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Summary of Opinion: IN RE: SEALED CASE, No. 96-3036 (D.C. Cir. Mar. 14, 1997)

Factual and Procedural Background

Appellant was convicted at trial of conspiracy with intent to distribute and possession with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) (1994). The charged conspiracy involved the shipment via overnight courier of two packages of cocaine from Los Angeles to the D.C. area: one package of approximately three kilograms shipped to a Hartford Street address in the District of Columbia, and a second package of approximately four kilograms shipped to a Featherwood Drive address in Montgomery County. Trial evidence clearly implicated appellant in the Hartford Street delivery and connected him with co-conspirators implicated in the Featherwood Drive delivery.

The presentence investigation report (PIR) stated that the defendants were "equally and jointly responsible for all drugs involved" and that "the total amount of drugs involved in the conspiracy were used to obtain the offense level." At sentencing the district court generally adopted the PIR's findings, rejected appellant's request for a downward departure based on alleged overrepresentation of criminal history, and (based on attribution of both packages totaling more than five but less than fifteen kilograms) sentenced appellant to 360 months, using an offense level of 37 and citing 21 U.S.C. § 841(b)(1)(A) (1994) and U.S.S.G. § 4B1.1 (1995).

Appellant appealed the sentence to the United States Court of Appeals for the District of Columbia Circuit. The panel—Chief Judge Edwards and Circuit Judges Silberman and Sentelle—filed a per curiam opinion vacating the sentence and remanding for resentencing.

Legal Issues Presented

  1. Whether the district court erred in believing it lacked authority to depart downward from the Guidelines sentence (and whether reversal is required on that basis).
  2. Whether the district court erred by failing to make individualized, detailed findings at sentencing explaining the evidentiary basis for attributing both packages (the Hartford Street and Featherwood Drive shipments) to appellant.
  3. Whether review should be for plain error given that appellant did not raise the specific challenge to quantity attribution at sentencing, and whether the existing record supports attribution of the Featherwood Drive shipment to appellant under that standard.

Arguments of the Parties

Appellant's Arguments

  • The district court believed it lacked authority to depart downward; appellant contends this was error warranting reversal.
  • The district court failed to make individualized findings showing appellant could reasonably foresee or be held responsible for both packages; appellant does not contest attribution of the four-kilogram Hartford Street package but argues the evidence is insufficient to tie him to the three-kilogram Featherwood Drive package.

Government's Arguments

  • The government contends that a representation by sentencing counsel (that the total amount of drugs involved was 6.9 kilograms) constituted a concession of quantity that cannot now be challenged on appeal.
  • The government argues a remand is inappropriate unless it is "reasonably likely" that appellant will not be held responsible for the Featherwood Drive shipment, and it points to a "host of facts" linking appellant to his co-conspirators and the co-conspirators to the Featherwood Drive shipment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
United States v. Harrison, 103 F.3d 986, 992 (D.C. Cir. 1997) Cited for the concept of "invited" error or concession at sentencing (compare invited error doctrine). The court distinguished the present case from Harrison, concluding appellant did not invite the alleged error and thus Harrison did not preclude review.
United States v. Saro, 24 F.3d 283, 286-87 (D.C. Cir. 1994) Explains that plain error review is "slightly less exacting" in the sentencing context than for trial errors; also provides the "reasonably likely" language regarding when remand is required. The court applied Saro to justify reviewing the unpreserved claim for plain error and to frame the government's burden in arguing that a remand is unnecessary unless it is not "reasonably likely" appellant will escape attribution for the Featherwood Drive shipment.
United States v. Childress, 58 F.3d 693, 722 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 825 (1996) Holds that the district court at sentencing "must spell out in some detail the evidentiary basis" for concluding a defendant is liable for acts of co-conspirators. The court invoked Childress to require that the district court make detailed evidentiary findings tying appellant to co-conspirators' acts before attributing the Featherwood Drive shipment to him.
United States v. Saro, 24 F.3d at 290 Reiterates the remand standard and evidentiary expectations at sentencing for attributing co-conspirator acts. The court cited this passage of Saro for the standard that remand is appropriate unless it is "reasonably likely" appellant will not be held responsible for the disputed shipment.
United States v. Dudley, 104 F.3d 442, 447 (D.C. Cir. 1997) Requires "detailed findings with respect to the evidentiary links tying" a defendant to the amount of drugs attributed to him; notes the government's role in aiding the court by submitting proposed findings. The court relied on Dudley to emphasize the district court's obligation to make detailed findings and to encourage the government to propose findings supporting the sentence on remand.

Court's Reasoning and Analysis

The court first addressed appellant's claim that the district court believed it lacked authority to depart downward. The panel found this contention meritless: the record showed the district court was aware of its authority to depart but concluded that a downward departure was unwarranted under the circumstances.

The primary analytical focus was on whether the district court made the necessary individualized findings tying appellant to both shipments. Although appellant did not press this argument at sentencing—indeed, sentencing counsel represented a total quantity (6.9 kilograms) in response to an inconsistency in the PIR—the court determined that this representation did not constitute an unequivocal concession that would foreclose appellate review. Accordingly, the court reviewed the unpreserved claim for plain error, applying the sentencing-specific standards articulated in Saro.

The panel reiterated precedent requiring the district court to "spell out in some detail the evidentiary basis" (Childress) and to make "detailed findings with respect to the evidentiary links" (Dudley) when attributing co-conspirators' acts or quantities to a particular defendant. The court observed that the government had not identified in the PIR or the district court's findings the specific evidence establishing a link between appellant and the Featherwood Drive shipment. The record contained mainly evidence linking appellant to co-conspirators and linking those co-conspirators to the Featherwood Drive package; the only direct piece of evidence tying appellant (by implication) to the Featherwood address was a notebook found in the automobile used by appellant to transport the Hartford Street shipment that had the Featherwood Drive address inscribed in it.

Concluding that the notebook evidence, standing alone in the absence of articulated findings by the district court, was a "seemingly tenuous connection," the court was unwilling to affirm the quantity attribution without the district court's detailed explanation. The panel also noted that the sentencing court, having presided over trial and sentencing, is in the best position to determine attributable quantity but must nonetheless make detailed findings. The court encouraged the government to assist on remand by submitting proposed findings to support the sentence, as suggested in Dudley.

Holding and Implications

Holding: The court vacated the sentence and remanded the case for resentencing.

Implications:

  • The direct effect is that appellant's 360-month sentence is vacated and the case is remanded for the district court to make detailed, individualized findings concerning the evidentiary basis for attributing the Featherwood Drive shipment (and thus the total quantity) to appellant and to resentence accordingly.
  • The opinion applies and enforces existing Circuit precedent requiring detailed sentencing findings when attributing co-conspirator conduct; it does not announce a new legal rule beyond those precedents. The court further encourages the government to assist the district court on remand by proposing findings that support the sentence to be imposed.

IN RE: SEALED CASE

PER CURIAM:

Appellant challenges his sentence for conspiracy to distribute five kilograms or more of cocaine. We vacate the sentence and remand for resentencing.

I.

Appellant was a member of a conspiracy that had as its object the shipment via overnight courier of two packages of cocaine from Los Angeles to the D.C. area. One of the packages, containing approximately three kilograms of cocaine, was shipped to a Hartford Street address in the District, and the other, containing approximately four kilograms, was shipped to a Featherwood Drive address in Montgomery County. At trial, the government adduced evidence that clearly implicated appellant in the Hartford Street delivery and that connected appellant with his co-conspirators, who were implicated in the Featherwood Drive delivery. The jury convicted appellant of conspiracy with intent to distribute and possession with intent to distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. Section(s) 846, 841(a)(1) (1994). The pre-sentence investigation report (PIR) stated that "[t]rial testimony revealed that the defendants are equally and jointly responsible for all drugs involved," and that "the total amount of drugs involved in the conspiracy were used to obtain the offense level." At the sentencing hearing, the district judge did not directly address the total amount of drugs that should be attributed to appellant, but he did generally adopt the findings of the PIR. He also rejected appellant's request for a downward departure based on an overrepresentation of appellant's criminal history. Because the two packages together totaled more than five (but less than 15) kilograms of cocaine, the district court sentenced appellant to 360 months, based on an offense level of 37. See 21 U.S.C. Section(s) 841(b)(1)(A) (1994); U.S.S.G. Section(s) 4B1.1 (1995).

II.

Appellant argues that the district court should be reversed because it thought it lacked the authority to depart downward if the sentence under the guidelines overrepresented the severity of his conduct. This argument is meritless. The record shows that the district court was well aware of its authority to depart; it simply thought such a departure unwarranted.

Appellant also challenges the district court's failure to make individualized findings showing the basis on which it found that appellant could reasonably foresee both packages of drugs shipped from Los Angeles. Appellant does not protest the attribution of the four-kilogram Hartford Street package, but he argues that the evidence is insufficient to tie him to the three-kilogram Featherwood Drive package. If he is correct, his offense level would be 34, yielding a sentence range the maximum of which is lower than the sentence he received.

To be sure, appellant did not make this argument at sentencing. Indeed, through his sentencing counsel (who had not yet read the trial transcript), he represented that the amount of drugs involved in the case was 6.9 kilograms. But that representation was in response to a discrepancy in the draft PIR, which at one point stated that the total amount of drugs in the case was 10.712 kilograms. The government contends that this representation constitutes a concession that cannot now be complained of on appeal. That is an overstatement; sentencing counsel was faced with a pre-sentence report that listed two different quantities as the total amount of drugs in the case, and he chose the one that had some relevance to the case. We are, frankly, astonished that counsel would purport to represent his client's interests at sentencing without even reading the trial transcript. Still, it is not as if counsel made a strategic decision to select the lower amount for fear that appellant would get stuck with the larger amount, for that larger amount had no relation to the case — it was simply a mistake. Appellant may have acquiesced in what he now claims is error, but he did not invite it. Compare United States v. Harrison, 103 F.3d 986, 992 (D.C. Cir. 1997). We thus review for plain error, which, although difficult to meet, is "slightly less exacting" in the context of sentencing decisions than in that of trial errors. United States v. Saro, 24 F.3d 283, 286-87 (D.C. Cir. 1994).

We have emphasized that "the district court at sentencing must spell out in some detail the evidentiary basis" for concluding that a defendant is liable for the acts of his co-conspirators. See United States v. Childress, 58 F.3d 693, 722 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 825 (1996); Saro, 24 F.3d at 290 (D.C. Cir. 1994). The government seems to acknowledge that the district court did not satisfy this procedural requisite, but it emphasizes that a remand is inappropriate unless it is "reasonably likely," Saro, 24 F.3d at 290, that appellant will not be held responsible for the Featherwood Drive shipment. In the government's view, a "host of facts" supports the conclusion that appellant was properly sentenced based on the attribution of both packages. But the government points mainly to evidence linking appellant to his co-conspirators, and to evidence linking the co-conspirators to the Featherwood Drive shipment. The only evidence in the record that supports a direct link between appellant and the Featherwood Drive shipment is a notebook found in the automobile used by appellant to transport the Hartford Drive shipment away from that location; the notebook had inscribed in it the Featherwood Drive address. It may be that there is evidence indicating appellant (implicitly or explicitly) joined in a chain conspiracy and is thus responsible for the overall scheme, but neither the PIR nor the district court identified it. And perhaps the notebook evidence alone is sufficient to support the attribution of the Featherwood Drive shipment on a hub-and-spoke theory. With nothing to indicate to us on what basis the district court thought the Featherwood Drive shipment should be attributed to appellant, we are unwilling to rest on such a seemingly tenuous connection.

It is of no consequence that the jury convicted appellant of conspiracy with intent to distribute, and possession with intent to distribute, five or more kilograms of cocaine, since the jury was instructed that the government need not prove the quantity charged.

We are mindful that the sentencing court, after presiding over trial and a sentencing hearing, is in the best position to determine the quantity of drugs that should be attributed to a particular member of a conspiracy. But in making such a determination, we require "detailed findings with respect to the evidentiary links tying" a particular defendant to the amount of drugs for which the district court finds him responsible. United States v. Dudley, 104 F.3d 442, 447 (D.C. Cir. 1997). Although these findings are ultimately the responsibility of the district court, the government is uniquely situated "to aid the court in its sentencing decision." Id. As we have done before, then, "[w]e encourage the government to submit to the district court (with notice to and service on the defendant) proposed findings that will support the sentence to be imposed." Id.

On the present record, we have only a very narrow, and possibly inadequate, factual basis to support the attribution of both shipments to appellant. Because the district court did not explain its rationale for this aspect of the sentence, and because appellant's sentence would be affected if he is held responsible only for the Featherwood Drive shipment, we vacate the sentence and remand for resentencing.

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IN RE: SEALED CASE
(Mar 14, 1997)