United States v. WisdomUnited States v. Wisdom
Kevin M. Schad, Schad & Schad, Lebanon, OH, for Defendant-Appellant.
Before: MOORE and McKEAGUE, Circuit Judges; and POLSTER, District Judge.*
POLSTER, District Judge.
Defendant-Appellant Robert Wisdom (“Wisdom”) appeals from a sentence imposed after his conviction, pursuant to a guilty plea, for distribution and possession with intent to distribute crack cocaine. Wisdom raises three issues on appeal. First, he argues that the district court enhanced his sentence for obstruction of justice and assigned him a base offense level of 32 based on facts neither admitted by him nor found by a jury beyond a reasonable doubt. Second, he argues that the district court erred when it imposed a sentence under a mandatory Guidelines regime. Third, he argues that the district court erred in relying on hearsay evidence at the sentencing hearing to enhance his sentence. For the reasons stated below, we conclude that the district court did not err in relying on hearsay, nor did the district court err in any of its Guidelines calculations. Because the district court increased Wisdom’s sentence based upon judge-found facts under the then-mandatory Guidelines, we must VACATE Wisdom’s sentence and REMAND for re-sentencing consistent with the U.S. Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
I. BACKGROUND
In June 2004, Wisdom entered a plea of guilty, without a written plea agreement, to two counts of knowingly and intentionally distributing crack cocaine in violation of
Two law enforcement agents testified for the government at sentencing. Agent Hardcorn testified that he performed surveillance of two drug transactions that occurred between Wisdom and a confidential informant (“CI”) on April 12 and April 14, 2004. After the April 14 transaction, Agent Hardcorn received a telephone call from the CI. Defense counsel objected to Hardcorn’s testimony regarding the telephone conversation in light of the U.S. Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Counsel argued that the introduction of the out-of-court testimonial statements would violate Wisdom’s rights under the Confrontation Clause of the Sixth Amendment because Wisdom had no opportunity to cross-examine the CI. The district court overruled the objection, finding that hearsay is generally admissible at sentencing proceedings.
Hardcorn then testified that he spoke to the CI again that evening, at which time the CI explained that Wisdom had confronted him about working for the police and told him he had a video recording to prove it. Wisdom then took the CI to a residence where a large group of people were watching a videotape. When the CI entered the residence, someone locked the door behind him. At some point, a woman knocked on the door. After the woman was permitted entrance, she saw Wisdom holding a knife and asked what he was going to do with it. He replied: “There’s about to be a homicide up in here. This guy’s about to be six feet under.” J.A. at
Agent Honaker also testified for the government. Honaker stated that after Wisdom’s arrest, he interviewed Wisdom about the April 14 incident. Wisdom told Agent Honaker that the CI was working for the police, and that there was a videotape evidencing this conduct. After Wisdom viewed the videotape himself, he walked to the residence where the CI was staying and confronted the CI about working with the police. The CI denied the accusation and Wisdom left and returned to watch the video again. Wisdom then returned to the CI’s residence, grabbed his throat with his hand and told him he was working for the police and that he had to watch the videotape. According to Agent Honaker, Wisdom stated that he had a steak knife with him when he confronted the CI the second time.
Wisdom also testified at the sentencing hearing. Wisdom stated that he had a butter knife which he was using to adjust hair clippers because he was cutting his hair at the time, and stated that he explained this to the agents during the interview. Agent Honaker testified that Wisdom never made such a statement during the interview. Wisdom testified that he never grabbed or hit the CI, he “never once threatened his life,” the CI “came on his own free will,” and he never told anybody he had a steak knife. J.A. at 54-55, 61-63 (Tr. of Sentencing Hr’g at 30-31, 37-39). Wisdom stated that he just wanted the CI to know that he knew the CI was working for the police and that he “messed my life up.” J.A. at 60 (Tr. of Sentencing Hr’g at 36). Wisdom denied telling Honaker that he grabbed the CI by his throat.
According to Agent Honaker, Wisdom admitted during the interview that he normally sold six ounces of crack cocaine in a week and that he had done so for an extended period of time. Wisdom testified at sentencing that he did not sell six ounces of crack cocaine per week, or for any extended period of time. He admitted, however, that he told Agent Honaker that he dealt six ounces of crack cocaine because he thought “if I made myself look bigger, it would help me.” J.A. at 53 (Tr. of Sentencing Hr’g at 29). Wisdom indicated that he was merely puffing to look good to the police, who had promised to help him if he cooperated. At the sentencing hearing, Wisdom testified that he sold about ten or twelve grams of crack cocaine about once a month or once every couple of months starting in the end of 2003, “around the holidays, around Christmas.” J.A. at 57 (Tr. of Sentencing Hr’g at 33).
After hearing all the testimony, the district court determined that Wisdom was responsible for fifty-five grams of crack cocaine, and accordingly should start at a base offense level of 32. See
Wisdom argues that his sentence was enhanced based on judge-found facts under a mandatory Guidelines scheme in violation of the U.S. Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The government concedes that Wisdom is entitled to re-sentencing.
At oral argument, defense counsel asserted that the district court on remand may not enhance Wisdom’s sentence based on facts not admitted by Wisdom. This argument is without merit. Booker did not eliminate judicial fact-finding. See United States v. Stone, 432 F.3d 651, 654-55 (6th Cir.2005). On remand, the district court must consider the advisory provisions of the Guidelines and the factors identified in
While re-sentencing is required under Booker, we will review at this time Wisdom’s contention that the district court erred in calculating his base offense level and in imposing a two-point enhancement for obstruction of justice. See United States v. McDaniel, 398 F.3d 540, 551 (6th Cir.2005) (providing guidance as to the proper interpretation of the advisory Guidelines provisions whose application was challenged on appeal); United States v. Yagar, 404 F.3d 967, 970 (6th Cir.2005); see also United States v. Norfleet, 143 Fed.Appx. 645, 654 (6th Cir.2005) (unreported decision). Based on the record before us, we conclude that the district court did not err in applying a two-level enhancement for obstruction of justice, or in holding Wisdom responsible for fifty-five grams of crack cocaine.2
Wisdom contends that the district court erred in calculating his base offense level, and claims that he should be held responsible only for the 12.466 grams of crack cocaine he admitted to distributing and/or possessing with the intent to distribute as part of his guilty plea. The Guidelines state that a defendant’s base offense level is to be determined:
[O]n the basis of . . . all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.
Two or more offenses may qualify as part of the same course of conduct “if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.”
Based on this testimony, the district court determined that Wisdom was responsible for fifty-five grams of crack cocaine. The court arrived at this amount by using a conservative four-month period of distribution (December 2003 to March 2004) and multiplying the months of drug activity by eleven grams (using the average of ten and twelve). To this amount the court added another eleven grams, the amount Wisdom admitted to in his guilty plea.3 The district court determined that the uncharged activity could be considered relevant conduct because it was part of the same course of conduct as the offense of conviction after taking into account the regularity of the offenses, the time interval between the offenses, and the degree of similarity of the offenses.
Wisdom’s testimony revealed a relatively regular pattern of narcotics trafficking for almost four months preceding the offense of conviction. In addition to the regularity of this prior drug activity and the short time span between the uncharged conduct and the offense of conviction, this uncharged activity involved the same drug (crack cocaine) and the same objective (distributing gram quantities of crack cocaine) as the offense of conviction. See United States v. Nichols, 979 F.2d 402, 414 (6th Cir.1992), aff’d on other grounds, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). We have held that when “‘the exact amount of drugs involved is uncertain, the court may make an estimate supported by competent evidence’; but the evidence supporting the estimate ‘must have a minimal level of reliability beyond mere allegation, and the court should err on the side of caution in making its estimate.’” United States v. Keszthelyi, 308 F.3d 557, 576 (6th Cir.2002) (citing United States v. Owusu, 199 F.3d 329, 338 (6th Cir.2000)); see also
Wisdom also objects to the district court’s two-level enhancement for obstruction of justice.
In addition, the district court found that Wisdom committed perjury on a material fact at the sentencing hearing when he denied making a statement to Agent Honaker that he had grabbed the CI by the throat. This obstructive conduct occurred “during the . . . sentencing of the instant offense of conviction” and “related to . . . [Wisdom’s] offense of conviction.” Finally, the district court determined that Wisdom did in fact grab the CI by his throat and attempt to intimidate him when he discovered the CI was working with the police. This act of obstruction occurred after law
In addition to his Booker claims, Wisdom argues that his sentence was enhanced in violation of the Confrontation Clause of the Sixth Amendment because the district court relied on the out-of-court statements of the CI to enhance his sentence. In support of this claim, Wisdom cites to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the U.S. Supreme Court held that the Confrontation Clause prohibits the introduction of testimonial statements by witnesses not called to testify at trial. Id. at 38, 68, 124 S.Ct. 1354. After the parties submitted their briefs, this Court decided the case of United States v. Stone, 432 F.3d 651 (6th Cir.2005). In Stone, we held that “Crawford does not change our long-settled rule that the confrontation clause does not apply in sentencing proceedings.” Id. at 654.
While hearsay may be considered in determining a sentence, the accused must be given an opportunity to refute it, and the evidence must bear some minimal indicia of reliability in respect of the defendant’s due process rights. United States v. Silverman, 976 F.2d 1502, 1512 (6th Cir.1992). The defendant must establish that the challenged evidence is materially false or unreliable, and that such information actually served as the basis for the district court’s sentence. Id. Here, there is no doubt that Wisdom had an opportunity to refute the testimony of the law enforcement agents who testified at his sentencing hearing. The district court judge found the evidence sufficiently reliable to support a preponderance of the evidence finding, see id., and found that some of the evidence was corroborated in part by Wisdom’s testimony. Wisdom has not established that the out-of-court statements introduced by either agent are materially false or unreliable.
Wisdom also argues that the district court’s reliance on hearsay to enhance his sentence violates Booker. This argument is without merit. In United States v. Luciano, 414 F.3d 174, 179 (1st Cir.2005), the First Circuit held that nothing in Booker necessitated a change in the majority view that there is no right to confront witnesses at a sentencing hearing. Id. at 179 (“Booker error ‘is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only that the judge did so in a mandatory Guidelines system.’”) (citing United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.2005)). In finding it significant that judges imposing sentence post-Booker are accorded greater discretion than they were under the pre-Booker regime, the Second Circuit determined that “there is no logical basis for concluding that [the consideration of hearsay testimony during a sentencing proceeding] is prohibited under the system of advisory Guidelines established by Booker [where such consideration was not prohibited under a mandatory Guidelines
III. CONCLUSION
Based on the foregoing, we conclude that the district court did not err in relying on hearsay, nor did the district court err in any of its Guidelines calculations. Because the district court viewed the Guidelines as mandatory and increased Wisdom’s sentence based upon judge-found facts, we must VACATE Wisdom’s sentence and REMAND for re-sentencing consistent with the U.S. Supreme Court’s decision in Booker.