United States v. Wrenn

United States Court of Appeals
For the First Circuit

No. 94-2089

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH WRENN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Stahl, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Robert L. Sheketoff, with whom Sheketoff & Homan was on brief,

for appellant.
Dina Michael Chaitowitz, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief, for the

United States.

September 25, 1995

LYNCH, Circuit Judge. After pleading guilty to
LYNCH, Circuit Judge.

both conspiring and attempting to possess with intent to

distribute more than 5 kilograms of cocaine in violation of

21 U.S.C. 846, the defendant Joseph Wrenn was sentenced to

the statutory minimum of 10 years prescribed by 21 U.S.C.

841(b)(1)(A)(ii). At issue here is the meaning of a

provision in the Violent Crime Control and Law Enforcement

Act of 1994 (the "Act"), 18 U.S.C. 3553(f), which, in

certain circumstances, gives the trial court authority to

impose a sentence shorter than the otherwise mandatory

minimum sentence.

Wrenn argues that the district court erred in

finding he was not entitled under the Act to a reduction of

the 10 year mandatory minimum sentence he received for his

drug convictions. We reject Wrenn's contentions that he has

complied with the Act's requirement that he "has truthfully

provided to the Government all information and evidence [he]

has concerning the offense or offenses that were part of the

same course of conduct or of a common scheme or plan . . . ."

18 U.S.C. 3553(f)(5). He says he has done so,

unintentionally to be sure, by unwittingly being recorded by

an undercover agent while discussing his plans to distribute

cocaine, conversations which became the source of the

indictment against him. He also says he has done so by

admitting the government's allegations in the context of

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pleading guilty to the charges against him. Believing

Congress did not intend the topsy-turvy result suggested by

Wrenn, we reject his arguments and affirm.

Section 3553(f) provides some relief from

statutorily-imposed mandatory minimum sentences where the

defendant demonstrates:

(1) the defendant does not have more than 1
criminal history point, as determined under
the sentencing guidelines;

(2) the defendant did not use violence or credible
threats of violence or possess a firearm or
other dangerous weapon (or induce another
participant to do so) 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, as determined under the sentencing
guidelines and was not engaged in a continuing
criminal enterprise, as defined in 21 U.S.C.
848; and

(5) not later than the time of the sentencing
hearing, the defendant has truthfully provided
to the Government all information and evidence
the defendant has concerning the offense or
offenses that were part of the same course of
conduct or of a common scheme or plan, but the
fact that the defendant has no relevant or
useful other information to provide or that
the Government is already aware of the
information shall not preclude a determination
by the court that the defendant has complied
with this requirement.

18 U.S.C. 3553(f).

The drug trade operated out of federal prisons

provides the factual backdrop of this case. Wrenn's co-

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defendant, Joseph Burke, while incarcerated at the United

States Penitentiary at Lewisburg, asked a fellow inmate if he

could provide Wrenn with a large supply of cocaine, saying

Wrenn was a cocaine distributor in Massachusetts. The other

inmate became a cooperating witness and turned to the FBI,

which, in turn, provided an undercover agent/cocaine

supplier. The agent, the cooperating witness, Burke, and

Wrenn met in the visiting area of the penitentiary. In that

and another meeting, which were both tape-recorded, Wrenn

described himself as a large-scale cocaine trafficker looking

for a new source of supply. Wrenn said that he and Burke saw

opportunities to expand their business because of recent

federal indictments of individuals in Charlestown,

Massachusetts.

It is those tape-recorded discussions conducted

before Wrenn actually made the buy and was arrested which

form the factual basis for his claim that he provided the

government with all of the information concerning his

criminal conduct contemplated by 18 U.S.C 3553(f)(5).

Wrenn presents the issue on appeal as concerning

interpretation of the phrase "offense or offenses that were

part of the same course of conduct or of a common plan or

scheme" in subsection (f)(5), and contends that the phrase

refers only to offenses charged in the indictment, as opposed

to all criminal activity in which the defendant engaged. But

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there is, as the government urges, a threshold issue of

whether "the defendant has truthfully provided to the

Government all information and evidence the defendant

has. . . ." 18 U.S.C. 3553(f)(5) (emphasis added). Review

of this issue of statutory interpretation is plenary. United

States v. Holmquist, 36 F.3d 154, 158 (1st Cir. 1994), cert.

denied, 115 S. Ct. 1797 (1995).

Wrenn argues that he has "provided" such

information, albeit inadvertently, in his taped conversations

setting up the drug deal. He argues additionally that in

admitting to the facts presented by the government in the

guilty plea hearing, he again fulfilled the statute's

requirements. To make him sit down with the government and

say again what he has twice said before would, he argues, be

nonsensical. But the interpretation Wrenn urges would lead

to absurd consequences. Surely, Congress could not have

intended that the very commission of a criminal offense, if

recorded by a government agent, would protect a defendant

from the mandatory minimum sentence for that crime. Nor

could Congress have intended that entry of a guilty plea

would provide such protection. As the Supreme Court has

said, "We need not leave our common sense at the doorstep

when we interpret a statute." Price Waterhouse v. Hopkins,

490 U.S. 228, 241 (1989).

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Whatever the scope of the "information and

evidence" that a defendant must provide to take advantage of

section 3553(f)(5), we hold that a defendant has not

"provided" to the government such information and evidence if

the sole manner in which the claimed disclosure occurred was

through conversations conducted in furtherance of the

defendant's criminal conduct which happened to be tape-

recorded by the government as part of its investigation. Cf.

United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir. 1995)

(provision of information to probation officer is not

provision of information to the government for purposes of

section 3553(f)(5)). Nor does it suffice for the defendant

to accede to the government's allegations during colloquy

with the court at the plea hearing. Section 3553(f)(5)

contemplates an affirmative act of cooperation with the

government no later than the time of the sentencing hearing.

Here, Wrenn did not cooperate, as his counsel emphasized to

the court at the sentencing hearing. And when the court

offered to postpone sentencing so Wrenn could make a proffer

to the government for purposes of section 3553(f)(5), he

refused.

Even taking the defendant's argument on its own

terms, we reject also the factual premise from which it

proceeds. Wrenn did not provide the government with all of

the information and evidence he had concerning the very crime

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to which he pleaded guilty. To give but one example, in his

taped conversations he claimed to have numbers of reliable

customers to whom he supplied cocaine, but he supplied nary a

name to the government.

Finally, the government urges us to decide here the

scope of the phrase "offense or offenses that were part of

the same course of conduct or of a common scheme or plan."

18 U.S.C. 3553(f)(5). We note that the Sentencing

Commission amended the Guidelines to conform with the Act

after sentence was imposed in this case. See U.S.S.G.

5C1.2 (Nov. 1994). Application note 3 to 5C1.2 defines

the phrase highlighted by the government to mean "the offense

of conviction and all relevant conduct." U.S.S.G. 5C1.2,

comment. (n.3). Apart from making this observation, we

decline the government's invitation, believing the matter is

better left to a case where a fuller resolution of the

question is necessary.

The sentence is affirmed.

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