INDIVIDUALIZED DETERMINATIONS OF THE APPROPRIATE SENTENCING GUIDELINE RANGE AS TO EACH DEFENDANT
EDUARDO C. ROBRENO, District Judge.
On November 27, 2007, Defendants were charged in a three-count indictment. This case involved 18 defendants,
This conspiracy was a widespread, multi-state pyramidal drug network named the SCCG by the Government and led by co-conspirator Kareem Smith. Beginning in November 2002. Smith led at least seventeen other co-conspirators in the purchasing of cocaine in Philadelphia, Pennsylvania, the "cooking" of cocaine into crack in homes and rented hotel rooms in Philadelphia and Maryland, and the selling of crack throughout Philadelphia and Maryland. Once Smith learned that the demand for crack was higher in Maryland, he moved a large part of the organization there to capitalize on those potential profits. The conspiracy came to an end when Smith was arrested in September 2007.
- Jamal Turnquest (07-737-02) - Malik Bland (07-737-06) - Robert Williams (07-737-14) - Antoine Alicea (07-737-15)
On June 2, 2003, the jury found each Defendant guilty of distributing cocaine and crack in excess of five kilograms and fifty grams, respectively, in furtherance of the conspiracy.
To properly determine the a sentencing guideline as to each remaining Defendant, the Court bifurcated sentencing. A hearing was held on March 5, 2010 to first address the length of time each Defendant was a member of the conspiracy, level of involvement (i.e., ranking in the conspiracy hierarchy), offense level, criminal history category and amount of drugs to be attributed.
A second plenary hearing was held on June 28, 2010 to determine the appropriate sentencing guideline range based on calculations of: (1) the quantity of drugs attributed to each Defendant in the conspiracy; (2) each Defendant's length of time in the conspiracy; and (3) each Defendant's role and culpability in the conspiracy.
The Court is now tasked with the challenge of providing individual sentencing determinations for the amount of drugs attributable to each Defendant in relation to the length of time of each Defendant's involvement in the conspiracy. In doing so, the Court will employ the following calculation. First, the Court will determine the length of time (by week) that each Defendant was involved in the SCCG conspiracy. Second, the Court will estimate the amount of crack that was being sold per week by the SCCG drug organization. Third, the Court will calculate the length of time that each Defendant was involved in the conspiracy multiplied by the amount of drugs distributed by Defendant and the conspiracy, taking accomplice attribution into consideration. Due to the complex nature of this eighteen-defendant narcotics conspiracy, by reaching a conservative estimate as to the drug quantities distributed by the SCCG during a given time period multiplied by the length of time each Defendant was involved in the SCCG conspiracy, the Court believes that it can reach a just approximation as to the drug quantities attributable to each Defendant and, as such, comports faithfully with the measures set forth in United States v. Collado, 975 F.2d 985 (3d Cir.1992).
Following these considerations, the Court will hold individual sentencing hearings for each Defendant at which time it will consider motions for departure, if any, and requests for variances, under 18 U.S.C. § 3553. At the conclusion of each
In sentencing determinations, the Government "bears the burden of proof by a preponderance of the evidence." United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir.1993) (citing United States v. McDowell, 888 F.2d 285, 290 (3d Cir.1989)).
"In imposing a sentence under the Sentencing Guidelines in a narcotics case, the district court relies chiefly upon the quantity of drugs involved in the offense." Paulino, 996 F.2d at 1545 (citing U.S.S.G. §§ 1B1.3(a)(2); 3D1.2(d)). The base offense level is determined by the amount of drugs involved in the offense, pursuant to § 2D1.1(3). Courts may necessarily estimate the drugs involved in operations or conspiracies where exact quantities are unknown. See id. ("Often the covert nature of the drug trade precludes seizure and precise measurement of the drugs that flow through a drug distribution conspiracy.").
However, a sentencing court may not sentence "a defendant for the entire amount of drugs in a conspiracy merely because the defendant has been found guilty of the crime of conspiracy." U.S.S.G. § 1B1.3. Members of a drug conspiracy should be sentenced for their "jointly undertaken criminal activity." § 1B1.3(a)(1)(B). Further, "[j]ointly undertaken criminal activity" is defined as "a criminal plan, scheme, endeavor, or enterprise undertaken by [a] defendant in concert with others, whether or not charged as a conspiracy[.]" Id.
A district court, in attributing drug quantities to each defendant, must make an individualized determination of the quantity foreseeable to each defendant within the larger conspiracy. Collado, 975 F.2d at 985. Each defendant's relevant conduct includes "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." See § 1B1.3(a)(1)(B). Further, under § 1B1.3. "the district court may, under certain conditions, attribute to the defendant amounts of drugs possessed, distributed, sold or `handled' by persons other than the defendant." United States v. Miele, 989 F.2d 659, 666 (3d Cir.1993); United States v. Iglesias, 535 F.3d 150, 160 (3d Cir.2008). This includes drug quantities outside the offense of conviction if the drugs are part of the same course of conduct or common scheme or plan. United States v. Williams, 917 F.2d 112 (3d Cir. 1990).
The Third Circuit has held that the standard for accomplice attribution under § 1B1.3 is stringent. Miele, 989 F.2d at 666. In Collado, the Third Circuit found that:
United States v. Price, 13 F.3d 711, 732 (3d Cir.1994) (citing Collado, 975 F.2d at 995).
In short, a sentencing court must conduct individualized and searching inquiries into each defendant's participation to ensure the sentence accurately reflects each defendant's role and the amount of drugs involved in the conspiracy that was reasonably foreseeable to each defendant.
Here, the second superceding indictment charged that, between November 2002 and
To date, all but five of the eighteen SCCG Defendants have been sentenced. Before the Court are the four SCCG Defendants who went to trial: Robert Williams, Antoine Alicea, Jamal Turnquest and Malik Bland. In determining their appropriate sentencing ranges, pursuant to the Sentencing Guidelines, the Court will address each Defendant's participation seriatim.
The Court has reviewed the trial testimony, the Government's sentencing memorandum, and each Defendant's sentencing memorandum, has afforded the parties an opportunity to present evidence, and has heard the arguments made before the Court at the June 28, 2010 plenary sentencing hearing. After consideration of the parties' arguments, the Court will now apply its calculation (length of involvement in the conspiracy per week multiplied by amount of drugs attributable to the conspiracy per week) and arrive at the appropriate sentencing range as to each Defendant in seriatim.
Defendant Williams was involved in the conspiracy "from the beginning to the end"—from November 2002 to September 2007. See Gov't Sent. Mem. 6, 8.
Therefore, Defendant was involved in the SCCG conspiracy for its entirety; 11/02-9/07 = 58 months = 232 weeks.
Defendant Alicea was also involved in the conspiracy "from the beginning to the end"—from November 2002 to September 2007. See id.
Therefore, Defendant was also involved in the SCCG conspiracy for its entirety: 11/02-9/07 = 58 months = 232 weeks.
Both parties agree that. Defendant Turnquest was through October 16, 2006 (the date of Defendant's arrest). See Def. Turnquest Sent. Mem. 6 n. 2.
Therefore, Defendant was only involved in the SCCG from 12/05-10/06 = less than 10 months = 39 weeks.
Defendant Bland entered the SCCG conspiracy on approximately October 19 or 20, 2003, when co-conspirator Smith took Bland to Maryland to begin selling crack. Sea Gov't Sent, Mem. 19 (citing Trial Tr. 79-89, 5/27/03). Defendant Bland worked in Maryland for one-week prior to being arrested. Bland spent the next three years in jail and wag; released in 2006. Once he was released from prison, Bland immediately rejoined the conspiracy, transporting drugs between Philadelphia and Maryland for Defendant Thompson. On October 5, 2006, Bland was again arrested selling crack to an undercover officer.
Where Defendant Bland never signified an intent to withdraw from the conspiracy (as he rejoined the SCCG immediately upon release from incarceration), Bland is considered involved for the full three years of which he took part in the SCCG. See United States v. De Peri, 778 F.2d 963,
Therefore, Defendant was involved in the SCCG conspiracy from 10/20/03-10/5/06 = less than 3 years = 147 weeks.
Here, the Court will undertake a "searching and individualized" determination of drug quantities attributable to each Defendant. The Third Circuit has guided district courts in the need to estimate drugs quantities for each defendant, especially where the amount seized is not reflective of the drug distribution throughout the time period the drug organization was active. However, district courts are also cautioned that the estimation "is not a license to calculate drug amounts by guesswork." Paulino, 996 F.2d at 1545. "Instead, the sentencing court must carefully scrutinize the government's proof to ensure that its estimates are supported by a preponderance of the evidence." Id. (citing Collado, 975 F.2d at 998); see also United States v. Wilson, 380 Fed.Appx. 120, 123, 2010 WL 1946726, *3, 2010 U.S.App. LEXIS 9814, *10 (3d Cir. May 13, 2010) (non-precedential opinion) ("Collado made clear that "a searching and individualized inquiry into the circumstances surrounding each defendant's involvement in the conspiracy is critical to ensure that the defendant's sentence accurately reflects his or her role."").
Further, "[c]ourts may estimate drug quantity using a variety of evidentiary sources, including testimony of codefendants about the amount of drugs the defendant transported and the average amounts sold per day multiplied by the length of time sold." United States v. Surine, 375 Fed.Appx. 164 (3d Cir.2010) (non-precedential opinion) (citing United States v. Gibbs, 190 F.3d 188, 204 (3d Cir.1999)); see also § 2D1.4, App. Mote 2 ("In making this determination [estimating drug quantities], the judge may consider for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant. . . .").
Over the course of the SCCG conspiracy, Defendants Williams and Alicea together supplied "over one hundred kilograms of powder cocaine" to co-conspirators Smith, Thompson, and Bernard for distribution by managers such as Defendant Turnquest and sellers such as Defendant Bland in Philadelphia and Maryland. This estimate is corroborated by testimony given at trial by cooperating 3CCG co-conspirators, which specifies instances of drug purchases (from Defendants Williams and Alicea) and distributions (by Defendants Turnquest and Bland) over the course of the conspiracy. The testimony also indicates that the drug quantities distributed were known by each Defendant
Co-conspirator and SCCG leader Smith testified at length during Defendants' criminal trial about how the drug organization ran and the quantities of drugs sold throughout the relevant time period.
Co-conspirator Thompson testified that he was involved in the SCCG conspiracy from its inception and had been dealing drugs with Smith and Bernard since 1998. Thompson further testified that Williams and Alicea supplied both him and Smith (sometimes separately, other times together) with cocaine in 2002 and continued to supply them throughout the life of the conspiracy. See Trial Tr. 15:20-25, 86:25-87:2, 88:8-10, 93:5-15.
As to Alicea, Thompson would purchase between .25 and 2 ounces of cocaine when he was not with Smith and 9 ounces when he was with Smith. As to Williams, Thompson would most often purchase 2.25 ounces of cocaine. Between 2002 and 2004, Thompson would get cocaine two to three times per week, and afterward would get 2.25 ounces of crack every four days. See id. 25:2-22.
Co-conspirator Bernard testified that he began obtaining cocaine from Defendants Williams and Alicea in 2002, though he had met Williams in 1998 through Smith. See Bernard Trial Tr. 135, 5/15/09. As to Williams, from 1999 to 2006, Bernard would buy .25 to 4.5 ounces of cocaine (sometimes alone, sometimes with Smith). Id. at 153:4-25; 154:1-13 (explaining that.25 ounces = 7 grams and 4.5 ounces = 125 grams). Bernard testified that he and Williams had conversations that the cocaine was being cooked into crack for sale, and explained that he would lose some quantity of cocaine when it was being cooked into "crack." Id. at 159.
As to Alicea, though Bernard knew him his entire life, he did not start buying from Alicea until 1998 when Smith introduced them. The buying pattern continued through 2006. Id. at 165-66. Bernard would purchase between .25 to 4.5 ounces of cocaine from him. Id. at 172.
In 2002, Bernard stated that he would purchase (from either Williams or Alicea) roughly 4.5 ounces of cocaine every three days (Id. at 175:9-10), or Smith and Thompson would purchase the cocaine and Bernard would sell the crack product. In early 2006, this quantity was increased to 4.5 ounces, two times a day; totaling 9 ounces a day. Id. at 179:23-180:9.
Co-conspirator Martin, a driver for Smith and Turnquest, testified that he drove to a residence where Alicea had moved in 2007 and identified the supplier there as "Twan" (Alicea's nickname). See Gov't Sent. Mem. 12.
Co-conspirator Dunbar also testified that he traveled with Smith to Reinhard Street to buy cocaine for resale from "Twiz" or "Twizzy" (another Alicea nickname). See id. 12-13.
Special agents, using cooperators, made several buys off of Defendants Williams and Alicea. On August 31, 2006, Government Agents had arranged to buy from Smith, but he was out of town so Defendant Williams delivered 62.7 grams of cocaine hydrochloride to the cooperator in Philadelphia. Special Agent Harrison testified as to how the delivery was observed and recorded. See Gov't Sent. Mem. 13.
On September 17, 2003, Philadelphia Police executed a search warrant at Alicea's mother's home on Reinhard Street and
The Court finds that the co-conspirators' testimony regarding drug quantities of cocaine purchased to be "cooked" into crack and distributed to be reliable estimations of the drug quantities sold weekly. Surine, 375 Fed.Appx. 164 (citing Gibbs, 190 F.3d at 204). SCCG leader Smith testified that from 9/02 through 11/02, he was obtaining 9 ounces of cocaine from his suppliers (Williams and Alicea). Smith further testified that the supply increased in 11/02 to approximately 18 ounces of cocaine. By 12/02, Smith testified that he was receiving between 9 to 13.6 ounces of cocaine from his suppliers. Co-conspirators Thompson and Bernard testified that when they purchased drugs without Smith they would get approximately .2-.25 ounces of cocaine, but it was increased when they were with Smith to 9 ounces of cocaine. Bernard testified that, by early 2006, he was purchasing 5 ounces each day, a couple times per week.
Therefore, the Court finds that the most conservative range of drug quantities distributed by the SCCG began in November 2002 began with distribution of approximately 9 ounces of crack per week and peaked throughout the life of the conspiracy, ending in September 2007, to 18 ounces of crack per week. Therefore, the Court will use the conservative estimation of
The Court will now determine individualized sentencing calculations as to each Defendant. In order to arrive at a appropriate sentencing range for each Defendant, pursuant to the Sentencing Guidelines, the Court will employ the aforestated calculation: length of time each Defendant was involved in the SCCG conspiracy per week multiplied by the conservative estimate of drugs distributed by the conspiracy per week.
Defendant Williams, as the cousin of co-conspirator Smith, was a central supplier
The Government further avers that both Defendants Williams and Alicea knew the amount the other supplier was selling to the SCCG (since Smith was getting approximately 9 ounces a week for the majority of the conspiracy from whichever supplier had the drugs) and that, based on the evidence at trial, both Williams and Alicea knew that the cocaine was being cooked into crack. See Gov't Sent. Mem. 6-7, Pointedly, the Government contends that Defendants Williams and Alicea were not, in fact, simple "sellers" to the SCCG "buyers," but instead were aware of the large-scale nature of the SCCG operation. Both Defendants had conversations with co-conspirators Smith, Thompson and Bernard about the cooking of cocaine and selling of the drug product, crack, throughout Philadelphia and Maryland.
The testimony at trial showed that the cooperators would individually purchase cocaine from Defendant Williams in North Philadelphia upon appointment. The evidence also shows that the SCCG purchased large quantities of cocaine from Defendant Williams over a long period of time and in consistent amounts and frequency. Further, Defendant Williams specifically made sales to Smith's customers when he was unavailable and that both Defendants would supply cocaine in crack form, after they converted it by cooking, when Smith needed it quickly.
Therefore, the Court finds that the Government has proved by a preponderance of the evidence that Defendant Williams knew of the joint criminal activity engaged in by the other SCCG conspirators (including drug quantities supplied by Alicea either in conjunction with or in place of Williams' supply) and can be held responsible for the total drug quantities distributed throughout the conspiracy for the entire length of the SCCG drug organization.
Defendant Williams is responsible for 255 grams of drugs per week for 232 weeks = 59,160 grams of drugs = 59.160 kilograms of drugs. As such, Defendant Williams is responsible for conspiring to distribute approximately
Pursuant to § 2D1.1(c)(1), for a violation of § 846, the drug quantity table states that a defendant responsible for 4.5 kilograms or more of crack is awarded a base level offense of 38. As such, Defendant Williams has a base offense level of 38, According to the PSI, Defendant Williams has a criminal history category III (based on 6 criminal history points) and received + 2 enhancement, pursuant to § 2D1.1(b)(1), because a dangerous weapon was involved. See PSI ¶ 136.
Therefore, Defendant Williams has an offense level of 40 and criminal history category III, which places him in the sentencing guideline range of
Defendant Alicea was also a central supplier for the SCCG and was a SCCG cocaine supplier for the life of the conspiracy. See Gov't Sent. Mem. 6, 8. Based on his role in the offense and for the reasons state above, the Court finds that the Government has proved by a preponderance of the evidence that Alicea knew of the joint criminal activity engaged in by the other SCCG conspirators (including Williams' supply) and can be held responsible for the total drug quantities distributed throughout the conspiracy for the entire length of the SCCG drug organization.
Defendant Alicea is responsible for 255 grams of drugs per week for 232 weeks = 59,160 grams of drugs = 59.160 kilograms of drugs. Therefore, Defendant Alicea is
Pursuant to § 2D1.1(c)(1), for a violation of § 846, Defendant Alicea has a base offense level of 38. According to the PSI, Defendant Alicea has a criminal history category I (based on 0 criminal history points) and received +2 enhancement, pursuant to § 2D1.1(1), because a dangerous weapon was involved. See PSI ¶ 136.
Therefore, Defendant Alicea has an offense level of 40 and criminal history category I, which puts him in the sentencing guideline range of
During his time in the conspiracy, Defendant Turnquest held the role of principal manager
Thus, Defendant Turnquest is responsible for 255 grams of drugs per week for 39 weeks = 9,945 grams of drugs =
Pursuant to § 2D1.1(c)(1), for a violation of § 846, Defendant Turnquest has a base offense level of 38. Defendant Turnquest also received +2 enhancement, pursuant to § 2D1.1(b)(1) because a dangerous weapon was involved and +3 enhancement, pursuant to § 3B1.1(b) for a manager role in the offense. See PSI ¶¶ 135, 137; see also Def. Sent Mem. 7 (disputing principal manager role based on short time of involvement in the conspiracy).
Therefore, Defendant Turnquest has an offence level of 43 and criminal history category I (based on zero criminal history points), which puts him in the sentencing guideline range of
Defendant Bland's role in the SCCG conspiracy was first in Philadelphia than in Maryland as a street seller
Defendant Bland is responsible for 255 grams of drugs per week for 147 weeks = 37.485 grams of drugs =
Pursuant to § 2D1.1(c)(1), for a violation of § 846, Defendant Bland has a base offense level of 38. Defendant Bland has a criminal history category
Therefore, Defendant Bland has an offense level of 40 and criminal history category I (based on zero criminal history points), which puts him in the sentencing guideline range of
After consideration of the parties' pleadings and arguments, and an "individualized and searching" inquiry as to each Defendant's participation in the conspiracy so as to determine appropriate sentencing ranges for each Defendant, the Court will impose its sentence at the scheduled sentencing hearings for each Defendant.
An appropriate order follows.
Defendant Williams has an offense level of
Defendant Alicea has an offense level of
Defendant Turnquest has an offense level of
Defendant Bland has an offense level of
Defendant Alicea was acquitted of Count Two, possession with intent to distribute, and Count Three, possession of a firearm in furtherance of a drug trafficking crime.
See Trial Tr. 161:16-163:9, 5/20/09; see also id. 170:10-16 (testifying that, in November 2002, Smith was selling "approximately, 18 ounces, every three days").
