At page 1444 Reviewing sentencing calculations and downward departure under statute93 citing casescalculation of the quantity of drugs is a factual determination
- United States v. Catala, No. 04-4624 (4th Cir. Oct. 25, 2005).unpublished United States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990)(overruled by statutory amendment on other grounds).
- United States v. Catala, 134 F. App'x 617 (4th Cir. 2005).unpublishedUnited States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990) (overruled by statutory amendment on other grounds).
- United States v. Carlos Lopez, 219 F.3d 343 (4th Cir. 2000).published“The Government bears the burden of proving by a preponderance of the evidence the quantity of drugs for which a defendant should be held accountable at sentencing.” Id. (citing United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990)).
- United States v. Michael Parker, No. 99-4009 (4th Cir. Oct. 12, 1999).unpublishedUnited States v. Goff , 907 F.2d 1441, 1444 (4th Cir. 1990).
- United States v. Ward, No. 97-4226 (4th Cir. Mar. 22, 1999).publishedUnited States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990).
- United States v. Lancelot Ward, United States of Am. v. Bernard Gibson, Jr., United States of Am. v. Kevin Cox, 171 F.3d 188 (4th Cir. 1999).publishedUnited States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990).
- United States v. Bull, No. 96-4193 (4th Cir. May 20, 1998).unpublishedUnited States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990).
- United States v. Cooke, No. 96-4686 (4th Cir. Apr. 23, 1998).unpublishedUnited States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990).
- United States v. Hill, No. 96-4865 (4th Cir. Sept. 29, 1997).unpublishedThe gov- ernment need only prove drug quantities by a preponderance of the evidence, see United States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990), and the district court may consider hearsay testimony in mak- ing its determination.
- United States v. Scurry, No. 96-4249 (4th Cir. Aug. 7, 1997).unpublishedBased upon tes- timony from the trial, the Government proved by a preponderance of the evidence, see United States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990), that Scurry distributed over 100 grams of heroin.
Show 82 more citing cases
- United States v. Shakoor, No. 95-5807 (4th Cir. July 17, 1997).unpublishedUnited States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990).
- United States v. Green, No. 96-4224 (4th Cir. June 19, 1997).unpublished"The Government bears the burden of proving by a preponderance of the evidence the quantity of drugs for which a defendant should be held accountable at sentencing." Id. (cit- ing United States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990)).
- United States v. Reynolds, No. 96-4079 (4th Cir. Apr. 15, 1997).unpublishedUnited States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990).
- United States v. Travis, No. 96-4001 (4th Cir. Mar. 26, 1997).unpublishedUnited States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990).
- United States v. Andre D. Travis, 110 F.3d 61 (4th Cir. 1997).unpublishedUnited States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990).
- United States v. Aiken, No. 96-4171 (4th Cir. Sept. 16, 1996).unpublishedUnited States v. Goff, 907 F.2d 1441, 1444-45 (4th Cir. 1990).
- United States v. Lavern Aiken, A/K/A Vern, A/K/A Vata, A/K/A Lavern Lee, 96 F.3d 1439 (4th Cir. 1996).unpublishedUnited States v. Goff, 907 F.2d 1441, 1444-45 (4th Cir.1990).
- United States v. Chambers, No. 95-5362 (4th Cir. Sept. 10, 1996).unpublishedReviewing for clear error, United States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990), we do not find any.
- United States v. George Chambers, A/K/A Dave, United States of Am. v. Anne Marie Chambers, A/K/A Sugar, A/K/A Anne Marie Jack, United States of Am. v. Phillip Clark, A/K/A Mark, United States of Am. v. Tony Dyson, 96 F.3d 1439 (4th Cir. 1996).unpublishedReviewing for clear error, United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990), we do not find any. 4 George Chambers challenges the enhancement of his sentence, under U.S.S.G. § 2D1.1(B)(1), for possession of a firearm during the co…
- United States v. Moss, No. 94-5757 (4th Cir. July 12, 1996).unpublishedDrug quantities for sentencing purposes need only be proven by a preponderance of the evidence, and we review the determination made under the clearly erroneous standard, see United States v. Goff, 10 907 F.2d 1441, 1444 (4th Cir. 1990).
- United States v. Paula v. Moss, 91 F.3d 135 (4th Cir. 1996).unpublishedWe disagree. 31 Drug quantities for sentencing purposes need only be proven by a preponderance of the evidence, and we review the determination made under the clearly erroneous standard, see United States v. Goff, 907 F.2d 1441, 1444 (4th…
- United States v. Gainey, No. 95-5744 (4th Cir. June 18, 1996).unpublishedNext, we employ a clearly erroneous standard to review a district court's determination of drug amounts, United States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990), and to review its factual findings upon a defendant's objection.
- United States v. Ontario Lamar Gainey, 89 F.3d 830 (4th Cir. 1996).unpublishedThus, the district court did not err in denying Gainey's motions for judgment of acquittal. 6 Next, we employ a clearly erroneous standard to review a district court's determination of drug amounts, United States v. Goff, 907 F.2d 1441, 14…
- United States v. Robert Donnell Jones, A/K/A Donnie, 83 F.3d 416 (4th Cir. 1996).unpublishedUnited States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990); see also 18 U.S.C. § 3742 (e) ("The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the…
- United States v. Jones, No. 94-5316 (4th Cir. Apr. 30, 1996).unpublishedUnited States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990); see also 18 U.S.C. § 3742 (e) ("The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the…
- United States v. Charles Howard Burnette, 76 F.3d 376 (4th Cir. 1996).unpublishedAppellant challenges this finding; we review for clear error, United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990), and affirm. 2 Our review reveals no clear error.
- United States v. Burnette, No. 94-5959 (4th Cir. Jan. 30, 1996).unpublishedAppellant challenges this finding; we review for clear error, United States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990), and affirm.
- United States v. Marc Byron Newsome, United States of Am. v. William James Newsome, 941 F.2d 1208 (4th Cir. 1991).unpublished
- United States v. Mario Londono, 946 F.2d 887 (4th Cir. 1991).unpublished
- United States v. Cecil Edward Jackson, United States of Am. v. Orrin Lamar Jackson, United States of Am. v. Eric Lamount Whitener, United States of Am. v. Antonio Franklin Cunningham, United States of Am. v. Gary Lewis Davis, United States of Am. v. Darrin Bernard Roseboro, 953 F.2d 640 (4th Cir. 1992).unpublished
- United States v. Kenneth Orlando Legrand, A/K/A Kenneth Orlando Scott, 958 F.2d 369 (4th Cir. 1992).unpublished
- United States v. Marcelo Montalvo, A/K/A Chelo, United States of Am. v. Landon Morris Funderburk, Jr., A/K/A Buzz, 959 F.2d 232 (4th Cir. 1992).unpublished
- United States v. Patricia Fruetel, A/K/A Joe, A/K/A the Expert, 960 F.2d 147 (4th Cir. 1992).unpublished
- United States v. Lamont White, A/K/A Chris Miller, United States of Am. v. Jamie Ray Everett, A/K/A Smoove, United States of Am. v. James Robert Butler, Jr., 962 F.2d 8 (4th Cir. 1992).unpublished
- United States v. James B. Simmons, United States of Am. v. Charles H. Bowers, 964 F.2d 763 (8th Cir. 1992).published
- United States v. Ricky Jennings Brawley, United States of Am. v. Lillie Mae Blalock, United States of Am. v. Preston Eugene Blalock, United States of Am. v. Jack Blalock, Sr., United States of Am. v. Herman Blalock, United States of Am. v. Jack Blalock, Jr., United States of Am. v. Timothy Wayne Blalock, 972 F.2d 342 (4th Cir. 1992).unpublished
- United States v. Innocent U. Uwaeme, 975 F.2d 1016 (4th Cir. 1992).published
- United States v. John Arrington, United States of Am. v. Teresa Brown, A/K/A Teressas Johnson, United States of Am. v. Cassandra Braswell, A/K/A Sandra, United States of Am. v. Hope Charnice Lawson, United States of Am. v. Martha Charice Cook, United States of Am. v. Mayso A. Lawrence, United States of Am. v. Jamws Forrester, A/K/A Jj, United States of Am. v. Otis Payne, A/K/A Omar, United States of Am. v. Tommy Lee Canty, Jr., United States of Am. v. Anthony Rayfiels Wilson, A/K/A Ray, United States of Am. v. Samantha Wallace, A/K/A Sam, United States of Am. v. Lacy Lee Melvin, United States of Am. v. Colbert Toliver, A/K/A Pumpkin, United States of Am. v. Donald Kirkland, A/K/A Popcorn, 979 F.2d 849 (4th Cir. 1992).unpublished
- United States v. David Smith, 981 F.2d 1252 (4th Cir. 1992).unpublished
- United States v. Marvin Hooker, Jr., 981 F.2d 1252 (4th Cir. 1992).unpublished
- United States v. Darrell L. Padgett, 981 F.2d 1252 (4th Cir. 1992).unpublished
- United States v. Lamont Winslow Rumph, A/K/A Monk, 981 F.2d 1252 (4th Cir. 1992).unpublished
- United States v. Harold Green McKinnon United States of Am. v. Peggy Arlene Barnes, 985 F.2d 554 (4th Cir. 1993).unpublished
- United States v. David Gilbert, A/K/A David Whitt, A/K/A Steve Whitt, 986 F.2d 1416 (4th Cir. 1993).unpublished
- United States v. William Reid Morris, United States of Am. v. William Bryson Morton, 986 F.2d 1416 (4th Cir. 1993).unpublished
- United States v. Edward B. Gilliam, Jr., 987 F.2d 1009 (4th Cir. 1993).published
- United States v. Gary Hanger, 991 F.2d 791 (4th Cir. 1993).unpublished
- United States v. Beraldo Fonseca, 998 F.2d 1010 (4th Cir. 1993).unpublished
- United States v. Randy Davis Hunt, United States of Am. v. Carl Cooper, 4 F.3d 987 (4th Cir. 1993).unpublished
- United States v. Jean Oglesby Hubbard, United States of Am. v. Augustine Perez, United States of Am. v. Richard Perez, United States of Am. v. Malinda Jenkins, United States of Am. v. Audrey Mae Colmore, Umited States of Am. v. Teresa Davis Massie, United States of Am. v. Ramos Antonio Altagracia Tejada-Reynoso, 4 F.3d 987 (4th Cir. 1993).unpublished
- United States v. Robert Carl Douglas, 14 F.3d 597 (4th Cir. 1994).published
- United States v. James Williams, A/K/A James, A/K/A Old Man Jim, 16 F.3d 414 (4th Cir. 1994).published
- United States v. Otis Gordon, A/K/A Chucky, 21 F.3d 425 (4th Cir. 1994).published
- United States v. Eric White, A/K/A Tiger, A/K/A Eric Carter, A/K/A Eric Barnes, A/K/A Erick Barnes, A/K/A Eric Keene, A/k/61a Eric Kane, A/K/A Eric Tiger, United States of Am. v. Eric White, A/K/A Tiger, A/K/A Eric Carter, A/K/A Eric Barnes, A/K/A Erick Barnes, A/K/A Eric Keene, A/K/A Eric Kane, A/K/A Eric Tiger, 23 F.3d 404 (4th Cir. 1994).published
- United States v. Wilhelmena Ward Alford, 25 F.3d 1041 (4th Cir. 1994).published
- United States v. Calvin Eugene Smith, 25 F.3d 1042 (4th Cir. 1994).published
- United States v. James H. Hutchins, United States of Am. v. Dwight Jones, A/K/A Shakey, United States of Am. v. Joanie M. Radford, United States of Am. v. Jamil Rasheed, 30 F.3d 132 (4th Cir. 1994).unpublished
- United States v. Deborah Kasey Powell, United States of Am. v. Tony Maurice Hairston, United States of Am. v. Stephen Austin Pillars, United States of Am. v. Daniel Russell Wood, 35 F.3d 557 (4th Cir. 1994).unpublished
- United States v. Anthony Gordon, A/K/A Big Anthony, 37 F.3d 1496 (4th Cir. 1994).published
- United States v. Fitz McKenzie A/K/A Labee, A/K/A Dave, A/K/A Labe, A/K/A Tim, 37 F.3d 1496 (4th Cir. 1994).published
- United States v. Michael Todd Rozelle, United States of Am. v. Donald Jay Thomas, A/K/A D-Nice, 43 F.3d 1469 (4th Cir. 1994).unpublished
- United States v. Courtney Solomon McKenzie A/K/A Roger Ricardo McKenzie A/K/A Shawn McKenzie A/K/A Shawnee, United States of Am. v. Pepito N. Cowie, A/K/A Mike Thompson, A/K/A Peter, United States of Am. v. Ricardo Victor Cowie, A/K/A Kevin D. Smith, A/K/A Kid, United States of Am. v. Richard Mark St. Hill, A/K/A James, 43 F.3d 1469 (4th Cir. 1994).unpublished
- United States v. James Duckett, A/K/A Duck, 45 F.3d 428 (4th Cir. 1994).published
- United States v. Glenda Marie Porter, United States of Am. v. Terri Yvonne Marze, 46 F.3d 1128 (4th Cir. 1995).unpublished
- United States v. Arsalan Nosrati, 51 F.3d 269 (4th Cir. 1995).unpublished
- United States v. Adrian Lamont Davis, 51 F.3d 269 (4th Cir. 1995).unpublished
- United States v. Jeffrey Whittington, 52 F.3d 323 (4th Cir. 1995).published
- United States v. Bernard Grier, A/K/A Naughty Cat, United States of Am. v. R.B. Boyd, United States of Am. v. Larry Wayne Galloway, United States of Am. v. Larry Wayne Galloway, 53 F.3d 329 (4th Cir. 1995).published
- United States v. Benancio Cepeda, United States of Am. v. Ameer Ali Shakoor, 53 F.3d 329 (4th Cir. 1995).published
- United States v. Max Orvel Plumlee, United States of Am. v. Patrick Kit Plumlee, United States of Am. v. Ramona Maria Difazio, United States of Am. v. Theresa Crepeau, A/K/A T Crepeau, 62 F.3d 1415 (4th Cir. 1995).unpublished
- United States v. Connell Robinson, III, 78 F.3d 580 (4th Cir. 1996).unpublished
- United States v. Stanley Hickman, 85 F.3d 617 (4th Cir. 1996).unpublished
- United States v. Robinson, No. 95-5085 (4th Cir. Mar. 6, 1996).unpublished
- United States v. Hickman, No. 94-5851 (4th Cir. May 6, 1996).unpublished
- United States v. Davis, No. 96-4034 (4th Cir. June 17, 1997).unpublished
- United States v. Daniels, No. 96-4641 (4th Cir. Sept. 4, 1997).unpublished
- United States v. Abdullah, No. 95-5878 (4th Cir. Oct. 20, 1997).unpublished
- United States v. Demby, No. 97-4571 (4th Cir. Mar. 9, 1998).unpublished
- United States v. Smith, No. 97-4026 (4th Cir. Apr. 20, 1998).unpublished
- United States v. W., No. 97-4386 (4th Cir. May 29, 1998).unpublished
- United States v. Wilhelm, No. 98-4161 (4th Cir. Dec. 17, 1998).unpublished
- United States v. Cheese, No. 98-4242 (4th Cir. Jan. 27, 1999).unpublished
- United States v. Musgrove, No. 98-4632 (4th Cir. Apr. 16, 1999).unpublished
- United States v. Martin Hernandez, No. 98-4872 (4th Cir. June 25, 1999).unpublished
- United States v. Robert Padgett, No. 98-4876 (4th Cir. Aug. 20, 1999).unpublished
- United States v. Phillips, No. 98-4756 (4th Cir. Sept. 9, 1999).unpublished
- United States v. David Jones, No. 98-4927 (4th Cir. Oct. 19, 1999).unpublished
- United States v. Mayberry, No. 99-4237 (4th Cir. Dec. 28, 1999).unpublished
- United States v. Sean Darrell Johnson, No. 99-4248 (4th Cir. Feb. 8, 2000).unpublished
- United States v. Smith, No. 99-4899 (4th Cir. Sept. 20, 2000).unpublished
- United States v. Smith, No. 99-4899 (4th Cir. Aug. 15, 2001).unpublished
- United States v. Tayman, 885 F. Supp. 832 (E.D. Va. 1995).published
At page 1446 Considering family responsibilities for sentencing departures28 citing casescollecting cases
- United States v. Darlene Faye Mogel, 956 F.2d 1555 (11th Cir. 1992).published See Goff, 907 F.2d at 1447 (“[v]iewing the factors cumulatively adds nothing significant to the calculus”).
- United States v. Anthony Smith, No. 19-4526 (4th Cir. Dec. 7, 2020).unpublished(collecting cases)
- United States v. Rodrigo Perez, No. 19-4060 (4th Cir. Aug. 30, 2019).unpublished(collecting cases)
- United States v. Adrian Coker, No. 18-4521 (4th Cir. May 20, 2019).unpublishedWhile district courts are to consider disparities in sentencing when imposing a sentence, see 18 U.S.C. § 3553 (a)(6), we have expressed doubt whether “a defendant may . . . challenge a sentence on the ground that a co-conspirator was sent…
- United States v. Carlos Flores, No. 17-4569 (4th Cir. May 9, 2018).unpublished(collecting cases)
- United States v. Pedro Dieguez, 633 F. App'x 106 (4th Cir. 2015).unpublishedHowever, although district courts are to consider disparities in sentencing when imposing a sentence, see 18 U.S.C. § 3553 (a)(6) (2012), we have expressed doubt whether “a defendant may ... challenge a sentence on the ground that a co-con…
- United States v. Raphael Rodriguez-Velarde, 127 F.3d 966 (10th Cir. 1997).published (single mother of three children, aged seven, six, and two, who would have to live with ill grandmother in another state during mother’s incarceration)
- United States v. Miranda, 979 F. Supp. 1040 (D.N.J. 1997).published([defendant] has shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts ... parental relationships)
- United States v. Floyd Maurice Wilson, A/K/A Chinky, United States of Am. v. Floyd Maurice Wilson, A/K/A Chinky, 114 F.3d 429 (4th Cir. 1997).publishedSee United States v. Rybicki, 96 F.3d 754, 759 (4th Cir.1996) (holding that district court abused its discretion in departing under § 5H1.6, p.s. based on defendant’s responsibilities for his wife and son, both of whom had medical problems…
- United States v. Michael Galante, 111 F.3d 1029 (2d Cir. 1997).published See also United States v. Dyce, 91 F.3d 1462, 1468 (D.C.Cir.) (as "innumerable defendants could no doubt establish," a "prison sentence[ ] normally disrupts ... parental relationships") (internal quotation marks omitted), cert. denied, ---…
Show 17 more citing cases
- United States v. Blackwell, 954 F. Supp. 944 (D.N.J. 1997).publishedUnited States v. Headley, 923 F.2d 1079, 1083 (3d Cir.1991) (discussing United States v. Brand, 907 F.2d 31 (4th Cir.), cert. denied, 498 U.S. 1014 , 111 S.Ct. 585 , 112 L.Ed.2d 590 (1990)) (“Although there doubtless are circumstances in w…
- United States v. Bissell, 954 F. Supp. 841 (D.N.J. 1996).published Headley, 923 F.2d at 1083 (discussing United States v. Brand, 907 F.2d 31 (4th Cir.), cert. denied, 498 U.S. 1014 , 111 S.Ct. 585 , 112 L.Ed.2d 590 (1990)) (“Although there doubtless are circumstances in which unique family responsibilitie…
- United States v. Artim, 944 F. Supp. 363 (D.N.J. 1996).published([defendant] has shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts ... parental relationships)
- United States v. Allen, 87 F.3d 1224 (11th Cir. 1996).publishedSee Mogel, 956 F.2d at 1565 (holding downward departure inappropriate where defendant had “two minor children to support, and a mother that lives with [her]”); Cacho, 951 F.2d at 311 (holding downward departure not warranted where defendan…
- United States v. David Ellis, A/K/A Tree, United States of Am. v. Bernadell Manago, A/K/A Heaven, United States of Am. v. Wayne Johnson, United States of Am. v. Wayne Johnson, 975 F.2d 1061 (4th Cir. 1992).published
- United States v. Ellis, 975 F.2d 1061 (4th Cir. 1992).published
- United States v. Brown, 29 F.3d 953 (5th Cir. 1994).published
- United States v. Marva Headley, A/K/A \Brenda\"", 923 F.2d 1079 (3d Cir. 1991).published
- United States v. Ida Robinson, 924 F.2d 1053 (4th Cir. 1991).unpublished
- United States v. Vivian Cacho, 951 F.2d 308 (11th Cir. 1992).published
- United States v. George R. Bell, 974 F.2d 537 (4th Cir. 1992).published
- United States v. William Wright, Jr., United States of Am. v. William Wright, Jr., 42 F.3d 1387 (4th Cir. 1994).unpublished
- United States v. Theodore T. Rybicki, United States of Am. v. Karen D. Rybicki, United States of Am. v. Theodore T. Rybicki, United States of Am. v. Theodore T. Rybicki Karen D. Rybicki, 60 F.3d 826 (4th Cir. 1995).published
- United States v. Kenneth B. Kubinski, United States of Am. v. Jacquelyn M. Kubinski, United States of Am. v. Raymond G. Gerth, United States of Am. v. Richard M. Kubinski, United States of Am. v. Marvin W. Lewis, United States of Am. v. Jacquelyn M. Kubinski, 91 F.3d 135 (4th Cir. 1996).unpublished
- United States v. Theodore T. Rybicki, United States of Am. v. Theodore T. Rybicki, 96 F.3d 754 (4th Cir. 1996).published
- United States v. Kubinski, No. 94-5887 (4th Cir. July 15, 1996).unpublished
- United States v. Rybicki, No. 94-5360 (4th Cir. Oct. 17, 1996).published
At page 1445 Analyzing requirements for sentencing guideline departures18 citing casesThe contradictory stance of the district court compels us to remand for a determination after specific fact-finding of the correct quantity for which Goff…
- United States v. Ruhbayan, 15 F. App'x 116 (4th Cir. 2001).unpublishedSee United States v. Rusher, 966 F.2d 868, 882 (4th Cir.1992); United States v. Goff, 907 F.2d 1441, 1445 (4th Cir.1990).
- United States v. Spedden, 917 F. Supp. 404 (E.D. Va. 1996).published“The Court must determine whether the circumstance identified and found to exist in the particular case is of sufficient importance and magnitude to justify a departure.” United States v. Rusher, 966 F.2d 868, 882 (4th Cir.), cert. denied,…
- United States v. David Michael Deigert, United States of Am. v. Donald Raymond Sigwart, United States of Am. v. William Scott, United States of Am. v. Anna Adolphson, 916 F.2d 916 (4th Cir. 1990).published
- United States v. Travis Lawrence Page, 922 F.2d 534 (9th Cir. 1991).published
- United States v. Kathleen Citro, A/K/A K.C., United States of Am. v. Steven Alonzo, United States of Am. v. Janice Lodato, A/K/A Janet Germana, 938 F.2d 1431 (1st Cir. 1991).published
- United States v. Arthur David Bruder, 945 F.2d 167 (7th Cir. 1991).published
- United States v. David Lee Rusher, United States of Am. v. Sarah Jean Shoemaker Rusher, A/K/A Sarah Anne Rusher, United States of Am. v. James Joseph Flannery, A/K/A James Joseph Fleming, A/K/A Richard J. Mutschler, 966 F.2d 868 (4th Cir. 1992).published
- United States v. David Ellis, A/K/A Tree, United States of Am. v. Bernadell Manago, A/K/A Heaven, United States of Am. v. Wayne Johnson, United States of Am. v. Wayne Johnson, 975 F.2d 1061 (4th Cir. 1992).published
- United States v. Willis Ray Cash, 983 F.2d 558 (4th Cir. 1992).published
- United States v. Joseph Willie Kennedy, A/K/A Snake, United States of Am. v. Walter Louis Ingram, United States of Am. v. Walter Louis Ingram, United States of Am. v. Walter Lee Powell, A/K/A Stinkum, United States of Am. v. Patricia Ann Carmichael, A/K/A Red Pat, 32 F.3d 876 (4th Cir. 1994).published
Show 8 more citing cases
- United States v. Johnny Alfred Choyce, United States of Am. v. Ardelia Sanders Pollard, 35 F.3d 557 (4th Cir. 1994).unpublished
- United States v. Richard Small, 45 F.3d 428 (4th Cir. 1994).published
- United States v. Mike Culbert, No. 99-4664 (4th Cir. June 28, 2000).unpublished
- United States v. Nelson, 166 F. Supp. 2d 1091 (E.D. Va. 2001).published
- United States v. Kennedy, 32 F.3d 876 (4th Cir. 1994).published
- United States v. Deigert, 916 F.2d 916 (4th Cir. 1990).published
- United States v. Rusher, 966 F.2d 868 (4th Cir. 1992).published
- United States v. Ellis, 975 F.2d 1061 (4th Cir. 1992).published
At page 1447 Analyzing co-conspirator sentencing disparities and departure factors17 citing cases“a defendant may . . . challenge a sentence on the ground that a co-conspirator was sentenced differently.”
- United States v. Darlene Faye Mogel, 956 F.2d 1555 (11th Cir. 1992).published ([v]iewing the factors cumulatively adds nothing significant to the calculus)
- United States v. Jikeem Tyler, 614 F. App'x 108 (4th Cir. 2015).unpublished(No. 14-9048)
- United States v. Coble, 11 F. App'x 193 (4th Cir. 2001).unpublished The commentary to § 5K2.0 became effective on November 1, 1994 and superseded our prior holding in United States v. Goff, 907 F.2d 1441, 1447 (4th Cir. 1990), that a combination of factors that did not independently warrant departure could…
- United States v. Salley, No. 96-4893 (4th Cir. June 3, 1998).unpublishedSee generally United States v. Withers, 100 F.3d 1142 , 1149 n.3 (4th Cir. 1996) (holding that disparate sentences between codefendants does not pro- vide a basis for departure), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3631 (U.S. Mar. 17,…
- United States v. Robinson, No. 97-4218 (4th Cir. Mar. 6, 1998).unpublished(holding that com- bination of factors which do not independently warrant departure may never be basis for departure)
- United States v. Amrhu A. Dyce, 78 F.3d 610 (D.C. Cir. 1996).publishedSee United States v. Ziegler, 39 F.3d 1058, 1063 (10th Cir.1994); United States v. Berlier, 948 F.2d 1093, 1097 (9th Cir.1991); United States v. (Cheryl) Goff, 907 F.2d 1441, 1447 (4th Cir. 1990).
- United States v. Ida Robinson, 924 F.2d 1053 (4th Cir. 1991).unpublished
- United States v. Keith Alan Kirk, 968 F.2d 1212 (4th Cir. 1992).unpublished
- United States v. Weldon D. Waites, 972 F.2d 344 (4th Cir. 1992).unpublished
- United States v. Robert Medley, 976 F.2d 728 (4th Cir. 1992).unpublished
Show 7 more citing cases
- United States v. Audley E. McKelvey Jr., 7 F.3d 236 (6th Cir. 1993).unpublished
- United States v. Minicone, 26 F.3d 297 (2d Cir. 1994).published
- United States v. Leonard Anthony Dalecke, 29 F.3d 1044 (6th Cir. 1994).published
- United States v. Eddie Mobley, A/K/A Eddie Country, 30 F.3d 132 (4th Cir. 1994).unpublished
- United States v. Brian Scott Maddox, 48 F.3d 791 (4th Cir. 1995).published
- United States v. Phillips, No. 95-5526 (4th Cir. May 7, 1998).unpublished
- United States v. Minicone, 26 F.3d 297 (2d Cir. 1994).published
v.
Cheryl GOFF, Defendant-Appellee
The United States appeals the sentence imposed on Cheryl Goff, contending that the district court erred in determining her base offense level by improperly calculating the quantity of drugs for which she was accountable. The government also contends that the decision of the district court to depart downward from the applicable sentencing guidelines range was based on impermissible factors. We vacate the sentence imposed and remand with instructions to impose a sentence consistent with this opinion.
I.
Goff was convicted by a jury of conspiracy to distribute cocaine. 21 U.S.C.A. § 846 (West Supp.1990). At trial witnesses testified that Goff made several trips from Charleston, West Virginia, to Philadelphia, Pennsylvania, with her boyfriend Freddie Harris, reputed to be a major drug dealer, and his associates. Once in Philadelphia they purchased cocaine in “ten dollar” bags. Upon returning to Charleston, they diluted, repackaged, and sold the cocaine. They employed a diluting process whereby each “ten dollar” bag was repackaged into four “quarter” bags which were subsequently sold for $25 each. Thus, for example, cocaine purchased for $2,000 in Philadelphia would sell, after repackaging, for $20,000.
Because the offense was committed after November 1, 1987, Goffs sentence was governed by the Sentencing Reform Act of 1984, 18 U.S.C.A. §§ 3551, et seq. (West 1985 & Supp.1990), and the sentencing guidelines promulgated by the United States Sentencing Commission.
II.
The presentence report recommended that Goff be held accountable for 249 grams of cocaine for sentencing purposes. This amount was calculated by determining the Charleston street value of the amount of cocaine purchased in Philadelphia (dollar amount) and dividing by $297, the price per gram charged by the conspirators as determined from 14 undercover buys. See United States Sentencing Commission, Guidelines Manual, § 2D1.4, comment, (n. 2) (Oct.1988) [1] (authorizing this method of computation for offenses involving drugs “[wjhere there is no drug seizure or the amount seized does not reflect the scale of the offense”); see also U.S.S.G. § 2D1.1, comment, (n. 11); United States v. Gerante, 891 F.2d 364, 369 (1st Cir.1989).
The presentence report correctly reflected that 249 grams of cocaine resulted in a base offense level of 20. U.S.S.G. § 2D1.1(a)(3). It also recommended that Goffs offense level be increased by 2 for willfully obstructing the prosecution of her offense, U.S.S.G. § 3C1.1, because she gave perjured testimony at trial. Offense level 22, combined with Goffs criminal history category of III, results in a sentencing guidelines range of 51-63 months.
[*1444] The government did not object to the sentencing recommendation in the presen-tence report. Goff, however, took issue with the quantity of 249 grams. The district court noted that its trial notes supported the dollar amounts used in the calculation. It stated that “an adequate case is made by the government and the probation officer for the 249. gram quantity.” However, the court went on to state:
The court is going to give the defendant the benefit of the doubt with respect to the totality of that quantity, and without finding a specific level, is going to reduce it into the area of 100 to 199 grams of cocaine, which gives a base offense level of 18 instead of 20.
(Emphasis added.)
The court then increased the offense level of 18 by 2 for willfully obstructing the prosecution of the offense, resulting in an adjusted offense level of 20. Additionally, the district court reduced Goff’s criminal history category, finding that her three shoplifting convictions were local ordinance violations and should not have been included in her criminal history calculation. [2] By not including these violations Goff’s criminal history category was determined to be I.
Offense level 20, combined with criminal history category I, results in a sentencing guidelines range of 33-41 months. The government moved for an upward departure pursuant to section 4A1.3 contending that Goff’s criminal history category significantly underrepresented the seriousness of her criminal history. Although indicating that this argument had some merit, the district court instead departed downward, stating:
[T]he court does take note of the fact that there was no indication that you profited from this venture except to receive cocaine....
When I take into account the matter of your addiction, the future of your children, and the fact that you don’t need such a lengthy sentence as that which would be required in order to, it is hoped, have you find the way to a drug-free life and one that will permit you to care for your children before they are up and completely gone, I have concluded to take all those matters into account and depart downward to a two-year sentence in your case.
The court added that another reason for the departure was that Hubie Tyler, one of Goff’s co-conspirators with a more serious criminal history, was sentenced to 24 months in prison. Finally, at the end of the sentencing hearing the court stated:
[Wjith respect to sentencing and the downward departure of 24 months, ... all of the elements that the court relies upon combine in totality as being matters which had not been adequately taken into account by the Sentencing Commission in arriving at the guideline range in the case, and it is for that reason that the court has departed downward.
III.
We first address whether the district court erred in determining Goff’s base offense level by reducing the amount of cocaine for which it initially indicated she was accountable. Our review is governed by two principles. First, the government must prove the quantity of drugs involved by a preponderance of the evidence. United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990). Second, since calculation of the quantity of drugs is a factual determination, the finding of the district court will be upheld unless clearly erroneous. United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989).
Here the district court first stated that the government had made “an adequate case ... for the 249 gram quantity.” Yet, instead of applying the appropriate base offense level of 20 because of the 249 gram quantity, the district court inexplicably, but perhaps for good reason not included in the record before us, held Goff accountable for only 100 to 199 grams, thereby reducing her base offense level to 18.[*1445] The contradictory stance of the district court compels us to remand for a determination after specific fact-finding of the correct quantity for which Goff should be held accountable at sentencing. We offer no opinion as to the result but suggest that a reduction or increase without supporting fact-finding is inappropriate.
IV.
The district court departed downward and imposed a sentence of 24 months based on (1) Goffs cocaine addiction, (2) her responsibilities for the care of her children, (3)the fact that she received no money from the conspiracy but was paid in kind with cocaine, and (4) the fact that a co-conspirator, Hubie Tyler, who had a more extensive criminal history than Goff, was sentenced to 24 months. In addition, the district court stated that all four of these factors “combine in totality” to justify a departure.
Pursuant to 18 U.S.C.A. § 3553(b) (West Supp.1990), a court is required to impose a sentence within the sentencing guidelines range “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” The departure standard set forth in section 3553(b) envisions a two-prong test. United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990). The first prong of the test initially requires a determination that a particular aggravating or mitigating circumstance of a kind, or to a degree, was “not adequately taken into consideration by the Sentencing Commission.” If the court determines that a circumstance was “not adequately taken into consideration,” it must next engage in a fact-finding mission to determine if the circumstance is supported by the facts in the particular case under consideration. Then, if the district court identifies one or more aggravating or mitigating circumstances “not adequately taken into consideration,” it may depart from the sentencing guidelines range only if it further determines that a sentence different from the guidelines sentence “should result.” This second prong of the departure test requires the district court to determine whether the circumstance now identified and found to exist in the particu-iar case is of sufficient importance and magnitude to justify a departure. Id.
In addition to this two-prong test, 18 U.S.C.A. §§ 3742(e)(3) and (f)(2) (West Supp.1990) require an appellate court to determine whether a departure is reasonable. See United States v.. Summers, 893 F.2d at 66-67 (outlining standards of appellate review of reasonableness of a departure); see also United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Williams, 891 F.2d 962, 962-64 (1st Cir.1989). In Summers we held, that a standard akin to that used in addressing questions of law should be used when reviewing. the initial determination that a mitigating or aggravating circumstance was not “adequately taken into consideration.” Summers, 893 F.2d at 66.
A.
Drúg addiction is a circumstance that was “adequately taken into consideration” by.the Sentencing Commission. Section 5H1.4 specifically states that “[djrug dependence or alcohol abusé is not a reason for imposing a sentence below the guidelines. Substance abuse is highly correlated to an increased propensity to commit crime.” U.S.S.G. § 5H1.4, p.s. Consequently, the district court was clearly in error in justifying a departure, in whole or in part, on Goff’s alleged drug addiction. See Williams, 891 F.2d at 965 (vacating sentence which included downward departure based in part on defendant’s cocaine addiction); United States v. Lopez, 875 F.2d 1124, 1127 (5th Cir.1989) (remanding for determination whether defendant’s addiction was so “extraordinary” as to justify upward departure in light of section 5H1.-4).
[*1446] B.
Goff has three children aged seven, six, and two [3] and claims that while she is in prison it will be necessary for them to live with her mother, who is ill and resides in Ohio. On this basis, the district court also departed for “the future of [Goffs] children.”
Title 28 U.S.C.A. § 994(e) (West Supp. 1989) states:
The Commission shall assure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant.
(Emphasis added.) Pursuant to this statutory mandate, the Sentencing Commission considered the circumstance of a defendant’s family responsibilities and stated in section 5H1.6 that “[f]amily ties and responsibilities ... are not ordinarily relevant in determining whether a sentence should be outside the guidelines.” U.S.S.G. § 5H1.6, p.s. Here Goff “has shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts ... parental relationships.” United States v. Daly, 883 F.2d 313, 319 (4th Cir.1989); accord United States v. Sailes, 872 F.2d 735, 739 (6th Cir.1989); United States v. Sutherland,, 890 F.2d 1042, 1043 (8th Cir.1989). There is nothing extraordinary about Goff’s family responsibilities and a decision to depart on that basis was improper.
C.
The district court also based its departure on a finding that Goff never “profited from this venture except to receive cocaine.” As the district court implicitly recognized, obviously Goff’s receipt of in kind rewards of cocaine constituted a substantial profit. And, while it may be true that Goff did not profit in the sense of receiving cash, that fact cannot provide a ground for a departure. The guidelines for drug distribution draw no distinction regarding the manner by which a defendant is compensated for illegal conduct (i.e., whether in money, drugs, or other items of value, or some combination thereof). Moreover, it is well known in the drug trade that some of those involved prefer to take their “cut” in kind, particularly if they are supporting a habit of their own. See U.S.S.G. § 5H1.4, p.s. (“Drug dependence ... is not a reason for imposing a sentence below the guidelines.”). Thus, it is unlikely that the Sentencing Commission did not adequately take this circumstance into consideration in promulgating the guidelines. In any event, a departure on this basis is unwarranted because it fails the second prong of the Summers test. The fact that a defendant is paid in kind rather than cash for criminal conduct does not mean that a “sentence different from the guidelines sentence ‘should result,’ ” Summers, 893 F.2d at 66, for that circumstance is irrelevant for sentencing purposes. See 18 U.S. C.A. § 3553(b). Therefore, the district court abused its discretion by departing on this ground. Summers, 893 F.2d at 67.
D.
The final specific reason given by the district court for departing below Goff’s sentencing guidelines range was that a co-conspirator, Hubie Tyler, received a sentence of 24 months. [4] We note initially[*1447] that, for sentencing purposes, Tyler differed significantly from Goff. The government asserts, and Goff does not dispute, that Tyler was accountable for a smaller amount of cocaine than Goff, had accepted responsibility for his criminal conduct (U.S. S.G. § 3E1.1), and was sentenced pursuant to a departure based on his substantial assistance to authorities (U.S.S.G. § 5K1.1, p.s.). Thus, there were significant dissimilarities between Goff and Tyler that explain the difference in sentences. We note that several circuits have held that a defendant may not challenge a sentence on the ground that a co-conspirator was sentenced differently. See United States v. Guerrero, 894 F.2d 261, 267-68 (7th Cir.1990) (rejecting co-conspirator sentencing disparity claim of defendant whose sentence was within the applicable guidelines range and was not imposed in violation of law or as a result of an incorrect application of the guidelines); United States v. Pierce, 893 F.2d 669, 678 (5th Cir.1990) (defendant sentenced within guidelines range as a result of correct application of guidelines cannot base challenge to his sentence solely on lesser sentence given to co-defendant); United States v. Rios, 893 F.2d 479, 481 (2d Cir.1990) (guideline level of a co-defendant in different circumstances is irrelevant in determining defendant’s level); cf. United States v. McKenley, 895 F.2d 184, 188 (4th Cir.1990) (error for district court to depart upward for purpose of imposing the same sentence on both defendant and his co-defendant) (dicta). But see Daly, 883 F.2d at 319 (approving departure based on sentence imposed on co-conspirators who were sentenced under the pre-guidelines system which allowed for parole after service of only a portion of the sentence imposed).
E.
It appears that the district court also departed because it believed that all the specific bases mentioned above “combine in totality as being matters which had not been adequately taken into account by the Sentencing Commission.” Here, however, two of the cited factors did not meet the first prong of the section 3553(b) departure test because they were adequately taken into consideration when the guidelines were promulgated. The remaining factors clearly did not warrant a sentence outside the applicable guidelines range thereby failing the second prong of the departure test. Viewing the factors cumulatively adds nothing significant to the calculus. United States v. Rosen, 896 F.2d 789, 792 (3d Cir.1990) (“[A] combination of typical factors does not present an unusual case.”). Therefore, the decision of the district court to depart was unreasonable.
V.
In conclusion, we remand for a determination supported by factual findings of the quantity of cocaine for which Goff should be held accountable at sentencing and with instructions to impose a sentence within the appropriate sentencing guidelines range consistent with this opinion.
VACATED AND REMANDED WITH INSTRUCTIONS.
. All references are to the October 15, 1988, version.
. The government does not appeal this decision.
. Testimony at trial showed that at least on one occasion Goff took one of her children with her on a cocaine-buying trip to Philadelphia.
. The district court informed the parties that this was a basis for departure after sentencing Goff. The government contends that the failure of the district court to give the government notice of and an opportunity to comment on this departure basis before imposing sentence violates Federal Rule of Criminal Procedure 32(a)(1). See, e.g., United States v. Otero, 868 F.2d 1412, 1415 (5th Cir.1989). But see United States v. Burns, 893 F.2d 1343, 1348 (D.C.Cir.1990). Because we hold that the district court erred by departing from the appropriate sentencing guidelines range, we need not address this issue.