Stapleton and Rosenn, Circuit Judges, and Restani, Judge*fn1
The opinion of the court was delivered by: Restani, Judge
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No.: 94-cr-00159-1)
Harry Lee Riddick, Jr. appeals his conviction following a jury trial. Riddick raises multiple claims including that there was a variance between the single conspiracy charged and the evidence produced at trial, there was insufficient evidence to support his continuing criminal enterprise ("CCE") conviction, the Government both improperly disclosed and presented misleading grand jury testimony, the court erred in denying Riddick's suppression motion, and the Government conducted an unauthorized wiretap. The court affirms the conviction.
The Government cross-appeals Riddick's sentence to a term of 33 years on the CCE count. The Government contends that the district court erred in assigning Riddick an offense level of 42 based on the United States Sentencing Commission, Guidelines Manual, § 2D1.5 (Nov. 1995) (hereinafter "USSG"), the guideline applicable to his CCE conviction, even though USSG § 2D1.2, the guideline applicable to his conviction for distribution of cocaine near a school, required a higher offense level of 43 and a mandatory life sentence. The court vacates the sentence and remands for resentencing.*fn2 Factual Background
This case began with an indictment against twenty three defendants who engaged in a drug distribution conspiracy in Pennsylvania from 1989 to 1994. The Government filed a superseding indictment in July 1994 against the original defendant and co-defendants, including Riddick. The indictment charged Riddick with one count of engaging in a continuing criminal enterprise (21 U.S.C. § 848(a)), one count of conspiring to distribute more than five kilograms of cocaine (21 U.S.C. § 846), thirteen counts of distributing cocaine in or near a school (21 U.S.C. § 860(a)), and one count of distribution of cocaine (21 U.S.C. § 841(a)(1)).
On February 6, 1996, a jury convicted Riddick on all counts.*fn3 Following a sentencing hearing, the court found Riddick's CCE involved in excess of 150 kilograms of cocaine. The court based this finding on the Government's calculation that Riddick was responsible for in excess of 350 kilograms, the probation officer's calculation which was in excess of 250 kilograms, and the court's own detailed assessment of the trial evidence, including evidence of the length of time of the conspiracy, the suppliers, the sellers, and the amount of cocaine distributed each week.
The Government argued that Riddick should be sentenced under the Sentencing Guideline section resulting in the highest offense level within the group of counts. The Government reasoned that here, the conviction for distribution of cocaine near a school, rather than the conviction for operating a CCE, provided the higher offense level and life imprisonment. Moreover, the Government argued that the court was not precluded from sentencing Riddick on the distribution near a school counts because that offense is not a lesser included offense of the CCE count. The district court rejected this argument and held that "if you charge . . . continuing criminal enterprise, . . . that offense is so odious and so severe that if the Government secures a conviction on that offense, then the sentence should be imposed on that offense, even if it [is] not technically a lesser included offense." Thus, the court imposed a sentence of 33 years on the CCE count. The district court did not dismiss the remaining counts and did not sentence Riddick on them. This appeal followed.
The district court exercised jurisdiction pursuant to 18 U.S.C. § 3231 (1994) because the case involved offenses against the laws of the United States. This court has jurisdiction of appeals from all final decisions of the district court pursuant to 28 U.S.C. § 1291 (1994). In addition, this court has jurisdiction over an appeal by the Government for review of a final sentence pursuant to 18 U.S.C. § 3742(b) (1994).