avoid the conclusion that the government has established that the conspiracy of which the defendants stand convicted involved more than fifty kilograms of cocaine. Moreover, the Court finds that each of these defendants knew or should have reasonably foreseen that fifty or more kilograms of cocaine were distributed during the course of the conspiracy. Accordingly, the Court assigns each defendant a base offense level of 36.
II. Object of the Conspiracy
The defendant Rayful Edmond, III argues that the Probation Office and the government have incorrectly calculated his adjusted offense level for his conspiracy conviction by referring to the wrong object of the conspiracy.
While the Probation Office and the government argue that the defendant Edmond was convicted of conspiracy to distribute or to possess with the intent to distribute more than five kilograms of cocaine or more than fifty grams of cocaine base, the defendant Edmond argues that the object of the conspiracy was engaging in a CCE. In either case, the base offense level would be 36. Compare U.S.S.G. § 2D1.5 (CCE) with U.S.S.G. § 2D1.1(a)(3) (distribution of or possession of with the intent to distribute fifty or more kilograms of cocaine). However, if the object of the conspiracy were distribution of or possession of with the intent to distribute cocaine, the sentencing court could arrive at a significantly higher adjusted offense level by applying enhancements for role in the offense or possession of a firearm, see U.S.S.G. §§ 3B1.1, 2D1.1(b), whereas the application notes to the CCE Guideline provision do not contemplate these enhancements, see § 2D1.5.
In making this argument, the defendant ignores common sense and the law of CCE and conspiracy and distorts the manner in which the government prosecuted this case. The Indictment charged the defendant Edmond with, inter alia, CCE and in a separate count with conspiracy to distribute or to possess with the intent to distribute cocaine or cocaine base, and neither the government's manner of trying this case nor the jury's verdict of guilty on both counts were inconsistent with this Indictment. Furthermore, it was clear that the conspiracy of which the defendant Edmond was convicted was one of the "continuing series" of narcotics-related predicate offenses required by the CCE statute, 21 U.S.C. § 848(b), and therefore was an element of the offense of CCE, see Court's Jury Instructions at 35. This exposes the hopelessly circular nature of the defendant Edmond's argument that would have CCE be the object of a conspiracy which in turn is an element of CCE. Thus, a conspiracy with CCE as its object in effect would be a "conspiracy to conspire," which would not be an offense under even the most expansive view of conspiracy law.
In view of the foregoing, it is understandable that the defendant Edmond has not pointed to a single case in which a defendant was charged with or convicted of "conspiracy to commit CCE" to counteract the deluge of cases in which defendants have been convicted of both CCE and conspiracy, see, e.g., Garrett v. United States, 471 U.S. 773, 776, 85 L. Ed. 2d 764, 105 S. Ct. 2407 (1985) (CCE and conspiracy to import and to possess with intent to distribute narcotics); Jeffers v. United States, 432 U.S. 137, 141, 53 L. Ed. 2d 168, 97 S. Ct. 2207 (1977) (CCE and conspiracy to possess with intent to distribute narcotics); United States v. Casamento, 887 F.2d 1141, 1157-59 (2d Cir. 1989) (CCE and conspiracy to import and distribute narcotics), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1043, 110 S. Ct. 1138 (1990). Accordingly, in determining the defendant Edmond's adjusted offense level for his conspiracy conviction, the Court will look to the object of the conspiracy, namely distribution of or possession of with the intent to distribute more than five kilograms of cocaine or more than fifty grams of cocaine base.
III. Two-Level Enhancement for the Possession of Firearms During the Conspiracy
Section 2D1.1(b)(1) of the Guidelines directs sentencing courts to enhance the base offense level of a defendant convicted of certain narcotics-related offenses, such as a § 846 conspiracy, by two levels if "a firearm or other dangerous weapon was possessed during commission of the offense." Relying upon the analysis of the decision by the United States Court of Appeals for this Circuit in United States v. Burke, 281 U.S. App. D.C. 165, 888 F.2d 862 (D.C. Cir. 1989), many defendants have argued that they should not receive a two-level increase for the possession of firearms because they lacked the requisite scienter.
In Burke, police officers at Union Station searched the defendant's tote bag and found heroin and a gun inside. The defendant then pled guilty to a drug charge in exchange for dismissal of a gun charge. When he was sentenced, the defendant received a two-level enhancement for the possession of a firearm during the commission of a drug offense. The Court of Appeals held that the sentencing judge erred in imposing this two-level enhancement because it did not make a finding that the defendant " knowingly possessed the gun found in his tote bag." Id. at 865 (emphasis in original).
The analysis in Burke, a non-conspiracy case, is not transferable to a conspiracy case such as this one because "a defendant involved in a conspiracy, regardless of whether he [or she] has possessed a firearm, can be punished as a principal based on the rule of vicarious liability of coconspirators." United States v. Long, 284 U.S. App. D.C. 405, 905 F.2d 1572, 1577 n. 8 (D.C. Cir. 1990). The rule of vicarious liability, also known as the Pinkerton theory, makes a coconspirator liable for all substantive offenses committed by his or her coconspirators in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 646-48, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946).
Section 1B1.3(a)(1) of the Guidelines and the accompanying commentary embody the principle of vicarious liability.
Conduct that is relevant to determining the applicable guideline range [consists of] all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense.