United States v. Fields ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
11-3-1994
United States v. Fields
Precedential or Non-Precedential:
Docket 94-3078
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 94-3078 and 94-3081
____________
UNITED STATES OF AMERICA,
Appellee
v.
DAVID FIELDS,
Appellant
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 92-00183)
____________________
Argued: September 13, 1994
Before: BECKER and ALITO, Circuit Judges, and
BRODY, District Judge*
(Opinion Filed: November 3, 1994)
____________________
MARY R. PORTIS, ESQ. (Argued)
PORTIS & ASSOCIATES
One Bigelow Square
Twentieth Floor
Pittsburgh, PA 15219
Attorney for Appellant
FREDERICK W. THIEMAN
United States Attorney
______________________
* The Honorable Anita B. Brody, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
BONNIE R. SCHLUETER (Argued)
Assistant United States Attorney
633 U.S. Post Office and Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
David Fields has appealed his conviction and sentence
for violations of the federal drug laws. He argues that his
indictment should have been dismissed under the Speedy Trial Act,
18 U.S.C. § 3161 et seq., and that the district court erred in
calculating his sentence. We affirm the defendant's conviction,
but we vacate his sentence and remand for resentencing pursuant
to United States v. Rodriguez, 975 F.2d 999 (3d Cir. 1992).
I.
On September 17, 1992, the defendant was indicted in
the Western District of Pennsylvania for (count one) possession,
with the intent to distribute, of less than 100 grams of heroin,
in violation of 21 U.S.C. § 841(a)(1); (count two) possession,
with intent to distribute, of less than 100 grams of heroin
within 1000 feet of a public school or playground, in violation
of 21 U.S.C. § 860(a); and (count three) use of a person under 18
years of age to deliver heroin, in violation of 21 U.S.C. §
861(a)(1). On September 25, the defendant was taken before a
magistrate judge in Pittsburgh for an initial appearance. On
October 6, the defendant's attorney moved for an extension of the
time for filing pretrial motions under the local rules, and on
October 7 the district court granted an extension until October
24, which was a Saturday (thus making those motions due on
Monday, October 26). The order granting the extension stated:
IT IS FURTHER ORDERED that the extended
time period within which defendant may file
pretrial motions be excluded under Title 18
U.S.C. § 3161(h)(8)(A), since the court finds
that the additional period is necessary to
enable counsel for the defendant adequately
to investigate and prepare pretrial motions.1
A change of plea hearing was subsequently requested,
and because the judge to whom the case had initially been
assigned was involved in a trial in Erie, another judge agreed to
preside at that hearing on December 10. Due to a severe
snowstorm, however, the case agent was unable to attend the
hearing in Pittsburgh on that date, and the case was then listed
for disposition, by trial or the entry of a guilty plea, on
December 16.
1
. Since the district court's intent appears to have been to
exclude the time from the granting of the extension until the
date when pretrial motions were actually due, we interpret the
exclusion to extend until October 26. Accordingly, once this
time was excluded, the Speedy Trial Act deadline for the
commencement of the trial became December 22, 1992.
On December 16, the defendant and his attorney
requested a 30-day continuance so that plea negotiations could
continue. After engaging in an extensive colloquy with counsel
and after questioning the defendant personally, the district
court judge granted a continuance pursuant to 18 U.S.C. §
3161(h)(8)(A)2 and made the following findings:
I think that the ends of justice will be
served by taking this action, and those ends
outweigh the best interests of the public and
the defendant in a speedy trial; and the
reason is that this gives the government an
opportunity to get more information
concerning the drug trade. It gives the
defendant an opportunity to furnish more
information. This is not only to the benefit
of the defendant, but might benefit the
government, and, therefore, we will grant the
motion.
Eventually, the plea negotiations broke down. Although
the defendant expressed a willingness to plead guilty to counts
one and two, he refused to plead guilty to count three. The
defendant's attorney then moved to dismiss the indictment under
the Speedy Trial Act, but that motion was denied, and trial on
all counts began on January 20, 1993.
At trial, the prosecution introduced evidence that the
defendant had arranged to meet an informant for the purpose of
selling him heroin and that this meeting had occurred within a
short distance of a playground where children were playing. The
2
. We interpret the district court's order as excluding the 30
days beginning with the previous deadline for the commencement of
the trial.
prosecution's evidence also showed that at this meeting the
informant had given the defendant $200 and that the defendant had
instructed a young man or boy to hand over a package of heroin to
the informant. The tape recording of the conversation between
the defendant and the informant revealed that the defendant had
introduced the young man or boy as his nephew Jason, and the
prosecution introduced evidence that the defendant's fiancee had
a nephew named Jason who was 16 years old at the time of the
offense.
The defendant testified and admitted that he had
participated in the transaction and that it had occurred within
1000 feet of a playground. He insisted, however, that his
accomplice was not his nephew Jason but a different person, who
was 18 years old at the time of the offense. The jury found the
defendant guilty on counts one and two but not guilty on count
three. After denying reconsideration of the defendant's motion
to dismiss the indictment under the Speedy Trial Act, the
district court sentenced the defendant to 41 months'
imprisonment. This appeal followed.
II.
The defendant first argues that he was not brought to
trial within 70 days from his initial appearance, as required by
the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). The defendant
contends that the district court's contrary holding was incorrect
primarily because (a) the district court erroneously excluded the
period from October 6, 1992, when the defendant's attorney moved
for an extension of time to file pretrial motions, until October
26, 1992, when those motions were due, and (b) the district court
incorrectly excluded the period of delay resulting from the
continuance that was sought by the defense for the purpose of
pursuing plea negotiations. As previously noted, the district
court excluded both of these periods under 18 U.S.C. §
3161(h)(8)(A), which requires the exclusion of
[a]ny period of delay resulting from a
continuance granted by any judge on his own
motion or at the request of the defendant or
his counsel or at the request of the attorney
for the Government if the judge granted such
continuance on the basis of his findings that
the ends of justice served by taking such
action outweigh the best interest of the
public and the defendant in a speedy trial.
No such period of delay resulting from a
continuance granted by the court in
accordance with this paragraph shall be
excludable under this subsection unless the
court sets forth, in the record of the case,
either orally or in writing, its reasons for
finding that the ends of justice served by
the granting of such continuance outweigh the
best interests of the public and the
defendant in a speedy trial.
The defendant's arguments are disturbing because he
would have us order the dismissal of his indictment based on
continuances that his own attorney sought. As we warned in
United States v. Lattany, 982 F.2d 866, 883 (3d Cir. 1992), cert.
denied, 114 S. Ct. 97 (1993), "[d]efendants cannot be wholly free
to abuse the system by requesting (h)(8) continuances and then
argue that their convictions should be vacated because the
continuances they acquiesced in were granted." See also, e.g.,
United States v. Culp, 7 F.3d 613, 617 (7th Cir. 1993), cert.
denied, 114 S. Ct. 2108 (1994); United States v. Kucik, 909 F.2d
206, 210-211 (7th Cir. 1990), cert. denied, 498 U.S. 1070 (1991).
Rejection of the defendant's arguments might be justified on this
ground alone, but in any event a straightforward application of
the provisions of the Speedy Trial Act leads to the same
conclusion.
A. 1. We turn first to the exclusion of the period
from October 6, 1992, when the district court granted the defense
motion for an extension of time to file pretrial motions, until
October 26, 1992, when those motions were due. The defendant
contends that this period could not properly be excluded under 18
U.S.C. § 3161(h)(8)(A) because the district court did not comply
with the procedural requirement that it "set[] forth, in the
record of the case, either orally or in writing, its reasons for
finding that the ends of justice served by the granting of [the]
continuance outweigh[ed] the best interests of the public and the
defendant in a speedy trial." 18 U.S.C. § 3161 (h)(8)(A). We do
not agree.
In granting the extension, the court stated that it
"[found] that the additional period [was] necessary to enable
counsel for the defendant adequately to investigate and prepare
pretrial motions." A9. Moreover, in denying the defendant's
motion to reconsider his motion for dismissal of the indictment,
the district court elaborated that defense counsel "needed time
to decide what to do, to examine the tape recording for example,
or to investigate the birthdate of the alleged minor and perhaps
try to suppress both." A5. We have held that the statement of
reasons required by 18 U.S.C. § 3161(h)(8)(A) need not be placed
on the record at the time when the continuance is granted.
United States v. Brooks, 697 F.2d 517, 522 (3d Cir. 1982), cert.
denied, 460 U.S. 1073 (1983). See also United States v. Lattany,
982 F.2d at 877; United States v. Brenna, 878 F.2d 117, 122 (3d
Cir. 1989); United States v. Rivera Construction Co., 863 F.2d
293, 297 (3d Cir. 1988). Consequently, the explanation provided
by the district court in denying reconsideration may also be
properly considered. Viewing the order granting the continuance
and the order denying reconsideration together, we are convinced
that the district court provided a sufficient statement of
reasons to satisfy 18 U.S.C. 3161(h)(8)(A).
While acknowledging our prior holdings that the
requisite statement of reasons need not be made when the
continuance is granted, the defendant contends that the
explanation given by the district court in denying
reconsideration cannot properly be taken into account under 18
U.S.C. § 3161(h)(8)(A) because this explanation may not
correspond with the actual reasons for granting the continuance.
See Appellant's Br. at 29. However, we see no factual support
for this argument in the record. In granting the continuance,
the court expressly relied on 18 U.S.C. § 3161(h)(8) and stated
that defense counsel needed more time to investigate and prepare
pretrial motions. In denying reconsideration, the court
mentioned some of the avenues of investigation that defense
counsel might have wished to pursue. Thus, the reason for the
finding -- that defense counsel's need to explore possible
pretrial motions outweighed the countervailing speedy trial
interests -- remained the same throughout.
2. The defendant next suggests that, even if the
district court made the finding required by 18 U.S.C. §
3161(h)(8)(A), that finding was wrong because defense counsel's
need for extra time to work on possible pretrial motions did not
outweigh the interests that would have been served by a speedier
trial. Characterizing this case as one involving a "non-complex,
single drug transaction," Appellant's Br. at 29, the defendant
suggests that his attorney should have been able to investigate
and prepare any pretrial motions without the need for an
extension. We reject this argument as well.
First, we hold that in appropriate circumstances an
"ends of justice" continuance under 18 U.S.C. § 3161(h)(8)(A) may
be granted to permit the preparation of pretrial motions.3 In
3
. Courts of Appeals have disagreed on whether delay
attributable to the preparation of pretrial motions is excludable
under the general language of 18 U.S.C. § 3161(h)(1), which
applies to periods of delay "resulting from other proceedings
concerning the defendant." Many circuits have held such delays
excludable. See United States v. Hoslett, 998 F.2d 648, 654-57
determining whether to grant an "ends of justice" continuance, a
court is required to consider the following factors:
(ii) Whether the case is so unusual or
so complex, due to the number of defendants,
the nature of the prosecution, or the
existence of novel questions of fact or law,
that it is unreasonable to expect adequate
preparation for pretrial proceedings or for
the trial itself within the time limits
established by this section. . . .
(iv) Whether the failure to grant such
a continuance in a case which, taken as a
whole, is not so unusual or so complex as to
fall within clause (ii), would deny the
defendant reasonable time to obtain counsel,
would unreasonably deny the defendant or the
Government continuity of counsel, or would
deny counsel for the defendant or the
attorney for the Government the reasonable
time necessary for effective preparation,
taking into account the exercise of due
diligence.
18 U.S.C. § 3161(h)(8)(B)(ii) and (iv) (emphasis added). Because
subsection (ii) refers expressly to "preparation for pretrial
proceedings," it seems plain that an "ends of justice"
continuance may be granted for the purpose of giving counsel
additional time to prepare motions in "unusual" or "complex"
(..continued)
(9th Cir. 1993); United States v. Barnes, 909 F.2d 1059, 1064-65
(7th Cir. 1990); United States v. Mobile Materials, Inc., 871
F.2d 902, 913-14 (10th Cir. 1989) (per curiam), opinion
supplemented on rehearing, 881 F.2d 866 (10th Cir. 1989), cert.
denied, 493 U.S. 1043 (1990); United States v. Wilson, 835 F.2d
1440, 1444-45 (D.C. Cir. 1987); United States v. Montoya, 827
F.2d 143, 153 (7th Cir. 1987); United States v. Jodoin, 672 F.2d
232, 238 (1st Cir. 1982). The Sixth Circuit, however, disagrees.
See United States v. Moran, 998 F.2d 1368, 1370-71 (6th Cir.
1993). In light of our holding with respect to 18 U.S.C. §
3161(h)(8), we need not address this issue.
cases. Moreover, we conclude that a continuance for the
preparation of pretrial motions is also permissible under some
circumstances in cases that are not "unusual or complex."
Subsection (iv) makes it clear that a continuance "necessary for
effective preparation" is allowed in such cases,4 and we think it
is natural to interpret the phrase "effective preparation" in
subsection (iv) as having the same meaning as the longer phrase -
- "adequate preparation for pretrial proceedings or for the trial
itself" -- in subsection (ii). Consequently, whether or not a
case is "unusual" or "complex," an "ends of justice" continuance
may in appropriate circumstances be granted in order to provide
adequate time for the preparation of pretrial motions.
Second, we see no basis for reversing the district
court's conclusion that such a continuance was appropriate in
this case. "Our inquiry is limited to the question whether the
district court abused its discretion in granting this
continuance," Brooks, 697 F.2d at 522, and we hold that it did
not.
3. The defendant's final argument regarding the
exclusion of the period covered by the extension of time for the
preparation of pretrial motions is based on Rule 12.1(B) of the
4
. See United States v. Dota, F.3d. (9th Cir.
1994) ("An ends-of-justice continuance may be justified on
grounds that one side needs more time to prepare for trial[,] 18
U.S.C. § 3161(h)(8)(b)(iv)[, even though a case is] not ``complex'
as that term is defined in § 3161(h)(8)(B)(ii) . . . ."); United
States v. Monroe, 833 F.2d 95 (6th Cir. 1987).
Local Rules of the United States District Court for the Western
District of Pennsylvania.5 The defendant argues that the order
granting defense counsel's motion for an extension was "void ab
initio" because the motion was not filed within ten days after
arraignment, as required by this local rule. We do not accept
this argument. First, the defendant cites no authority for the
proposition that a motion filed in violation of a local rule is
void ab initio for Speedy Trial Act purposes, and we are aware of
no such authority. Second, it does not appear that the local
rule was violated. As the district court noted in denying
reconsideration, the rule provides that "the court, in its
discretion for good cause shown, may permit a motion to be made
and heard at a later time." By entertaining and granting the
extension request, the district court appears to have implicitly
granted an extension of the time period specified in the local
rule.
5
. This provision states:
Motions under Rule 12 and Rule 41(e) of
the Federal Rules of Criminal Procedure shall
be made either before a plea is entered or
within ten days after arraignment, unless the
court extends the time either at arraignment,
or upon written application made within the
said ten-day period. Such application shall
set forth the grounds upon which it is made
and shall be served on the United States
attorney. The court, in its discretion,
may, however, for good cause shown, permit a
motion to be made and heard at a later date.
We therefore hold that the district court was correct
in excluding, for Speedy Trial purposes, the period from the
granting of defense counsel's request for an extension of time to
file pretrial motions until that extension expired.
B. We next consider the defendant's argument that the
district court erroneously excluded the period covered by his
attorney's request for a continuance so that plea negotiations
could be pursued. The defendant seems to suggest that 18 U.S.C.
§ 3161(h)(8) cannot apply to a continuance granted for this
purpose, but we do not agree. Nothing in the language of 18
U.S.C. § 3161(h)(8) suggests that an "ends of justice"
continuance may not be granted for this purpose.6 Instead, the
statutory language refers broadly to "[a]ny period of delay
resulting from a continuance granted" to serve "the ends of
justice." 18 U.S.C. § 3161(h)(8)(A). In current federal
practice, plea negotiations play a vital role. We therefore see
no reason why an "ends of justice" continuance may not be granted
in appropriate circumstances to permit plea negotiations to
6
. Congress specifically provided in 18 U.S.C. § 3161(h)(1)(I)
for the exclusion of "delay resulting from consideration by the
court of a proposed plea agreement to be entered into by the
defendant and the attorney for the Government." This provision
does not suggest, however, that Congress meant to preclude an
"ends of justice" continuance under 18 U.S.C. § 3161(h)(8) for
the purpose of permitting plea negotiations to continue. "Ends
of justice" continuances under 18 U.S.C. § 3161(h)(8) were
obviously intended for use in situations that do not fall within
one of the exclusions specifically set out in 18 U.S.C. §
3161(h)(1)-(7).
continue.7 See United States v. Williams, 12 F.3d 452, 460 (5th
Cir. 1994). Cf. United States v. Montoya, 827 F.2d 143, 150 (7th
Cir. 1987) (delay caused by plea bargaining excluded under 18
U.S.C. § 3161(h)(1)(D)).
While we believe that such continuances should be
granted sparingly, we hold that the district court's exercise of
discretion in this case was proper. Defense counsel strongly
urged the court to grant the continuance, noting that his client
7
. Our holding is consistent with the decision in United States
v. Perez-Reveles, 715 F.2d 1348, 1350-53 (9th Cir. 1983). In
that case, the Ninth Circuit held that the district court had
erred in excluding a certain period of time under 18 U.S.C. §
3161(h)(8)(A) because "the district court's rulings did not
include the explicit findings" required by that provision. 715
F.2d at 1353. See also United States v. Lewis, 980 F.2d 555, 563
n.13 (9th Cir. 1992)(summarizing holding of Perez-Reveles).
Because the findings in this case were more extensive and better
supported than those in Perez-Reveles, we see no conflict between
the two decisions.
We recognize, however, that there may be tension between our
decision and the dictum in Perez-Reveles that "[n]egotiation of a
plea bargain is not one of the factors supporting exclusion
provided in section 3161(h)(8)(B)." 715 F.2d at 1352 (footnote
omitted). While it is certainly true that the need for more time
in order to conduct plea negotiations is not among the factors
listed in 18 U.S.C. § 3161(h)(8)(B)(i)-(iv), it does not follow
that a district court cannot consider this factor. Title 18
U.S.C. § 3161(h)(8)(B) (emphasis added) states that:
[T]he factors, among others, which a judge
shall consider in determining whether to
grant a continuance . . . [are those set out
in 18 U.S.C. § 3161(h)(8)(B)(i)-(iv)].
Thus, it is clear that a judge may (and, indeed, "shall")
consider other factors as well. If the Perez-Reveles court
reasoned to the contrary, we must disagree.
was offering to provide information that could be helpful in
other drug investigations and that such cooperation could enable
his client to obtain a more favorable sentence. A33-34, 37-38.
The prosecution informed the court that the defendant had made a
"very good and very thorough proffer" and that the parties were
"making progress" in reaching an agreement. A29, 34. The court
was aware that negotiations had been hampered due to the illness
and hospitalization of the DEA agent who was knowledgeable about
drug dealing in the area of Pittsburgh with which the defendant
was familiar. A 38. The court questioned the defendant himself
and verified that he preferred to continue plea negotiations
rather than going to trial immediately. A40-47. Under all of
these circumstances, the "ends of justice" continuance was
properly granted. We thus hold that the Speedy Trial Act was not
violated in this case.8
III.
The defendant next contends that the district court
committed several errors in calculating his sentence.
A. The defendant's first sentencing argument is that
the district court misapplied U.S.S.G. § 3E1.1, which concerns
"acceptance of responsibility." This provision states:
8
. We have considered all of the defendant's Speedy Trial Act
arguments that are not directly addressed in the body of this
opinion, and we find those arguments to lack merit.
(a) If the defendant clearly demonstrates acceptance
of responsibility for his offense, decrease the
offense level by 2 levels.
(b) If the defendant qualifies for a decrease under
subsection (a), the offense level determined prior
to the operation of subsection (a) is level 16 or
greater, and the defendant has assisted
authorities in the investigation or prosecution of
his own misconduct by taking one or more of the
following steps:
(1) timely providing complete information to the
government concerning his own involvement in
the offense; or
(2) timely notifying authorities of his intention
to enter a plea of guilty, thereby permitting
the government to avoid preparing for trial
and permitting the court to allocate its
resources efficiently.
decrease the offense level by 1 additional level.
The district court granted a two-offense-level decrease under
U.S.S.G. § 3E1.1(a), but the defendant maintains that he was
entitled to an additional one-offense-level decrease under
subsection (b). In rejecting this argument, the district court
stated:
I don't think that you would be entitled to
that [the third point] unless he had accepted
responsibility for all of the counts.
Supp. App. 7. The court then added:
[H]e didn't accept responsibility for all of
his counts, and he has been given a reduction
of two points for accepting responsibility
for the first two counts. That's the counts
he was convicted of. But he went to trial.
Fortunately he won, but I think [the
probation officer] is right in giving him
only a two-point reduction.
Id. at 8. Thus, it appears that the district court's denial of
the additional one-offense-level decrease was based at least in
part on the defendant's refusal to plead guilty to count III, on
which he was acquitted.
The defendant argues that the district court's ruling
was inconsistent with United States v. Rodriguez, 975 F.2d 999
(3d Cir. 1992). In that case, two defendants, Rodriguez and
Anderson, were willing to plead guilty to some of the charges
against them but not to others, and they therefore went to trial.
Rodriguez refused to plead guilty to a firearms possession count
on which he was acquitted at trial. Anderson was willing to
plead guilty to a charge of conspiring to distribute cocaine, but
he refused to admit that the object of the conspiracy was to
distribute more than three kilograms of cocaine, and on appeal
our court agreed with his position concerning the amount of
cocaine involved. At the sentencing stage, Rodriguez and
Anderson argued that they were entitled to an offense-level
decrease under U.S.S.G. § 3E1.1 even though they had not pled
guilty, but the district court denied that decrease.
On appeal, we concluded that Rodriguez's and Anderson's
sentences should be vacated and that they should be resentenced.
We noted that a defendant who elects to go to trial is not
categorically barred from receiving an offense-level reduction
for acceptance of responsibility. 975 F.2d at 1009. We then
concluded that "when the trial court decided whether to award the
two level reduction, it erred in failing to consider the reasons
for which Anderson and Rodriguez refused to plead to the entire
indictment, along with the apparent validity of those reasons."
Id. at 1009. We therefore remanded "for consideration of this
issue by the district court" at resentencing. Id.
Our holding in Rodriguez essentially reiterates the
rules set out in U.S.S.G. § 3E1.1, Application Note 1. That Note
states that it is appropriate for a court to consider a
defendant's "truthfully admitting the conduct comprising the
offense(s) of conviction, and truthfully or not falsely denying
any additional relevant conduct for which the defendant is
accountable under [U.S.S.G.] § 1B1.3 (Relevant Conduct)." This
Note then adds:
Note that a defendant is not required to
volunteer, or affirmatively admit, relevant
conduct beyond the offense of conviction in
order to obtain a reduction under subsection
(a). A defendant may remain silent in
respect to relevant conduct beyond the
offense of conviction without affecting his
ability to obtain a reduction under this
subsection. However, a defendant who falsely
denies, or frivolously contests, relevant
conduct that the court determines to be true
has acted in a manner inconsistent with
acceptance of responsibility. . . .
Applying these rules here, we believe that the
defendant's sentence must be vacated and that this case must be
remanded for resentencing. Based on the statements made by the
district court, it appears that the court may have incorrectly
considered the defendant's refusal to admit conduct not
comprising part of the offenses of conviction. On appeal, the
government has propounded other bases on which an offense-level
reduction under U.S.S.G. § 3E1.1 could, in its view, be denied.
We will not address these grounds here but will leave them to be
considered in the first instance by the district court.
B. The defendant argues that the district court erred
in awarding one criminal history point under U.S.S.G. § 4A1.1(c)
for his prior sentence for the summary offense of harassment.
Under U.S.S.G. § 4A1.2(c), prior sentences for specified
offenses, "by whatever name they are known," are generally not
counted. One of these specified offenses is "disorderly
conduct," and the defendant argues that the offense of
"harassment" under Pennsylvania law is "equivalent" to
"disorderly conduct" and therefore should not be counted.
We need not and consequently do not reach this
question. The district court calculated that the defendant had
11 criminal history points and therefore placed him in criminal
history category V. Even if we accepted the defendant's argument
concerning his sentence for harassment, the defendant would still
have 10 criminal history points; he would thus remain in criminal
history category V, and his sentence would be unaffected.9
9
. By instructing that sentencing courts should not count a
prior sentence for "disorderly conduct" "by whatever name [it is]
known" (U.S.S.G. § 4A1.2(c)(1)), the Sentencing Commission
appears to mean that sentencing courts should determine whether a
particular offense is in essence the same as the offense of
disorderly conduct as that offense is generally understood. This
C. The defendant's final argument concerning his
sentence is that the district court erred in finding that he was
a "supervisor" of criminal activity under U.S.S.G. § 3B1.1(c) and
in thus increasing his offense level by two levels. We review
the district court's finding for clear error. United States v.
Balletiere, 971 F.2d 961, 969 (3d Cir. 1992); United States v.
Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992), cert. denied, 113
S. Ct. 497 (1992). Applying that standard, we reject the
defendant's argument.
The evidence at trial showed that the defendant
directed a young man or a boy, whom the defendant identified as
his cousin, to deliver a package of heroin to an informant. The
evidence also established that, after this delivery was made, the
defendant criticized the young man or boy for being too open in
his manner of handing over the package. This evidence, although
not overwhelming, was sufficient to support the district court's
finding.
IV.
(..continued)
instruction, however, is not easy to follow because "disorderly
conduct" is "[a] term of loose and indefinite meaning (except
when defined by statutes). . . ." Black's Law Dictionary 469
(6th ed. 1990). See also IV C. Torcia, Wharton's Criminal Law §
523 at 177-78 (14th ed 1981) ("The offense varies significantly
from state to state, and a uniform and consistent pattern is
difficult to discern."). It would therefore be helpful if the
Commission clarified what it means by the essence of the offense
of disorderly conduct.
For the reasons explained above, we affirm the
defendant's conviction, but we vacate his sentence and remand for
resentencing in accordance with this opinion.