United States v. Houser

United States Court of Appeals,

Eleventh Circuit.

Nos. 93-2574, 93-2575, 93-2576, 93-2627 and 93-2957.

UNITED STATES of America, Plaintiff-Appellee,

v.

Barry HOUSER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Wayne BENNETT, a/k/a/ "Pimp Wayne," Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Dominic LIGHTBOURNE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ricky HOUSER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Cameron HOPE, a/k/a Ron Owens, Ron Davis, Ron Bennett, Defendant-
Appellant.

Nov. 30, 1995.

Appeals from the United States District Court for the Middle
District of Florida. (No. 92-104 Cr-Orl-19), Patricia C. Fawsett,
Judge.

Before HATCHETT, DUBINA and BLACK, Circuit Judges.

DUBINA, Circuit Judge:

Appellants-defendants ("the defendants") appeal their guilty

pleas and sentences imposed on them by the United States District

Court for the Middle District of Florida. For the reasons that

follow, we affirm the defendants' convictions and sentences.
 I. STATEMENT OF THE CASE

A. Background Facts

This case results from an 18-month investigation by agents

from the Bureau of Alcohol, Tobacco and Firearms ("ATF"), the

Florida Department of Law Enforcement, and the local police

department, known as "Operation Cookie Monster."

Beginning in or about January of 1989, defendant Wayne Bennett

("Bennett") was involved in a cocaine-trafficking organization in

Orlando, Florida, which was supplied by Ziaddin Gonzalez, a/k/a

"Ziggy," of Miami, Florida. The cocaine was supplied in powder

form to the Orlando distributors, who would then cook the cocaine

into cocaine base ("crack") for resale. Bennett, one of the

Orlando distributors, employed five or more persons who distributed

cocaine base or assisted him with other drug-trafficking

activities, and purchased and sold well in excess of 15 kilograms

of cocaine base.

In June 1990, Joe Matthews ("Matthews") agreed to buy two

ounces of crack cocaine from Bennett. Upon receipt of the crack,

however, Matthews left without paying for it. Bennett shot

Matthews in the leg. Although Matthews initially reported the

incident to the police, he recanted his statement after Bennett

threatened him and paid him $3,000.00.

In October of 1990, Bennett, defendant Cameron Hope ("Hope"),

and Kirk Whittaker ("Whittaker") travelled to Miami with two female

companions to purchase 2.25 kilograms of cocaine. When they

returned to Orlando, the two women stole the cocaine and fled to

their home. Bennett and Hope followed the women to the residence
where Hope accosted one of the women by pointing a semi-automatic

handgun at her and demanding the return of the cocaine.

Bennett purchased a 1987 Mercedes Benz automobile from

defendant Dominic Lightbourne ("Lightbourne") for $20,000.00 cash

in February of 1991. Both individuals knew that the automobile was

purchased with drug proceeds.

Defendants Barry Houser ("Barry") and Ricky Houser ("Ricky")

sold crack cocaine on the street for Hope and Bennett. They

specifically targeted an apartment complex called Lake Mann.

During the fall of 1990, Barry possessed a firearm during the drug

sales to protect himself, Ricky, the money, and the cocaine.

B. Procedural History

The defendants were indicted, along with many other

individuals, by a federal grand jury for various drug offenses.

Some of the defendants were also indicted for weapons violations.

Defendants pled guilty to conspiracy and other related charges and

were sentenced accordingly. The district judge had 13 defendants,

five of whom are defendants in this case, appear before her, at

which time she conducted a Fed.R.Crim.P. 11 plea colloquy. After

making a finding that the pleas were knowingly and voluntarily made

and that the pleas were free of coercion, the district judge

accepted each defendant's guilty plea.

II. ISSUES

1. Barry and Ricky challenge the district court's acceptance

of their guilty pleas regarding the possession of the firearm.

2. Ricky argues that his guilty plea was not entered knowingly

and intelligently and that the district court did not adequately
apprise him of his sentence appeal waiver.

3. Barry contends that the district court erred in failing to

grant him a two-level reduction for his minimal participation in

the conspiracy.

4. Hope, Bennett, and Lightbourne contend that the district

court erred in exceeding level 43 in computing their sentences.

III. STANDARD OF REVIEW

A. Guilty plea

The district court's implicit factual finding that the

requirement of Rule 11 was satisfied when it accepted the

defendants' guilty pleas is subject to the clearly erroneous

standard of review. United States v. Lopez, 907 F.2d 1096, 1099

(11th Cir.1990). In determining whether there was a sufficient

factual basis for a guilty plea, this court must consider whether

the district judge was subjectively satisfied with the basis for

the plea. The district court's decision to accept a guilty plea

will not be overturned unless there has been an abuse of

discretion. United States v. Owen, 858 F.2d 1514, 1516 (11th

Cir.1988).

B. Reduction in Sentence

A district court's determination under the sentencing

guidelines of a defendant's role in the offense is a finding of

fact to which the clearly erroneous test applies. United States v.

Castillo-Valencia, 917 F.2d 494, 501 (11th Cir.1990), cert. denied,

499 U.S. 925, 111 S.Ct. 1321, 113 L.Ed.2d 253 (1991).

C. Exceeding Level 43

The district court's interpretation of the sentencing
guidelines is subject to de novo review on appeal. United States

v. Pompey, 17 F.3d 351, 353 (11th Cir.1994). Whether a particular

guideline applies to a given set of facts is a question of law

subject to de novo review. United States v. Dukovich, 11 F.3d 140,

141 (11th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2112, 128

L.Ed.2d 671 (1994).

IV. ANALYSIS

Because our review of the record persuades us that there is

no merit to any of the arguments made in support of the first three

issues presented on appeal, we affirm the district court's

disposition of those issues without discussion.1 We do feel

compelled, however, to address the sentencing issue presented by

defendants Hope, Bennett, and Lightbourne, since it is one of first

impression in this circuit. Specifically, Hope, Bennett, and

Lightbourne contend that the district court erred when it refused

to cap their total offense level at 43 before applying downward

adjustments. Appellants offer policy as well as legal arguments in

support of their respective positions. We will examine each

defendant's sentence in turn.

A. Bennett

The probation officer grouped counts 1, 3, and 4 and 11-13

together and fixed Bennett's preadjustment base offense level at

42. The probation officer then applied a four-level enhancement

for Bennett's leadership role, raising his adjusted offense level

to 46. Bennett's adjusted offense level for count 36 was set at

22. Because Bennett did not receive a unit increase in his

1
See 11th Cir.R. 36-1.
adjusted base offense level for multiple counts under § 3D1.4 of

the sentencing guidelines, his combined adjusted offense level

remained at 46. The probation officer then applied a three-level

downward adjustment for acceptance of responsibility, which reduced

Bennett's total offense level to 43. At sentencing, Bennett

objected to this computation of his offense level, arguing that it

should have been capped at 43 before applying the reduction for

acceptance of responsibility. After rejecting Bennett's argument,

the district court granted the government's § 5K1.1 motion and

reduced Bennett's offense level by four to level 39.

B. Lightbourne

The probation officer grouped counts 1, 2, and 10 together and

fixed Lightbourne's preadjustment base offense level at 42. The

probation officer then applied a four-level enhancement for

Lightbourne's leadership role, raising his adjusted offense level

to 46. Lightbourne's adjusted offense level for count 29 was set

at 23. Because Lightbourne did not receive a unit increase in his

adjusted offense level for multiple counts under § 3D1.4 of the

sentencing guidelines, his combined adjusted offense level remained

at 46. The probation officer then applied a three-level reduction

for acceptance of responsibility, which reduced Lightbourne's total

offense level to 43. At sentencing, Lightbourne objected to the

calculation of his offense level above 43, arguing that his offense

level should not have exceeded level 43 before applying the

reduction for acceptance of responsibility. After overruling the

objection, the district court granted the government's § 5K1.1

motion and reduced Lightbourne's offense level by four to level 39.
C. Hope

The probation officer grouped counts 1 and 3 together and

fixed Hope's preadjustment base offense level at 42. The probation

officer then applied a four-level enhancement for Hope's leadership

role, raising his adjusted offense level to 46. Hope's adjusted

offense level for count 21 was set at 28. Because Hope did not

receive a unit increase in his adjusted base offense level for

multiple counts under § 3D1.4 of the sentencing guidelines, his

combined adjusted offense level remained at 46. The probation

officer then applied a three-level downward adjustment for

acceptance of responsibility, which reduced Hope's total offense

level to 43. At sentencing, Hope objected to this computation of

his offense level, arguing that his offense level should have been

capped at 43 before applying the reduction for acceptance of

responsibility and downward departure under § 5K1.1. After

overruling Hope's objection, the district court granted the

government's § 5K1.1 motion and reduced Hope's offense level by

five to level 38.

In this appeal, Bennett, Lightbourne, and Hope contend that

the sentencing guidelines table caps at level 43 and that an

offense level higher than 43 is to be treated as a level 43. Thus,

they argue that the reduction for acceptance of responsibility

should be determined from level 43, rather than level 46, their

actual adjusted level. Finally, the defendants contend that, based

on the public policy considerations underlying § 3E1.1 of the

sentencing guidelines, applying a reduction for acceptance of

responsibility to offense levels calculated above 43 renders the
downward adjustment valueless and discourages defendants from

pleading guilty.

The government counters that based on the application

instructions for the sentencing guidelines, the district court

correctly refused to cap the defendants' offense levels at 43

before reducing the offense levels for acceptance of

responsibility. The government contends that only after the

adjustment for acceptance of responsibility is applied, do the

guidelines suggest capping the offense level at 43. Moreover, the

government argues that the guidelines in fact negate, not support,

the defendants' contentions.

The only circuit to specifically address this issue is the

Second Circuit in United States v. Caceda, 990 F.2d 707 (2d Cir.),

cert. denied, --- U.S. ----, 114 S.Ct. 312, 126 L.Ed.2d 259 (1993).

In Caceda, the defendant argued that the district court erred in

applying an upward adjustment for the defendant's role in the

offense, because it brought the offense level to 45, two levels

above the highest offense, rendering the defendant's two-level

reduction for acceptance of responsibility valueless. Id. at 709.

The Second Circuit rejected the defendant's argument, reasoning

that to do otherwise would lead to perverse results. Id. at 710.

For example, a more culpable defendant—with an offense level of 50

and entitled to a reduction for acceptance of responsibility—would

receive an offense level of 41, and a less culpable defendant—with

an offense level of 43 and entitled to no adjustments—would get a

higher sentence. Id.

The sentencing guidelines are themselves instructive in
resolving the issue. As the government points out in its brief,

the sentencing guidelines provide applicable instructions for

determining an appropriate sentence. See U.S.S.G. § 1B1.1 (1993).

The instructions require the sentencing court to: (a)
determine the applicable offense guideline section from
Chapter Two; (b) determine the base offense level and apply
any appropriate specific offense characteristics contained in
the particular guideline in Chapter Two; (c) apply the
adjustments as appropriate related to victim, role, and
obstruction of justice from Parts A, B, and C of Chapter
Three; (d) repeat steps (a) through (c) for each count and
adjust the offense level accordingly if there are multiple
counts of conviction; (e) apply the adjustment as appropriate
for the defendant's acceptance of responsibility from Part E
of Chapter Three; (f) determine the defendant's criminal
history category as specified in Part A of Chapter Four; (g)
determine the guideline range in Part A of Chapter Five that
corresponds to the offense level and criminal history category
previously determined; (h) determine from Part B through G of
Chapter Five the sentencing requirements and options related
to imprisonment, fines, and restitution; and (i) determine
provisions from Parts H and K of Chapter Five and any other
policy statements or commentary in the guidelines that might
warrant consideration in imposing sentence.

See U.S.S.G. § 1B1.1(a)-(i). At step (g)—after upward and downward

adjustments have been made to the offense level and the district

court determines the applicable guideline range using the

sentencing table—the commentary to Chapter Five suggests that "[a]n

offense level of more than 43 is to be treated as an offense level

of 43." U.S.S.G. Ch. 5, Pt. A, comment. (n. 2).

In the present case, the district court followed the

sequential instructions and determined each defendants' adjusted

combined offense level by selecting the applicable guideline

provision, applying the specific offense provisions and the

adjustments for their respective roles in the offense, and by

adjusting the offense level for multiple counts. The district

court then reduced the combined offense level for acceptance of
responsibility. After the district court arrived at the

defendants' total offense levels, it determined their criminal

history categories and the applicable guideline ranges. Finally,

the district court granted the § 5K1.1 motions and sentenced the

defendants accordingly.

Based upon the sequential instructions contained in § 1B1.1,

the district court correctly calculated the offense levels and

subsequently reduced them by several levels for acceptance of

responsibility. In our view, to do otherwise would be inconsistent

with the instructions contained in the guidelines. Seeing no

error, we affirm the defendants' convictions and sentences.

AFFIRMED.