RALPH B. GUY, JR., Circuit Judge.
Defendant, Kevin P. McDowell, appeals from the sentence imposed by the district court after conviction for cocaine-related
Upon review, we conclude that the court acted reasonably in considering the fact that the defendant operated a crack house within 1,000 feet of two schools, but that this fact properly should have been taken into consideration as "relevant conduct" in the calculation of the base offense level rather than in making an upward departure. The second factor, by contrast, is not a proper justification for an upward departure from the guidelines. Because the extent to which the district judge considered each factor in calculating the sentence is unclear from the record, we remand, instructing the judge to resentence the defendant, considering the first factor when calculating the proper offense level and without considering the second factor at all.
On November 3, 1988, the federal grand jury at Columbus, Ohio, returned a three-count indictment against the defendant and his mother, Annie Chavis McDowell. The indictment charged the defendant in Count I with conspiracy to maintain a place for the distribution of cocaine and crack, in violation of 21 U.S.C. § 846.
Pursuant to a plea bargain, McDowell pled guilty to Count I and the court, at the request of the government, ultimately dismissed Count II.
At the sentencing hearing, but before announcing its sentence, the district court informed the defendant that the court was considering an upward departure as recommended by the probation department. After considering the argument of the defendant's counsel, and for the reasons set forth below, the court imposed a sentence of 96 months incarceration followed by a period of 60 months supervised release.
In support of its decision to depart from the guidelines, the court made the following statement:
The first factor that the judge considered in making his upward departure was the fact that the defendant operated his crack house within 1,000 feet of two schools. The judge stated his rationale for so doing in comments made during the sentencing of the defendant's mother and which he incorporated at the defendant's sentencing hearing:
Although the court was correct in taking this conduct into account, it erred in two respects. The primary error was that it considered the location of the crack house as a justification for an upward departure when it should have considered this conduct in calculating the defendant's base offense level. The guidelines are clear that conduct other than that for which the defendant has been convicted may be considered by the court in determining the appropriate sentencing range. Section 1B1.3 of the guidelines provides that, in determining the applicable guideline range
In the recent case of United States v. Sammy Lee Smith, 887 F.2d 104 (6th Cir.1989), this court held that it is proper to consider quantities of drugs charged in dismissed counts when determining the sentencing range. The court in Smith explained that "[i]n its sentencing determination, the district court should have considered all conduct that was part of the same course of conduct or a common scheme or plan as the offense of conviction...." Id. at 108. This reasoning likewise applies in the instant case. The operation of this crack house close to two schools clearly is "conduct that was part of the same course of conduct" as the conspiracy. As such, the conduct should be considered when calculating the base offense level.
The circumstances of the instant case are somewhat different from the Smith case; thus, an expanded discussion is called for. In Smith, considering the conduct charged in the dismissed counts merely amounted to an increase in the quantity of cocaine used to calculate the applicable sentencing range. In the instant case, consideration of the dismissed count would require the court to consider the substantive offense that was the object of the conspiracy. The sentence imposed for the conspiracy charge, by definition, already considers the substantive offense that is the object of the conspiracy. Section 2D1.4 of the guidelines provides: "If a defendant is convicted of participating in an incomplete conspiracy ... to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy ... had been completed." However, the sentencing range made applicable does not automatically factor in the circumstance that this particular conspiracy was carried on within 1,000 feet of two public schools. Although there is no proof in this case that the defendant sold crack to school children, the location of his crack house increased the availability of this deadly drug to children. That the defendant ran a crack house and that he did so in close proximity to school buildings is certainly "relevant conduct" within the meaning of section 1B1.3 of the guidelines.
Consideration of the location of the crack house in this case implicates section 2D1.3 of the guidelines, which provides that the base offense level is to be calculated "corresponding to double the drug amount involved ... for distributing or manufacturing a controlled substance ... within 1000 feet of a schoolyard." That is, the consequence in this case of considering the location of the crack house is to double the quantity of drugs considered in calculating the base offense level.
The court's second error was more one of verbiage than of substance. By stating that "the impact of the plea agreement was to, in effect, basically reduce by half the potential guideline sentence," the court seemed to be suggesting that it wished to remove the benefit of the plea bargain by considering the location of the crack house. However, the defendant did receive the benefit of the plea bargain, because the dismissal of Count II precluded any possibility of a conviction for that offense. The conduct included in Count II is still "relevant conduct" within the meaning of the guidelines, however, and properly should be considered by the court when sentencing the defendant for his conviction on Count I.
We now turn to the second reason offered by the district court for its departure from the guidelines. The district court stated that running a crack house presents a threat to public safety and cited section 5K2.14 of the guidelines in support of its departure. This section reads:
Guidelines § 5K2.14.
This court recently adopted a three-part test for the evaluation of a departure from the guidelines:
While we agree that crack houses present a threat to public safety, we neither agree that the danger presented by crack houses in general is the type of special danger that section 5K2.14 was designed to address, nor that crack houses constitute "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b).
The First Circuit recently provided excellent guidance as to what factors are sufficiently unusual to warrant departure. In United States v. Aguilar-Pena, 887 F.2d 347 (1st Cir.1989), the court made the following statement:
Id. at 349. Our case is clearly a "heartland" case. The only thing about this case that distinguishes it from other crack house cases is the fact that the crack house is being operated close to two schools, and this circumstance was considered separately by the court. Quoting again from Aguilar-Pena, "there must be something `special' about a given offender, or the accouterments of the crime committed, which distinguishes the case from the mine-run for that offense." Id. at 350. The trial judge made no other effort to distinguish this case from other crack cases. He merely stated that the Commission "undoubtedly did not and could not ... have taken into consideration the extreme threat to society which had developed through the use and sale of this particular drug." Again, Aguilar-Pena is helpful:
Id. at 351 (emphasis in original). As the First Circuit stated, the commission of the
Although we share the trial judge's concerns, we view the discretion exercised here as the type that, in the interest of eliminating sentencing disparity, was removed from district judges by the Sentencing Reform Act. To read section 5K2.14 as did the trial judge would be to provide an exception that swallows the rule. All narcotics offenses and most crimes present a threat to public safety of one kind or another, and clearly the Sentencing Commission was referring to a threat over and above that normally implicated by the commission of the offense.
We conclude with one last quote, which is relevant to the district court's departure:
Aguilar-Pena, 887 F.2d at 353.
This case is REMANDED for resentencing consistent with this opinion.
NATHANIEL R. JONES, Circuit Judge, concurring in part and dissenting in part.
I agree with the court's holding that the second reason for upward departure — the threat of "crack" to society — is not a proper justification. However, I believe that the district court's first reason for departure was also improper because the dismissed count of McDowell's plea agreement did not constitute "relevant conduct" for the district court to consider in sentencing. As such, I respectfully dissent from Part II of the opinion.
Pursuant to the plea agreement, McDowell pled guilty to one count of conspiracy to maintain a crack house and the government dismissed the count for possession of crack within 1,000 feet of a school with intent to distribute. However, the district court upwardly departed from the base offense level to sentence McDowell as if he were convicted of both counts of the indictment. Since possession within 1,000 feet of a school with intent to distribute contains a penalty much higher than that of maintaining a crack house, the district court approximately doubled McDowell's sentence. This court correctly notes that "the primary error [of the district court] was that it considered an upward departure when it should have considered the conduct in calculating the defendant's base offense level." Under section 1B1.3 of the Sentencing Guidelines, in determining the applicable guideline range, the district court may consider "relevant conduct," which includes "all acts and omissions committed or aided and abetted by the defendant ... that occurred during the commission of the offense of conviction." On this basis, the court holds that McDowell's maintaining a crack house within 1,000 feet of a school is relevant conduct that the district court could have properly considered in calculating the base offense level.
The Guidelines explicitly permit the district court to consider dropped counts of a plea agreement in cases where the quantities of drugs are added up for the purpose of calculating the offense level. The Commentary to section 1B1.3 of the Guidelines states that:
In United States v. Smith, 887 F.2d 104 (6th Cir.1989), this court held that it is proper to add up quantities of drugs from dropped counts because it was part of the same common scheme or plan as the offense of conviction.
Under this construction of the Guidelines, the district court's upward departure in the instant case was improper because it sentenced McDowell according to the greater offense, which was dropped under the plea agreement. This court correctly states that McDowell received the benefit of his plea bargain because it only specified that he would not be convicted of the dismissed count. However, the effect of the majority's decision is to allow sentencing for an offense of which McDowell was not convicted. My contention is not that the government did not live up to its end of the plea bargain in this particular case; instead, I submit that under a proper construction of the Guidelines, the district court should determine whether the seriousness of the crime is adequately reflected in the agreement at the plea bargain acceptance stage, not down the road at the sentencing hearing. Finally, I reject the court's suggestion that the conspiracy count included the dropped count — possession near a school with intent to distribute — as part of the conspiracy. If the government wanted to charge McDowell with such a conspiracy, it need not have agreed to the plea bargain. By dismissing the second count to the indictment, the government decided not to prosecute McDowell for this count. In so doing, it did not decide to then incorporate the dropped count into the conspiracy.
ENGEL, Senior Circuit Judge, concurring in part and dissenting in part.
I concur with parts I and II of the majority opinion, but respectfully dissent from the part III holding. In part III, the majority holds that it was error for the sentencing judge to base a departure from the Sentencing Guidelines upon the fact that crack, in contrast to ordinary controlled drugs within the Guidelines, is a particularly dangerous drug, as recognized by the majority opinion in several places, and that the public danger involved is even more serious when that form of drug is sold in close proximity to two public schools. In his comments, the sentencing judge expressed his opinion that the Guidelines did not make any apparent distinction between crack and other forms of controlled substances of that category and did not adequately address the dangers peculiar to the
The thrust of the majority's reversal is that while it is acknowledged that crack houses present a threat to public safety, the majority cannot find that maintenance of such houses comes within the definition of "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b). My result, however, is to reach an entirely opposite position on basically the same law. I disagree that the trial judge made no other effort to distinguish this case from other crack cases in his departure. He clearly was concerned with the maintenance of the crack house within close proximity to two schools. He also was concerned with the fact that the Guidelines were deficient in failing to make a distinction for the particular seriousness of this drug, a distinction which he concluded could not have been drawn when the Guidelines were promulgated because the development was relatively new.
In my opinion, the majority unduly stresses the need for eliminating sentence disparity. A major objective of the Act unquestionably was to narrow the wide disparity in sentences, but it is evident from the Act, its history, and the comments of members of the Sentencing Commission that an equally important concern was the desire not to eliminate altogether the discretion of the sentencing judge where he or she could articulate a valid reason for the departure. The district court has done so here, and he has done so in the context of the facts in this case. While his observation concerning crack, as opposed to other forms of controlled substances, may be seen as a generalization, he did not indicate and does not appear necessarily to have sought to apply any automatic exception to the Guidelines which would be applicable in all cases. Thus, he has not violated the principle of uniformity of Guidelines, but instead has confined his decision to this particular case even though he partially based his departure upon what appears to be a growing realization of the specialized danger that the sale of crack imposes. I do not think it is invalid for this reason if he has not tried to make an automatic rule at variance with the Guidelines themselves and I cannot read that he was doing so here.
The majority opinion seems to hamstring the sentencing judge in a manner which I believe was not intended by either the Congress or by the Sentencing Commission which, indeed, hoped to get information from the front line of criminal law enforcement in order to assist it in its obligation to review the continuing appropriateness of the Guidelines.
I believe that the majority has unduly limited the quality and nature of aggravating circumstances which can be used for upward departures. If the same rationale were to be applied in a conviction for felon in possession of a firearm, then I would suppose, by the same token, the sentencing judge would be unable to make any valid distinction between the use of a .22 caliber squirrel pistol and the use of a 155 mm howitzer. If and when the Sentencing Commission promulgates a different guideline for the use of crack, as opposed to other types of Schedule II controlled substances, then I would imagine it would be appropriate to require, as we did in part II of the majority opinion, that this circumstance be considered in determining the offense level rather than the extent of departure. Until then, it seems to me that this is precisely the kind of circumstances which the Sentencing Commission hopes will be called to its attention through use of the departure procedure. It is this continuing flexibility that gives the system whatever vitality it may have.
United States Sentencing Commission, Guidelines Manual, § 1A1.4(b) (Nov. 1989).