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April 24, 1991

TONYA DAVIS, Defendant

The opinion of the court was delivered by: OBERDORFER


 On November 5, 1990, Tonya Davis pled guilty to one count of distributing a mixture or substance containing cocaine base, commonly known as "crack," in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C). As part of her plea agreement, the Government dismissed a second count of possession with intent to distribute 5 grams or more of cocaine base. The Assistant United States Attorney, however, informed the Court that the Government and Davis had not agreed upon what her sentence under the Sentencing Guidelines would be, but instead had decided to argue their different interpretations before the Court. On January 25, 1991, after receiving the report of the probation officer, briefing and oral argument from the parties, and testimony, the Court sentenced Davis to twelve months community confinement, four years of supervised release, and a $ 50 special assessment. This Memorandum further explains that ruling.


 On August 13, 1990, Officer Victor Graves of the District of Columbia Metropolitan Police Department's Narcotics Task Force approached Davis and two black male individuals sitting in front of 1926 Savannah Street, S.E., Washington, D.C. Graves asked if there were "any rocks out," thereby indicating that he would like to buy crack cocaine. The taller male asked if the others knew Graves. When they answered that they did not, the taller one indicated that he would not sell anything to Graves. Graves began to walk away. The taller male motioned him back. Davis approached the police officer and offered him one rock of cocaine for $ 20.00. Graves asked for three rocks for $ 50.00. She replied that three rocks would cost $ 60.00. Graves agreed. The taller male produced a white rock-like substance from a paper bag, broke off two smaller rocks from it, and gave the rocks to the second male who in turn handed them to Davis. In exchange, Graves handed Davis $ 60.00 in prerecorded funds.

 Graves then left the area and instructed other members of the Narcotics Task Force to arrest three individuals: a black female in a red dress, a black male in a white t-shirt and dark pants, and a black male in a striped shirt and blue jeans. He later informed the arrest team that the black male in the striped shirt was not heavy set. Based upon this information, a group of police officers went into the apartment building at 1926 Savannah Street and arrested Davis in an apartment where she was sitting with several friends. Another group of officers arrested Christopher Sherod, who fit the description of the taller male. Graves drove by and identified Sherod as the taller male. The police found 200 milligrams of crack cocaine in Davis' clothing. On Sherod, they found 23.82 grams of crack cocaine and $ 40 in prerecorded funds.

 On September 11, 1990, a grand jury returned an indictment against both Davis and Sherod. Count one of the indictment charged that "on or about August 13, 1990 . . . CHRISTOPHER J. SHEROD and TONYA E. DAVIS did . . . distribute a mixture and substance containing a detectable amount of cocaine base." Count two charged that on the same date "defendants CHRISTOPHER J. SHEROD and TONYA E. DAVIS did . . . possess with intent to distribute a mixture . . . containing a detectable amount of cocaine base . . ., and the amount of said mixture was 5 grams or more."

 As previously mentioned, in return for Davis' plea of guilty to the distribution charge in count one, the Government dismissed the possession charge against her. Sherod went to trial on both counts. At trial both he and Davis testified that Sherod was not the taller male who handed Davis the 23.32 grams that she sold to Officer Graves. Graves reiterated that Sherod was involved in the transaction. Apparently believing Davis and Sherod rather than Graves on this issue, the jury acquitted Sherod of the distribution count, while convicting him of possession with intent to distribute in excess of five grams, the count that the Government dismissed as against Davis.

 The Government had introduced evidence at Sherod's trial, and the probation officer determined in Sherod's presentence report, that he possessed 23.82 grams of crack cocaine. This amount produced a base offense level of 28. See United States Sentencing Commission, Guidelines Manual, § 2D1.1 (Nov. 1990) [hereinafter, "U.S.S.G."]. Because he was a first offender, his criminal history was "I," but since he stood trial, he did not receive a downward adjustment for acceptance of responsibility. His guideline range was therefore 78 to 97 months. The probation officer recommended, and the Court imposed, the 78 month minimum permitted by the Guidelines.

 Including Sherod's twenty-four grams of crack cocaine in his calculations for Davis' presentence report, the probation officer determined Davis' base offense level to be identical to Sherod's: 28. In addition, he found that she had been previously arrested for theft, convicted for failing to appear on that charge, and fined for solicitation. He nevertheless calculated her criminal history category also to be "I." However, after a downward adjustment for acceptance of responsibility, the probation officer calculated her offense level to be 26, requiring her to be confined for 63 - 78 months, compared to a 78 to 97 month range for Sherod.

 Davis objected to this determination. She contended that the crack cocaine found on Sherod should not have been factored into her base offense level. In Davis' view, she was only responsible for the 200 milligrams found in her clothing; *fn1" therefore, her base offense level should have been 12, and her guideline range 6 to 12 months. Davis also urged the Court to depart downward based upon evidence of the likelihood of her rehabilitation. These contentions are treated separately below.


 Davis challenged the probation officer's recommendation to include the twenty-four grams of crack cocaine found on Sherod in the calculation of her base offense level on two grounds. First, she contended, Sherod was not the taller male involved in the sale to Officer Graves and, consequently, there was no connection between herself and the drugs found on Sherod. Second, even if Sherod had participated in the sale, she should not be held accountable for the drugs possessed by Sherod. Both contentions are persuasive.


 When it acquitted Sherod of distributing crack cocaine, the jury apparently believed his contention, and Davis' testimony, that he was not the taller male who participated in the sale to Officer Graves. The probation officer and the Government urged the Court to reject the jury's assessment and adopt Graves' version of the story. *fn2" For the reasons stated below, it would have been inappropriate to do so in this case.

 The Sentencing Guidelines do not specify whether, in sentencing a defendant upon the counts on which he has been convicted, a sentencing court may consider evidence concerning counts on which that defendant has been acquitted. The Guidelines' policy statement on the resolution of disputes states only that "the court may consider relevant information without regard to admissibility under the rules of evidence applicable at trial, provided the information has sufficient indicia of reliability to support its probable accuracy." Id. § 6A1.3(a). Courts of appeals facing the issue have, however, uniformly ruled that sentencing courts may consider evidence relating to the "acquitted" count. See, e.g., United States v. Mocciola, 891 F.2d 13, 16 - 17 (1st Cir. 1989); see also id. (noting that the Third, Fourth and Fifth Circuits have reached similar conclusions). The rationale is that while the Government must prove facts at trial beyond a reasonable doubt, at sentencing the Government need only prove facts by a preponderance of the evidence. See id. at 16. While our Court of Appeals expressed some reservations about this rationale in a pre-Guidelines case, it nonetheless allowed the trial court in that case to reconsider evidence apparently rejected by the jury. See United States v. Campbell, 221 U.S. App. D.C. 367, 684 F.2d 141, 152 - 55 (D.C. Cir. 1982). It is therefore likely that our Court of Appeals would interpret the Guidelines to allow a sentencing court to consider evidence from an "acquitted" count.

 It does not, however, follow that our Court of Appeals would require or even recommend doing so in all cases. Quite to the contrary, in Campbell, the Court of Appeals noted that "assessing witness credibility is a task that is primarily within the province of the jury." Id. at 154. Sentencing courts should therefore be wary of rejecting a jury's assessment of witness credibility. The Government, however, urges the Court to do just that. The jury apparently found the testimony of Davis and Sherod that Sherod did not participate in the sale to Officer Graves more credible than Graves' testimony that he did. The Government urges the Court, nevertheless, to credit Graves' testimony and reject that of Davis and Sherod. It has failed, however, to offer any compelling reason to do so. Thus, whether or not it would be appropriate to reject the jury's apparent determination of the credibility of witnesses in an exceptional case, it is not appropriate to do so here.

 Furthermore, in this case the Government is asking the Court to do something that is apparently unprecedented: It is urging the Court to sentence Davis based upon evidence adduced a trial to which she was not a party. As stated from the bench at sentencing, "there is something that violates fundamental fairness to charge Davis and sentence her for up to five years of confinement for allegedly assisting someone . . . whom the jury has found not guilty for his role in the [same] alleged course of conduct, common scheme, or plan." Transcript at 3 (copy attached). Unlike the defendant in Campbell, Davis did not have a full opportunity to refute the Government's case because that case was presented at Sherod's trial, not her own. Cf. Montana v. United States, 440 U.S. 147, 153, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979) (allowing the application of collateral estoppel only when the parties have had a "full and fair opportunity" to litigate). The unfairness of being judged according to evidence presented at another's trial is mitigated somewhat by the fact that Davis was able to testify at a suppression hearing and at the trial itself and that her counsel was able to cross-examine Graves at the former hearing. ...

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