United States v. Cecil Gibson (90-6403) and Johnny Ray Baker (90-6431)

Citations: 985 F.2d 860; 1993 U.S. App. LEXIS 2015; 1993 WL 29059Docket: 90-6403, 90-6431

Court: Court of Appeals for the Sixth Circuit; February 10, 1993; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Johnny Ray Baker and Cecil Gibson appeal their sentences resulting from guilty pleas to drug-related charges. The case arose from a 1989 investigation initiated by a confidential informant who reported that Sam Hoskins could procure drugs from Baker. Subsequent undercover operations led to cocaine purchases from Baker, implicating him and Gibson. After arrests in February 1990, Hoskins and Roland Bowling cooperated with authorities, resulting in Gibson's arrest following a recorded drug transaction. Gibson argued that he was intoxicated during the interrogation, a claim the government acknowledged at the presentencing hearing. 

A nine-count indictment filed on April 18, 1990, charged both defendants with conspiracy to distribute cocaine and various related offenses. Initially pleading not guilty, both defendants later changed their pleas. On August 6, 1990, Baker pled guilty to distributing approximately 27.9 grams of cocaine, while Gibson pled guilty to distributing about 28 grams. The government subsequently dismissed the remaining charges against them. The court affirmed some aspects of the sentences but reversed others.

On November 1, 1990, the district court sentenced defendants Baker and Gibson, adopting the United States Probation Office's Presentence Report findings with a modification that reduced the enhancement for their role in the offense from a four-level to a three-level increase. Baker received a base offense level of 19, resulting in a sentence of 37 months imprisonment, while Gibson had a base offense level of 21, also sentenced to 37 months. The base levels incorporated drug amounts from dismissed counts, classified as "relevant conduct" under U.S.S.G. 1B1.3.

Baker appealed, arguing that the inclusion of drug quantities from dismissed counts to determine his base offense level was reversible error. The applicable guidelines at the time of sentencing, specifically U.S.S.G. 1B1.3 (1990), indicate that if multiple counts are grouped under 3D1.2(d), all acts related to the offense of conviction are considered. The commentary clarifies that this application does not require actual convictions for multiple counts. In drug distribution cases, quantities not specified in the conviction count can be included if they are part of the same course of conduct.

The court reiterated that while dismissed counts can be considered in sentencing, there must be reliable evidence for the facts used, as due process requires a minimum standard of reliability. The burden of proof for the sentencing facts must meet a "preponderance of the evidence" standard, and the court reviews whether this standard is met under a clearly erroneous standard.

In *United States v. Walton*, the court established that a defendant can only be held responsible for a specific drug quantity if it is proven, by a preponderance of the evidence, that the defendant is more likely than not responsible for that amount. If the exact quantity is undetermined, estimates are permissible, but they must also be supported by a preponderance of evidence. When multiple plausible estimates exist, courts should favor caution. In this case, the district court appropriately added 28.4 grams of cocaine from a dismissed count to the 27.9 grams associated with Baker's guilty plea. Despite Baker's denial of involvement with the 28.4 grams, substantial evidence—including surveillance footage—contradicted this claim, justifying the aggregation of drug quantities in sentencing.

Baker suggested a rule that dismissed charges should not influence sentencing if the defendant did not possess the drugs at arrest; however, the court rejected this, stating that the guidelines do not support such a consideration. The court maintained that possession at arrest is irrelevant to aggregating quantities from dismissed counts since the preponderance of evidence already accounts for actual possession.

Similarly, Gibson contested the inclusion of drug quantities from dismissed counts, arguing that his statements made while intoxicated were unreliable. Despite acknowledging his intoxication, the court accepted his claims about cocaine possession and aggregated five ounces of cocaine to the 28 grams from his guilty plea when determining his base offense level.

Gibson argues that the ruling in Robison prohibits the aggregation of drug amounts based solely on unreliable evidence. In Robison, testimony from a heavily intoxicated drug user with memory issues was deemed insufficient to establish drug possession by a preponderance of the evidence. Gibson contrasts this with United States v. Davis, where the court upheld reliance on self-incriminating statements despite the defendant's claims of mental impairment, as the district court found his abilities were unimpaired. The review of the reliability of witness testimony is under the clearly erroneous standard. Although Gibson's statements were a close call in terms of reliability, the district court's assessment did not constitute clear error, as Gibson appeared coherent despite his intoxication and did not challenge the constitutionality of how the statements were obtained. Thus, there was no reversible error in aggregating drug amounts for calculating Gibson's offense level.

Baker contends that the court's acceptance of information in the Presentence Report violated his Sixth Amendment right to confront witnesses. He believes cross-examination of informants and others who provided information would have exposed inaccuracies. However, precedent from United States v. Silverman establishes that confrontation rights do not apply in sentencing hearings. In that case, increased sentences based on hearsay and presentence report evidence were upheld, affirming that constitutional protections at trial do not extend to sentencing. The law permits sentencing judges to consider hearsay if the evidence has minimal indicia of reliability. The evidence regarding Baker's alleged drug activity was deemed sufficiently reliable to satisfy due process at sentencing, leading to the conclusion that the district court did not err in relying on the presentence report, and Baker's confrontation rights were not violated in this context.

Gibson and Baker contest their sentence enhancements under Section 3B1.1(b) of the sentencing guidelines, arguing that the district court incorrectly classified them as supervisors or managers in a cocaine conspiracy. The determination of their roles is primarily factual and subject to a "clear error" standard of review. Section 3B1.1 outlines specific enhancements based on a defendant's role: a 4-level increase for organizers or leaders, a 3-level increase for managers or supervisors, and a 2-level increase for other roles. The court considers several factors in determining applicability, including decision-making authority, nature of participation, recruitment of accomplices, claims to larger shares of proceeds, planning involvement, scope of illegal activity, and control over others. The government must prove these factors by a preponderance of the evidence.

Previous case law, such as United States v. Williams, supports the idea that mere participation does not suffice for enhancement; rather, significant involvement is required. The court found that Baker's minimal involvement—providing cocaine in only two transactions solicited by another individual—did not demonstrate sufficient control. Similarly, Gibson's lack of initiation in transactions and absence of evidence showing control over others rendered the government’s case insufficient to apply the enhancement under Section 3B1.1.

The government argued that the defendants, Baker and Gibson, exhibited sufficient characteristics—such as discretion in sales, receiving payment, and being labeled as "established" drug dealers—to justify a sentencing enhancement under Section 3B1.1. However, the court disagreed, noting these characteristics did not distinguish them from the majority of drug buyers and sellers. It emphasized that more than a simple buyer/seller relationship is needed for such an enhancement, warning that affirming the district court's finding could lead to automatic sentence enhancements for drug conspiracy defendants, contrary to the intentions of Congress and the United States Sentencing Commission.

The court found support in United States v. Brown, stating that Section 3B1.1 requires evidence of authority, control, or leadership within the drug conspiracy, and merely being a distributor does not justify an enhancement. The evidence presented by the government was deemed inadequate to support the enhancement for either defendant, leading to a remand for resentencing. 

Additionally, Baker contested the district court's refusal to grant a two-level reduction for acceptance of responsibility under Section 3E1.1, asserting that he demonstrated recognition of his actions. The court upheld the district court's decision, noting Baker’s consistent denial of involvement in cocaine distribution and his attempts to shift blame, affirming the lower court's denial as clearly correct.

Ultimately, the court reversed the sentencing enhancement under Section 3B1.1 for both defendants, affirmed all other aspects of their sentences, and remanded for resentencing. The discussion also touched on the guidelines regarding counting offenses based on harm or loss, acknowledging the complexities introduced by the sentencing guidelines while reaffirming the court's adherence to established precedents.