United States v. Simpson , 228 F.3d 1294 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 98-6749 SEPTEMBER 29, 2000
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 96-00195-CR-N-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
versus
DARRELL SIMPSON,
Defendant-Appellant,
Cross-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Alabama
_________________________
(September 29, 2000)
Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.
MARCUS, Circuit Judge:
Darrell Simpson appeals his 352-month sentence resulting from his conviction on charges
of conspiracy to possess with intent to distribute cocaine base, two counts of distribution of
cocaine base, and two counts of carrying a firearm during a drug-trafficking crime. The
Government cross-appeals arguing that the district court abused its discretion in giving Simpson
a 240-month downward departure from the mandatory minimum sentencing regime embodied in
21 U.S.C. §§ 841, 851 and 18 U.S.C. § 924(c)(1) on the grounds that the mandatory minimum
overrepresented the gravity of Simpson’s offenses. Because we find that the district court
plainly erred in determining the drug quantity attributable to Simpson and abused its discretion
in departing downward from the mandated sentence, we vacate the district court’s sentence and
remand for re-sentencing.
I.
The facts and procedural history are straightforward. On October 22, 1996, a federal
grand jury charged Simpson with unlawful distribution of a controlled substance in violation of
21 U.S.C. § 841(a)(1) and with the use and carrying of a firearm during and in relation to a drug-
trafficking crime in violation of 18 U.S.C. § 924(c)(1). On January 2, 1997, a superseding
indictment expanded the charges against Simpson alleging the following drug and firearm
counts: Count I - conspiracy to possess with intent to distribute cocaine base from May 15, 1996
through November 15, 1996, in violation of 21 U.S.C. §§ 841(a)(1) & 846; Count II - unlawful
distribution of a controlled substance and aiding and abetting on May 17, 1996, in violation of 21
U.S.C. § 841(a)(1); Count III - unlawful distribution of a controlled substance and aiding and
abetting on May 23, 1996, in violation of 21 U.S.C. § 841(a)(1); Count IV - use and carrying of a
firearm during and in relation to a drug trafficking crime on May 23, 1996, in violation of 18
U.S.C. § 924(c)(1); Count V - unlawful distribution of a controlled substance on June 12, 1996,
in violation of 21 U.S.C. 841(a)(1); and, finally, Count VI - use and carrying of a firearm during
and in relation to a drug trafficking crime on June 12, 1996, in violation of 18 U.S.C. §
924(c)(1). The superseding indictment also named co-defendant Elmore Murphy in Counts I, II,
III, and IV. Murphy entered into a plea bargain with the government and was sentenced to 51
2
months in prison. He subsequently testified against Simpson.
At Simpson’s trial in July 1998, Murphy testified that he entered into an agreement with
Simpson in late 1995 when Simpson first propositioned Murphy to sell cocaine for him and then
showed Murphy how to cut up the crack cocaine for re-sale. Murphy said that beginning in late
1995 he obtained one gram of crack from Simpson every week for two to three months (for
approximately 12 grams). Later he received two to three grams of crack from Simpson for
approximately a two month period (for approximately 16 grams), and then at some point began
receiving “quarter ounces” (5-6 grams) of cocaine from Simpson.1 Notably, Murphy did not
remember the duration or frequency with which he received the quarter ounces, however the
Presentence Investigation Report (“PSI”) calculated the quarter ounce distributions to total 144
grams.
Confidential informant Willie Aaron also testified at trial to two controlled buys from
Simpson. First, Aaron said that on June 12, 1996, Simpson weighed about 40 grams of crack on
a scale from which he purchased approximately 25 grams, and, again, on May 23, 1996, Simpson
and Murphy sold him 16 grams of crack. Finally, Emmitt Knight testified that in 1992, some
four years before the conspiracy at issue, Simpson sold him approximately one-half ounce of
crack every three days for six months, amounting to a total of approximately 600 grams.
On July 9, 1998, the jury convicted Simpson on Counts I, III, IV, V, and VI of the
superseding indictment. Prior to Simpson’s trial, the Government had filed a Notice of
Information under 21 U.S.C. § 851 stating that Simpson had been convicted in 1996 of a prior
1
We note that in the community where these drug transactions took place purchases of
an “ounce” referred to something less than 28 grams.
3
felony drug offense. See R1-130. At no time has Simpson challenged the validity of this § 851
Notice of Information. At the sentencing hearing, the district court adopted the calculation in the
Presentence Investigation Report and specifically attributed 857.7 grams of crack cocaine to
Simpson based upon the aggregation of 45.7 grams2 from two the controlled buys by Aaron, 172
grams from the distributions to Murphy, 40 grams from distributions to Edward Hardy,3 and 600
grams from the sales to Knight. The PSI concluded that Simpson’s guideline range on the drug
counts was 292 to 365 months, a consecutive 60 months on the first firearm offense, and still
another consecutive 240 months on the second firearm offense. Simpson’s minimum sentence
was calculated at 592 months. The district court agreed with the calculations of the PSI but
concluded that a 592 month sentence was “disproportionate to the gravity of defendant’s
offenses” and reduced the sentence by 240 months, thereby sentencing Simpson to a total of 352
months in prison.
On appeal, Simpson argues that the district court erred in denying his motion for
judgment of acquittal, erred in its jury charge on the two § 924(c)(1) firearm counts, and erred at
sentencing in calculating the amount of crack cocaine attributable to him. In its cross-appeal, the
Government also challenges the sentence arguing that the district court abused its discretion in
departing downward from the applicable mandatory minimum sentence for the drug and firearms
offenses.
2
We note that this was an apparent error in the PSI Report since the amount attributable
to Simpson from the controlled buys was approximately 56 grams. For the purposes of our
ruling on appeal, however, this error was harmless.
3
Edward Hardy was named as a co-defendant along with Simpson and Murphy in the
superseding indictment. After his arrest, Hardy told federal agents that he had sold two ounces
or approximately 40 grams of crack cocaine for Simpson.
4
II.
We review a challenge to the sufficiency of the evidence de novo. See United States v.
Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000); United States v. Mattos, 74 F.3d 1197, 1199 (11th
Cir. 1996). In reviewing a district court’s denial of a motion for judgment of acquittal on the
grounds of insufficient evidence, we must decide whether the evidence, examined in the light
most favorable to the government, was sufficient to support the jury’s conclusion that the
defendant was guilty beyond a reasonable doubt. See United States v. Toler, 144 F.3d 1423,
1428 (11th Cir. 1998).
We review jury instructions de novo to determine whether they misstate the law or
mislead the jury to the prejudice of the objecting party. See Palmer v. Bd. of Regents of the
Univ. Sys. of Ga., 208 F.3d 969, 973 (11th Cir. 2000); United States v. Chandler, 996 F.2d 1073,
1085 (11th Cir. 1993).
We review a district court’s determination of the quantity of drugs used to establish a
base offense level for sentencing purposes under the clearly erroneous standard. See United
States v. Jackson, 115 F.3d 843, 845 (11th Cir. 1997); United States v. Mertilus, 111 F.3d 870,
873 (11th Cir. 1997). However, we consider sentence objections raised for the first time on
appeal under the plain error doctrine to avoid manifest injustice. See United States v. Chisholm,
73 F.3d 304, 307 (11th Cir. 1996); United States v. Newsome, 998 F.2d 1571, 1579 (11th Cir.
1993).
Finally, we review a district court’s decision to depart downward from the applicable
sentencing guidelines range for abuse of discretion. See Koon v. United States, 518 U.S. 81, 98-
100, 116 S. Ct. 2035, 2046-48, 135 L. Ed. 2d 392 (1996); United States v. Pickering, 178 F.3d
5
1168, 1171 (11th Cir.), cert. denied, --- U.S. ---, 120 S. Ct. 433, 145 L. Ed. 2d 339 (1999).
A.
First, Simpson argues that the district court erred in denying his motion for a judgment of
acquittal because the evidence was insufficient to support a guilty verdict on the conspiracy
charge. Simpson claims that the evidence presented at trial, even when viewed in the light most
favorable to the Government, was insufficient to establish the requisite elements of either a drug
conspiracy or Simpson’s complicity in it. We are not persuaded.
In order to prove a conspiracy to distribute cocaine, the Government must establish
beyond a reasonable doubt: 1) the existence of an agreement among two or more persons; 2) that
the defendant knew of the general purpose of the agreement; and 3) that the defendant knowingly
and voluntarily participated in the agreement. See United States v. Adkinson, 158 F.3d 1147,
1153 (11th Cir. 1998); United Toler, 144 F.3d at 1425-26 (citing United States v. High, 117 F.3d
464, 468 (11th Cir. 1997)); United States v. Calderon, 127 F.3d 1314, 1326 (11th Cir. 1997).
Simpson claims that confidential informant Willie Aaron testified only that Simpson was
present during a drug transaction he conducted with Murphy on May 23, 1996 and that he
bought drugs from Simpson, individually, on June 12, 1996. Simpson argues that Aaron’s
testimony is insufficient to establish an illegal agreement between Simpson and Murphy to sell
drugs. Moreover, Simpson says that co-defendant Murphy’s testimony regarding a conspiracy
between them to sell drugs was not corroborated by the Government’s videotapes of the May 23,
1996 and June 12, 1996 transactions, and he points out that Murphy specifically testified that he
sold drugs independently of Simpson. Finally, Simpson observes that both Aaron and Murphy
received considerable downward departures in their sentences in return for their testimony
6
against him.
The Government responds that the evidence it presented at trial was sufficient to
establish beyond a reasonable doubt that Simpson and Murphy were engaged in a conspiracy to
distribute cocaine between May 15, 1996 and November 15, 1996. We agree. Murphy’s trial
testimony clearly established an illegal agreement between the two that began when Simpson
propositioned Murphy in late 1995 to sell cocaine for him and then showed Murphy how to cut
up the crack cocaine for re-sale. See R3-155-56, 158-59. As Murphy testified, the agreement
was straightforward: Simpson would “front” Murphy the crack cocaine on credit; Murphy
would then sell the cocaine; and the two of them would share the profits. See R3-156-58. The
Government also points to Aaron’s testimony that when he purchased cocaine from Murphy on
May 23, 1996, it was Simpson who supervised and gave the “go-ahead” for the deal. See R3-47-
49. Aaron’s testimony regarding the May 23, 1996 sale was consistent with Murphy’s account
that he and Simpson made the May 23, 1996 sale to Aaron together. See R3-179.
The jury plainly credited the Government’s testimony, and it is not for us on appeal to re-
weigh the factfinder’s credibility choices. See United States v. Ramsdale, 61 F.3d 825, 829 n.10
(11th Cir. 1995) (noting that “[c]redibilty determinations are for the factfinder and should not
ordinarily be tampered with on appeal”). We reiterate that an appellate court must view the
evidence in the light most favorable to the government, drawing all reasonable inferences and
credibility determinations in favor of the verdict. See Toler, 144 F.3d at 1428. When measured
against this clear standard, we affirm the district court’s denial of Simpson’s motion for
judgment of acquittal on the charge of conspiracy.
B.
7
Second, Simpson argues that the trial court erred by “constructively” amending his
indictment in its instructions to the jury. Simpson claims the court constructively amended the
indictment by instructing the jury, over the objection of defense counsel, that they could convict
Simpson on Counts IV and VI (the firearms counts), if they found that he “used or carried”
(emphasis added) a firearm in relation to a drug trafficking offense, while the indictment actually
charged that Simpson “did knowingly use and carry a firearm” (emphasis added) in relation to a
drug trafficking crime. This claim is without merit.
We have explained that “[a] constructive amendment to the indictment occurs where the
jury instructions so modify the elements of the offense charged that the defendant may have been
convicted on a ground not alleged by the indictment.” United States v. Poarch, 878 F.2d 1355,
1358 (11th Cir. 1989). A constructive amendment to the indictment is reversible error per se.
Id. (citing United States v. Peel, 837 F.2d 975, 979 (11th Cir. 1988)).
Simpson argues that by changing “and” to “or” in its charge to the jury, the district court
modified the elements of the offense charged, lessened the State’s burden of proof, and denied
him his due process rights. Both our clear precedent and logic itself reject Simpson’s argument.
In Poarch we considered a case similar to the present one in which the indictment
charged that the defendant had falsified material facts, concealed material facts, and covered up
material facts. Under the relevant statute, 18 U.S.C. § 1001, and according to the instructions
given to the jury, the government was only required to show that one of these acts was
committed in order to prove guilt. See Poarch, 878 F.2d at 1358. We explained that because the
indictment alleged that all three acts were committed, each of which violates the statute, the
government charged more than was required by the statute. Id. Given the more strenuous terms
8
of the indictment, it was impossible that the appellant could have been convicted at trial of a
ground not alleged in the indictment. Id. As we explained:
Poarch was indicted for falsifying material facts, concealing material facts and
covering up material facts. Since the jury was charged that it could find Poarch
guilty if he falsified, concealed, or covered up a material fact, all of which were
alleged in the indictment, there could have been no constructive amendment to the
indictment, and we therefore must reject Poarch’s argument.
Id. at 1358; see also United States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996) (holding that
the district court properly instructed the jury that the defendant could be found guilty if he had
used force and violence or intimidation, tracking the language of the statute under which he was
charged, 18 U.S.C. § 2113(a), even though he had been accused in the indictment of having used
force, violence and intimidation); United States v. Earls, 42 F.3d 1321, 1327 (10th Cir. 1994)
(explaining that “‘it is generally accepted procedure to use ‘and’ in an indictment where a statute
uses the word ‘or’ . . . [because] [t]his assures that defendants are not convicted on information
not considered by the grand jury.’ Moreover, it is ‘entirely proper’ for the district court to
instruct the jury in the disjunctive, though the indictment is worded in the conjunctive”) (quoting
United States v. Daily, 921 F.2d 994, 1001 (10th Cir. 1990)).
The logic of Poarch controls this case. Simpson’s indictment charged in Counts IV and
VI that he “did knowingly use and carry a firearm” in relation to a drug trafficking crime.
However, the statute requires only a showing that the defendant “uses or carries a firearm” in
relation to a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). Because Simpson was
indicted under the more strenuous use and carry standard, he could not possibly have been
convicted on a ground that was not alleged in the indictment. Quite simply, the law is well
established that where an indictment charges in the conjunctive several means of violating a
9
statute, a conviction may be obtained on proof of only one of the means, and accordingly the jury
instruction may properly be framed in the disjunctive.
C.
Third, Simpson argues that the district court erred in attributing 857.7 grams of crack
cocaine to him for purposes of determining his base offense level. Specifically, Simpson urges
that the district court mistakenly held him responsible for the amounts of cocaine that Knight
testified he purchased from Simpson in 1992 (600 grams), for the quarter ounces that Murphy
testified he purchased from Simpson without specifying the frequency or duration of the
purchases (144 grams), and for the more specific amounts Murphy testified that he purchased
from Simpson before May 15, 1996 (28 grams). Simpson concedes that he did not raise any of
these objections before the district court. Therefore, we review the district court’s ruling for
plain error. To prevail on a showing of plain error, a defendant must prove three things: 1) an
error, 2) that is plain, and 3) that affects substantial rights. See Jones v. United States, 527 U.S.
373, 389, 119 S. Ct. 2090, 2102, 144 L. Ed. 2d 370 (1999); United States v. Tyndale, 209 F.3d
1292, 1295 (11th Cir. 2000). Moreover, an appellate court should exercise its discretion to
correct a plain error only if it “‘seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” Jones, 527 U.S. at 389, 119 S.Ct. at 2102 (quoting United States v.
Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508 (1993)) (internal quotation
marks omitted); see also United States v. Badek, 146 F.3d 1326, 1328 (11th Cir. 1998).
To begin, Simpson argues, and the Government concedes on appeal, that the district court
erred in attributing 600 grams of cocaine to him based on the testimony of Emmitt Knight.
Knight testified that he purchased some 600 grams of cocaine from Simpson over a 6 month
10
period in 1992, long before the alleged start of the conspiracy in May 1996. Not only did this
conduct occur several years prior to the charged conspiracy, it also did not involve the same
alleged co-conspirators. Both parties now agree, as they must, that this activity clearly falls far
outside the scope of the 1996 conspiracy for which Simpson was convicted, and therefore 600
grams of crack cocaine was improperly attributed to Simpson for sentencing purposes. See
United States v. Gomez, 164 F.3d 1354, 1356 (11th Cir. 1999) (explaining that a “defendant may
be held accountable at sentencing for illegal conduct not in furtherance of the offence of
conviction if that conduct was ‘part of the same course of conduct or common scheme or plan’ as
the offense of conviction”) (quoting U.S.S.G. § 1B1.3(a)(2)); United States v. Maxwell, 34 F.3d
1006, 1011 (11th Cir. 1994) (evaluating the “similarity, regularity, and temporal proximity”
between the offense of conviction and the uncharged conduct to determine whether the
uncharged conduct is relevant conduct for the purposes of calculating a defendant’s base offense
level) (internal quotation marks omitted).
Simpson also objects to the sentencing court’s attribution of some 144 grams of cocaine
to him based on Murphy’s “vague” testimony that he received quarter ounce distributions from
Murphy without specifying either the duration or frequency of these distributions. Murphy did
say that at some point he began receiving quarter ounces of cocaine from Simpson for him to
sell, but he could not remember the time period during which these quarter ounce distributions
were made or, notably, their frequency. In light of this vague and uncertain testimony, we agree
with Simpson and conclude that the district court erred in assuming that Simpson distributed
quarter ounces to Murphy every week for six months. As a result, on this limited record, the
district court abused its discretion in attributing an additional 144 grams of cocaine to Simpson
11
based on this testimony. At best, because of its ambiguity, this part of Murphy’s testimony
arguably supports the attribution of only a single quarter ounce, or approximately 5-6 grams, of
cocaine base to Simpson.
Finally, Simpson argues that the sentencing court erred in attributing to him 28 grams of
cocaine base based on distributions he allegedly made to Murphy prior to May 15, 1996.4
Specifically, Simpson argues that Murphy’s testimony concerning drug distributions by Simpson
in late 1995, and prior to May 15, 1996, fall outside the scope of the conspiracy at issue. The
Government responds that the late 1995 distributions between Simpson and Murphy should be
attributed to Simpson for sentencing purposes because they involve relevant conduct sufficiently
related to the conspiracy for which Simpson was convicted. See Gomez, 164 F.3d at 1357
(explaining that in determining the base offense level for a drug conspiracy conviction,
“uncharged criminal activity outside of a charged conspiracy may be included in sentencing if
the uncharged activity is sufficiently related to the conspiracy for which the defendant was
convicted”).
In this case, the uncharged conduct about which Murphy testified involved both the same
parties as the charged conspiracy and was temporally connected to it. As such, we cannot
conclude that the district court plainly erred in attributing 28 grams of cocaine base to Simpson
based on Murphy’s testimony regarding distributions beginning in late 1995. Indeed, as to the
attribution of this amount we cannot say the district court erred, let alone plainly erred, or that it
4
The 28 grams combines the weekly distributions of one gram that Murphy testified he
received from Simpson for two to three months (for a total of 12 grams) plus the weekly
distributions of two to three grams he testified he received from Simpson for a two month period
(for a total of 16 grams).
12
resulted in a miscarriage of justice.
In sum, based on the record we conclude that the district court plainly erred in attributing
600 grams of crack to Simpson based on Knight’s testimony, and in attributing 144 grams to
Simpson based on Murphy’s ambiguous testimony regarding his receipt of quarter ounces from
Simpson, but did not plainly err in attributing 28 grams crack cocaine to Simpson based on
Murphy’s more detailed testimony regarding the weekly distributions made to him by Simpson
beginning in late 1995. Accordingly, we conclude the district court properly should have
attributed 28 grams of crack cocaine to Simpson based on his weekly distributions to Murphy in
late 1995 plus 6 grams of crack cocaine to Simpson based on at least one quarter ounce
distribution by Simpson to Murphy for a total of 34 grams of cocaine based on Murphy’s
testimony alone.
D.
Finally, in the cross-appeal, the Government argues that the district court abused its
discretion in giving Simpson a 240 month downward departure on his 592 month sentence on the
grounds that the sentence overrepresented the gravity of the offenses and Simpson’s criminal
history category overstated the seriousness of his past conduct. The district court explained the
grounds for its downward departure in these terms:
Under the Sentencing Reform Act of 1984, as strictly applied, it would
appear that the defendant would be committed to the custody of the United States
Bureau of Prisons to be imprisoned for a total term of 592 months minimum or
665 months maximum. The minimum term consists of 292 months on each of
Counts I, III and V, to be served concurrently, a term of 60 months as to Count
IV, to be served consecutively to the terms on Counts I, III, and V, and a term of
240 months as to Count VI, to be served consecutively to the terms imposed on
Counts I, III and V, as well as consecutively to the term imposed on Count IV.
In the opinion of the Court, a sentence of 592 months greatly over states
the offenses of defendant Simpson, and a sentence of this magnitude is
13
disproportionate to the gravity of defendant’s offenses. A sentence of 292 months
or 29 plus years under the guidelines would be based on reasonable estimates of
quantities of drugs sold by defendant plus a criminal history which was largely
based on two arrests for gambling and incidental discovery of marijuana as to
one.
The Court is of the opinion and so orders that the defendant be committed
to the custody of the United States Bureau of Prisons to be imprisoned for a total
term of 352 months.
R1-178.
The Government plainly objected at the sentencing hearing to the district court’s
downward departure arguing that the court could not depart downward from the mandatory
sentencing regime codified by Congress in 21 U.S.C. §§ 841, 851, and 18 U.S.C. § 924(c)(1).
We agree.
We emphasize that this case is governed by the mandatory minimum sentences
established by Congress. This is not a case where the district court had any discretion to depart
downward from the relevant sentencing guideline range. See Koon, 518 U.S. at 95-96, 116 S.Ct.
at 2045. In this case, the relevant statutorily authorized mandatory minimum sentences exceeded
the relevant Sentencing Guidelines range, and, therefore, took precedence over them. Moreover,
the district court had no discretion to depart downward from the relevant statutory mandatory
minimum sentences.
As we have observed, the district court erred in attributing 857.7 grams of cocaine to
Simpson. However, even excluding the amounts erroneously attributed to Simpson (namely 600
grams sold to Knight and 144 grams distributed to Murphy in quarter ounces), Simpson is still
responsible for significantly more than 50 grams of cocaine base.5
5
As stated earlier, the PSI erroneously attributed 45.7 grams of cocaine to Simpson
based on the controlled buys to Aaron rather than the correct 56 grams. In addition, although the
14
Section 841(b) provides:
[A]ny person who violates subsection (a) of this section shall be sentenced as
follows: (1)(A) In the case of a violation of subsection (a) of this section
involving – . . . (iii) 50 grams or more of a mixture or substance described in
clause (ii) which contains cocaine base; . . . such person shall be sentenced to a
term of imprisonment which may not be less than 10 years . . . . If any person
commits such a violation after a prior conviction for a felony drug offense has
become final, such person shall be sentenced to a term of imprisonment which
may not be less than 20 years and not more than life imprisonment . . . . (emphasis
added)
Prior to trial, the Government filed a Notice of Information under 21 U.S.C. § 851 stating that
Simpson had a prior conviction for a felony drug offense. Simpson did not challenge, contradict,
or respond in any way to the § 851 enhancement doubling the mandatory sentence for his drug
charges. Therefore, under 21 U.S.C. § 841, the district court was required to sentence Simpson
to a statutory minimum term of 20 years or 240 months on his drug convictions.6
Under the Sentencing Guidelines, Simpson’s base offense level for the distribution of
more than 50 grams but less than 150 grams of cocaine base is 32. See U.S.S.G. § 2D1.1.
Simpson received a two level enhancement pursuant to U.S.S.G. § 3B1.1(c) for being an
organizer, leader, manager, or supervisor of the criminal activity. Given his base offense level of
34, and a criminal history category of III, Simpson falls within a Sentencing Guidelines range of
188-235 months for his drug convictions. But the Sentencing Guidelines make clear that where
district court erred in attributing 144 grams of cocaine base to Simpson based on Murphy’s
vague testimony about quarter ounce distributions to him, at least 6 grams of cocaine can
properly be attributed to Simpson based on this testimony. Therefore, based on the district
court’s findings, Simpson should be held accountable for 56 grams based on the two controlled
buys by Aaron, plus 34 grams based on the distributions to Murphy, plus 40 grams based on the
distribution to Hardy for a total of approximately 130 grams.
6
Counts I, III, and V are grouped offenses whose sentences can run concurrently. See
U.S.S.G. § 3D1.2(d)
15
a guideline range falls entirely below a mandatory minimum sentence, the court must follow the
statutory minimum. See U.S.S.G. § 5G1.17; see also United States v. Ortega-Torres, 174 F.3d
1199, 1201 n.2 (11th Cir.) (emphasizing that the statute controls in the event of a conflict
between the guideline and the statute), cert. denied, --- U.S. ---, 120 S. Ct. 259, 145 L. Ed. 2d 217
(1999); United States v. Eggersdorf, 126 F.3d 1318, 1320 (11th Cir. 1997) (same), cert. denied,
523 U.S. 1013, 118 S. Ct. 1204, 140 L. Ed. 2d 332 (1998). Therefore, because the Sentencing
Guidelines range falls entirely below the statutorily imposed mandatory minimum sentence for
Simpson’s drug offenses, the district court was obliged to impose the mandatory minimum 240
months for these drug convictions.
As for Simpson’s two firearm convictions, 18 U.S.C. § 924(c)(1) provided for a sentence
of five years on a first conviction, and a sentence of 20 years for a “second or subsequent
conviction under this subsection.”8 Moreover, § 924(c)(1) expressly provided that the term of
7
U.S.S.G. § 5G1.1 states:
Sentencing on a Single Count of Conviction
...
(b) Where a statutorily required minimum sentence is greater than the
maximum of the applicable guideline range, the statutorily required
minimum sentence shall be the guideline sentence.
(c) In any other case, the sentence may be imposed at any point within the
applicable guideline range, provided that the sentence --
(1) is not greater than the statutorily authorized maximum
sentence, and
(2) is not less than any statutorily required minimum sentence.
8
On November 13, 1998, 18 U.S.C. § 924(c) was amended and the penalty for a second
or subsequent conviction was increased to 25 years. At the time of Simpson’s offense and
sentencing, however, the relevant portion of § 924(c)(1) read: “Whoever, during and in relation
to any crime of violence or drug trafficking crime . . . uses or carries a firearm, shall in addition
to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to
imprisonment for five years . . . . In the case of his second or subsequent conviction under this
subsection such person shall be sentenced to imprisonment for twenty years . . . .”
16
imprisonment imposed under this subsection shall not “run concurrently with any other term of
imprisonment including that imposed for the crime of violence or drug trafficking crime in
which the firearm was used or carried.” See also U.S.S.G. 2K2.4 (stating that “if the defendant .
. . was convicted under . . . 924(c) . . . the term of imprisonment is that required by statute);
United States v. Cespedes, 151 F.3d 1329, 1333 (11th Cir. 1998) (holding that the sentence
under section 924(c) must be served consecutively with the sentences for defendant’s other
offenses); Bazemore v. United States, 138 F.3d 947, 948 (11th Cir. 1998) (same); United States
v. Siegel, 102 F.3d 477, 481-82 (11th Cir. 1996)(same). Therefore, on the two firearm
convictions, Simpson must serve a mandatory term of imprisonment of 300 months to run
consecutive to the sentence imposed for his other offenses.
There are only two circumstances in which a court can depart downward from a
statutorily authorized mandatory minimum sentence. Either the Government must file a motion
to recognize the defendant’s “substantial assistance” in the investigation or prosecution of
another person, see 18 U.S.C. § 3553(e), or, the defendant must fall within the provisions of the
“safety valve” embodied in 18 U.S.C. § 3553(f). Neither circumstance is applicable here.
According to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, a court may depart downward
from a statutory mandatory minimum if the government files a motion stating that the defendant
has provided substantial assistance. The Government did not file a substantial assistance motion
in this case, and therefore the district court could not depart downward from the statutory
minimum sentences on this ground.
Under the safety-valve provision of 18 U.S.C. § 3553(f), a sentencing court can depart
downward from a statutory minimum sentence for an offense arising under 21 U.S.C. §§ 841,
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844, 846, 960 or 963 if the defendant meets each of five criteria: 1) the defendant does not have
more than 1 criminal history point; 2) the defendant did not use violence or credible threats of
violence or possess a firearm or other dangerous weapon in connection with the offense; 3) the
offense did not result in death or serious bodily injury to any person; 4) the defendant was not an
organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a
continuing criminal enterprise; and 5) not later than the time of the sentencing hearing, the
defendant has truthfully provided the Government all information and evidence the defendant
has concerning the offense or offenses that were part of the same course of conduct. See 18
U.S.C. § 3553(f); U.S.S.G. § 5C1.2. But Simpson could not qualify for a downward departure
under the safety-valve provision because he had four criminal history points, possessed a firearm
during two of his drug offenses, and was found to be an organizer, leader, manager, or supervisor
of the criminal activity.
On this record, the district court was bound to impose the statutorily authorized
mandatory minimum sentences for Simpson’s crimes, namely 240 months for the drug
convictions plus 300 months for the two firearms convictions for a total mandatory minimum
sentence of 540 months. The district court had no discretion in this case to depart downward
from these congressionally created explicit mandatory minimum sentences.
We conclude, therefore, that the district court erred in attributing 857.7 grams of cocaine
to Simpson, and abused its discretion in sentencing Simpson to 352 months in prison.
Accordingly, although we affirm the conviction, we are required to vacate the district court’s
sentencing order and remand for re-sentencing consistent with this opinion.
VACATED AND REMANDED.
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