J. RONNIE GREER, District Judge.
On August 10, 2010, the federal grand jury returned a seven count indictment charging Aaron Kinzer, Sandra Duff, Gary O'Neal, Jessica Light, and Johnny Lewis with conspiring to distribute and possess with the intent to distribute 50 grams or more of cocaine base ("crack"), conspiring to distribute and possess with the intent to distribute 50 kilograms or more of marijuana, and various other substantive drug offenses, [Doc. 3]. On May 11, 2011, the grand jury returned a nine count superseding indictment that added two additional counts and two additional defendants, Kevin Breckinridge and Mark Mole, [Doc. 113]. Then, on August 9, 2011, the grand jury returned a nine count second superseding indictment against the defendants, [Doc. 142].
Aaron Kinzer ("Kinzer") was charged in all counts of the second superseding indictment. He was charged in Count One with conspiracy to distribute and possess with the intent to distribute 28 grams or more of cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B); in Count Two, he was charged with conspiracy to distribute and possess with the intent to distribute 50 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(C); in Count Nine, he was charged with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h); in the remaining counts, Kinzer was charged with various other drug offenses. On July 25, 2012, Kinzer pled guilty, pursuant to a negotiated plea agreement, to Counts One, Three, and Nine of the second superseding indictment.
A presentence investigation report ("PSR") was prepared by a United States probation officer. The probation officer grouped counts One, Two and Nine pursuant to USSG § 3D1.2(c). (PSR, ¶ 31). The probation officer applied a career offender enhancement as provided USSG § 4B1.1 because Kinzer was at least 18 years old at the time of the instant offenses of conviction, the instant offenses are controlled substance offenses, and the defendant has at least two prior felony convictions for a controlled substance offense. (PSR, ¶ 38). The probation officer identified three prior felony controlled substance offenses as predicate offenses for career offender purposes: (1) conviction on June 16, 2006 for possession of marijuana with intent to distribute more than one-half ounce, but less than five pounds, in the Circuit Court for Bristol, Virginia (case number CR-06807801 & 02), (2) a conviction on March 29, 2007 for possession of marijuana with intent to distribute in the Circuit Court for Bristol, Virginia (case number CR070839001), and (3) possession of marijuana with intent to distribute on January 25, 2010 in Jackson County Superior Court, Jefferson, Georgia. As a result, the probation officer calculated advisory guidelines range of 262 to 367 months of imprisonment.
Although Kinzer admits each of the prior convictions, he objects to the application of the career offender enhancement. More specifically, Kinzer argues that each of the prior convictions "involved relevant conduct associated with the conspiracies in this cause," [Doc. 292 at 2], and that "his prior convictions are related and should be considered one sentence for sentencing purposes as they resulted from a continuing and uninterrupted common scheme or plan." [Id. at 3]. In short, Kinzer argues that he has been "a drug dealer for many, many years" and "that his activities associated with the state convictions (and conspiracy convictions) in the instant case constitute a common scheme or plan and the same course of conduct," i.e. "an ongoing series of interrelated events." [Id.].
An evidentiary hearing was held on January 27, 2014, at which the Court heard testimony from the defendant and from the case agent, DEA Task Force Agent Mike Commons. The parties have now been fully heard on the matter, briefs have been filed, [Docs. 292, 293, 306, 307], and the matter is ripe for decision. For the reasons which follow, the Court finds that defendant is a career offender and his objection to the PSR is OVERRULED. As a result, his advisory guidelines range is 262 to 327 months of incarceration.
The following facts are stipulated to by Kinzer as part of his plea agreement:
[Doc. 232, Plea Agreement, ¶ 4].
Kinzer testified at the evidentiary hearing that he "sold marijuana for a living" and began dealing marijuana around December, 2002, first as a transporter for others and then as a seller himself. Kinzer contacted his cousin, Kevin Breckenridge, in Charlotte, about supplying him with marijuana. He and Breckenridge did business "off and on," with Breckenridge initially supplying one to three or four pounds of marijuana at a time. Kinzer drove to Charlotte to pick up the marijuana. After his Virginia conviction in June, 2006, Kinzer began to send others to pick up the marijuana from Breckenridge, apparently doing so during the six months he was in jail. When his probation began on the Virginia conviction, he began to utilize drivers to pick up the marijuana in Charlotte. At some point, "things took a break between [Kinzer] and Breckenridge" and Kinzer had to find other suppliers.
Several of the suppliers found by Kinzer were in Atlanta, Georgia. Among them were "Disco" and "Cowboy," from whom Kinzer purchased marijuana four or five times a year for about four years, usually when Breckenridge could not supply him with marijuana. He also obtained marijuana from "John" and a Mexican named Jorge Gonzales. His main Atlanta supplier was "Dave"/Little D," who began supplying marijuana in 2006. "Dave" became a second consistent supplier of marijuana, in addition to Breckenridge. When Kinzer was arrested in Georgia in 2007, he was in possession of 25 pounds of marijuana he had obtained from "Dave." Kinzer's dealings with "Dave" ceased after the Georgia arrest. The marijuana involved in the 2007 Bristol, Tennessee conviction (date of offense April 1, 2006) also came from "Dave."
According to Kinzer, he was continuously involved in drug dealing from late 2002 through his 2010 arrest, even during periods of incarceration, during which he directed others to carry on the drug business. His main co-conspirator during periods of incarceration was his girlfriend, Sandra Duff. Kinzer directed her activities and gave her instructions from jail. During these periods, Duff maintained the drug business "fully functional." Kinzer made arrangements with suppliers and customers to continue to deal with Duff. Kinzer did not utilize any of the other co-defendants in this case, O'Neal, Light, Lewis, or Moles, prior to 2007.
Kinzer testified that he had never dealt in cocaine or crack until a "short time" before October 16, 2009, the date a search warrant was executed at his business, First Class Auto. During the search two large sandwich bags and a blue baggie containing a total weight of 146.9 grams of crack was located. Kinzer stated that he didn't "mess with crack" before then because he knew the federal penalties and because of his mother's history of crack addiction. However, he had developed a supplier of crack, known to him as "Bean," in Atlanta and gradually overcame his "reservations" about crack. Kinzer, Lewis, and Light made three trips to Atlanta to obtain crack from "Bean" for resale by Kinzer, who personally distributed the crack in gram quantities.
Agent Commons testified that the DEA investigation of Kinzer began at the time of Kinzer's arrest in Georgia. A female subject who was with Kinzer at the time of that arrest was the subject of a methamphetamine case and that aroused Commons's interest. Commons investigated the case through witness interviews and review of money gram records. He eventually identified those named in the first indictment, but could not initially identify Breckenridge, who was only identified after interviews with O'Neal and Moles. Commons learned that crack was coming from Atlanta through interviews with O'Neal, Light and Lewis. Commons considered the Georgia traffic stop to be part of the conspiracy and used the date of that stop, October, 2007, as the beginning date of the conspiracy. During his investigation of the crack conspiracy, the name "Bean" never came up. Commons later interviewed Breckenridge who admitted that be began supplying marijuana to Kinzer in 2009.
The 2012 version of the Guidelines Manual applies to this case. The guidelines provide that a defendant is a career offender if (1) the defendant was at least 18 years old at the time he committed the instant offense of conviction; (2) the instant offensive conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. USSG § 4B1.1(a). There is no dispute here about the first two prongs of § 4B1.1(a). The sole issue is whether Kinzer's prior felony convictions establish the third prong.
USSG § 4B1.2 provides the definitions of the terms used in § 4B1.1. Section 4B1.2 states, in relevant part, that the terms "two prior felony convictions" means "(1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of . . . a controlled substance offense . . ., and (2) the sentences . . . are counted separately under the provision of § 4A1.1(a), (b), or (c)." USSG § 4B1.2(c).
Under § 4A1.2, prior sentences "always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense)." USSG § 4A1.2(a). If there is no intervening arrest, they are counted separately unless charged in the same charging instrument or sentences were imposed on the same day. Id. If the prior sentence was imposed after the commencement of the instant offense, but prior to sentencing for the instant offense, then it is counted separately unless it was for conduct that was part of the instant offense. Id., app. note 1.
As noted above, Kinzer argues that he is not a career offender here because his prior convictions are related, i.e., part of the instant offense, and therefore do not count as prior sentences for the purposes of § 4B1.1(a). "Prior sentence" is a "sentence imposed prior to sentencing on the instant offense, other than a sentence for conduct that is part of the instant offense." USSG § 4A1.2, app. note 1. Further, "[c]onduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of § 1B1.3 (Relevant Conduct)." Id. The application note specifically references § 4A1.2(a).
Relevant conduct includes all conduct "that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense," and, for offenses that would be grouped under USSG § 3D1.2(d), "all acts or omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction." USSG § 1B1.3.
"Common scheme or plan" and "same course of conduct" are closely related concepts. A "common scheme or plan" exists where two or more offenses are "substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi." USSG § 1B1.3, app. note 9. Offenses that are not part of a common scheme or plan may nonetheless be part of the same course of conduct "if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses." Id.
To establish "a common scheme or plan," a defendant must show that "his crimes were jointly planned or the commission of one entailed the commission of the other," not that he stumbled into the same government undercover operation . . . on multiple occasions. United States v. Wimbley, 349 Fed. App'x 54, 2009 WL 3296504 (6
Under § 4B1.2, Kinzer's prior convictions are counted separately because they were separated by intervening arrests. The arrest for the first predicate offense was on January 14, 2005, [PSR, ¶ 48]. He committed the second predicate offense on April 1, 2007, and was arrested the same day, [PSR, ¶ 50], and he was arrested for the third offense, committed on the same day, on October 11, 2007, [PSR, ¶ 52].
Defendant's objection is therefore overruled and the PSR is adopted by the Court. Kinzer's advisory guidelines range was correctly calculated. With a total offense level of 34 and a criminal history category of VI, the advisory guidelines range for imprisonment is 262 months to 327 months. Kinzer has also filed various other objections to the PSR's guidelines calculation. Those objections are rendered moot by the Court's ruling on the career offender objection and are OVERRULED as such. [See Doc. 292 at 1, fn.1].
So ordered.
