United States v. Mott ( 2001 )

[NOT FOR PUBLICATION – NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2400
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM MOTT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Lynch and Lipez, Circuit Judges,
and Doumar, Senior District Judge.*
Edward C. Roy, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Gerard B.
Sullivan, Assistant United States Attorney, were on brief, for
appellee.
*
Of the Eastern District of Virginia, sitting by
designation.
October 1, 2001
-2-
PER CURIAM. William Mott pled guilty to conspiracy to
distribute cocaine base and aiding and abetting others to do
the same. 21 U.S.C. § 841(a)(1) (1994); 18 U.S.C. § 2 (1994).
Mott appeals the decision of the District Court in its
application of the sentencing guidelines, arguing that the
Court erred when it: 1) established the amount of drugs
constituting relevant conduct; 2) increased Mott’s base
offense level for use of a minor; and 3) denied Mott’s motion
for a downward departure. For the reasons that follow, Mott’s
sentence is affirmed.
Mott allowed various drug dealers to use his apartment to sell
drugs while he was accepting drugs in payment. This was how
he obtained his drugs as he was an addict. One of these
dealers was a 17-year-old boy named Benjamin Wilson, who was
arrested inside Mott’s apartment; Mott claims that he did not
know Wilson was a minor. Upon arresting Mott and Wilson, the
police found 9.46 grams of cocaine base under a chair occupied
by Wilson. Mott claims that these drugs should not have been
utilized to determine his sentence for conspiracy to
distribute because they were intended for his own personal
use.
Mott’s presentence report calculated his sentence as follows:
Mott received a base offense level of 28 based on the amount
-3-
of crack cocaine involved in both his offense conduct and his
relevant conduct. Mott’s offense level was then increased by
two because he allowed a juvenile to sell cocaine base from
his apartment. See U.S.S.G. § 2D1.1(c)(6). Mott then received
a three-level decrease for acceptance of responsibility,
see U.S.S.G. § 3E1.1(b), a two-level decrease for his minor
role in the offense, see U.S.S.G. § 3B1.2(b), and a two-level
safety valve reduction. See U.S.S.G. § 5C1.2. Thus, Mott’s
total adjusted offense level was 23, and, with a criminal
history category of I, Mott’s guideline range of imprisonment
was 46 to 57 months. The Court ultimately sentenced Mott to
46 months. Mott appeals his sentence.
On appeal, challenges to a district court’s factual findings
in connection with sentencing hearings are reviewed for clear
error. United States v. Santos-Batista, 239 F.3d 16, 21 (1st
Cir. 2001). A district court must include in its drug weight
calculations the drugs involved in any uncharged transaction
that was “part of the same course of conduct or common scheme
or plan” as the charged conduct. U.S.S.G. § 1B1.3(a)(2).
Moreover, in the case of “jointly undertaken criminal
activity,” such as in the instant case, the defendant is
responsible at sentencing for “all reasonably foreseeable acts
and omissions of others in furtherance of the jointly
-4-
undertaken criminal activity . . . that occurred during the
commission of the offense of conviction.” Id. § 1B1.3(1)(B).
The district court employs the “preponderance of the evidence”
standard in making its drug quantity and relevant conduct
findings. Santos-Batista, 239 F.3d at 21.
The undisputed facts establish that, as part of the conspiracy
to sell cocaine base from Mott’s apartment, Mott allowed
Wilson and other dealers to use his apartment in return for
free cocaine base. The parties also agree that, shortly before
the search, Wilson made a sale of cocaine base from Mott’s
apartment, as charged in Count 7 of the indictment, to which
Mott pled guilty. The district judge rejected, as a factual
matter, the argument that the cocaine under Wilson’s chair was
not for sale, but was for Mott’s personal use. Thus, the
cocaine seized from beneath Wilson’s chair in Mott’s apartment
was properly attributable to Mott, for purposes of sentencing,
as part of the underlying distribution conspiracy, and the
district court did not commit clear error in making this
factual determination.
Mott next argues that the district court erred in imposing a
two-level enhancement under U.S.S.G. § 3B1.4 upon making a
factual determination that Mott involved a minor in the
commission of his offense. Mott first contends that he was
-5-
unaware of Wilson’s age; second, he says that he did not “use
or attempt to use a minor.” Again, the district court’s
decision in that regard is reviewed for clear error. Santos-
Batista, 239 F.3d at 21.
The provision at issue states: “If the defendant used or
attempted to use a person less than eighteen years of age to
commit the offense or assist in avoiding detection of, or
apprehension for, the offense, increase [the base offense
level] by 2 levels.” U.S.S.G. § 3B1.4. As to the first point,
Mott’s contention that he did not know Wilson was a minor is
irrelevant. There is no scienter element in this guideline,
and no Court has seen fit to read one in. See United States
v. Gonzalez, 2001 WL 946335, *2 (9th Cir. 2001); United States
v. McClain, 252 F.3d 1279, 1285 (11th Cir. 2001). As to the
second point, the First Circuit has held that an enhancement
under § 3B1.4 may be based on the relevant conduct principle
that defendants are responsible for the foreseeable acts of
their co-conspirators. United States v. Patrick, 248 F.3d 11,
26-28 (1st Cir. 2001) (holding that a defendant head of a drug
conspiracy who did not personally employ minors in the
conspiracy was nonetheless responsible for the reasonably
foreseeable employment of minors by his co-conspirators). It
follows that under §1B1.3 of the sentencing guidelines, Mott
-6-
is liable for his unindicted co-conspirators’ foreseeable
actions to use the minor Wilson for the drug sales which form
the basis of the conspiracy. There was an adequate
evidentiary basis for the trial judge to conclude that the use
of Wilson was foreseeable to Mott. Mott was aware that Wilson
was selling drugs from the apartment and agreed to it.
Finally, Mott claims that the district court should have
granted his motion for a downward departure on the basis that
1) he was addicted to cocaine base at the time of the
offenses; 2) he was victimized by higher-level drug dealers;
3) his offense conduct constituted “aberrant behavior” because
he had previously been law-abiding; and 4) he suffered from
extraordinary physical, mental, and emotional conditions due
to his cocaine addiction. Mott contends that the district
court therefore abused its discretion by denying his motion,
and that the district court improperly believed that it lacked
the authority to grant the downward departure motion.
It is well settled that “[a] district court’s discretionary
refusal to depart downward is unreviewable unless the court
believed it lacked the authority to do so.” Patrick, 248 F.3d
at 28. A defendant must show more than an arguable ambiguity
in a district court’s ruling denying a downward departure
motion to establish that the court acted in the belief that it
-7-
lacked authority to depart. United States v. Deleon, 187 F.3d
60, 69 (1st Cir. 1999).
In the present case, Mott does not even point to any ambiguity
in the district court’s ruling. Nor could he. In the words of
the district court at sentencing:
I don’t believe you qualify for a downward departure. You
certainly have accepted responsibility, I have no way of
knowing how sincere or genuine your acceptance is, but I take
you at your word. You’ve accepted responsibility, and you got
credit for that. You had a relatively minor role in these
offense [sic], and you got credit for that, too. You have had
a good record up until now, but that doesn’t entitle you to a
downward departure. I don’t think your case is sufficiently
outside the heartland. It’s not sufficiently different from
other cases like that that would warrant a downward departure.
Sentencing Tran. 31-32.
The instant case is indistinguishable from Patrick, where the
First Circuit affirmed a district court’s denial of a downward
departure motion where “the district court, exercising its
discretion, found it inappropriate to depart because Patrick
had not identified any factors that took his case outside the
‘heartland.’ ” Patrick, 248 F.3d. at 28.
In sum, there is nothing in the district court’s explanation
for its denial of Mott’s downward departure motion that
suggests the district court thought or believed it lacked the
authority to depart. Consequently, this Court is without
authority to review the district court’s denial of the
-8-
downward departure motion, and Mott’s appeal may not be
sustained on this basis.
Affirmed.
-9-