At the presentence hearing on February 8, 1993, Ms. Ingram, Sr. testified, without contradiction, that she is neither financially nor physically capable of raising the children herself. Ms. Ingram is a retired public school administrator who is dependent upon a modest pension. Although she tries to help Ingram purchase food and clothing for the children when she is able, ultimately she is financially dependent upon Ingram, and Ingram bears primary responsibility for raising the children. He buys the children's clothes, feeds and dresses them before school, and takes them back and forth to school each day. He is the only effective disciplinarian in the household.
Ms. Ingram's physical limitations make it impossible for her adequately to care for two young boys. She is a diabetic, suffers from severe arthritis and thyroid complications, twice has had back surgery, and suffered a heart attack in February 1991. She presently is on medication for each of these medical problems.
Neither boy ever has had any difficulty at school or with the law when Ingram was home to care for them, either before Ingram's arrest or since. During the brief four month period that Ingram was incarcerated, however, Derrick Jr. twice was found by the police in stolen cars. After the second arrest Derrick Jr. entered a plea, and he presently is serving one year probation. Ms. Ingram testified that, by herself, she was unable adequately to care for the boy and to keep him out of trouble with the police. That was true even though at that time she was responsible only for Derrick Jr. and only for a few months. With two boys in the house and one of them a teenager, she stated repeatedly: "I cannot do it." Tr. 2-4-93 at 17, 16. Ingram represents that he now provides guidance for Derrick Jr. and takes him to group counseling sessions for troubled children. Defendant's Reply to Government's Response to Defendant's Memorandum in Aid of Sentencing at 6. Derrick Jr. has not gotten into any further trouble.
No other appropriate caretaker is available for the children. Uncontroverted testimony at the presentence hearing established that Ingram's estranged wife, Kathleen Ingram, from whom he has been separated since 1988, is often violent and has beaten her children publicly on more than one occasion. As recently as December 1992, a neighbor of Ingram reported that Kathleen Ingram beat Derrick Jr. outside the house with her coat and repeatedly threatened to kill him. Tr. 2-4-93 at 7-8; Def. Ex. 1, Letter of Louis T. Colbert.
Prior to April 1992, the younger child, Dexter, resided with his mother. During that period, he was observed at school on at least one occasion attempting to reenact a sexual act with a female student. The incident aroused the serious concern of the principal, teacher, and parents. When questioned why he had behaved in such a manner, Dexter responded that he had learned the behavior at home, from observing his mother and her boyfriend. Following this incident, Dexter was brought to live with Ingram and his mother.
A. Acceptance of Responsibility
In its plea agreement, the prosecution committed itself not to "oppose a two-level reduction in the base offense level for acceptance of responsibility" as authorized by § 3E1.1(a). Plea Agreement at 2. Nevertheless, a prosecution presentence pleading argued that § 3E1.1 "does not automatically guarantee a defendant a two-level reduction when he pleads guilty." Gov't. Response at 8. Noting that "timeliness is an important factor," it even urged that because Ingram failed to enter a plea earlier, he should not be entitled to the two level reduction that formed part of the plea agreement. Id. The prosecution's opposition to an acceptance of responsibility departure is based on Ingram's delay in pleading guilty to the original p.w.i.d. indictment (since dismissed). In fact, Ingram never plead guilty to that indictment, and the charge to which he pled was not originally filed. Until the second trial and preparation for the third apparently exposed the weaknesses in the prosecution's case and the consequence of the defense errors in the first trial, however, the prosecution never offered to dismiss the p.w.i.d. indictment. Ingram timely entered his plea to the crack house maintenance charge when the prosecution finally offered to abandon the p.w.i.d. charge for which Ingram had developed strong and obvious defenses. His plea, therefore, was timely for the purposes of § 3E1.1.
It is well established that "a defendant who materially breaches a plea agreement may not claim its benefits." United States v. Merritt, No. 91-1637, 988 F.2d 1298, 1993 U.S. App. LEXIS 2127, at *48 (2d Cir. Feb. 11, 1993); see also United States v. Nathan, 476 F.2d 456, 459 (2d Cir.), cert. denied, 414 U.S. 823 (1973). Nor may the government. The prosecution's about-face on the two-level reduction for acceptance of responsibility violates a solemn commitment of the United States. Ingram is entitled to a two level reduction as a result of entering the plea agreement, and the prosecution's attempt to violate its commitment about acceptance of responsibility simply strengthens his case for that adjustment.
Furthermore, Ingram's significant drug rehabilitation efforts entitle him to an additional one-level reduction for acceptance of responsibility. The Sentencing Commission now has acknowledged that post-offense drug rehabilitation efforts are grounds for such a reduction. See U.S.S.G. § 3E1.1(a), Commentary (g). This Circuit has stated that drug rehabilitation efforts may even entitle a defendant to a further departure from the Guidelines, "if the rehabilitation is so extraordinary as to suggest its presence to a degree not adequately taken into consideration by the [Guidelines]." United States v. Harrington, 292 U.S. App. D.C. 90, 947 F.2d 956, 962 (D.C. Cir. 1991); see also United States v. Maier, 975 F.2d 944, 946-47 (2d Cir. 1992); United States v. Sklar, 920 F.2d 107, 116 (1st Cir. 1990); United States v. Williams, 948 F.2d 706 (11th Cir. 1991).
Ingram's post-offense rehabilitation history may not constitute the extreme and rare case described in Harrington as justifying full departure. However, his efforts have been substantial and reflect an impressive acceptance of responsibility for the circumstances surrounding his crime. Despite a longstanding drug habit which he unsuccessfully attempted to overcome in 1987,
Ingram voluntarily sought out rehabilitation and successfully completed it following his indictment. Every drug test of Ingram taken since his arrest has returned negative, and he regularly has attended Narcotics Anonymous meetings since his release. The uncontroverted evidence establishes that from the time of his arrest to the date of sentencing nearly two years later, Ingram has been entirely drug free. His drug rehabilitation efforts reflect an acceptance of responsibility justifying a one-level departure pursuant to § 3E1.1(a).
B. Minor Role in the Offense
The shifting nature of the prosecution's evidence creates serious doubt whether Ingram, or anyone else, could have been proven guilty beyond a reasonable doubt under the original indictment in a fair trial before an impartial jury, where both sides were adequately represented by counsel. To the extent that such a judgment may be made, however, a comparison of Ingram's role with the apparent roles of the other participants establishes that his role was minor, and he therefore is entitled to a two-level downward departure pursuant to U.S.S.G. § 3B1.2(b) for this mitigating consideration.
Although Ingram initially was indicted together with Copeland for possession with intent to distribute crack cocaine, the weight of the evidence establishes it is more likely than not that Ingram was a minor facilitator in the operation. Ingram was not the owner or lessee of the apartment, nor was he primarily responsible for maintaining it. None of Ingram's possessions were found in the apartment, and his fingerprints were not identified on any of the paraphernalia recovered. The evidence about the money allegedly found on Ingram and strewn on the floor conclusively establishes nothing. Nor, apparently, was Ingram present at either of the two drug purchases by the confidential informant that proceeded the raid. Other than Ingram's presence in the apartment and the three rent receipts signed on Harrison's behalf, the prosecution has presented no evidence that Ingram exercised "dominion and control" over the drugs, United States v. Durant, 208 U.S. App. D.C. 374, 648 F.2d 747, 751 (D.C. Cir. 1981), or otherwise was responsible for selling them.
The weight of the evidence thus suggests that Ingram's role in the operation was limited to allowing Copeland and other people to enter the house when Harrison was not present. Yet, after Ingram entered a plea to the only charge the evidence against him arguably supported, the prosecution dropped all charges against Copeland. Harrison also left town around the time of the raid and apparently never was charged with any offense. The fact that that neither Copeland or Harrison were convicted does not preclude consideration of their very related conduct as part of the total context in which Ingram's relative role in the offense must be determined.
Guideline § 3B1.2(b) provides a two- to four-level reduction for defendants who played a "minor" or "minimal" role in the offense. The Commentary states that a four level reduction for a "minimal" role applies only rarely to someone who, for example,
played no other role in a very large drug smuggling operation than to offload part of a single marijuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.
U.S.S.G. § 3B1.2 Commentary 2. A "minor" participant, by contrast, is "any participant who is less culpable than most other participants, but whose role could not be described as minimal." § 3B1.2 Commentary 3.
The prosecution urges that Ingram's role in the offense must be determined solely in light of the charge for which he is being sentenced. See United States v. Daughtrey, 874 F.2d 213, 216 (4th Cir. 1989). The prosecution, in fact, seeks a two level upward departure for what it considers Ingram's "key role" in that offense. Gov't. Response at 15. The Guidelines, however, do not require such a narrow interpretation. The Commentary to § 3B1.2 states that the adjustment for a minor role is appropriate for "any participant who is less culpable than most other participants." § 3B1.2 Commentary 3 (emphasis added). The Background Commentary likewise states that the section applies to "a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant." Id. (Emphasis added.) The Commentary, therefore, makes clear that whether an individual defendant's role was minor or minimal turns, in large part, upon consideration of the defendant's actual role relative to that of the co-participants and in light of the circumstances giving rise to the crime charged.
Commentary 4 of § 3B1.2 clarifies this understanding, by establishing as follows:
If a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for a mitigating role under this section ordinarily is not warranted because such defendant is not substantially less culpable than a defendant whose only conduct involved the less serious offense.