United States v. Kemp ( 1996 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    No. 94-5321
    KENNETH W. KEMP, a/k/a Lamont,
    a/k/a El, a/k/a Al, a/k/a L,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Norfolk.
    J. Calvitt Clarke, Jr., Senior District Judge.
    (CR-93-117)
    Argued: December 8, 1995
    Decided: January 3, 1996
    Before ERVIN, Chief Judge, MOTZ, Circuit Judge, and
    WILLIAMS, Senior United States District Judge for the Eastern
    District of Virginia, sitting by designation.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: Cloud Hicklen Miller, III, MILLER & ASSOCIATES,
    Atlanta, Georgia, for Appellant. Laura Marie Everhart, Assistant
    United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:
    Helen F. Fahey, United States Attorney, Norfolk, Virginia, for Appel-
    lee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Kenneth W. Kemp was convicted in a jury trial of 8 counts of con-
    spiracy and drug distribution. Kemp appeals both his conviction and
    his sentencing on various grounds, raising questions regarding the
    Sixth Amendment, jury instructions, several guideline sentencing fac-
    tors and the admissibility of witness statements taken in the course of
    an investigation. Finding no reason to modify Kemp's base offense
    level because such action would not affect his sentence, despite a
    retroactive amendment to the sentencing guidelines, and finding no
    abuse of discretion as to the remaining issues, we affirm the trial court
    in all respects.
    I.
    In July 1990 Kemp joined a cocaine distribution conspiracy that
    had been ongoing since 1988. He took the place of Duane Wilkey,
    who was killed in a drug related gun battle. Wilkey and Corey Jacobs
    were the leaders of the conspiracy, and Kemp became the new co-
    leader.
    Jacobs and Kemp became leaders and organizers of a conspiracy
    that eventually distributed approximately 15 kilograms of cocaine per
    week in the Norfolk vicinity. They recruited a number of couriers to
    bring in drugs from New York City. Various other persons sold more
    than 50 guns to Kemp and his associates. Although there were occa-
    sional disputes among members of the conspiracy, and even instances
    in which street-level drug vendors competed against each other, the
    conspiracy continued unabated. The conspiracy ceased operation only
    with the arrest of Kemp and several others in September 1993.
    Kemp, along with five codefendants, was indicted by a Norfolk
    grand jury on cocaine conspiracy charges. Kemp was indicted on 19
    2
    of 84 counts in the indictment and asserted his right to jury trial. His
    codefendants pled guilty. Kemp was arraigned on October 27, 1993,
    where he was represented by court-appointed counsel Robert Rigney.
    The court directed appointment of Rigney at the arraignment and set
    conditions in the event that Kemp should wish to retain other counsel.
    One condition was that any new counsel must have no conflict of
    interest in the case.
    On October 27, Kemp filed to substitute William P. Robinson, Jr.
    as his attorney. The government moved to disqualify Robinson based
    on several actual and potential conflicts. First, Robinson also repre-
    sented Norman Tyson, a codefendant on the same indictment but a
    fugitive at the time. Second, a partner of Robinson's, Junious Fulton,
    had previously represented Roman Grandy on a drug charge. Grandy
    was a codefendant but pled guilty and was cooperating with the gov-
    ernment at the time of the disqualification. Grandy did in fact testify
    for the government. Third, the government expected at the time to call
    as a witness potential defendant Delton Raynor. Raynor was previ-
    ously Robinson's client. Although Kemp offered to waive these con-
    flicts, there is no evidence that Tyson, Grandy or Raynor made such
    an offer. The motion to substitute was denied by a magistrate judge
    and then affirmed by the district judge, both denials citing conflict of
    interest.
    Kemp was convicted after a jury trial beginning December 29,
    1993 and ending January 6, 1994. The district judge sentenced Kemp
    to life imprisonment with five years supervised release on four sepa-
    rate counts, with lesser concurrent sentences on the four remaining
    counts. The district judge based the sentencing in part on a calculation
    of Kemp's base offense level at 42, pursuant to the then-effective
    United States Sentencing Guideline § 2D1.1(c).
    II.
    Kemp makes six arguments in his appeal: (1) that the failure to
    substitute Robinson was so arbitrary as to violate his Sixth Amend-
    ment guaranty of the right to assistance of counsel; (2) that the trial
    court prejudiced his case by refusing to order production of an FBI
    "302" witness statement; (3) that he should not have received a four-
    level offense enhancement for his leadership role, pursuant to United
    3
    States Sentencing Guidelines § 3B1.1(a); (4) that he should not have
    received a two-level enhancement for possession of a firearm pursu-
    ant to § 2D1.1(b); (5) that the trial court erred when it refused to give
    a multiple conspiracy instruction to the jury; and (6) that a subsequent
    amendment to the sentencing guidelines allows his base offense level
    and sentence to be recalculated. Of these arguments, Kemp does not
    strongly argue the first four, and we find his arguments unpersuasive.
    We find that the trial court did not commit clear error or abuse its dis-
    cretion as to issues (1) through (4), and as to these issues, the trial
    court is affirmed. As to the two remaining issues, we also affirm the
    trial court, but offer the following explanation of our analysis.
    We first address Kemp's request for a multiple conspiracy jury
    instruction. A trial court's instruction will stand unless clearly errone-
    ous. United States v. Mills, 
    995 F.2d 480
    , 485 (4th Cir. 1993). While
    the government bears the burden of proving a single conspiracy as
    charged in the indictment, a jury's finding of a single conspiracy must
    stand unless the evidence would not allow it even when viewed in the
    light most favorable to the government. See United States v. Hines,
    
    717 F.2d 1481
    , 1489 (4th Cir. 1983); United States v. Baker, 
    985 F.2d 1248
     (4th Cir. 1993).
    As Kemp correctly states, a multiple conspiracy instruction is an
    instruction that the jury may find a defendant not guilty of the con-
    spiracy charged even though they would otherwise find him guilty of
    another conspiracy. But contrary to Kemp's argument, United States
    v. Mills does not require that a defendant receive such an instruction
    each time there is but the slightest foundation in evidence, no matter
    how tenuous. See 
    995 F.2d at 485
    . The instruction is appropriate only
    if "supported by the facts." 
    Id.
    To Kemp's burdens of clear error and the presumption of facts
    favorable to the jury verdict, the law adds even a final hurdle to
    Kemp's appeal: proof of prejudice to his "substantial rights." Even
    where there is proof of multiple conspiracies, reversal is appropriate
    only where such proof prejudiced the substantial rights of the defen-
    dant. United States v. Barsanti, 
    943 F.2d 428
    , 439 (4th Cir. 1991).
    Substantial rights are infringed if the jury might have been confused
    into imputing guilt to members of one conspiracy because of the
    activities of other conspiracies and their members. 
    Id.
    4
    The trial court correctly found that the facts did not support a mul-
    tiple conspiracy jury instruction. Kemp was an organizer, the hub of
    the various spokes of the conspiracy, and minor disputes between the
    lower-ranking members did not serve to end or void the conspiracy
    as to him. Further, there is nothing to indicate impairment of Kemp's
    substantial rights. Kemp has failed to meet his heavy burden on this
    issue and we therefore affirm the trial court.
    Second, we address the question of Kemp's proper base offense
    level. The trial court's application of sentencing factors will be
    reviewed for clear error. United States v. Brooks, 
    957 F.2d 1138
     (4th
    Cir. 1992). The trial court may determine the facts of the case, for the
    purposes of sentencing, by a mere preponderance of the evidence.
    United States v. Vinson, 
    886 F.2d 740
    , 741-42 (4th Cir. 1989).
    Kemp's sentencing argument involves two parts, one a dispute over
    the amount of cocaine involved and the other a dispute over the
    proper offense level calculation in light of a subsequent amendment
    to Guidelines § 2D1.1(c). As the amount of cocaine base was a factual
    issue at sentencing, the trial court needed only a preponderance of the
    evidence to find that Kemp was involved in the distribution of
    1,314.04 kilograms of cocaine base. Reviewed on appeal only for
    clear error, this finding must be sustained; in fact, the trial court
    clearly made every effort to resolve disputed amounts in favor of the
    defendant. Regardless, in April 1994 the trial court need only have
    found 15 kilograms of cocaine base to put Kemp in the base offense
    level of 42. See United States Sentencing Commission, Guidelines
    Manual, Appendix C, Amendment 505. We affirm the trial court's
    factual findings.
    The more interesting sentencing issue is the effect of Amendment
    505. In a Presentence Report of March 1994 the United States Proba-
    tion Officer calculated Kemp's base offense level at 42, at that time
    the proper offense level for 15 or more kilograms of cocaine base
    under § 2D1.1. The trial court used the same method in its sentencing
    of April 1994 and, after the two-level enhancement for firearms and
    four-level enhancement for leadership role, gave Kemp an adjusted
    offense level of 48. Since the Sentencing Table mandates a life sen-
    tence for any adjusted offense level higher than 42, Kemp received
    life imprisonment. See USSG Ch.5, Pt.A. However, on November 1,
    5
    1994, Amendment 505 became effective and reduced the highest base
    offense level in § 2D1.1 to 38. Kemp argues that § 1B1.10(c) makes
    the amendment retroactive, and that both his base offense level and
    sentence should now be recalculated.
    We disagree. Guidelines § 1B1.10(a), governing subsequent modi-
    fication of sentencing factors, reads in pertinent part:
    [w]here a defendant is serving a term of imprisonment, and
    the guideline range applicable to that defendant has subse-
    quently been lowered as a result of an amendment to the
    Guidelines Manual . . . a reduction of the defendant's term
    of imprisonment is authorized under 
    18 U.S.C. § 3582
    (c)(2).
    Title 
    18 U.S.C. § 3582
    (c)(2) provides:
    in the case of a defendant who has been sentenced to a term
    of imprisonment based on a sentencing range that has subse-
    quently been lowered by the Sentencing Commission . . .
    upon motion of the defendant or the Director of the Bureau
    of Prisons, or on its own motion, the court may reduce the
    term of imprisonment . . . .
    Finally, Application Note 2 to § 1B1.10 explains that § 1B1.10 was
    drafted to implement 
    28 U.S.C. § 994
    (u), which reads in full:
    [i]f the Commission reduces the term of imprisonment rec-
    ommended in the guidelines applicable to a particular
    offense or category of offenses, it shall specify in what cir-
    cumstances and by what amount the sentences of prisoners
    serving terms of the imprisonment for the offense may be
    reduced.
    Taken together, these sections authorize a court to reduce the defen-
    dant's sentence where a subsequent amendment has changed the
    Guidelines in such a fashion that the range of possible sentences is
    lowered. But in Kemp's case, the range has not been lowered.
    Although a new base offense level of 38 would not place Kemp in
    the automatic life sentence category he formerly occupied under the
    6
    Sentencing Table, his adjusted offense level would still do so. The
    adjusted offense level of 44, calculated by adding the base offense
    level to his two- and four-level enhancements, would still place Kemp
    off the chart and into a mandatory life sentence. Thus the change in
    § 2D1.1(c) is a reduction in neither the "guideline range" referred to
    in Guidelines § 1B1.10(a) nor the "sentencing range" of 
    18 U.S.C. § 3582
    (c)(2), because there is no "range." Whether his offense level
    is the former 48, or the possible 44, his only authorized sentence is
    life imprisonment.
    This arithmetic raises two points. First, the authorization to apply
    retroactive amendments via § 1B1.10 is discretionary, not mandatory,
    as urged by Kemp. See United States v. Turner , 
    59 F.3d 481
    , 483 (4th
    Cir. 1995). Second, the three sections cited above clearly concern
    changes in actual sentence, not changes in the various base levels and
    adjustments that go into the calculation of sentence. We question
    whether the sections authorize a modification with no real effect. We
    conclude that retroactive modification does not apply to Kemp's case
    because a reduction in his base offense level would not affect his sen-
    tence. Modification would be a meaningless exercise. Therefore we
    decline to perform it and we affirm the trial court.*
    III.
    We conclude that none of the challenges raised by Kemp merit
    reversal. Therefore Kemp's conviction and sentence, and the judg-
    ment of the trial court, are affirmed in all respects.
    AFFIRMED
    _________________________________________________________________
    *Should Kemp wish to engage in such an exercise, the trial court is the
    proper forum in which to move for reconsideration of his sentence.
    Kemp may argue to the trial court that the possible reduction in base
    offense level makes a downward departure more feasible. However, a
    departure is an extraordinary action and is best left to the trial court's
    sound discretion. We will not assume such action for the purposes of this
    appeal.
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