United States v. Donna A. Hatchett

FLAUM, Circuit Judge,

dissenting in part.

I join all but one part of the court’s resolution of this case. I would vacate the district court’s sentencing decision holding Donna Hatchett accountable for the 10.8 grams of crack cocaine that her daughter Felicia tried to flush down the toilet while the police were searching their house. Guideline § 1B1.3 tells us that the drug-trafficking ventures of others that fall outside the scope of the offense of conviction are only attributable to the defendant if 1) they were part of the same course of conduct or common scheme or plan as the offense of conviction and 2) they were reasonably foreseeable acts in furtherance of a jointly undertaken criminal activity. See U.S.S.G. § lB1.3(a)(2) (referencing subsection (a)(1)(B)). (There certainly was not enough evidence to directly attribute the crack in the bathroom to Donna’s “acts and omissions” under subsection (a)(1)(A). Cf. United States v. Martinez, 16 F.3d 202, 208 (7th Cir.1994). The fact that the drugs *1427 were found in her home, commonly sufficient to infer “constructive” possession by a sole resident, loses its significance in light of Felicia’s actual possession.) I do not dispute that Donna’s assistance in the distribution of 1.1 grams of crack and Felicia’s possession (with, most likely, the intent to distribute) of 10.8 grams of crack could be found to be part of the same course of conduct. As the majority describes, Donna, by all indications, worked together with Felicia to consummate the second sale of the evening which, like the first and third, was likely supplied from Felicia’s larger store of crack; also relying on the temporal, geographic and human links between the sale and the supply, the district court supportably concluded that these activities were part of the same course of conduct.

This alone, however, does not make Donna responsible for Felicia’s crack. A participant in drug activity X is not automatically accountable for drug activity Y even if both activities take place under the umbrella of somebody’s single drug enterprise. See U.S.S.G. § 1B1.3, application note 5 (explaining that the little fish is only responsible for that part of the big fish’s wake in which it swims). Section lB1.3(a)(l)(B) limits liability to those who can fairly be said to have been committed to the overarching undertaking. That is, “same course of conduct” (or “common scheme or plan”) describes a necessary but not sufficient condition for conduct outside of the offense of conviction to be “relevant”, as a person can participate in only one part of a single course of conduct without joining in, agreeing to or foreseeing the other parts; the course of conduct still qualifies as “single” because of the spanning activities of the other participants. The upshot of the interplay between subsections (a)(2) and (a)(1) is that a defendant is responsible for what occurs in a single course of conduct only to the extent that it is single with respect to her, either because of her direct participation in the constituent activities or because those activities were foreseeable aspects of a concerted criminal undertaking that she joined. Step two, then, in ascertaining Donna’s attributable drug amount must be a determination of her and Felicia’s respective roles in the drug sales conducted out of their house, that is, the nature and scope of their agreed-to venture. Specifically, was Donna a regular “steerer” or agent for Felicia such that the “jointly undertaken criminal activity” was the distribution of Felicia’s entire current supply of crack whatever it may have been, see, e.g., United States v. Copeland, 902 F.2d 1046, 1049-50 (2nd Cir.1990), or was Donna, even if aware of the breadth of Felicia’s drug dealing, merely an episodic intermediary in individual crack sales, see, e.g., United States v. Mojica, 984 F.2d 1426, 1445-46 (7th Cir.1993); United States v. Mitchell, 964 F.2d 454, 460-61 (5th Cir.1992); United States v. North, 900 F.2d 131, 134 (8th Cir.1990); U.S.S.G. § 1B1.3, application note 5; cf. United States v. Evbuomwan, 992 F.2d 70, 73-74 (5th Cir.1993)? The district court never proceeded this far in its inquiry (which is alone cause for vacatur, see United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.1991)) and, even if it had, there is little in the record to support the wider view of Donna’s complicity. Indeed, after putting to one side pure speculation as to the nature of this mother-daughter relationship and as to the extent to which a parent is necessarily involved in the illicit activities of a grown child living at home, it becomes apparent that substantial evidence of Donna’s agreement to join any undertaking beyond the offense of conviction itself is virtually nonexistent. * *1428 Because assisting a drug seller (even if a relative) in a single transaction establishes at most the prospect of occasional involvement with the seller’s trafficking enterprise, more is required to prove a joint undertaking of greater breadth. Cf., e.g., Mojica, 984 F.2d at 1446 . I therefore respectfully dissent from that portion of the court’s opinion holding Donna Hatchett accountable for the additional 10.8 grams of crack cocaine.

After reviewing the record, the majority has collected “overwhelming” evidence (which the district court did not) that supposedly demonstrates Donna's joint drug-dealing undertaking with Felicia of an order larger than the offense of conviction. We are certainly entitled “to comb the record to determine the facts in our search for justice” and affirm an inadequately explained sentence based on what we find. However, unless the correctness of the sentence is clear, I suggest it is generally a better practice to vacate and remand to the district court to conduct a more comprehensive inquiry, for which it is the situationally better suited and the institutionally more appropriate forum, or as here, where the basis for the sentence appears lacking, not to endorse the result. Here, in my view, the majority instead has strained to find support for a finding that Donna's drug-dealing agreement with Felicia extended to 10.8 grams of crack that was found solely in Felicia’s actual possession and was not the subject of any known transaction in which Donna was involved. The result of the majority’s effort is a long list of evidence which purportedly shows Donna’s agreement to participate in Felicia's ongoing drug-trafficking *1428 activities. I remain unpersuaded. First, the geographic and temporal factors that the majority relies upon are not nearly as informative as the majority implies. For example, the majority is impressed by Donna’s “presence in the house” on the night of the arrest and other transactions but at the same time remains unimpressed that Donna was in fact "not present at the first and third transactions", finding this lack of proof as to Donna’s greater involvement “irrelevant.” Similarly, the "six and one-half hour” time frame of this case was fixed not by any necessary connection between the transactions but by the timing of the agents’ buys and the state police's execution of the search warrant. Moreover, what the majority has mainly done is amass cumulative (and sometimes tangential) evidence of Donna's knowledge of Felicia's drug dealing and infer her general participation in Felicia's enterprise from little more than this knowledge and her go-between role in the offense of conviction itself. I find such reasoning problematic, especially when an appellate panel reaches to employ it in order to supplement deficient findings of fact. For one thing, a small-time player who assists in single transactions necessarily knows that his big-time contact is a drug dealer. More importantly, Donna's participation in a single drug deal, and her concomitant knowledge of Felicia's drug dealing, cannot be dispositive of the scope of Donna’s participation in Felicia's dealing generally. According to application note 5 of the Guidelines (but not the majority's analysis) there is a significant and important distinction between knowledge of and involvement in a relative's or acquaintance’s ongoing drug-trafficking activity, even when the knowledge is coupled with periodic, but nonsystematic involve- ' ment. The scope of the defendant's undertaking — not her cohort's — governs sentencing accountability. The only thing that is really established on this record is that Donna played a role in one sale — i.e. that she undertook one deal. While the record does not foreclose speculation that when Donna would not decline to accept money for Felicia from Felicia’s acquaintances who came by the house to see Felicia, she was actively participating in Felicia's ongoing drug business as opposed to passively accommodating the requests of unexpected visitors for her absent daughter, it does not demonstrate by a preponderance of the evidence that the former is the more likely scenario than the latter. For example, that she knew some of the visitors were drug addicts tells us little about whether they were in fact customers since we do not know if anyone in Felicia's circle was in fact not a drug addict. Furthermore, that Donna moved out of the house for several months if anything indicates, first, how probatively weak her refusal to slam the door in peoples’ faces when she was at home actually is and, second, that her role in Felicia's enterprise was at most intermittent. Indeed, despite the majority’s general regard for circumstantial evidence (which I share), the totality of events in this case simply does not, to my mind, cast definitive light on the breadth of Donna's participation beyond the offense of conviction. The majority is apparently comfortable in assuming the worst; with the consequences as severe as they are, I am not.