Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Crim. Action No. 90-00165)
Present: Hutchinson, Alito and Higginbotham, Circuit Judges
HUTCHINSON, Circuit Judge.
Appellant Ronald Belletiere (Belletiere) appeals his sentence for drug-related offenses. Belletiere argues that the district court erred in applying the United States Sentencing Guidelines in three respects. First, Belletiere argues that the district court erred in adjusting his base offense level upward by two levels pursuant to U.S.S.G. § 3C1.1 for obstruction of Justice. Second, he argues that the district court erred in adjusting his base offense level upward by four levels pursuant to U.S.S.G. § 3B1.1(a) for being a leader or organizer of a criminal activity that involved five or more participants or was otherwise extensive. Finally, Belletiere argues that the district court erred in its calculation of the amount of cocaine involved in this case and its resulting use of a base offense level of 32 under the Sentencing Guidelines. We agree with Belletiere's first two contentions and will therefore vacate the district court's judgment of sentence and remand for resentencing, but we do not believe the district court clearly erred in its calculation of the amount of cocaine involved and will therefore affirm the district court's application of a base offense level of 32.
On June 5, 1990, Belletiere was indicted for drug-related offenses by a grand jury sitting in the United States District Court for the Middle District of Pennsylvania. The indictment charged that from 1986 to 1988 Belletiere conspired with others to distribute and possess with intent to distribute varying quantities of cocaine in the Hazleton, Pennsylvania area. The indictment also charged that Belletiere's home in Miami, Florida and two Mercedes Benz automobiles were subject to forfeiture by the government because they had been used by Belletiere to commit or facilitate the commission of the drug-related offenses.
On July 5, 1990, Belletiere quit-claimed his interest in the Miami home to his estranged wife, Scarlett Belletiere, as part of a separation agreement for a nominal consideration of $10.00.*fn1 Belletiere says the transfer of interest took place with full disclosure of the government's pending forfeiture claims to Belletiere's wife and her counsel. On July 11, 1990, Belletiere was arraigned and entered a plea of not guilty.
On November 29, 1990, the government filed a superseding indictment that added two counts of tax evasion. On April 12, 1991, after a one-week trial, a jury found Belletiere guilty on all counts. The jury also found that Belletiere's interest in his home in Miami, Florida and his interest in the two Mercedes Benz automobiles were forfeit to the United States. On April 22, 1991, the district court ordered the forfeiture of Belletiere's property.
Belletiere was at first permitted to remain free on bail until his sentencing on July 18, 1991. On April 23, 1991, however, after informing his probation officer that he did not personally use drugs, Belletiere was subjected to a random drug screening and tested positive for cocaine use. On request of the government, Belletiere's bail was revoked and he was taken into custody.
In the Presentence Report, the probation officer recommended that the district court adjust Belletiere's sentence upward for two reasons. The probation officer recommended that an upward adjustment of two levels was appropriate for obstruction of Justice pursuant to Sentencing Guideline section 3C1.1. The Report stated:
Adjustment for Obstruction of Justice: The defendant willfully attempted to obstruct or impede the administration of Justice. On June 5, 1990, Ronald Belletiere was indicted on multiple drug offenses by a Grand Jury sitting in the Middle District of Pennsylvania. Included in the Indictment were provisions to forfeit two Mercedes Benz automobiles and a residence . . . . The residence was jointly owned by the defendant and his wife, Scarlett Belletiere. On July 5, 1990, Ronald Belletiere quit-claimed the property to his then-estranged wife, Scarlett Belletiere, in consideration for the sum of $10. The defendant transferred this property fully knowing it was subject to forfeiture. The defendant further attempted to impede or obstruct the administration of Justice by making a false statement to the Probation Officer about drug use following his conviction. Though a drug screen submitted by the defendant on April 23, 1991, tested "positive" for cocaine, Ronald Belletiere attempted to mislead the Probation Officer by denying the recent use of cocaine. Pursuant to Section 3C1.1, two levels are added.
Government's Supplemental Appendix (Supp. App.) at 357.
The probation officer also recommended that the court adjust Belletiere's sentence upward by four levels based on Belletiere's leadership role in the offense pursuant to Sentencing Guideline section 3B1.1(a). The Presentence Report stated:
Adjustment for Role in Offense: Ronald Belletiere was the leader of an extensive cocaine trafficking operation that involved five or more participants. He exercised decision making authority, established prices, and supplied multi-kilograms of cocaine for redistribution. Charles Craig, Neal DeAngelo, Paul DeAngelo, Neal Forte, David Mishinski, and James Yurkovic are identified as other participants. Pursuant to Section 3B1.1(a), four levels are added.
Counsel for Belletiere objected to these upward adjustments. In addition, on June 6, 1991 the lawyer representing Belletiere in connection with his marital problems sent a letter to the Probation Officer concerning the quit-claim of the house to Mrs. Belletiere. The letter stated, in relevant part:
As discussed with you in the above-referenced telephone conversation, this correspondence will serve to confirm that Mr. Belletiere had no intention of "obstructing Justice" by quit-claiming his interest in the former marital home to his wife and that it was undertaken with full disclosure to the wife and her counsel of the pending forfeiture claims by the government.
As you may know, accusations run wild in divorce cases and Mr. Belletiere acquiesced to transferring his interest in the property, again with full disclosure of the pending forfeiture claims, solely to placate his wife and to resolve his family issues on an amicable basis.
Appellant's Appendix (App.) at 92.*fn2
After receiving Belletiere's objections to the Report, the probation officer included an addendum to the Report that basically reiterated the officer's reasons for imposing the upward adjustments:
In regard to section 3B1.1(a), based upon information furnished by the Government, the Probation Officer concludes that Ronald Belletiere was the leader of a cocaine trafficking operation that involved five or more participants. He exercised a high degree of decision making authority in organizing a number of cocaine shipments from Miami to Hazelton sic, and determining prices. The scope of the illegal drug activity was broad, continuing over a two year period. . . .
On July 18, 1991, after hearing argument from counsel, the district court adopted the recommendations of the probation officer without making any independent factual findings of its own and determined pursuant to the Sentencing Guidelines that Belletiere's base offense level was 32 and total adjusted offense level was 38. With a criminal history category of I, Belletiere was sentenced by the district court to imprisonment for 235 months, the lower end of the sentencing range specified by the Guidelines, to be served concurrently with lesser sentences on the other counts. Belletiere filed a timely notice of appeal from the judgment and sentence on July 18, 1991.
We have appellate jurisdiction over this appeal from the final decision of the district court by virtue of 28 U.S.C.A. § 1291 (West Supp. 1992). The district court had subject matter jurisdiction in this criminal matter. See 18 U.S.C.A. § 3231 (West 1985).
We review the district court's factual findings in relation to sentencing issues for clear error. United States v. Murillo, 933 F.2d 195, 198 (3d Cir. 1991). This standard applies to a district court's factual determinations that a defendant willfully obstructed Justice pursuant to Sentencing Guideline section 3C1.1, United States v. Cusumano, 943 F.2d 305, 315 (3d Cir. 1991), cert. denied, 116 L. Ed. 2d 785, 112 S. Ct. 881 (1992), see United States v. McDowell, 888 F.2d 285, 292 (3d Cir. 1989), and played an aggravating role pursuant to Guideline section 3B1.1, United States v. Phillips, 959 F.2d 1187 (3d Cir. March 3, 1992). Our standard of review of the court's application and interpretation of the Sentencing Guidelines is plenary. Murillo, 933 F.2d at 197; McDowell, 888 F.2d at 291-92. Where the district court's finding involves a mixed question of law and fact, our standard and scope of review "takes on greater scrutiny, approaching de novo review as the issue moves from one of strictly fact to one of strictly law." Murillo, 933 F.2d at 198.
We will first address Belletiere's argument that the district court erred in increasing his base offense level by two levels for obstruction of Justice pursuant to Sentencing Guideline section 3C1.1. That section provides:
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of Justice during the investigation, prosecution, or sentencing of the instant ...