United States v. Kubinski

Filed: July 15, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 94-5887(L)
(CR-93-28-1, et al)

United States of America,

Plaintiff - Appellee,

versus

Kenneth B. Kubinski, et al,

Defendants - Appellants.

O R D E R

The Court amends its opinion filed July 11, 1996, as follows:

On page 2, section 1 -- the first case number, for United
States v. Lewis, is corrected to read "No. 94-5895."

For the Court - By Direction

/s/ Bert M. Montague

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 94-5887

KENNETH B. KUBINSKI,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5888

JACQUELYN M. KUBINSKI,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 94-5889

RAYMOND G. GERTH,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 94-5890

RICHARD M. KUBINSKI,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 94-5895

MARVIN W. LEWIS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v. No. 94-5931

JACQUELYN M. KUBINSKI,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
Malcolm J. Howard, District Judge.
(CR-93-28-1, CR-93-28-5, CR-93-28-6, CR-93-28-7, CR-93-28-2)

Argued: June 5, 1996
Decided: July 11, 1996

Before RUSSELL, WILKINS, and NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded with instructions
by
unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Kieran Maher, RUDOLF & MAHER, P.A.,
Chapel Hill, North Carolina, for Appellant Kenneth Kubinski; James

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Riley Parish, PARISH, COOKE & RUSS, Fayetteville, North Caro-
lina, for Appellant Jacquelyn Kubinski; Jeffrey Lee Starkweather,
Chapel Hill, North Carolina, for Appellant Gerth; Ronald Douglas
McSwain, BOOSE & MCSWAIN, Fayetteville, North Carolina, for
Appellant Richard Kubinski; Robert Dale Jacobson, Lumberton,
North Carolina, for Appellant Lewis. Robert Edward Skiver, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
ON BRIEF: David S. Rudolf, RUDOLF & MAHER, P.A., Chapel
Hill, North Carolina, for Appellant Kenneth Kubinski. Janice McKen-
zie Cole, United States Attorney, Raleigh, North Carolina, for
Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants, Kenneth B. Kubinski, Jacquelyn M. Kubinski, Ray-
mond G. Gerth, Richard M. Kubinski, and Marvin W. Lewis, raise
numerous challenges to their convictions for various drug and money
laundering offenses and their resulting sentences. Finding no
revers-
ible error, we affirm all of their convictions and sentences,
except for
the sentences imposed upon Jacquelyn Kubinski (Kubinski) and Mar-
vin Lewis. Because the district court failed to articulate
adequately
the basis for Kubinski's sentence and to make adequate findings
with
regard to the amount of drugs attributable to Lewis, we vacate
their
sentences and remand for further proceedings.

I.

Viewed in the light most favorable to the Government, see Glasser
v. United States, 315 U.S. 60, 80 (1942), the record demonstrates
that
Appellants, with the exception of Richard Kubinski, participated in
a
large-scale conspiracy to distribute hundreds of kilograms of
cocaine
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and tons of marijuana over a period of several years. Several
Appel-
lants also laundered the profits from the drug conspiracy,
investing
the earnings in ventures such as motion picture production and real
estate development. Kenneth Kubinski was the leader of the criminal
activity, and the remaining Appellants participated in different
capaci-
ties for varying lengths of time.
Appellants raise numerous issues on appeal. They claim that the
district court improperly admitted into evidence prior consistent
state-
ments by Government witnesses, certain coconspirator statements,
the
results of Kenneth Kubinski's IRS audit, and evidence regarding
prior
unlawful acts by investors in a real estate development owned by
Kenneth Kubinski. In addition, Appellants argue that limitations on
the cross-examination of specific witnesses violated Appellants'
Sixth
Amendment rights to confrontation. Finally, they assert numerous
challenges to their sentences. On cross appeal, the Government
chal-
lenges the sentence that the district court imposed upon Kubinski,
arguing that it improperly departed downward from the applicable
guideline range. Having reviewed the record and arguments of coun-
sel, we find no reversible error and affirm all convictions and
sen-
tences with two exceptions, specifically the sentences received by
Kubinski and Lewis.

II.

Kubinski was convicted of conspiracy to distribute and to possess
with the intent to distribute cocaine, marijuana, and hashish. See
21
U.S.C.A. § 846 (West Supp. 1996). At sentencing, the district court
specifically found that as a result of Kubinski's involvement in
the
conspiracy, she was responsible for at least 67 kilograms of
cocaine,
7,104 pounds of marijuana, and 90 kilograms of hashish--resulting
in an adjusted offense level of 36. See United States Sentencing
Com-
mission, Guidelines Manual, §§ 1B1.3(a)(1)(B), 2D1.1(c)(2) (Nov.
1994). The district court then determined that this offense level,
when
combined with her Criminal History Category I, resulted in a guide-
line range of 188 to 235 months imprisonment. See U.S.S.G. Ch. 5,
Pt. A. The court, however, subsequently reduced Kubinski's offense
level to 28, resulting in a guideline range of 78 to 97 months, see
id.,
and sentenced her to 78 months incarceration. In doing so, the
district
court noted that there existed mitigating circumstances justifying
a

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lower sentence, specifically that Kubinski had three minor children
and that "the present guideline may overrepresent[her]
involvement."
J.A. 1826.

The Government appeals Kubinski's sentence, arguing that the dis-
trict court improperly granted a downward departure. Kubinski, how-
ever, maintains that the sentence is proper because it was not
based
on an erroneous departure, but rather upon a reevaluation by the
dis-
trict court of its finding regarding the amount of drugs for which
she
was responsible and a corresponding reduction in her offense level.
Unquestionably, if the district court intended to depart from the
applicable guideline range, the Government is correct that the
district
court abused its discretion and that the sentence imposed was in
viola-
tion of the law. See Koon v. United States, Nos. 94-1664, 94-8842,
1996 WL 315800, at *10 (U.S. June 13, 1996). Because there is noth-
ing extraordinary about the fact that Kubinski had three minor
chil-
dren, a departure on that basis was improper. See United States v.
Goff, 907 F.2d 1441, 1446 (4th Cir. 1990); see also U.S.S.G. §
5H1.6,
p.s. And, a belief by a district court that the sanction mandated
by the
guidelines is too severe is also an inappropriate ground for
departure.
See United States v. Jackson , 30 F.3d 199, 203 (1st Cir. 1994).
Furthermore, the 67 kilograms of cocaine for which Kubinski, at
least initially, was held responsible requires the imposition of a
statu-
tory mandatory minimum sentence of 120 months. See 21 U.S.C.A.
§ 841(b)(1)(A) (West Supp. 1996). A district court may depart below
a statutory minimum sentence only if the Government requests a
departure based on the defendant's substantial assistance to
authori-
ties, see 18 U.S.C.A. § 3553(e) (West Supp. 1996); U.S.S.G § 5K1.1,
comment. (n.1); United States v. Patterson, 38 F.3d 139, 146 n.8
(4th
Cir. 1994), cert. denied, 115 S. Ct. 1968 (1995), or if the court
finds
that the defendant meets the criteria set forth in the safety valve
provi-
sion, see 18 U.S.C.A. § 3553(f) (West Supp. 1996); U.S.S.G. §
5C1.2.
Because the Government did not move for a downward departure
based upon Kubinski's substantial assistance, and because the
district
court determined that the safety valve provision did not apply, the
court possessed no authority to impose a sentence below the statu-
torily required mandatory minimum sentence.

5
Although the record supports a conclusion that the district court
intended to impose a sentence based on a departure from the
applica-
ble guideline range, we are unable to conclude with certainty
whether
the court intended to depart downward or engaged in a reevaluation
of Kubinski's relevant conduct because it did not clearly
articulate the
basis for its sentencing decision. Therefore, we vacate the
sentence
and remand in order to permit the district court to clarify the
basis for
its determination of the appropriate offense level and to sentence
accordingly.
III.

Marvin Lewis was convicted of several offenses, including con-
spiracy to distribute and to possess with intent to distribute
cocaine,
heroin, and hashish, see 21 U.S.C.A. § 846, and money laundering,
see 18 U.S.C.A. § 1956(a)(1)(B)(i) (West Supp. 1996). At
sentencing,
Lewis objected to the proposed finding in the presentence report
(PSR) that as a result of his involvement in the conspiracy he
should
be held responsible for 7,104 pounds of marijuana, 83.5 kilograms
of
cocaine, and 90 kilograms of hashish. Although the district court
rejected the proposed finding of the PSR regarding the hashish, it
failed to articulate a finding of the amounts of cocaine and heroin
that
should properly be attributed to Lewis for the purpose of
determining
his offense level.
As this court has held, "[w]hen the amount of drugs for which a
defendant is to be held responsible is disputed, the district court
must
make an independent resolution of the factual issue at sentencing."
United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). And,
in order to hold a defendant responsible for a quantity of drugs
attrib-
utable to him as a result of his participation in a conspiracy, the
dis-
trict court must find that the acts giving rise to his liability
were both
reasonably foreseeable to him and within the scope of his
agreement.
See U.S.S.G. § 1B1.3, comment. (n.2); United States v. Estrada, 42
F.3d 228, 231 (4th Cir. 1994); Gilliam, 987 F.2d at 1012-13. Our
review of the record indicates that the district court failed to
make an
adequate factual resolution of Lewis' objection to the proposed
find-
ing of the PSR. Accordingly, we vacate Lewis' sentence and remand
in order to permit the district court to reexamine this issue.

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IV.

For the foregoing reasons, the convictions of all Appellants are
affirmed. In addition, we affirm the sentences imposed by the
district
court with the exception of those given to Jacquelyn Kubinski and
Marvin Lewis. Because we find the record on appeal insufficient to
permit us to determine the basis for the sentence imposed upon
Kubinski by the district court, and because the district court
failed to
make sufficient findings regarding the amount of drugs attributable
to
Lewis, we vacate their sentences and remand for further proceedings
consistent with this opinion.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED
WITH INSTRUCTIONS
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