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).