could receive, or that he would be able to withdraw his plea if the district court did not follow the government's recommendations to depart downward. At the change-of-plea hearing, the district court expressly informed Thompsen that the court was not required to accept any recommendation from the parties concerning a particular sentence, and Thompsen expressly acknowledged his understanding of this statement. Thompsen told the district court that he had met with his attorney 30 to 40 times and that they had discussed the terms of the plea agreement on several occasions.
The plea agreement itself expressly provided as follows: The defendant understands that the calculation and application of the Guidelines is entirely up to the Court. He also understands that the Court has the discretion to grant or deny either or both of the motions for downward departure from the Guidelines and from the statutory mandatory minimum.
The above-stated position of the parties with respect to sentencing factors is not binding upon the Court. If the factors are determined by the Court to differ from those stated above, the dеfendant shall not be entitled to withdraw from the plea agreement.
(Thompsen Addend. at 67.) This language is the equivalent of the warning required under Rule 11(e)(2). Thompsen makes no claim that he did not understand these provisions. In fact, Thompsen initialed each separate page of the plea agreement to indicate that
he had read the provisions and understood them. Thompsen also indicated
at the change-of-plea hearing that he had read the plea agreement and
understood its provisions. Under questioning by the district court, he
acknowledged that his plea did not guarantee any particular outcome
regarding his sentence. Although some courts have held that the
defendant's mere reading of the plea agreement itself, without the required
warning under Rule 11(e)(2), is insufficient to constitute harmless error,
see United States v. Kennell, 15 F.3d 134, 138 (9th Cir. 1994), other
courts have held that the written plea agreement may be considered in
determining whether the failure to give the Rule 11(e)(2) warning was
harmless. See Diaz-Vargas,
E.
Thompsen claims that the district court considered improper factors and relied on inaccurate information when determining the extent of departure to grant him pursuant to the government's USSG § 5K1.1 and 18 U.S.C. § 3553(e) departure motions. As noted above, Thompsen pleaded guilty to one count of conspiracy to distribute marijuana and one count of money laundering. The marijuana conspiracy count generated the greater Guidelines range: Based on a total offense level of 35 and criminal history category of III, Thompsen was subject to a Guidelines range of 210 to 262 months of imprisonment. Based on the quantity of marijuana attributable to him, Thompsen was also subject to a statutory mandatory minimum sentence of ten years. See 21 U.S.C. § 841(b)(1)(A). Consistent with Thompsen's assistance and pursuant to the terms of the plea agreement, the government made motions both to depart below the statutory mandatory minimum under 18 U.S.C. § 3553(e) and the Sentencing Guidelines range under USSG § 5K1.1. The district court granted the motion to depart from the Guidelines range but denied the motion to go below the mаndatory minimum sentence. The court imposed a sentence of imprisonment of 156 months, a downward
We also reject Thompsen's claim that the district court 4
never accepted his guilty plea and thus was without the power to impose a sentence on him. A fair reading of the record demonstrates that the district court informed Thompsen that the court conditionally accepted his plea with the right to reject it up until the date set for sentencing, but if the court did not exercise its right to reject it and instead proceeded with sentencing, the plea would be deemed fully accepted. (See Change of Plea Tr. at 30; see also Sentencing Tr. at 34-35 ("based upon your plea of guilty it is considered and adjudged that you are guilty of each of these offenses.").) Accordingly, Thompsen's bald-faced assertion that he was never adjudged guilty (Appellant's Br. at 32) is absolutely wrong.
departure of at least 54 months from the bottom of the applicable Guidelines range.
Thompsen challenges several aspects of the district court's departure decision. He first claims that the district court relied on improper factors in determining the extent of the departure pursuant to § 5K1.1 and in refusing to depart below the mandatory minimum range under § 3553(e). Specifically, he claims that in deciding the extent of the downward departure, the district court may only use the factors outlined in § 5K1.1, along with others that relate generally to the defendant's assistance. He suggests that in this case, the district court looked to other factors which are not outlined in § 5K1.1 and do not relate to a defendant's assistance to the government.
In this circuit, the extent of a district court's downward departure
is not reviewable. United States v. Goodwin,
We have read the transcript of Thompsen's sentencing with care. That record indicates that the district court properly considered Thompsen's assistance when ruling on these motions. We decline the invitation to further circumscribe the district court's discretion by requiring it to examine each of the listed factors in § 5K1.1 on the record and explain exactly just what weight it gives to each in its departure decision. All the statute and the Guidelines require is that the reasons for the departure be stated. 18 U.S.C. § 3553(c); USSG § 5K1.1(a). Thompsen's argument to the contrary is merely an attempt to do an end run around our cases which hold that we cannot review the extent of a § 5K1.1 downward departure. Accordingly, the district court's decision declining to depart further is unreviewable. [5]
Thompsen asserts United States v. Thomas,
of the district court's downward departure. Thompsen seizes on the Thomas court's language that "only factors relating to a defendant's cooperation should influence the extent of a departure for providing substantial assistance under § 3553(e)." In Thomas, however, the case was before the court on the government's appeal concerning the extent of the downward departure under 18 U.S.C. § 3742(b). Under 18 U.S.C. § 3742(a), a defendant may challenge only the extent of an upward departure. Consistent with our holding above, a defendant cannot challenge the extent of a downward departure under § 3742(a)(2) as a sentence "imposed as a result of an incorrect application of the sentencing guidelines" because to permit such a challenge would render nugatory § 3742(a)(3). Further, it is doubtful that the quoted statement from Thomas holds the meaning its unadorned language suggests. In a later case, United States v. Correa, 995 F.2d 686, 686-87 (7th Cir. 1993), the Seventh Circuit found nothing improper about the district court's consideration of a variety of factors not delineated in § 5K1.1 to determine the extent of a downward
Thompsen is on even shakier ground with his claim that the district
court erred in denying the government's § 3553(e) motion to depart below
the statutory minimum sentence. There is no doubt that the district court
knew it had the discretion to depart below the statutory minimum -- it had
the required second motion from the government unleashing that
discretionary power. It simply declined to exercise it. In this circuit,
a district court's declination to depart downward when it knows it can do
so is not reviewable on appeal. Jenkins,
We have carefully examined Thompsen's other arguments with respect to his sentence. Specifically, Thompsen claims that the district court relied on inaccurate and false information in
dеparture, including the defendant's extensive and involved criminal history and the purity of the cocaine the defendant possessed. Because the district court had departed downward, the court held that it lacked jurisdiction to consider the defendant's appeal that the departure should have been greater because of the use of allegedly improper factors. Id. at 687. Thus, Thomas is distinguishable, and to the extent it is inconsistent with our result, we decline to follow it.
selecting a sentence and that the district court considered testimony from codefendants' hearings which was not contained in the presentence investigation report. We conclude that these arguments are simply without merit. We also reject as moot Thompsen's contention that this case should be assigned to a different district judge on remand.
F.
McCarthy challenges several aspects of his sentence. First, he contends that the district court improperly calculated the quantity of marijuana attributable to him in determining his base offense level. USSG § 1B1.3 provides that a defendant can be held accountable for criminal acts the defendant aided and abetted and, in cases of conspiracy, for reasonably fоreseeable criminal acts committed by coconspirators in furtherance of the conspiracy. The district court's drug quantity determination is a factual finding which we review under the clearly erroneous standard. Flores, 73 F.3d at 833. We may only reverse a drug quantity determination when we are firmly convinced that a mistake has been made. Id.
At sentencing, Scoggins testified that McCarthy was present at Scoggins' ranch during the 1992 marijuana import operation. While there, McCarthy served as a lookout while the other coconspirators were cleaning and drying over 2,000 pounds of marijuana. McCarthy's job was to inform the other coconspirators when non-conspirators were approaching the ranch, as well as to help transport coconspirators to and from the cleaning site, to help move the processed marijuana, and to obtain necessary supplies for cleaning and drying the marijuana. The district court determined that McCarthy knew that marijuana was being processed at the site and actually learned how to do it himself. Based on this evidence, the district court determined that the entire quantity of the shipment should be attributed to McCarthy.
McCarthy claims that the district court should havе only attributed to him a quantity of 150 pounds, the quantity that McCarthy transported back to Minnesota to Thompsen. He claims that he was not present at Scoggins' ranch when the 2,000-pound load of marijuana was being dried and processed, but rather stayed at a local hotel until he was informed that his order of 150 pounds was processed and ready to be transported to Minnesota. Essentially, McCarthy challenges the credibility of the witnesses, specifically prosecution witness Scoggins, whose testimony the district court credited over McCarthy's.
Credibility determinations are within the exclusive domain of the
district court, and "are virtually unreviewable on appeal." United States
v. Pugh,
McCarthy's second challenge to his sentence concerns the district court's refusal to grant him a four-level downward adjustment to his base offense level for being a "minimal participant." USSG § 3B1.2. The district court granted a two-
level reduction, defining his role as a "minor participant." Id. McCarthy states in a conclusory manner that his role in the conspiracy entitles him to the four-level reduction.
As noted above, we review the district court's factual determinations
concerning the defendant's role in the offense for clear error. Flores,
G.
Labrie challenges various aspects of the district court's upward departure in his case. By way of background, Labrie was a long-time friend of Scoggins and also a prominent businessman, owning a company which buys and sells satellite dishes. Labrie loaned $30,000 to Scoggins, based on Scoggins' guarantee that Labrie would receive a return of 3:1 on his investment. At some point in time, Labrie realized that his investment was being put toward a large-scale marijuana transaction. Nonetheless, Labrie accepted a return on his investment totaling $90,000. Labrie *31 received from Scoggins and Holmes a $50,000 investment, derived from marijuana proceeds, to start a branch office for Labrie's satellite dish company. Labrie also permitted two pickup truck loads of marijuana, totaling in excess of 1,000 pounds, to be stored in a barn on his property.
While Labrie was originally charged in the conspiracy to import and the conspiracy to distribute, Labrie was allowed to plead guilty to a one- count information, charging him with managing and controlling a building made available for the purpose of storing marijuana, in violation of 21 U.S.C. § 856. On the day before Labrie was to be sentenced, the district court sent a letter to counsel by way of facsimile that it was considering an upward departure on grounds of the gain Labrie realized on his investment with Scoggins, "as well as his abuse of his role in the community to shelter and protect his drug dealings and transactions." (Labrie Addend. at A9.) At sentencing, the district court departed upward from the Guidelines range of 15-21 months, imposing a sentence of 30 months of imprisonment.
Labrie contends for the first time on appeal that he did not receive
adequate notice of the district court's intent to depart upward because the
notice was untimely and the factors relied on by the district court were
different from those contained in the letter providеd to counsel the day
before the sentencing hearing. Accordingly, we review these claims for
plain error, United States v. Nomeland,
District courts must provide defendants reasonable notice that the court is sua sponte contemplating an upward departure and must identify the grounds upon which the court is contemplating departure when departing on a ground not identified as grounds for
upward departure in the presentence investigation report or in a submission
by the government. Burns v. United States,
Similarly, we find no plain error with regard to Labrie's alternative argument that the district court did not give adequate notice of the specific grounds for the departure. As noted above, he did not object at the time of sentencing. We simply disagree with Labrie's contention that the district court relied upon grounds that were different from the grounds specified in the court's notice. The district court informed counsel that it was considering an upward departure based on the enormous profit Labrie reaped on his investment in the enterprise and his abuse of his position in the community -- Labrie laundered drug proceeds through his legitimate business. At sentencing, the court stated that it was imposing an upward departure because Labrie "knowingly permitted drug derived funds from his previous colleague, Mr. Scoggins, to be invested in a legitimate business, thus masking the fact that they were criminal derived proceeds." (Labrie's Sent. Tr. at 36.) In the course of its discussion, the court also referred to the large return Labrie obtained on his investment.
We lament that Labrie did not inform us in his brief that 6
he refused the district court's generous offer of a continuance of the sentencing heаring in order to meet the potential departure.
These reasons are not significantly different from those listed in the notice. Thus, we find no plain error with respect to the notice provided by the court.
Labrie also challenges the upward departure as inappropriate. Labrie pled guilty to storing marijuana in his buildings. See 21 U.S.C. § 856. The district court departed upward from the recommended Sentencing Guidelines range, stating that "the charge of storing a drug is incommensurate with the defendant's criminal acts which encompassed a vast conspiracy." (Labrie's Sent. Tr. at 35.) The sentencing transcript reveals that the district court also relied on Labrie's large return on his investment and his knowing use of his legitimate business to mask the drug proceeds. Labrie claims that these factors are not the type of circumstances that warrant an upward departure.
We accord substantial deference when reviewing a district court's
decision to depart from the Sentencing Guidelines. Koon,
involves factors for which the Guidelines either expressly encourage departure, discourage departure, or forbid departure. Id. at 2045. Forbidden factors cannot be the basis for departure. Id. Factors for which the Commission discourages departure, or which is an encouraged factor but is already taken into account, must be "present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." Id. The Court then stated that "[i]f a factor is unmentioned in the Guidelines, the court must, after considering the `structure and theory of both relevant individual guidelines and the Guidelines taken as a whole,' decide whether it is sufficient to take the case out of the Guideline's heartland." Id. (quoting United States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993)) (internal citation omitted).
The relevant Guideline in this case is USSG § 2D1.8, "Renting or Managing a Drug Establishment." This Guideline does not take into account the acts on which the district court based its upward adjustment -- that the charge of storing marijuana was incommensurate with the defendant's criminal acts, that Labrie reaped a large return on his investment in the operation, and that he knowingly used his legitimate business to launder proceeds. These are unmentioned factors. The factors cited by the court involve Labrie's relevant conduct and are not used anywhere in his Guidelines calculation to determine his offense level. Activities of investing in a drug activity and laundering the proceeds through a business or charitable donation (as was present in this record) are beyond what is required to fall within the conduct addressed by this Guideline. Accordingly, we conclude that the district court did not abuse its discretion in deciding to depart upward because this case falls outside the heartland of cases normally arising under the Guideline for using buildings to store marijuana. Furthermore, we conclude that the extent of the departure in this
case (nine months) was not unreasonable and that the district court did not abuse its discretion.
III.
For the reasons stated above, we affirm the judgments of the district court in each of these appeals.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.