UNITED STATES of America, Plaintiff-Appellee, v. W. Avery WILSON, Defendant-Appellant.
No. 91-3136.
United States Court of Appeals, Sixth Circuit.
Argued Sept. 21, 1991. Decided Jan. 21, 1992.
With respect to the issue of anti-union animus, Centra contests the Board‘s determination that the company failed “to articulate a definite standard by which employees were evaluated” in the rehiring decision. Under the analysis set forth in NLRB v. Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), once the general counsel has made a prima facie showing of antiunion animus, i.e., that union activity was a “but for” cause of the disputed action, the employer must demonstrate that its actions would have been taken even in the absence of the union activity. Centra argues that it simply identified the best performers on the dock and hired them for its operations and that no regard was given to an employee‘s union activities. The company also claims that the Board‘s finding of antiunion animus, based on statements allegedly made by Cartage personnel that some of the D & S employees would not be hired back because of their involvement with Local 964, is “ludicrous.” To support this claim, Centra points out that two former union committeemen were hired by Cartage and that at least two employees who had never participated in Local 964 activities were not hired. Taken together, the company claims that these facts prove that the layoffs and rehirings were made on the basis of work performance, not union activity.
We find substantial evidence to support the Board‘s determination that Centra failed to carry its burden under Wright Line of responding to the general counsel‘s prima facie showing of antiunion animus. First, Centra has not shown that it lacked an antiunion animus simply by citing the fact that some union adherents were rehired while some nonactivists were not. In Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir.1964), the court held that “a discriminating motive, otherwise established, is not disproved by an employer‘s proof that it did not weed out all union adherents.” Further, Centra offered no objective or definable criteria to support its decision as to rehirings. The purely subjective rationale offered by Centra permitted an inference of antiunion motivation. Finally, the Board relied on the statements attributed to various Centra personnel only as evidence relevant to the issue of the company‘s state of mind in rehiring certain former D & S employees and laying off others without any definable criteria. These statements were not considered dispositive by the Board but were used only as further proof of antiunion animus.
Substantial evidence on the record as a whole supports both the finding of antiunion animus and inherently destructive conduct by Centra. The determination that Centra violated sections 8(a)(1) and (3) is therefore upheld.
IV.
For all of the foregoing reasons, we grant the NLRB‘s application for enforcement.
William E. Hunt (Argued and Briefed), Office of the U.S. Atty., Cincinnati, Ohio, for plaintiff-appellee.
Before MARTIN and JONES, Circuit Judges; and BROWN, Senior Circuit Judge.
BAILEY BROWN, Senior Circuit Judge.
W. Avery Wilson appeals the sentence imposed upon his plea of guilty to the charge of possessing “in excess of fifty (50) grams” of crack cocaine with intent to distribute in violation of
I
Pursuant to a search warrant, law enforcement officers in Cincinnati, Ohio, entered a house in which Wilson was an occupant. They arrested him, along with others, for possessing crack cocaine with the intent to distribute. At the time of his arrest, Wilson had in his possession $3,014.00. Having obtained and executed another search warrant, officers found in Wilson‘s vehicle 135 grams of cocaine base and an additional $1,841.00.
Wilson, a first-time offender, was charged in a one-count indictment for violation of
During one session, upon being asked how he became involved in drug sales, Wilson explained that, approximately two months before his arrest, he bought two ounces of cocaine and sold it at a profit. Doubling his purchase each time, he engaged in three additional drug transactions. Basing her calculations on this information, the probation officer determined that, in addition to the 135 grams found in his possession, Wilson had purchased for resale 850.5 grams of crack cocaine. To determine Wilson‘s base offense level, pursuant to
At the sentencing hearing, the district court rejected the probation officer‘s suggestion that points be added because one individual arrested with Wilson possessed a firearm. After subtracting points for Wilson‘s acceptance of responsibility, the court, over Wilson‘s objection to the presentence report, sentenced Wilson at a base level of 34, two points higher than would have been applicable had the court not considered the possession with intent to distribute the 850.5 grams of crack cocaine revealed to the probation officer. The court sentenced Wilson to a 151-month term of imprisonment.
Alleging that the probation officer improperly based her offense-level calculations on “unsubstantiated presumptive sales” of 850.5 grams of crack cocaine, Wilson now appeals his sentence. Wilson submits that the use of information obtained during the presentence conferences violates the Guidelines both in fact and in spirit and is an unjust application of unsubstantiated information. He also asserts that, even if the court followed the officer‘s recommendation regarding relevant conduct, the 135 grams of crack cocaine found in his possession should have been deducted from the 850.5 grams.2
II
A district court‘s findings of fact regarding relevant conduct for the purpose of sentencing will not be disturbed unless they are clearly erroneous.
Wilson does not deny making the incriminatory statements to the probation officer, nor does he contend that the statements fail to support the conclusion that he possessed with intent to distribute more than 500 grams, which is sufficient to support the base offense level upon which he was sentenced. Instead, he presents a policy argument against enhancing his sentence based on conduct admitted to the probation officer in a nonadversarial setting. He contends that doing so discourages an open and honest exchange of information and, contrary to the goals of the Sentencing Guidelines, undermines honesty, uniformity, and proportionality in sentencing. Wilson further contends that it is improper to punish him for possession with intent to distribute amounts of crack cocaine that are not charged in the indictment.
Admittedly, the results achieved through application of the Sentencing Reform Act of 1984 can be harsh. Congress, however, has balanced the risks of disparate sentencing against the possibility, under particular facts, of achieving apparently unjust results. For the sake of uniformity, Congress decided in favor of restricting the discretionary powers of sentencing courts. As a reviewing court, we are constrained by the mandates of Congress and are limited to determining whether the sentencing court clearly erred in its application of the
The law in this circuit is clear that to determine a base offense level, a sentencing court may consider conduct involving the possession and sale of “‘uncharged drugs [that] are part of a common scheme or plan.‘” United States v. Miller, 910 F.2d 1321, 1327 (6th Cir.1990) (quoting United States v. Mocciola, 891 F.2d 13, 16 (1st Cir.1989)), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). Such conduct is considered “relevant” for sentencing purposes. Furthermore, Miller, a case squarely on point, holds that, as a basis for determining relevant conduct, a court may consider information obtained during a presentence conference. Id.; see also United States v. Davis, 919 F.2d 1181, 1186-87 (6th Cir.1990).
Additional support for the government‘s position can be found in United States v. Walton, 908 F.2d 1289 (6th Cir.), cert. denied, 498 U.S. 990, 111 S.Ct. 532, 112 L.Ed.2d 542 (1990). In Walton, this court held that when the exact amount of drugs for which a defendant is responsible cannot be determined, a sentencing court may estimate the quantity so long as the estimate is supported by a preponderance of the evidence. Id. at 1302. In the instant case, the probation officer, based on information provided by Wilson, made a reasonable estimate of the amount of crack cocaine that Wilson purchased for resale. When, as here, the defendant admits to involvement in numerous drug transactions, it is not clearly erroneous for the court to determine that a preponderance of the evidence establishes that the defendant has been involved in such transactions.
For the foregoing reasons, we AFFIRM the sentence imposed by the district court.
NATHANIEL R. JONES, concurring in the result.
Because this circuit‘s precedent dictates that we affirm the district court in this case, I am constrained to concur in the result reached by the majority. I write separately, however, to register my vigorous disagreement with this circuit‘s—and, for that matter, the majority of the circuits‘—treatment of the issue that this case presents.
The defendant argues that the district court erred in using the “relevant conduct” provision to increase his sentence based on statements he made to the probation officer during presentencing interviews. The judge instructed him to cooperate fully and truthfully with the probation officer, who would complete his presentence report. Although the judge also urged him to follow the advice of his lawyer until after sentencing, his lawyer was not present at either of the two interviews with the probation officer, for reasons that are not explained in the record. Thus, without the advice of counsel, he candidly answered all of the officer‘s questions, and, in the process, made self-incriminating statements.
As the majority correctly points out, this court‘s precedent does not support the defendant‘s position. The facts of the instant case are for the most part on all fours with those in United States v. Miller, 910 F.2d 1321 (6th Cir.1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). In Miller, the defendant, having been instructed by the court to answer truthfully, was interviewed by a probation officer who was to recommend a sentence to the court. Id. at 1323. He participated in the meeting without the benefit of counsel, and he truthfully gave the officer information about his drug-related activities for which he had not been convicted. This information was used against him in sentencing, as in the instant case, and raised the minimum sentence he could receive by four years. Id.
The result reached in Miller was mandated by Sixth Circuit precedent as well; we previously held that the sentencing guidelines allow a district court to “consider conduct not charged in an indictment for the purpose of determining the base offense level for a defendant‘s sentence.” Miller, 910 F.2d at 1329 (Martin, J., concurring) (citing United States v. Smith, 887 F.2d 104 (6th Cir.1989), and United States v. Sailes, 872 F.2d 735 (6th Cir.1989)); cf.
It is my position, however, that this court jumped the tracks on this issue as long ago as the Sailes decision, and has since been hurtling in a direction in which it should never have gone. Judge Merritt‘s dissent in Miller fully addresses the problems inherent in the current interpretation of this sentencing guidelines provision, which I will reemphasize here briefly.
First, while our decisions have correctly interpreted the language of the sentencing guidelines as written, they have failed to recognize that the Commission, in formulating the Guidelines, has gone further than Congress authorized it to go. The enabling statute for the Guidelines Commission,
Second, under the current law of this circuit, defendants will be deprived of their Fifth and Sixth Amendment rights to have notice of what crime they are accused of committing. See Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). This notice requirement is violently breached when a defendant is sentenced for a crime of which he or she was never accused prior to sentencing. At that hearing, he or she is not allowed to confront his or her accusers, and is not innocent until proven guilty beyond a reasonable doubt. Cf. United States v. Davis, 919 F.2d 1181, 1188 (6th Cir.1990) (Jones, J., dissenting) (noting that standard for proof used in calculating the base offense level is preponderance of the evidence). Without the advice of an attorney, as in the instant case and in Miller, a defendant may not know that one can invoke one‘s Fifth Amendment right to remain silent during a presentence interview, thereby following the court‘s instruction to be truthful without incriminating oneself.
Finally, this interpretation of