USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 94-2089
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH WRENN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Stahl, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Robert L. Sheketoff, with whom Sheketoff & Homan was on brief,
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for appellant.
Dina Michael Chaitowitz, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief, for the
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United States.
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September 25, 1995
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LYNCH, Circuit Judge. After pleading guilty to
LYNCH, Circuit Judge.
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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
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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
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States v. Holmquist, 36 F.3d 154, 158 (1st Cir. 1994), cert.
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denied, 115 S. Ct. 1797 (1995).
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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,
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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.
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United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir. 1995)
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(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
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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.
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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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