United States v. Stewart ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 4 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Case No. 96-3356
NICOLE STEWART, also known as (D.C. 95-CR-20086)
Tina Wilson, also known as LeShell (District of Kansas)
Town,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
Nicole Stewart appeals from her sentence for conspiracy to distribute
cocaine and crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The
sole basis for Ms. Stewart’s appeal is that her sentence is disparate from those of
her co-conspirators and, therefore, in conflict with the sentencing guidelines’ goal
of lessening sentencing disparities between similarly situated defendants. In
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
United States v. Allen, 24 F.3d 1180, 1188 (10th Cir. 1994), we rejected a
defendant’s contention that the goal of the sentencing guidelines was frustrated
when his codefendant received a lesser sentence but the defendant’s sentence fell
within the applicable guideline range. Ms. Stewart attempts to distinguish Allen
by claiming that her sentence fell outside the applicable guideline range. It did
not. In exchange for her cooperation, the government requested a downward
departure for Ms. Stewart of at least four levels. The district court granted the
departure and sentenced Ms. Stewart to forty-six months, the lowest possible
sentence within the adjusted, applicable guideline range.
Additionally, the transcript of Ms. Stewart’s sentencing hearing reveals that
the district judge did in fact consider the sentences and crimes of her co-
conspirators and gave Ms. Stewart a sentence harsher than theirs because she was
more culpable. The district court’s decision was amply supported by the record
and legally correct. See id. at 1189. We affirm. The mandate shall issue
forthwith.
Entered for the Court,
Robert H. Henry
Circuit Judge
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