United States v. Reese

United States Court of Appeals,

Eleventh Circuit.

No. 93-8843.

UNITED STATES of America, Plaintiff-Appellee,

v.

Lenzy REESE, Jr.; Mary Johnson, a/k/a "Lady Red"; James
O'Bryant, a/k/a "Boo-Boo"; Tyrone Davis; Benjamin LaShawn Cooper;
Lucious Johnson, a/k/a "Humpy"; Pamela Cooper; Willie Norton;
Lester Bell, Defendants-Appellants.

Oct. 26, 1995.

Appeals from the United States District Court for the Southern
District of Georgia. (No. 5:92-00029-CR), Anthony A. Alaimo, Judge.

Before HATCHETT, DUBINA and BLACK, Circuit Judges.

HATCHETT, Circuit Judge:

The nine appellants in this criminal appeal raise numerous

issues challenging their convictions and sentences for

participation in a drug trafficking conspiracy. With the exception

of one sentencing issue, we find that all of the appellants'

contentions lack merit and do not warrant discussion. The one

issue requiring discussion is whether the district court misapplied

section 1B1.3 of the United States Sentencing Guidelines in

attributing quantities of cocaine to four of the appellants: Lenzy
1
Reese, Jr., Lester Bell, Tyrone Davis, and Mary Johnson. We

affirm the convictions, vacate the sentences, and remand for

resentencing.

BACKGROUND

1
In addition to challenging the district court's application
of the guidelines, the four appellants challenge the accuracy of
the district court's factual findings. An additional appellant,
James O'Bryant, also makes this contention. We find that these
contentions lack merit and do not warrant discussion.
 In the late 1980s and early 1990s, Eugene Edmond led a drug

trafficking organization in Waycross, Georgia. Reese, Bell, and

Davis were "street-level" dealers for Edmond's organization.

Johnson was married to Edmond's partner. The organization used

Johnson's house as a storage and distribution center for cocaine.

On April 16, 1993, a jury convicted the appellants of

conspiring to distribute controlled substances in violation of 21

U.S.C. § 846.2 The United States Probation Office then prepared a

presentence investigation report (PSR) for each of the appellants.

Each PSR included a determination of the amount of cocaine

attributable to each of the appellants under the Sentencing

Guidelines. In making these determinations, the PSRs calculated

that the Edmond conspiracy distributed approximately one kilogram

of crack cocaine and three ounces of cocaine hydrochloride per

month. The PSRs then multiplied this figure to the number of

months each appellant was involved in the Edmond conspiracy to

arrive at an overall determination.

The appellants objected to the determinations in their PSRs.

In response, the probation office prepared an addendum to each PSR.

The addenda rejected the appellants' objections and adhered to the

original determinations. Subsequently, in June 1993, the district

court held individual sentencing hearings for each of the

appellants.

At Reese's sentencing hearing, defense counsel objected to the

PSR's assertion that Reese had participated in the Edmond

2
The jury also convicted Johnson of the substantive offense
of possessing a controlled substance with the intent to
distribute, in violation of 21 U.S.C. § 841(a)(1).
conspiracy for five months. Counsel contended that Reese "should

be attributed with the amount of cocaine that would be applicable

for a three-month period as opposed to a five-month period." The

district court overruled Reese's objection and adopted the finding

contained in the addendum to his PSR, which stated:

According to Eugene Edmond, Reese was a distributor for his
organization from May, 1991 to September, 1991. Even though
Reese may have personally distributed only one to two ounces
of crack cocaine per week for Edmond, he should be held
accountable for the entire quantity distributed by the Edmond
organization based on his knowledge of the organization.
Reese knew that ... others were also selling quantities of
crack cocaine for Eugene Edmond. As such, pursuant to
U.S.S.G. § 1B1.3 (relevant conduct), the defendant should be
held accountable for all controlled substances distributed by
the Edmond organization during the period of time in which
Reese was a member of the Edmond organization.

The district court ultimately sentenced Reese to life imprisonment.

At Bell's sentencing hearing, his counsel objected to the

PSR's determination that Bell worked for Edmond for seven months

and was therefore accountable for seven kilograms of crack cocaine.

Counsel contended that Bell worked for Edmond for less than five

months, and therefore, was only accountable for less than five

kilograms of crack cocaine. In response to Bell's objection, the

district court adopted, with one exception, the finding in the

addendum to his PSR. The addendum stated:

The probation officer ... interview[ed] Eugene Edmond who
identified the defendant as having been employed in the
organization from June, 1991, through January, 1992. Edmond
acknowledges that his organization dealt at least one kilogram
of crack cocaine and three ounces of cocaine hydrochloride per
month. Because of Bell's knowledge of the Edmond organization
and the fact that his (Bell's) activities were in furtherance
of the criminal conspiracy, the defendant is attributed with
at least seven kilograms of cocaine hydrochloride.

The district court took exception with the seven-kilogram total;

instead, it found that Bell was only responsible for "in excess of
five kilos." The district court ultimately sentenced Bell to 360

months of imprisonment.

At Davis's sentencing hearing, his counsel objected to the

quantity attributed, arguing that Davis had no "knowledge of any

part of [Edmond's] organization." The district court overruled the

objection and adopted the finding in the addendum to Davis's PSR,

which stated:

[A]lthough the defendant worked under the direction of Cedric
Smith, he was still a part of the Edmond organization.
According to Eugene Edmond, Tyrone Davis was fully
knowledgeable of the scope and extent of the Edmond
organization and participated in the distribution of cocaine
over an extended period of time. The cocaine distributed by
Davis was cocaine provided to Cedric Smith through Eugene
Edmond. Based on the knowledge that Davis had of Smith's role
in the Edmond organization, Davis is attributed with the
amount of drugs attributed to Smith during the defendant's six
month period of involvement. Since Smith was culpable for six
kilograms of crack cocaine and 18 ounces of cocaine
hydrochloride during the six month period, Tyrone Davis is
accountable for the same.

The district court then sentenced Davis to 360 months of

imprisonment.

At Johnson's sentencing hearing, counsel challenged the

credibility of the evidence indicating that Johnson stored and

distributed cocaine. The district court overruled Johnson's

objection and adopted the finding in the addendum to her PSR, which

stated:

[T]he defendant is culpable for 33 kilograms of crack cocaine
and 48 ounces of cocaine hydrochloride. The evidence in this
case showed Lucious Johnson and Eugene Edmond stored
quantities of crack cocaine and cocaine hydrochloride at the
defendant's residence. According to Eugene Edmond, Mary
Johnson would provide Edmond and other members of the
conspiracy with quantities of crack cocaine and cocaine
hydrochloride to be distributed in the Waycross area.
Further, portions of the crack cocaine and cocaine
hydrochloride which were stored at the defendant's residence
were transported to Douglas, Georgia, by Lucious Johnson to be
 distributed in the Douglas area. Since the defendant stored
and distributed quantities of crack cocaine and cocaine
hydrochloride to members of the Edmond organization, pursuant
to U.S.S.G. § 1B1.3 (relevant conduct), she is held
accountable for the entire quantity of controlled substances
distributed by this organization.

Ultimately, the district court sentenced Johnson to life

imprisonment.

CONTENTIONS

Appellants contend that the district court did not properly

apply the amended version of U.S.S.G. § 1B1.3 in attributing

quantities of cocaine to them.3 The government responds that the

appellants' sentences were correctly calculated under both the old

and amended versions of section 1B1.3.

ISSUE

The only issue we discuss is whether the district court

misapplied U.S.S.G. § 1B1.3 in attributing quantities of cocaine to

the appellants.

DISCUSSION

A. Application of section 1B1.3 in drug conspiracies

U.S.S.G. § 2D1.1 sets the base offense level for conspiring to

distribute controlled substances. See United States v. Butler, 41

F.3d 1435, 1442 (11th Cir.1995). Calculating the base offense

level under section 2D1.1 "requires a determination of the quantity

of illegal drugs properly attributable to a defendant. This, in

3
Appellants also contend that the district court failed to
make individualized findings. See United States v. Ismond, 993
F.2d 1498, 1499 (11th Cir.1993). The district court, however,
held individual sentencing hearings and made specific findings
for each individual appellant. Thus, appellants' contention
essentially amounts to a legal challenge to the district court's
application of section 1B1.3.
turn, requires an assessment of the conduct of others for which a

defendant is accountable under section 1B1.3." Butler, 41 F.3d at

1442.

Before November 1, 1992, section 1B1.3(a) held defendants

accountable for

all acts and omissions committed or aided and abetted by the
defendant, or for which the defendant would be otherwise
accountable, 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, or that are otherwise in furtherance of that
offense....

U.S.S.G. § 1B1.3(a)(1) (1991) (emphasis added). The commentary to

section 1B1.3 clarified the emphasized language: "In the case of

criminal activity undertaken in concert with others, whether or not

charged as a conspiracy, the conduct for which the defendant "would

be otherwise accountable' also includes conduct of others in

furtherance of the execution of the jointly-undertaken criminal

activity that was reasonably foreseeable by the defendant."

U.S.S.G. § 1B1.3 comment. (n. 1) (1991). On the other hand, the

commentary explained that a defendant was not accountable for the

conduct of others "[w]here it is established that the conduct was

neither within the scope of the defendant's agreement, nor was

reasonably foreseeable in connection with the criminal activity the

defendant agreed to jointly undertake...." U.S.S.G. § 1B1.3

comment. (n. 1) (1991). This language seemed to indicate that a

conspirator was accountable for all reasonably foreseeable conduct,

regardless of the extent of the conspirator's agreement to

participate in the conspiracy. See United States v. Studley, 47

F.3d 569, 574 (2d Cir.1995). Indeed, the commentary provided an
example that supported this interpretation:

Defendants H and I engaged in an ongoing marihuana importation
conspiracy in which Defendant J was hired only to help
off-load a single shipment. Defendants H, I, and J are
included in a single count charging conspiracy to import
marihuana. For the purposes of determining the offense level
under the guideline, Defendant J is accountable for the entire
single shipment of marihuana he conspired to help import and
any acts or omissions in furtherance of the importation that
were reasonably foreseeable. He is not accountable for prior
or subsequent shipments of marihuana imported by Defendants H
or I if those acts were beyond the scope of, and not
reasonably foreseeable in connection with, the criminal
activity he agreed to jointly undertake with Defendants H and
I (i.e., the importation of the single shipment of marihuana).

U.S.S.G. § 1B1.3 comment. (n. 1) (1991). In other words, section

1B1.3 instructed that a conspirator was held accountable for the

acts of his coconspirators if: (1) the acts were reasonably

foreseeable; or (2) the acts were within the scope of the criminal

activity he agreed to jointly undertake.

Thus, before November 1, 1992, the law in this circuit

governing the application of section 1B1.3 in the context of drug

conspiracies was clear. A conspirator was held responsible for all

reasonably foreseeable quantities of drugs involved in the

conspiracy, regardless of the scope of the defendant's agreement to

participate. See United States v. Andrews, 953 F.2d 1312, 1319

(11th Cir.), cert. denied, 505 U.S. 1210, 112 S.Ct. 3007, 120

L.Ed.2d 882 (1992). For example, in Andrews, this court made clear

that "street-level" dealers in a conspiracy are not simply

responsible for the quantities of cocaine that they agree to sell;

rather, they are also responsible for all other reasonably

foreseeable quantities distributed in the conspiracy. Andrews, 953

F.2d at 1319-23. Moreover, since a finding of reasonable

foreseeability meant that the defendant was accountable under
section 1B1.3, courts often did not need to address the scope of

the defendant's agreement to participate in the drug conspiracy.

See Studley, 47 F.3d at 573 ("Our opinions on this portion of

section 1B1.3 have primarily focused on the issue of whether

conduct was foreseeable to the defendant, and have not directly

addressed whether conduct was "jointly undertaken.' ").

On November 1, 1992, a clarifying amendment to section 1B1.3

became effective. See Butler, 41 F.3d at 1443 n. 7. Section

1B1.3(a), as amended, provides that a defendant is responsible for:

(1) (A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity
(a criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with others,
whether or not charged as a conspiracy), all reasonably
foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity[.]

U.S.S.G. § 1B1.3(a). The amendment also included commentary that

explains how section 1B1.3 should be applied in cases of jointly

undertaken criminal activity, such as drug conspiracies.

Application note 2 of the commentary provides:

In order to determine the defendant's accountability for the
conduct of others under subsection (a)(1)(B), the court must
first determine the scope of the criminal activity the
particular defendant agreed to jointly undertake (i.e., the
scope of the specific conduct and objectives embraced by the
defendant's agreement). The conduct of others that was both
in furtherance of, and reasonably foreseeable in connection
with, the criminal activity jointly undertaken by the
defendant is relevant conduct under this provision. The
conduct of others that was not in furtherance of the criminal
activity jointly undertaken by the defendant, or was not
reasonably foreseeable in connection with that criminal
activity, is not relevant conduct under this provision.

....

With respect to offenses involving contraband (including
 controlled substances), the defendant is accountable for all
quantities of contraband with which he was directly involved
and, in the case of a jointly undertaken criminal activity,
all reasonably foreseeable quantities of contraband that were
within the scope of the criminal activity that he jointly
undertook.

U.S.S.G. § 1B1.3 comment. (n. 2). Under this commentary,

reasonable foreseeability alone is no longer sufficient to

establish accountability. Instead, defendants are only accountable

for other conduct that was reasonably foreseeable and within the

scope of the criminal activity that the defendant agreed to

undertake. In fact, to illustrate this change, the commentary

amended the example that it had previously provided regarding the

marijuana importation conspiracy. The example now reads:

(3) Defendants H and I engaged in an ongoing marihuana conspiracy
in which Defendant J was hired only to help off-load a single
shipment. Defendants H, I, and J are included in a single
count charging conspiracy to import marihuana. Defendant J is
accountable for the entire single shipment of marihuana he
helped import under subsection (a)(1)(A) and any acts and
omissions in furtherance of the importation of that shipment
that were reasonably foreseeable. ( See the discussion in
example A(1) above). He is not accountable for prior or
subsequent shipments of marihuana imported by Defendants H or
I because those acts were not in furtherance of his jointly
undertaken criminal activity (the importation of the single
shipment of marihuana).

U.S.S.G. § 1B1.3 comment. (n. 2) (emphasis added). Thus, even

though the conspirator in the example may have reasonably foreseen

other shipments of marijuana, he is not accountable for those other

shipments because they were not part of the scope of the criminal

activity that he agreed to undertake. Application note 2 of the

amended commentary also includes five new examples that emphasize

this change:

(4) Defendant K is a wholesale distributor of child pornography.
Defendant L is a retail-level dealer who purchases child
pornography from Defendant K and resells it, but otherwise
 operates independently of Defendant K. Similarly, Defendant
M is a retail-level dealer who purchases child pornography
from Defendant K and resells it, but otherwise operates
independently of Defendant K. Defendants L and M are aware of
each other's criminal activity but operate independently.
Defendant N is Defendant K's assistant who recruits customers
for Defendant K and frequently supervises the deliveries to
Defendant K's customers. Each defendant is convicted of a
count charging conspiracy to distribute child pornography.
Defendant K is accountable under subsection (a)(1)(A) for the
entire quantity of child pornography sold to Defendants L and
M. Defendant N also is accountable for the entire quantity
sold to those defendants under subsection (a)(1)(B) because
the entire quantity was within the scope of his jointly
undertaken criminal activity and reasonably foreseeable.
Defendant L is accountable under subsection (a)(1)(A) only for
the quantity of child pornography that he purchased from
Defendant K because the scope of his jointly undertaken
criminal activity is limited to that amount. For the same
reason, Defendant M is accountable under subsection (a)(1)(A)
only for the quantity of child pornography that he purchased
from Defendant K.

(5) Defendant O knows about her boyfriend's ongoing
drug-trafficking activity, but agrees to participate on only
one occasion by making a delivery for him at his request when
he was ill. Defendant O is accountable under subsection
(a)(1)(A) for the drug quantity involved on that one occasion.
Defendant O is not accountable for the other drug sales made
by her boyfriend because those sales were not in furtherance
of her jointly undertaken criminal activity (i.e., the one
delivery).

(6) Defendant P is a street-level drug dealer who knows of other
street-level drug dealers in the same geographic area who sell
the same type of drug as he sells. Defendant P and the other
dealers share a common source of supply, but otherwise operate
independently. Defendant P is not accountable for the
quantities of drugs sold by the other street-level drug
dealers because he is not engaged in a jointly undertaken
criminal activity with them. In contrast, Defendant Q,
another street-level drug dealer, pools his resources and
profits with four other street-level drug dealers. Defendant
Q is engaged in a jointly undertaken criminal activity and,
therefore, he is accountable under subsection (a)(1)(B) for
the quantities of drugs sold by the four other dealers during
the course of his joint undertaking with them because those
sales were in furtherance of the jointly undertaken criminal
activity and reasonably foreseeable in connection with their
criminal activity.

(7) Defendant R recruits Defendant S to distribute 500 grams of
cocaine. Defendant S knows that Defendant R is the prime
figure in a conspiracy involved in importing much larger
 quantities of cocaine. As long as Defendant S's agreement and
conduct is limited to the distribution of the 500 grams,
Defendant S is accountable only for the 500 gram amount (under
subsection (a)(1)(A)), rather than the much larger quantity
imported by Defendant R.

(8) Defendants T, U, V, and W are hired by a supplier to backpack
a quantity of marihuana across the border from Mexico into the
United States. Defendants T, U, V, and W receive their
individual shipments from the supplier at the same time and
coordinate their importation efforts by walking across the
border together for mutual assistance and protection. Each
defendant is accountable for the aggregate quantity of
marihuana transported by the four defendants. The four
defendants engaged in a jointly undertaken criminal activity,
the object of which was the importation of the four backpacks
containing marihuana (subsection (a)(1)(B)), and aided and
abetted each other's actions (subsection (a)(1)(A)) in
carrying out the jointly undertaken criminal activity. In
contrast, if Defendants T, U, V, and W were hired
individually, transported their individual shipments at
different times, and otherwise operated independently, each
defendant would be accountable only for the quantity of
marihuana he personally transported (subsection (a)(1)(A)).
As this example illustrates, in cases involving contraband
(including controlled substances), the scope of the jointly
undertaken criminal activity (and thus the accountability of
the defendant for the contraband that was the object of that
jointly undertaken activity) may depend upon whether, in the
particular circumstances, the nature of the offense is more
appropriately viewed as one jointly undertaken criminal
activity or as a number of separate criminal activities.

U.S.S.G. § 1B1.3 comment. (n. 2).

The commentary of section 1B1.3, and its examples, are

binding on this court. See Stinson v. United States, --- U.S. ----

, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Although United States

v. Bush, 28 F.3d 1084 (11th Cir.1994), did not fully and explicitly

discuss this change in the law, it has recently followed the new

version of section 1B1.3. In Bush, the defendant, who had been

convicted of conspiring to distribute cocaine, challenged the

quantity of cocaine that the district court attributed to her under

the guidelines. This court vacated the defendant's sentence

because "the district court found that [the defendant] could
foresee the quantity of drugs distributed by her [coconspirators]

without making the critical inquiry as to the scope of criminal

activity undertaken by the defendant." Bush, 28 F.3d at 1087.

Bush provides the correct post-amendment interpretation of section

1B1.3 in the context of a drug conspiracy.

B. Application of section 1B1.3 to this case

Generally, a district court's attribution of drugs to a

defendant under the guidelines is reviewed under the clearly

erroneous standard. See United States v. Hansley, 54 F.3d 709, 714

(11th Cir.1995). The issue in this appeal, however, involves

purely a legal question: whether the district court misapplied

U.S.S.G. § 1B1.3. As a result, our review is de novo. See United

States v. Smith, 54 F.3d 690, 691 (11th Cir.1995), cert. denied, --

- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---- (U.S. Sept. 7, 1995)

(No. 95-5919).

The district court sentenced the appellants in June 1993.

Thus, the amended version of section 1B1.3 applied because the

applicable Sentencing Guidelines are those "that are in effect on

the date the defendant is sentenced." 18 U.S.C. § 3553(a)(4)(A);

see also United States v. Munoz-Realpe, 21 F.3d 375, 377 (11th

Cir.1994) ("the version of the Guidelines in effect on the date of

sentencing is applied").

In attributing quantities of cocaine to the appellants, the

district court adopted the findings in the addenda to the PSRs.

These findings attribute to the appellants all of the cocaine

Edmond's organization distributed while the appellants were

involved in the Edmond conspiracy. In support of this
determination, the findings only state that the appellants could

have reasonably foreseen such distribution. Thus, the district

court did not consider the scope of criminal activity that each

appellant agreed to undertake. The findings with respect to Reese

most clearly illustrate this point:

Even though Reese may have personally distributed only one to
two ounces of crack cocaine per week for Edmond, he should be
held accountable for the entire quantity distributed by the
Edmond organization based on his knowledge of the
organization. Reese knew that ... others were also selling
quantities of crack cocaine for Eugene Edmond. As such,
pursuant to U.S.S.G. § 1B1.3 (relevant conduct), the defendant
should be held accountable for all controlled substances
distributed by the Edmond organization during the period of
time in which Reese was a member of the Edmond organization.

Because the findings rest solely on the basis of the appellants'

knowledge, it is evident that the district court was under the

erroneous impression that the pre-amendment version of section

1B1.3 applied.4

Although the appellants objected to the quantities of cocaine

attributed to them, they did not mention the change in the

circuit's law due to the amendment or any of the amended

commentary. It is, however, obvious that the appellants have not

been sentenced under the amended guideline and the teachings of

Bush. Because the appellants objected to the amounts of cocaine

attributed to them, their objections were sufficient to preserve

the issue for appellate review. Consequently, we remand the case

to the district court for resentencing.

4
In its brief, the government argues that even though the
district court relied on the pre-amendment version of the
guidelines, any error was harmless. An incorrect sentence,
properly objected to, will seldom constitute harmless error,
especially when the difference is in terms of years. Thus, we
reject the harmless error argument.
 CONCLUSION

For the foregoing reasons, we affirm the convictions of all

nine appellants, but we vacate the sentences imposed upon Lenzy

Reese, Jr., Lester Bell, Tyrone Davis, and Mary Johnson.

CONVICTIONS AFFIRMED; SENTENCES VACATED and REMANDED.