United States v. Mertilus

United States Court of Appeals, Eleventh Circuit.

No. 96-4004

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Everette MERTILUS, Defendant-Appellant.

May 7, 1997.

Appeal from the United States District Court for the Southern
District of Florida. (No. 94-14097-CR), Edward B. Davis, Judge.

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Everette Mertilus appeals his conviction and sentence for

violation of 21 U.S.C. § 843(b) by using telephone communications

to facilitate a conspiracy to distribute cocaine base or "crack"

cocaine. He first argues that there was insufficient evidence to

support his conviction under section 843(b). To prove a violation

of section 843(b), the government must show that Mertilus knowingly

and intentionally used a communications facility to facilitate the

commission of a narcotics crime. United States v. Rivera, 775 F.2d

1559, 1562 (11th Cir.1985). To "facilitate" means that the

government must establish that the telephone communication made the

narcotics offense easier or less difficult and, thereby, assisted

or aided the crime. Id. Where the charged underlying crime is a

substantive narcotics offense, rather than an inchoate attempt or

conspiracy, the government must prove the underlying offense.

United States v. Rey, 641 F.2d 222, 224-25 n. 6 (5th Cir. Unit A

Mar. 1981). Section 843(b) does not require that the government

prove that Mertilus committed the facilitated or underlying
offense; instead, the statute can be satisfied by showing his

knowing, intentional use of a telephone to facilitate the

commission of the underlying crime. United States v. Russo, 796

F.2d 1443, 1464 (11th Cir.1986). Our review of the record shows

that the government established that Mertilus's telephone

conversations with confidential informant, Jeff Mullins, on October

25 and 26, 1994, facilitated, that is, aided or assisted, the

distribution of crack cocaine that occurred on October 26, 1994,

when codefendants Marvin Lutin, a/k/a "Thug Life," and Amos Pierre

delivered 25.4 grams of crack cocaine to Mullins in Mertilus's

presence and with his knowledge. In the context of the entire

crack cocaine distribution conspiracy, including Mertilus's role in

the September 22, 1994, transaction and the calls and conversations

that preceded and succeeded the October 26, 1994, transaction, it

is irrelevant that Mertilus and Mullins contemplated that

codefendant Hercules Pierre, a/k/a "Baby Dred" or "Curtis Moise,"

and not Lutin or Amos Pierre, would be the source of supply for the

crack cocaine. See United States v. McLernon, 746 F.2d 1098, 1106

(6th Cir.1984).

Review of the entire record reveals that Mertilus served both

Lutin and Hercules Pierre by helping them to arrange crack cocaine

sales. Mertilus's presence at the transaction on October 26, 1994,

is significant because it evidenced his involvement in the

continuing efforts to accommodate Mullins's request for crack

cocaine and confirmed that Mertilus's telephone conversations with

Mullins on October 25 and 26, 1994, were an instrumental part of

those efforts and facilitated the ultimate purchase. Thus, the
evidence was sufficient to support his conviction for violation of

section 843(b).

Mertilus also argues that his base offense level should have

been 12 instead of 32. He contends that, because he did not
1
deliver the crack cocaine, U.S.S.G. § 2D1.1 (n. 12) applies to

him, and the district court erred in calculating his base offense

level at 32, computed by the amount of cocaine attributable to him

as a participant in the cocaine distribution conspiracy. Since he

was not convicted on the distribution counts, Mertilus contends

that he should not be held accountable for drugs that were not part

of his counts of conviction.

We review a sentencing court's drug quantity determination

for clear error. United States v. Beasley, 2 F.3d 1551, 1561 (11th

Cir.1993). The government must establish the drug quantity by a

preponderance of the evidence. Id. In a drug conspiracy, a

defendant may be held accountable not only for his own acts but

also for " "all reasonably foreseeable acts and omissions of others

in furtherance of the jointly undertaken criminal activity.' " Id.

(quoting U.S.S.G. § 1B1.3(a)(1)(B) (relevant conduct)). "Thus, the

Guidelines require a district court to attribute to a defendant all

1
The portion of section 2D1.1 (n. 12) that Mertilus argues
is applicable to him provides as follows:

If, however, the defendant establishes that he or she
did not intend to provide, or was not reasonably
capable of providing, the agreed-upon quantity of the
controlled substance, the court shall exclude from the
offense level determination the amount of controlled
substance that the defendant establishes that he or she
did not intend to provide or was not reasonably capable
of providing.

U.S.S.G. § 2D1.1 (n. 12).
drugs foreseeably distributed pursuant to a common scheme or plan

of which that defendant's offense of conviction was a part."

United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir.1995).

Even if the court does not make individualized findings regarding

the scope of the defendant's criminal activity and the contraband

quantities reasonably foreseeable at his level of participation,

the sentence can be upheld if the record supports the district

court's determination of the drug quantity, including imputing

others' unlawful acts to the defendant. United States v. Ismond,

993 F.2d 1498, 1499 (11th Cir.1993); see Beasley, 2 F.3d at 1561.

Consequently, a base offense level can be determined based on "all

acts and omissions committed, aided, abetted, counseled, commanded,

induced, procured, or willfully caused by the defendant." U.S.S.G.

§ 1B1.3(a)(1)(A).

Under U.S.S.G. 1B1.3(a)(1), Mertilus may be held accountable

for drugs that were not related specifically to his counts of

conviction. Mertilus participated in the sale of the 33.5 grams of

cocaine base purchased on September 22, 1994. His telephone calls

to Mullins on October 25 and 26, 1994, aided in effecting the

purchase of 25.4 grams of cocaine base on October 26, 1994. Based

on Mertilus's participation in these two sales of crack cocaine,

the district court did not err in attributing to Mertilus 58.9

grams of cocaine base as reasonably foreseeable and setting his

base offense level at 32.

Mertilus's argument that the district court should have

applied U.S.S.G. § 2D1.1 (n. 12), excepting cocaine amounts that he

did not provide, to set his base offense level at 12 is misplaced.
In relevant part, that application note specifies that "[i]n an

offense involving an agreement to sell a controlled substance, the

agreed-upon quantity of the controlled substance shall be used to

determine the offense level unless the sale is completed and the

amount delivered more accurately reflects the scale of the

offense." U.S.S.G. § 2D1.1 (n. 12) (emphasis added). Because

there were actual deliveries of 58.9 grams of cocaine base, the

provision of which was assisted by Mertilus's participation, the

district court correctly calculated his base offense level at 32.

Mertilus further contends that he should have received a

two-level reduction in his base offense level under U.S.S.G. §§

2D1.1(b)(4) and 5C1.2(1)-(5). While section 843(b), his offense of

conviction, is not listed in section 5C1.2, he argues that the

underlying crime that was the basis for his sentence is implicated

in that guideline and, thus, he is entitled to the two-level

reduction. The government maintains that section 5C1.2 applies

only to those offenses listed therein, and, since section 843(b) is

not included, it is not encompassed by section 5C1.2. The

government also argues that section 5C1.2 applies only to cases

where there is a statutory mandatory minimum sentence and that

section 843(b) is excluded because it does not have a mandatory

minimum sentence.

Under the Sentencing Guidelines, the base offense level for

violation of section 843(b), using a communications facility in

committing a drug crime, is determined by the offense level for the

underlying offense. U.S.S.G. § 2D1.6. Because the underlying

crime was cocaine distribution, 21 U.S.C. § 841, Mertilus's base
offense level is determined under U.S.S.G. § 2D1.1, which states

that the base offense level shall be decreased by two levels "[i]f

the defendant meets the criteria set forth in subdivisions (1)-(5)

of § 5C1.2 ... and the offense level determined [under section

2D1.1] is level 26 or greater." U.S.S.G. § 2D1.1(b)(4).

"In the case of an offense under 21 U.S.C. § 841, § 844, §

846, § 960, or § 963," section 5C1.2 instructs district courts to

impose a sentence in accordance with the applicable Sentencing

Guidelines, regardless of the statutory minimum sentence, if the

court finds that the defendant satisfies the five factors listed in

section 5C1.2(1)-(5). U.S.S.G. § 5C1.2. The district court

construed section 5C1.2 as applying only when the defendant is

convicted under one of the enumerated statutory sections listed

therein and denied the requested two-level reduction because

section 843(b), Mertilus's crime of conviction, was not included.

R7-17. Consequently, the district court did not consider whether

Mertilus satisfied the five factors listed in subdivisions (1)

through (5) of section 5C1.2.

The offenses listed in section 5C1.2 each have mandatory

minimum sentences, while section 843(b) does not have a mandatory

minimum sentence. Mertilus, however, does not seek to lower his

sentence below a minimum period. Instead, he argues that he is

eligible for a two-level reduction in his base offense level under

section 2D1.1(b)(4), which is independent of section 5C1.2.

Section 2D1.1(b)(4) does not limit consideration of the two-level

reduction to the enumerated offenses in section 5C1.2. As long as

Mertilus's base offense level under section 2D1.1 is 26 or greater,
a two-level reduction is appropriate if Mertilus satisfies the five

factors delineated in section 5C1.2. See U.S.S.G. § 2D1.1(b)(4).

The district court determined that it was without authority to

consider the five factors listed in section 5C1.2 for a two-level

reduction because section 843(b) is not among the crimes enumerated

in section 5C1.2. Thus, the district court did not realize that

section 2D1.1(b)(4) does not limit the application of the five

factors in section 5C1.2 to the crimes listed therein. While we

AFFIRM Mertilus's conviction, we VACATE his sentence and REMAND for

the district court to determine whether Mertilus is entitled to a

two-level reduction in his base offense level under section

2D1.1(b)(4) by considering the five factors in section 5C1.2(1)-

(5).