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UNITED STATES v. EDMOND

September 17, 1990

United States of America,
v.
Rayful Edmond, III, et al.



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE

 The Court has just completed sentencing eighteen defendants on Count Two of the forty-three count Superseding Indictment ("Indictment") in the above-captioned case which charges conspiracy to distribute or to possess with the intent to distribute more than five kilograms of a mixture or substance containing a detectable amount of cocaine or more than fifty grams of a mixture or substance containing a detectable amount of cocaine base in violation of 21 U.S.C. § 846. *fn1" At their sentencing hearings, most, if not all, of these eighteen defendants raised three identical objections to their Presentence Investigation Reports prepared by the Probation Office. The first objection is the Probation Office's computation of their base offense level based on fifty or more kilograms of cocaine when the jury convicted them of a conspiracy to distribute or to possess with the intent to distribute five or more kilograms of cocaine. The second objection, which was initially made by the defendant Rayful Edmond, III and was subsequently adopted by many of his co-defendants, is that the object of the conspiracy of which they stand convicted was engaging in a continuing criminal enterprise ("CCE") rather than the distribution or the possession with the intent to distribute cocaine. The third objection is to the Probation Office's assessment of a two-level enhancement to each defendant's base offense level pursuant to § 2D1.1(b)(1) of the Sentencing Guidelines for the possession of guns during the conspiracy.

 I. Appropriate Drug Quantity for Determining Base Offense Level

 Defendants' reliance upon the jury's verdict and the quantity of cocaine specified in the count of the Indictment charging conspiracy in arriving at the appropriate base offense level is misplaced. In fact, some district courts have been reversed for calculating the base offense level, as the defendants urge, solely on the basis of the quantity of cocaine specified in the Indictment and supported by the jury's verdict. See, e.g., United States v. Schaper, 903 F.2d 891, 897 (2d Cir. 1990) (holding that district court erred in accepting defense counsel's argument that quantity of cocaine for purposes of sentencing should be confined to amounts seized and charged); United States v. Moreno, 899 F.2d 465, 473 (6th Cir. 1990) (holding that "district court is not bound by the jury's verdict . . . despite the jury's finding as to the quantity of drugs involved in the conspiracy or scheme" and that "the district court committed error . . . by considering itself bound at sentencing by the jury's findings").

 The penalty for a § 846 conspiracy is calculated pursuant to § 2D1.1 of the Sentencing Guidelines. "Under § 2D1.1, sentencing for violation of § 846 is largely determined by the quantity of drugs involved and the type of narcotic as outlined in § 2D1.1(c). Under § 2D1.1(c), the judge is required to make a finding of the approximate amount of drugs involved in order to apply the Guidelines." United States v. Reynolds, 900 F.2d 1000, 1003 (7th Cir. 1990). The district court's factual finding as to the quantity of drugs, which may be reversed only if clearly erroneous, see United States v. Buggs, 904 F.2d 1070, 1077 (7th Cir. 1990); United States v. Davis, 902 F.2d 860, 861 (11th Cir. 1990); United States v. Rivera, 898 F.2d 442, 445 (5th Cir. 1990), must be supported by a preponderance of the evidence, see Schaper, 903 F.2d at 898-99; Moreno, 899 F.2d at 472-73; United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989), cert. denied, 493 U.S. 1084, 107 L. Ed. 2d 1049, 110 S. Ct. 1144 (1990).

 The Guidelines make it clear that a court making a finding as to the quantity of drugs involved is not bound by the quantity of drugs for which a defendant was indicted or convicted, United States v. Wayne, 903 F.2d 1188, 1197 (8th Cir. 1990); Rivera, 898 F.2d at 445, or the amounts seized, Schaper, 903 F.2d at 897, or even the quantity a defendant actually handled, United States v. Drew, 894 F.2d 965, 972 (8th Cir.), cert. denied, 494 U.S. 1089, 108 L. Ed. 2d 959, 110 S. Ct. 1830 (1990). Instead, the Guidelines provide that "a sentencing court must consider a defendant's involvement with quantities of narcotics not charged in the count(s) of conviction when such conduct was undertaken in the same course of conduct as the offense of conviction." Schaper, 903 F.2d at 897-88 (citing U.S.S.G. § 1B1.3(a)(2) (Jan. 15, 1988)); *fn2" see also United States v. Alston, 895 F.2d 1362, 1369-72 (11th Cir. 1990) (upholding sentence where "the district court determined the base level for the amount of cocaine involved in the scheme and not merely the four ounces charged in the count to which [the defendant] had entered his plea"). Accordingly, in arriving at the appropriate base offense level, the Court's task is to make a finding by a preponderance of the evidence as to the quantity of cocaine involved in the conspiracy of which the defendants were convicted. See Drew, 894 F.2d at 972 (holding that Guidelines provide for calculation of defendant's base offense level based on the 341 grams involved in the conspiracy rather than the 66.1 grams he sold himself).

 Based upon testimony at the first two trials, the Court reaches the inescapable conclusion that the conspiracy involved more than fifty kilograms of cocaine. *fn3" Without combing through the testimony of the witnesses at the first two trials or the exhibits received in evidence, the Court can immediately identify several instances of witnesses testifying credibly about quantities of cocaine in excess of fifty kilograms. Much of the cocaine distributed during the course of the conspiracy came from the defendant Melvin Butler's connections in California. Typically, Rayful Edmond, III would send couriers to California to deliver money to Melvin Butler for the purchase of cocaine; a short time thereafter, Butler would send couriers to the Washington, D.C. area with the cocaine. Various members of the conspiracy would pick up the cocaine from Butler's couriers at one of the hotels near National Airport. For instance, at both trials, James Minor testified that he and David McCraw picked up fifty kilograms of cocaine from a gentleman from California at the Day's Inn Hotel in Crystal City, Virginia in August, 1988. *fn4" Royal Brooks also picked up substantial quantities of cocaine from various hotels in Crystal City. On one occasion, he picked up as much as 77 kilograms of cocaine; on another occasion, he picked up 58 kilograms of cocaine.

 After a member of the conspiracy picked up the cocaine in Crystal City, it was stored in one of many locations; one such location was the apartment of Royal Brooks. At trial, Royal Brooks testified that at any one time he stored anywhere from 89 to 93 kilograms of cocaine at his apartment under a platform bed. Almost immediately after Brooks' arrest, the defendant Columbus Daniels removed approximately 90 kilograms of cocaine from Brooks' apartment at Rayful Edmond, III's direction.

 Alta Rae Zanville testified about breaking down kilograms of cocaine into smaller amounts and packaging it for sale. For a nine-month period, the defendants David and Bernice McCraw went to Zanville's apartment to bag cocaine with her three times a week; each time they packaged one to two kilograms of cocaine. This means that Zanville and the McCraws packaged somewhere between 108 and 216 kilograms of cocaine over a nine-month period. After the nine-month period in which she packaged cocaine with the McCraws, Zanville packaged cocaine with Jeffrey and Raynice Thompson for a period of three months. Zanville packaged approximately 36 kilograms of cocaine with the Thompsons during this three-month period because she packaged approximately one kilogram with them three times a week.

 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. *fn5" 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 ...


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