United States v. Sheila Smith and Byron Vandrea Phillips, A/K/A Vincent Andrian Phillips, A/K/A Byron A. Phillips

DeMOSS, Circuit Judge,

dissenting in part and concurring in part:

I readily concur in the language and conclusions of Parts II.C and D of the foregoing opinion, but I am unable to concur with the language or conclusions in Parts II.A and B, and I write this dissent to express my disagreement with those provisions.

A. Amount of Cocaine Considered in Smith’s Sentencing.

I cannot agree with the conclusion made by the trial judge and majority opinion that Smith is responsible not only for the 2 grams of cocaine she sold to the undercover agent, but also for the 3.9 grams of cocaine found on the floor of the house, for the following reasons:

(a) The trial judge’s articulation of a finding about “jointly undertaken activity” quoted verbatim in the majority opinion is only conclusional. If you read it carefully, you will see that the judge is saying that “I find jointly undertaken activity because there was jointly undertaken activity.” Inferentially at least, if not expressly, the trial judge found that Smith and Cheney were making sales in competition with each other. In my book, by definition, competitors are not engaged in a jointly undertaken activity. The trial judge attempted to talk himself around the concept of competition by saying that, in his view, competition would not “def[y] a conspiracy mentality.” I am at a loss to understand the significance of a “conspiracy mentality.” Whether or not a person may have a “mental inclination” to enter into conspiracies does not establish that any “conspiracy” was in fact was entered into.

(b> While the trial judge purported to rely on findings in the presentence report of Smith, the probation officer in fact made no findings of any kind regarding “jointly undertaken activity” with Cheney and Adams. The sole rationale offered by the probation officer in his original report for the quantity of drugs involved is the following sentence:

“Case investigative materials established that agents seized approximately 7 grams of cocaine base in the instant case.”

In response to objection raised by Smith, the probation officer attempted to “maintain his position” by contending the following:

(1)He claimed that the “undercover police officer” disclosed that the crack cocaine found near the marked $100 bill belonged to the defendant. However, the “undercover police officer” testified under oath at trial that after buying the 2 grams from Smith, he gave the bust signal, walked out to his van and left the premises; the officer therefore could not have had any firsthand knowledge or information whatsoever regarding the ownership of the cocaine found on the floor of the house;

(2) The probation officer also argues that the jury verdict found Smith guilty of conspiracy with Phillips to possess with intent to distribute “in excess of 5 grams of cocaine,” thereby rendering irrelevant her argument that she only possessed the 2 grams she sold to the undercover police officer. It is settled law in this Circuit, though, that the allegation of a quantity of a controlled substance is not an essential element of the crime, therefore a jury finding in that regard is mere surplusage; and

(3) Finally, the probation officer states that Smith was being held accountable for the full 7 grams of cocaine since it was part of the conspiracy she jointly undertook with others and was reasonably foreseeable by her. However, that conclusion is just like the trial judge’s conclusion, totally unsupported by reference to any facts.

(c) The majority opinion recognizes that there was no evidence that Cheney, Adams, Smith and Phillips ever “pooled their profits, loaned each other money or shared each other’s drugs.” In addition, there is no evidence of any kind either in the trial transcript or in the presentence report which shows that Cheney, Adams, Smith and Phillips ever pooled any money to pay for rent, utilities, food or other expenses connected with the house at which the sale occurred.

(d) The commentary to U.S.S.G. § 1B1.3, Note 2(c)(6) provides as follows:

Defendant P is a street-level drug dealer who knows of other street-level drug dealers in the same geographic area who sell the same type of drug as he sells. Defendant P and the other dealers share a common source of supply, but otherwise operate independently. Defendant P is not accountable for the quantities of drugs sold by the other street-level drug dealers because he is not engaged in a jointly undertaken criminal activity with them. In contrast, Defendant Q, another street-level drug dealer, pools his resources and profits with four other street-level drug dealers. Defendant Q is engaged in a jointly undertaken criminal activity and, therefore, he is accountable under subsection (a)(1)(b) for the quantities of drugs sold by the four other dealers during the course of his joint undertaking with them because those sales were in furtherance of the jointly undertaken criminal activity and reasonably foreseeable in connection with that criminal activity.

In my view, Note 2(c)(6) is relevant and controlling as to the facts of this case regarding whether or not jointly undertaken activity had occurred. Surprisingly, neither the trial court, the probation officer nor the majority opinion addresses this note. The meager facts cited by the majority opinion to attempt to support the trial court’s conclusion of “jointly undertaken activity” are rendered totally insufficient by Note (c)(6). Sharing a common source of supply and having knowledge of others selling the same type of drug in the same geographic area are facts which the first sentence of Note (c)(6) expressly assumes and finds inadequate to support a determination of jointly undertaken activity. As indicated by the third sentence of Note (c)(6), it is “pooling [their] resources and profits” which is the key ingredient that determines when several individual drug sellers are engaged in a jointly undertaken activity. There is nothing in this case that supports a finding of “pooling resources and profits.” The majority attempts to embellish the meager facts upon which it relies with words like “rudimentary shopping center,” “flea market for crack,” “barker” and “marketing symbiosis,” but these terms find no support whatsoever in the trial record or in the presentence report, and are simply an exercise of poetic license by the majority.

For the foregoing reasons, I think the trial judge clearly erred in concluding that there was any “jointly undertaken criminal activity” between Smith and either Cheney or Adams which would make Smith accountable for the quantities of cocaine found on the floor of the house after the raid. Absent a “jointly undertaken activity,” the second aspect of “foreseeability” is irrelevant. In my view, Smith’s base offense level should have been based only on the 2 grams of cocaine she sold to the undercover officer.

B. Reduction for Smith’s Acceptance of Responsibility.

From my reading of the record in-this case, I am satisfied that early on, Smith attempted to plead guilty to the offense of selling the 2 grams of cocaine to the undercover police officer. This case is one of those “rare situations” when a defendant is convicted after a trial instead of after a plea of guilty but should still be entitled to a reduction for acceptance of responsibility. See U.S.G.G., § 3E1.1, Comment Note 2. In her objections to her presentence report, Smith states that she offered to plead guilty to the 2 grams and that the only reason her case went to trial was the fact that the government had incorrectly assumed that the quantity of cocaine was an element of the offense. At the sentencing hearing, Smith’s counsel argued:

“She has acknowledged her guilt to me from the outset, and we attempted to plead guilty, but every effort to plead guilty required a stipulation to all the cocaine. It simply wasn’t true.”

Smith was put into a no-win situation. At the time she was attempting to plead guilty, the government expected her to admit, as an element of the offense, that she herself possessed 7 grams of cocaine. During the sentencing hearing, the trial court acknowledged that Smith had admitted her guilt for the 2-gram transaction but refused to give the § 3El.l(a) reduction, citing concerns that Smith knew of the drug activity at her mother’s house, that she was the mother of three children and that she possessed some medical training. I recognize, of course, the deferential standard of review given to sentencing judges on this issue, but I am convinced that the trial judge’s decision to deny the reduction for acceptance of responsibility was at least in part based on the erroneous (in my view) finding of joint activity. The denial, therefore, should in my view be reconsidered as part of the reconsideration of the quantity issue.

In conclusion, I feel compelled to make some comments about the anomalous position in which this case is left as a result of the majority opinion. First of all, Smith, who had absolutely no criminal history points, gets her sentence affirmed based an offense level using more than 5 grams of cocaine as the principal ingredient. On the other hand, Phillips, who had a criminal history category of Part V, gets his sentence reversed, and under the holdings of Part 11(c), with which I concur, his offense level will be determined by the quantity, 2 grams, actually involved in his conspiracy with Smith. We are faced first with the anomaly, then, of two defendants convicted under the same counts of the indictment whose offense levels will be determined by two different quantities. The second anomaly arises from the fact that on resentencing Phillips will be susceptible to the enhanced penalties under 21 U.S.C. § 860(a), as he clearly should be, but the clear error of the trial judge in refusing to apply § 860(a) in the determination of Smith’s sentence will be left to stand. I have always understood that one of the primary purposes of the Sentencing Guidelines was to ensure that individuals who engage in the same or similar criminal conduct will have their sentences determined on the same or similar theories. I am disappointed that I was unable to persuade my colleagues that the way to avoid these anomalies was to reverse the sentence of Smith as well and place both defendants back before the trial judge for a resentencing using the same quantity and the application of § 860.