*1 1X41 (Jerome Ar- argued G. Hopeman, M. Jon Reilly, and Denise nold, America, Hopeman Jon M. Appellee, v. of STATES UNITED Minn., appellee. brief), Minneapolis, for HAMMER, Appellant. Lou Vicki BEAM, Circuit FAGG and Before 90-5270. HEANEY,
No. Senior Circuit Judges, and Judge. Appeals, States Court United
Eighth Circuit. CURIAM. PER 13, 1991. Feb. Submitted from her appeals Hammer con- Lou Vicki 23, 1991. July Decided conspir- for viction and 188-month distribute with acy intent May viola- cocaine from 1984 (1988). Hammer of 21 U.S.C. tion § conspir- in the important participant was an Twin Cities cocaine acy to distribute co- “Plukey” Duke. Five by Ralph headed with the made deals conspirators who (which at her trial testified several of the that of separate from Duke, including who were conspirators, many she made cross- together) that tried car, transporting trips cocaine country as Paul to be used her St. house allowed center distribution storage place and organized transac- drugs, personally Despite this made deliveries. tions argues that the evi- testimony, Hammer support her con- insufficient dence was she claims, incredibly, that She viction. drugs was involved never knew Duke participation seeming acts of her and that innocent of her asso- merely instances were drug dealers. ciation with court mis- the district argues Hammer that provision applied the relevant-conduct U.S.S.G. See guidelines. the evidence argues lB1.3(a). that She conspired pos- she prove does not by the used amounts particular sess the her base calculating court district record, how- review the Our fense level. ex- To this ever, otherwise. us convinces merely restates argument tent, Hammer’s we Because argument. sufficiency her strong error, of the recitation our find no no have against Hammer would evidence judgment value. precedential 8th Cir.R. affirmed. See court is Minn., district Minneapolis, Warg, L. David 47B. appellant.
HEANEY, Judge, Senior Circuit degrees similar of involvement in drug concurring. ring. The sentencing disparity results not from decisions by the judge, made district I concur. The clearly evidence was suffi- but from decisions and bar- to Vicki Lou sustain Hammer’s con- cient gains by made prosecutor. Moreover, conspiracy viction for and dis- some practices violate a defen- tribute five or more of cocaine right dant’s process. to due I turn first to sup- from 1984 to 1988. The record also the issue disparity. ports guideline the 188-month sentence im- posed sentence was based on trial evi- —the dence which established that Hammer 1. The Proportionality the Sen- transported fifty or more kilo- stored tences. The sentences part conspiracy of cocaine as a of a traffickers in the Plukey Duke cases illus- Ralph (“Plukey”) Duke. See U.S.S.G. trate that sentencing disparity continues to 201.1(c)(4). exist under guidelines, that defendants I separately highlight write several go pay trial heavy premium for concerns have with the choice, their that the large- guidelines and their application in the Plu- ly determines the sentence of the defen- key Duke cases. These cases involved dant deciding who to charge, what to defendants, twenty-four majority vast charge, and when charge.1 To illustrate of whom were convicted of traffick- points, these I initially present the follow- ing my record, crimes. From review of the ing tables. Note that the defendants who it great is clear that disparity there is a in pled guilty all received shorter sentences length among defendants with than those who went to trial.
PLUKEY DUKE WHO DEFENDANTS WENT TO TRIAL Probable Defendant Sentence Time served2 Plukey Duke 3 life terms Same Ralph Nunn yrs. 21.4yrs. 25.0 Admon yrs. Doris yrs. 20.0 17.2 Regan 19.6yrs. Shawn yrs. 16.8 Beal yrs. Kevin yrs. 16.3 14.0 Vicki Hammer 15.7yrs. 13.5yrs. 15.7.yrs. Serena Nunn 13.5yrs. 13.5yrs n Willis Kim 15.7yrs. Hughes Walter yrs. yrs. 15.0 12.9 court, 1. Once the matter reaches district year time imprisonment credit for each ex- authority court’s sentence is limited ceeding year. 3624(b) one See 18 U.S.C. § guidelines.- authority is not as limited as (1988). believe, some district courts but it is limited nonetheless. 2. While parole possible is not in a sentence, prisoners may days good- receive 54 *3 many of these committed. the crimes persons anticipate that guidelines met. however, was cases, neither condition expect to receive can guilty plead point and out cases flesh Individual is goal sentences. shorter somewhat of the power underscore of a operation through the achieved Consider imposed. the sentence control re- of acceptance for reduction two-level McCaleb. of Marvin first the case departures downward sponsibility and U.S.S.G. assistance. See
substantial McCaleb Marvin 5K1.1; 18 U.S.C. also see 3E1.1 and §§ part- Plukey Duke’s McCaleb Marvin (court may 5K2.0 3553(b) and U.S.S.G. § drug conspiracy. He ner in the outside impose a twenty- about to Minnesota imported Duke mitigating there exists if it range finds during a a week of cocaine kilograms five not kind, degree, to a “of a or circumstance during 1988. period six-month four- to by the into consideration taken adequately esti- McCaleb equally; profits split pair formulating the in Sentencing Commission $650,000 was between his share mated by anticipated Con- It was guidelines.”). $1,000,000. were adjustments that the gress, of man- convicted see. had been everyone to McCaleb on the record to be 1978, rape in age 18 slaughter as- of Justice Moreover, Department two possessing pleas of force public that Congress and sured in 1989. sell intent of cocaine seriousness to reflect guilty were McCaleb admitted he had drugs Hammer, dealt for Vicki defendants, other he is years four and at times had 200 to unlikely moved receive the possible maximum of cocaine forty-year a month. sentence. McCaleb was arrested in California The United States District Court for the December 1988 for his role in the Plu- District Minnesota had no role in deter key Thereafter, mining Duke conspiracy. whether he McCaleb charged would be entered into a agreement Minnesota. That with the decision was made only by Angeles. federal authorities Los United States Attorney, McCa- and no promised guilty plea leb Minnesota he would aid the will ever be entered apprehending persons result, in this who sold McCaleb case. As a narcotics *4 compiled against by and statistics testify would the persons. Sentencing those Com mission return, In will government never agreed show the1 disparity the that if wrought here by government’s the pled guilty McCaleb conspiring to dis- favor able treatment of eighteen kilograms tribute McCaleb or in cocaine, countless it similar throughout cases country.4 would the an dismiss additional count which well understand that the charged with must distributing McCaleb twenty- offer a benefit in get order to cooperation five kilograms of cocaine. The government from offenders. practice, however, promised also it would pre- recommend a results in disparities substantial guidelines among sentence of forty years five to similarly situated offenders. The the Sentenc California offenses. McCaleb ing Commission’s statistics never measure eligible would be parole serving after gross such disparities and present thus one-third of that sentence. See 18 U.S.C. only an precision illusion of accuracy. and 4205(a) (1982)(repealed 1, effective Nov. 1987 by 98-473, II, Pub.L. No. tit. I also understand that prosecutor the 218(a)(5),235, (Oct. 98 Stat. §§ 2031 needs charging broad discretion. I cannot 12, 1984)). the United States agree, however, that this authority should Attorney’s office in agreed Minnesota that be without guidelines limit under a system it would not bring any additional charges in of sentencing. Because there is no over- Minnesota. Had McCaleb been charged in sight charging decisions, McCaleb, a Minnesota, he would have subject been to a major participant, may well serve less time guidelines sentence of at twenty-sev- least than anyone other very than the minor years en if no upward even adjustments participants. This is wrong. The court were being made for a organizer.3 leader or public and the should be aware of what is being done in McCaleb’s case and others McCaleb Plukey and Duke were two like it. major players in drug conspiracy.
Both large distributed amounts is only of cocaine McCaleb not the major participant for a long period escaped of time. a Although he has severe sentence. The case prior no history, criminal Plukey Loren Duke also Duke will illustrates how the serve prosecutor’s two life sentences for his crimes. In decisions affect the contrast, imposed. McCaleb has an sentence extensive crimi- nal history subject to, will most, but be at a Loren Duke forty-year preguidelines sentence. Be- cause cooperated McCaleb govern- Loren Duke is a 23-year nephew old by ment testifying against Plukey Duke, Plukey Duke with prior one burglary con- 3. McCaleb distributing admitted guidelines 400 range. least kil- the mission, Sentencing See U.S. Com- ograms Minnesota, of cocaine into would which Report Annual 1989 at 46-48. The fact give him an offense level of 38. His criminal that most defendants are sentenced within a history IV, category would be at least so McCa- however, range, any- not reveal "does guidelines range leb’s would be 324 405 thing uniformity about whether there is or dis- months. parity applicable range.” selection of the Oberlies, Reviewing Sentencing Commis- Sentencing 4. The publishes Commission statis- Report, sion's Fed.Sent.Rep. Annual 3 “compliance tics which per- show rates" or (1990). centages of sentences which are within
H45 heavily Duke was involved Loren Duke’s sentence also viction. Loren should ring. frequent- compared He drug given distribution to the 188-month involved courier and was ly acted as to Vicki Hammer. While Hammer was a delivery and of more than purchase in the courier and a facilitator of Duke’s thirty-five kilograms of cocaine. Loren sales, she made no sales on her own (1) originally charged with: aid- Duke was (unlike Duke), Loren her benefit from attempt ing abetting an being conspiracy simply member was be- cocaine; (2) con- twenty ing kept in luxurious circumstances Plu- five kilo- spiring to distribute more than key Duke. He conceded at trial grams of cocaine. compiled by Sentencing statistics if he had been convicted on the above dispari- Commission will never show these subject charges, he would have been ties. The statistics will not show that twenty-three years. guidelines sentence of “drug Loren Duke with a house” Attorney, States United violation, in effect dictated plea bargain. fered Loren Duke a favorable that Loren Duke would be sentenced to no two counts in the in- provided It that the years prison. more than two one-half *5 dropped exchange for dictment would remaining The district court’s sole discre- plea a to an information a viola- tion, ability grant deny to or statute, 21 “drug tion of the house” U.S.C. government’s motion, section 5K1.1 was 856(a)(1). makes it unlawful This statute really no discretion at all. Loren Duke had knowingly place pur- maintain a for the already bargained been down to a sentence pose manufacturing, distributing, of or us- far lower than what the district court ing any No mandato- controlled substance. might imposed have had Loren Duke been ry required minimum sentence is for a vio- drug convicted of the serious distribution “drug lation of the house” statute. Its prosecutor dropped. offenses the guidelines offense level is 16 under the distributors, drug Two other mid-level compared an 34 for offense level of Youmans, Joseph Ballard and David re-
trafficking thirty-five kilograms of cocaine. ceived favorable but less dramatic consider- probation office recommended that prosecutor. ation from the Like Loren given Loren Duke be a two-level reduction Duke, pled Ballard and Youmans both acceptance responsibility. for of This re- Hammer, guilty, against testified and re- Duke’s offense to 14 a duced level lighter significantly ceived sentences than range of 18 to 24 months. The did Willis or Hammer. depar- moved for a downward ture under section 5K1.1 for substantial Joseph Ballard authorities, assistance to and the district Joseph 24-year nephew a old Ballard is Duke to twelve court sentenced Loren deeply in- Plukey Duke. Ballard was of imprisonment. months drug conspiracy. According volved in the impossible precise While it is to make transported testimony, Ballard to his defendants, comparisons among Loren least nine of cocaine and more Duke’s twelve-month sentence should be $250,000 Plukey money than viewed relation to the 188-month sen- drug-relat- many Ballard did other Duke. Willis, given Kim 20-year tence a old Plukey ed tasks for Duke. prior man with no criminal record. It is (1) originally charged with: clear from the record that Willis’ involve- Ballard cocaine; (2) distributing kilogram one ment was no more extensive than that Duke, than five kilo- yet conspiring Loren a sentence to distribute more Willis received cocaine; (3) carrying .23 nearly long sixteen times as as Loren conspiring to distribute cooperated caliber rifle while Duke’s. While Loren Duke offenses, these government, to the cocaine. If convicted of with the Willis also offered ten-year man- have faced a cooperate, rejected his offer was as not Ballard would but count, conspiracy on the being timely. datory minimum or Ballard. Their five-year mandatory min- on Youmans consecutive and a gun certainly substantial. on the count. sentences are Rath- imum sentence er, my objection is that defendants like Attorney, The United States Hammer, went Willis and to trial but gun in return drop count fered culpable than who were no more Youmans In to the two counts. guilty Ballard, received much more severe Attorney addition, the United States sentences. involved agreed that the offense conduct By doing kilograms of cocaine. 3.5 to 4.9 Disparity not limited to that between is this, Attorney ensured the United States plead guilty defendants who and those who subject not be to a that Ballard would go similarly trial. situated ten-year mandatory minimum sentence. plead guilty may defendants who receive accepted offer testified at Ballard vastly different sentences due to States Attor- Hammer's trial. The United prosecution. il- decisions made To ney subsequently made a section 5K1.1 mo- point, examples I offer lustrate this assistance, and the tion to reward Ballard’s Turner, Larry Anthony Hutchinson and fifty- Ballard to district sentenced court participated of whom in and were both months, well below the four during twenty-kilogram arrested reverse- contemplated by range of 78 to 97 months sting cocaine transaction. Neither Hutch- conduct. stipulated offense prior Turner had inson nor criminal records. Neither Hutchinson nor Turner
David Youmans Plukey testified at the Duke trials. The was one of partic- David Youmans district court found both to be minor bought cocaine in Duke’s distributors ipants activity. in the criminal Both were *6 quantities kilogram-size from Duke young; 21 Turner was and Hutchinson 18. charged and other sources. Youmans was Turner, however, received a sentence five (1) distributing three of co- with: ounces times shorter than Hutchinson because caine; (2) conspiring and with intent to plead prosecutors permitted Turner to to kilograms five distribute more than of co- contrast, “drug In the house” statute. previous drug caine. Youmans had two pled guilty Hutchinson to the distribu- convictions, mandatory and he faced a mini- counts, prosecutor dropped tion which the imprisonment mum sentence of life if con- as to Turner. conspiracy
victed of the count. United Youmans, (8th Larry 926 F.2d 748 States v. Hutchinson Cir.1991). (1) Larry charged Hutchinson was with: however, Attorney, aiding abetting attempting
The United of- and others in to States plea bargain possess twenty kilograms fered Youmans a which the and distribute- cocaine; (2) government agreed conspiring possess that Youmans and to with con- spired to distribute between 3.5 and 5 kilo- intent to distribute more than five kilo- addition, grams of cocaine. This offer allowed the of cocaine. In Hutchinson mandatory charged carrying circumvent the to was with loaded 9mm pistol attempting possess minimum sentence. In the while to the co- offenses, government agreed to make motions under caine. If convicted of these three 3553(e) ten-year section 5K1.1 and if faced a 18 U.S.C. Hutchinson could have § agreed cooperated provide mandatory Youmans and minimum sentence for the testimony involving five-year truthful at trials and a consecutive manda- cocon- counts count, gun spirators. accepted tory Youmans this offer. minimum sentence on the granted govern- years. The district court the for a total of fifteen See United Hutchinson, 3553(e) F.2d 746 n. 2 ment’s motion under 18 U.S.C. v. 926 & States (8th Cir.1991). and sentenced Youmans to 151 months im- prisonment. however, Attorney, The United States bargain, plea wish to make it clear that I no fered Hutchinson a which have quarrel accepted. agreement the abstract with the sentences Hutchinson The
H47 willingness always charged pros- to testi- tence should if the Hutchinson’s based sentence, in ecutor seeks such a knowledge pros- of others involved and the fy as to his Moreover, agreement lim- ecutor did activity. plea The that here. the indict- criminal specified ment also to between 3.5 and amounts of cocaine ited the offense conduct counts, prac- involved in the substantive kilograms cocaine and set the offense 5 tice which also should be probation office noted followed more level at 30. Id. frequently. Compare record for found no basis United States v. that it (8th Cir.1991) Payne, to 3.5 940 F.2d 293 limiting Hutchinson’s involvement court, J., (in- (Heaney, concurring dissenting) kilograms of cocaine. The district however, agreement specified dictment neither accepted plea amounts of co- ninety-seven alleged anywhere caine nor sentenced Hutchinson to that crack was involved). imprisonment. months however, prosecutor, was aware be- Turner Anthony fore trial that Hammer had been involved fifty kilograms with or more of cocaine. Hutchinson, Anthony Turner was Like fifty kilograms breakpoint Because is a (1) aiding abetting oth- charged with: requires substantially attempt possess and ers in the distribute longer kilograms sentence than the five cocaine; twenty kilograms of approximately charged, good why there is no reason (2) conspiring with intent to prosecutor charged could not have distribute five or more of co- higher amount. Had the done Hutchinson, Turner faced a caine. Like so, fully Vicki Hammer would have been ten-year mandatory minimum sentence if charge aware of the seriousness of the offenses, although of these two convicted her, against finding jury guilty and a gun Turner did not face a count. any controversy would have eliminated bargain, Pursuant to a respect to the extent of her involve- government dropped these two distribution view, my In conspiracy. ment in the return, charges. pled guilty Turner charge drugs failure to the total amount of charging that he violated an information process in involved is a denial of due cases statute, “drug house” U.S.C. where this factor makes a substantial dif- *7 856(a)(1). a The district court § ference in the time to be served a defen- guidelines sentence of fifteen months. Payne, dant. 940 F.2d 295. See Turner, issue, however, appeal. why
The record does not reveal is not raised on Hutchinson, but not received this deal. Report. Finally, I 3. The Presentence count, gun pair appear than the the Other presentence about the note some concerns culpable. Although equally to be both sen- report pre- The report in Hammer’s case. guidelines, the dis- tences were within the in pared by probation the office recounted parity between these two defendants’ sen- (106 kilo- quantities detail the of cocaine appear Sentencing tences will never the thought should be attrib- grams) which it Commission’s statistics. sentencing purposes. uted to Hammer probation of- I how the and Due Pro- cannot understand Charging 2. Practices report prepared an accurate process aspect I due fice could have cess. believe the general policy of the point. on this prosecutor’s decisions needs trial, sense, during and a sit in closely. In one office is not to be examined more available at the trial was not prosecutor’s prac- transcript I commend the pre- presentence report specified tices here: the indictment the time then, probation of- Necessarily conspired pared. five or Hammer to distribute file to deter- cocaine, prosecutor’s on the giving more Hammer fice relied amounts, gives rise practice which mandatory notice that she mini- mine faced a Here, process questions. due years. mum sentence of ten 21 U.S.C. to additional See prejudice as a result 841(b)(l)(A)(ii)(1988). I no amounts discern I believe sentencing practice, of the because trigger mandatory which minimum sen- sentencing hearing court indicated at the primarily
that it relied on its own recollec- testimony determining of the trial
tion
the extent of Hammer’s involvement. probation important office has an presentence reports
contribution make go
in cases which It trial. should assist arriving at an court offense level
computation based on the trial court’s find-
ing drug quantities, as to it should recite history,
the defendant’s criminal and it report any
should the court other infor- may pertinent
mation which be to sentenc- trial, however,
ing. Unless it sits in on the
I do not believe it should summarize trial
testimony.
CONCLUSION I repeat what stated earlier: Hammer’s supported by
188-month sentence is said,
record. That I continue to be con- guidelines permit
cerned about how the virtually dictate the sentence
imposed. I am concerned about how dis-
parities persist guidelines. under the I am disparities
concerned about how these are view, plain
hidden from never to re- Sentencing
vealed Commission’ssta- hidden,
tistics and that these nonreviewable
disparities will continue to frustrate the
goal of the guidelines. *8 America, Appellee,
UNITED STATES
v.
Ralph NUNN, Lamont Monte a/k/a Duke, Appellant.
No. 90-5410MN.
United States Appeals, Court of
Eighth Circuit.
Submitted Feb. 1991. July
Decided 1991.