U.S. v. Windham ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 92-8479
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HAROLD WAYNE WINDHAM,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
W 91 CR 101 4
_________________________________________________________________
May 7, 1993
Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Appellant Harold Wayne Windham was sentenced to 130
months imprisonment and other punishment after he pled guilty to
one count of possession of amphetamine. On appeal, he challenges
three facets of the district court's sentencing decision. We have
reviewed each of them and find no reversible error.
Windham first contends that the district court erred in
sentencing him based on relevant conduct that consisted of
distribution of amphetamine in quantities ranging from 500 to 2,000
grams. He argues that the PSR and testimony at his sentencing
hearing were "confused and overlapping" in regard to the quantity
of drugs with which he had been associated. He particularly
challenges the statements that confidential informant #21 was
reported to have made, linking him to a number of multiple-ounce
deliveries to Judy Copeland Jones in the fall, 1991. He asserts
that confidential informant #21 was not credible, because the
district court discounted his statement that on one occasion,
Windham possessed a firearm in a briefcase.
The quantity of drugs attributable to a defendant in
connection with sentencing is shielded by the clearly erroneous
standard on review. As Windham's brief acknowledges, the court was
entitled to consider any sentencing information so long as it had
"sufficient indicia of reliability to support its probable
accuracy." United States v. Michael, 894 F.2d 1457, 1461-62 (5th
Cir. 1990). In this case, the investigating officer testified that
several confidential informants with good histories of reliability
had linked Windham and his common-law wife Lynn Waller Rogers to
purchases of multi-ounce quantities of speed from co-defendant
Royals and regular distributions to Greg Schrader, Sam Reyes and
Judy Copeland Jones in various ounce quantities. Rogers and
Windham lived together, and two searches of their apartment
conducted by the police on separate occasions confirmed their
cohabitation and the presence of drug-related paraphernalia that
was open and obvious. In challenging the credibility of
confidential informant #21 because of the district court's
rejection of an enhancement for possession of a gun, Windham
overlooks a salient fact. The district court rejected the gun
2
enhancement because this passing reference was not fixed in time,
was apparently a couple of years old, and was not corroborated by
any other statements in the PSR. The district court's choice not
to credit the gun enhancement statements but to otherwise credit
the information provided by confidential informant #21 was not
clearly erroneous. In short, sufficient indicia of reliability
accompanied the district court's finding of the quantity of drugs
with which Windham had been associated.
Windham next contends that the court erred by refusing to
grant a two-level reduction in his base offense level for being a
"minor participant." As this court has said, because most offenses
are committed by participants of roughly equal culpability, "it is
intended that [this type of adjustment] will be used infrequently."
United States v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir.
1989). The district court's finding of participant status enjoys
the protection of the clearly erroneous rule. United States v.
Hewin, 877 F.2d 3, 4 (5th Cir. 1989). Windham's attempt to portray
himself as a less culpable participant in distributing amphetamine
than his common law wife is unpersuasive. The PSR characterized
them as partners in distribution. It would have taken much
stronger evidence and argument than Windham has presented to
persuade us that although he lived with Rogers throughout the
period of the investigation in an apartment where drug-dealing was
obvious, and although he was identified as Rogers' distributor, he
is somehow less culpable than she. The district court was not
clearly erroneous.
3
Windham finally objects to the district court's refusal
to grant him a two-level reduction for acceptance of
responsibility. Although he admitted possession of 9/10ths of a
gram of amphetamine on the date on which he was arrested, he
refused to comment on or take responsibility for previous dealings
in drugs. Under the Sentencing Guidelines interpretation then
applicable in this court, Windham was required to accept
responsibility not only for the offense of conviction but for all
his "relevant criminal conduct." United States v. Alfaro, 919 F.2d
962, 968 (5th Cir. 1990). The Sentencing Guideline has been
amended in the way that Windham advocates, but that amendment did
not become effective until November 1, 1992, well after Windham's
offense, prosecution, guilty plea and sentencing. U.S.S.G. § 3E1.1
note 1(a). Although a split in the circuits concerning
interpretation of the acceptance of responsibility guideline
prompted this amendment, we are bound by our prior circuit
precedent, and we see no reason to revisit this issue en banc.
Further, we agree with the holding, if not all of the reasoning of
our brethren on the Second Circuit that guidelines changes ought
not generally be applied to cases in which the defendant was
sentenced by the district court before the amendment took effect.
United States v. Colon, 961 F.2d 41 (2d Cir. 1992).
The sentencing determination of the district court is
AFFIRMED.
4