The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
This case originated on April 11, 2002, with the filing of a
six-count indictment charging Defendants Michael Allen Morgret
(hereinafter Morgret"), Roger Gordon Schmidt, James Russell
Crossley, and Mandy Jo Bennett Duck with various offenses. On
April 29, 2002, John D. Felix, Esquire, was appointed to
On May 23, 2002, a superseding indictment was filed. In
addition to the Defendants named in the original indictment,
Morgret's brother, Robert Morgret, was added as a Defendant in
that document. A second superceding indictment containing 19
counts was filed on November 14, 2002.
On August 1, 2003, a plea agreement relating to Morgret was
filed. On August 25, 2003, Morgret pled guilty to counts 1 and 6
in the second superseding indictment. Those charges are: 1)
conspiracy to possess with the intent to distribute, and the
distribution of, in excess of 50 grams of crack cocaine and 5
kilograms of cocaine and hydrocodone, in violation of 21 U.S.C. § 846; and 2) conspiracy to intimidate witnesses, illegal
possession and distribution of firearms, arson, and mail fraud,
in violation of 18 U.S.C. § 371. A lengthy statement of facts and
reasons in support of the guilty plea consisting of 9 typed,
double-spaced pages was also filed on August 25, 2003. An amended
statement of the same length was filed later that day.
On December 5, 2003, we received Morgret's pre-sentence report.
United States Probation Officer Eric W. Noll determined Morgret's
Total Offense Level to be 36, his Criminal History Category to be
VI, and his advisory Guideline Imprisonment Range to be 324 to
405 months. Morgret disputed various facts asserted in the
pre-sentence report and he filed objections thereto.
On December 10, 2003, we held a pre-sentence conference in this
case. At that point we learned that Morgret wished to file a
motion to withdraw his guilty plea and to discharge Attorney
Felix. On December 19, 2003, Attorney Felix filed on Morgret's
behalf a motion to withdraw Morgret's guilty plea. On December
23, 2003, Attorney Felix filed a motion to withdraw his
appearance, which we granted by order dated December 30, 2003.
Between December 31, 2003, and March 5, 2004, three different
attorneys were appointed to represent Morgret. The final counsel
appointed was Douglas B. Chester, who was appointed on March 5,
2005, and remains Morgret's counsel. The substitutions of counsel for Morgret prompted us to extend
the deadline for the brief in support of his motion to withdraw
guilty plea. On June 17, 2004, we issued an order in which we
allowed Morgret until June 23, 2004, to file a brief in support
of the motion to withdraw his guilty plea, or a separate motion
to withdraw the motion to withdraw his guilty plea.
Morgret sought and obtained an extension of the deadline in our
order of June 17, 2004. On June 24, 2004, we extended Morgret's
deadline to July 28, 2005. Also on June 24, 2004, the United
States Supreme Court issued its decision in Blakely v.
Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004).
On August 3, 2004, Morgret filed an untimely motion to withdraw
his motion to withdraw his guilty plea. We accepted the motion as
timely filed and by order dated August 9, 2004, we allowed
Morgret to withdraw his motion to withdraw his guilty plea. In
that order we also scheduled a second pre-sentence conference for
September 23, 2004.
On September 16, 2004, Morgret filed 1) additional objections
to his pre-sentence report, and 2) a motion to continue the
second pre-sentence conference. On September 20, 2004, we granted
the motion and continued the second pre-sentence conference to
October 28, 2004.
The pre-sentence conference was held on October 28, 2004, and
on October 29, 2004, we issued an order in which we set a deadline of November 19, 2004, for Morgret to file a brief in
support of his objections to the pre-sentence report, or a
stipulation addressing all of the factual disputes relating to
those objections. Morgret filed a number of motions to extend the
November 19, 2004, deadline and we granted all of those motions,
which in effect extended the November 19, 2004, deadline to
February 16, 2005.
On January 12, 2005, the United States Supreme Court issued its
decision in the case of United States v. Booker, ___ U.S. ___,
2005 WL 50108 (2005). On February 3, 2005, Morgret filed a
document entitled "Defendant's Post-Booker Fanfan Objections to
Pre-sentence Report." That document encompasses all of Morgret's
pending objections to his pre-sentence report. On February 16,
2005, Morgret filed a motion for an extension of time to file a
brief in support of his objections. By order dated February 16,
2005, we granted motion. On March 10, 2005, Morgret filed his
brief. On March 25, 2005, the government timely filed its
opposition brief. No reply brief was filed.
The parties were unable to reach any stipulation with respect
to the material disputed facts. On April 29, 2005, Morgret filed
a motion to exclude certain dates for the hearing on his
objections to the pre-sentence report. By order dated April 29,
2005, we granted that motion and placed this case on our June, 2005, Trial List for a hearing on Morgret's objections
to his pre-sentence report.
On May 14, 2005, Morgret filed a "Motion to Impanel Jury," and
a supporting brief. On June 2, 2005, the government filed an
opposition brief. No reply brief was filed and on June 24, 2005,
we issued an order denying the motion to impanel a jury. In that
order we also scheduled the hearing for July 22, 2005.
The hearing commenced as scheduled and at the conclusion of the
proceedings on that date we set August 19, 2005, as the next date
for the hearing because of government counsel's unavailability
until that date. On August 17, 2005, government counsel filed an
unopposed motion to continue the hearing. On August 18, 2005, we
granted that motion and set September 16, 2005, as the next date
for the hearing. The hearing was held and concluded on September
16, 2005. During the hearing Morgret made an oral motion for the
court to apply the "beyond a reasonable doubt" evidentiary
standard to his objections to the pre-sentence report. After the
conclusion of the hearing, on September 16, 2005, we issued an
order in which we 1) required the parties to file annotated
proposed findings of fact and conclusions of law by September 26,
2005, and 2) allowed Morgret until September 26, 2005, to file a
brief in support of his oral motion concerning the burden of
proof to be applied to his objections to the pre-sentence report. The government filed its annotated proposed findings of fact
and conclusions of law on September 23, 2005. On September 29,
2005, after being granted an extension of time in which to do so,
Morgret timely filed his annotated proposed findings of fact and
conclusions of law, and his brief regarding the applicability of
the "beyond a reasonable doubt" standard of proof to his
objections. The government filed its opposition brief on October
4, 2005. The time allowed for Morgret to file his reply expired
on October 24, 2005, and no such brief has been filed. Morgret's
objections to his pre-sentence report and his motion to apply the
"beyond a reasonable doubt" standard are ripe for disposition.
The following are the Court's findings of fact, discussion, and
conclusions of law. Findings of fact which are not disputed are
noted with a "U" in parenthesis after each such finding or
conclusion. Findings of fact which are not disputed but are
objected to as being irrelevant are noted with a "U/O" in
parenthesis after each such finding.*fn1
1. Beginning in or about June of 2001 Michael Allen
Morgret, Roger Gordon Schmidt, James Russell
Crossley, Mandy Jo Bennett Duck, Eric Rupert, and
Brian Andrus conspired to distribute crack cocaine
and cocaine. 2. The conspiracy existed from June of 2001 through
April of 2002.
3. In October of 2001, Roger Schmidt was dissatisfied
with his existing sources of cocaine, and was seeking
a new source for cocaine. (U)
4. In October of 2001, Michael Morgret was introduced
to Roger Schmidt through a mutual acquaintance, Shawn
5. Eric Rupert was a friend of Michael Morgret,
having known him for more than ten years. (U)
6. Rupert had been introduced to Schmidt by someone
other than Morgret as a potential source for cocaine.
7. Schmidt met with Morgret to see if Morgret and
Rupert could obtain cocaine for Schmidt at a lower
price than what Schmidt had been paying for it. (U)
8. Up until October or November of 2001, Morgret had
used a source of cocaine in Philadelphia.
9. At some point prior to October of 2001, Morgret
got into a dispute with that source and was no longer
able to use it.
10. In October of 2001 Rupert knew of a source in New
York City, "Frankie and Jose," in Washington Heights,
where relatively pure cocaine could be purchased for
approximately $1,000.00 per ounce. (U) 11. The cocaine source in New York City was Rupert's
source, and not Morgret's.
12. Prior to his introduction to Rupert's source,
Morgret did not have a "source" of his own in New
York City. (U)
13. Morgret and Schmidt were interested in using
Rupert's New York source to purchase cocaine in
connection with the conspiracy.
14. In November of 2001 Schmidt, Morgret, and Rupert
took a trip to New York City to purchase cocaine and
they bought approximately an ounce of cocaine from
Rupert's source in the Washington Heights area of New
15. On that trip Schmidt provided all of the money
for the purchase.
16. The cocaine purchased on that trip was consumed
by Schmidt, Morgret, and Rupert upon their return to
17. Two or three weeks later, towards the end of
November or the beginning of December, 2001, Rupert,
Morgret, and Andrus made another trip to purchase
cocaine from Rupert's source in New York City. (U)
18. Approximately 1.5 ounces of cocaine was purchased
on Rupert's second trip. 19. On both the first and second trips, powdered
cocaine (cocaine hydrochloride) and not cocaine base
(cocaine hydroxide) was purchased. (U)
20. On Rupert's third trip to New York City he
purchased between 2 and 2.5 ounces of cocaine in
connection with the conspiracy.
21. The most cocaine ever purchased on a trip
involving Rupert was between 5 and 6 ounces of
22. Rupert's trips to New York City to buy cocaine
occurred at intervals of about two weeks.
23. Rupert personally participated in "six or seven"
trips to purchase cocaine in New York City. (U)
24. Morgret went along on all of the trips to New
York City in which Rupert was a participant.
25. Schmidt went along on approximately three trips
to New York City with Morgret and Rupert. (U)
26. The average amount of cocaine purchased on each
trip which included Rupert was between 1.5 and 2.5
27. Rupert was not aware of every trip to New York
City made by all of the co-conspirators to purchase
28. Morgret made trips to New York City to purchase
cocaine without Rupert.
29. In January of 2002, Rupert had a falling out with
Schmidt, when Rupert consumed 17 or 18 grams of
cocaine that Schmidt, not Morgret, had given to him to sell.
30. Eric Rupert traveled with Morgret to New York
City and Philadelphia where they obtained a total at
least 500 grams but less than 2 kilograms of cocaine.
31. Eric Rupert admitted in his plea agreement and
under oath at his guilty plea that he conspired with
Morgret to distribute and possess with intent to
distribute at least 500 grams but less than 2
kilograms of cocaine. (U)
32. Co-conspirator James Crossley traveled with
Morgret on a regular basis to New York City for the
purpose of obtaining cocaine.
33. Between October of 2001 and March of 2002
Crossley made seven or eight trips to New York City
to purchase cocaine.
34. Crossley received baggies of cocaine powder from
Schmidt and Morgret for Crossley to distribute to
35. Co-conspirator Mandy Jo Bennett Duck also
accompanied Morgret on these trips. (U)
36. Other individuals also accompanied Morgret on the
drug buying trips. (U) 37. Morgret requested Andrus to travel to New York
City to purchase cocaine.
38. Andrus traveled to New York City on approximately
12 occasions to obtain cocaine and on each occasion
the co-conspirators obtained at least 6 ounces of
cocaine for a total of approximately 72 ounces of
39. The most cocaine purchased on a trip involving
Andrus was eight or nine ounces.
40. Morgret and Schmidt jointly gave Andrus cocaine
to sell for Morgret and Schmidt.
41. Andrus sold some of that cocaine.
42. Morgret once gave Andrus cocaine to sell so that
Andrus would have money to pay a fine.
43. Morgret and Schmidt expected Andrus to sell other
cocaine and return the proceeds from the sales to
Morgret and Schmidt.
44. In late December of 2001 or early January of
2002, Andrus stole approximately 2 ounces of cocaine
from Morgret and Schmidt.
45. Morgret took weekly trips to New York City for
cocaine and supplied Schmidt with as much as four
ounces of cocaine following these trips.
46. Morgret did not go on all of the trips to New
York City to purchase cocaine. 47. Before making his weekly trip to New York City
for cocaine, Morgret met with Schmidt.
48. Between October of 2001 and March of 2002 one or
two trips per week were made in furtherance of the
conspiracy to purchase cocaine in New York City.
49. An average of 4 ounces of cocaine was purchased
on each trip.
50. To further the goals of the conspiracy, Schmidt
provided the majority of the money and Morgret,
through Rupert, secured the source of cocaine.
51. Morgret and Schmidt agreed that Morgret would
take trips to New York City, where Morgret purchased
cocaine and crack cocaine with money supplied by
Schmidt and others, and Morgret would transport the
drugs to Renovo and Lock Haven, Pennsylvania, where
some of it was cut up and packaged for distribution.
52. As the trips to New York City became routine, the
conspirators took orders from various people to
purchase cocaine for them in New York City.
53. After a number of trips to New York City had been
made to purchase cocaine, Morgret and Schmidt became
partners with Morgret selling cocaine to people in
Lock Haven, Pennsylvania, and Schmidt selling cocaine
to people in Renovo, Pennsylvania. 54. The conspirators collected money for the cocaine
purchases from various people.
55. When cocaine was purchased in New York City, a
group of people gathered, most often at the hotel bar
in Renovo belonging to Schmidt but sometime at a
private residence, and over the ensuing days and
nights they consumed a portion of the cocaine which
had been purchased.
56. Some of those parties continued for several days
at a time.
57. The portion which was not consumed was sold to
fund the group's next bulk cocaine purchase.
58. The conspirators purchased crack cocaine in New
York City at least twice; once they purchased an
ounce and once they purchased 52.7 grams, which was
approximately 4 grams less than 2 ounces.
59. After trips to New York City, powdered cocaine
(cocaine hydrochloride) was cooked into crack cocaine
(cocaine hydroxide) by a variety of individuals at
the bar in Renovo and elsewhere. These individuals
included Schmidt, Rupert, Morgret, and others. (U)
60. The crack cocaine so produced was usually
immediately consumed by some of those present at the
parties. 61. On a few rare occasions, a small piece of the
crack cocaine cooked by the conspirators was sold.
62. Only those who sold cocaine in furtherance of the
conspiracy were allowed to consume the crack cocaine
63. The crack cocaine cooked at the parties was
produced in teaspoons or tablespoons.
64. If the party was at Schmidt's bar, the bar was
closed to the public and most of those present
consumed cocaine powder, or crack cocaine, or both.
65. On the trips to New York City, there were three
or four people in the car, and each would receive
cocaine powder as payment for having participated in
66. Numerous people contributed to the fund used to
purchase cocaine in New York City.
67. Schmidt provided the majority of the money to
purchase cocaine on the trips to New York City.
68. Morgret contributed between $200 and $400 to the
purchase "kitty" when he had funds available.
69. Other individuals, including Rupert and Andrus,
also contributed to the purchase "kitty" when they
had funds available. 70. Morgret used Andrus to collect money from people
who owed money for cocaine that had been purchased.
Morgret referred to Andrus as his "collector."
71. Morgret assigned Crossley the responsibility of
physically possessing the drugs on the return trip
from New York City. Morgret referred to Crossley as
72. Schmidt provided the vehicles used on most of the
trips to New York City, either by making his own
personal vehicle available, or by providing a credit
card so that a rental vehicle could be obtained.
73. Morgret's personal vehicle was used on some of
74. Morgret also rented vehicles using Schmidt's
credit card to make trips for the purpose of
obtaining cocaine. (U)
75. Although Schmidt accompanied Morgret on
approximately three cocaine buying trips to New York,
with the most recent occurring in March of 2002,
Morgret mainly traveled to New York without Schmidt.
76. Schmidt gave Morgret a total of between
$30,000.00 and $70,000.00 to fund the purchase of
77. Schmidt also allowed Morgret to use Schmidt's
truck to make the trips. 78. A .38 caliber pistol was concealed in a
compartment of Schmidt's truck.
79. Schmidt told Morgret about the location of that
firearm in the truck.
80. Morgret carried a 9 mm handgun during the
existence of the conspiracy.
81. Morgret handled the .38 caliber handgun at
Schmidt's bar and Duck's residence.
82. On one occasion Schmidt wrote $4,000 checks to
Morgret and co-conspirator James Crossley to fund the
purchase of cocaine. (U)
83. With that $8,000.00 Morgret purchased 8 ounces of
cocaine and almost 2 ounces of crack cocaine on a
single trip to New York City.
84. Schmidt provided cocaine to individuals who sold
cocaine to users of that substance, and compensated
the sellers based on the quantity sold, with either
cash or a corresponding amount of drugs. (U)
85. The goal of Schmidt and Morgret was to pay for
the cocaine and crack which they personally consumed
by selling a portion of the drugs brought back from
New York City.
86. After his arrest on state drug charges in March
of 2002, Schmidt attempted to hide from the
Pennsylvania State Police the firearms identified in Count Five of
the Superseding Indictment, which he had kept at his
residence in Phillipsburg, Pennsylvania.
87. Schmidt arranged for Michael Morgret to retrieve
the guns. (U/O)
88. Michael Morgret requested his brother, Robert
Morgret [sic] to keep the guns at Robert's residence
in Flemington, Pennsylvania. (U/O)
89. On April 15, 2002, investigators executed a
search warrant at Robert Morgret's residence and
recovered the five (5) firearms identified in the
90. In November 2001, Schmidt discussed with Michael
Morgret and Brian Andrus that he could obtain
approximately $140,000 in insurance proceeds if his
hotel bar, Sutliff's Hotel at 157 Eight Street in
Renovo, Pennsylvania, caught on fire. (U/O)
91. Schmidt, Michael Morgret and Brian Andrus talked
about how the insurance proceeds from a fire at the
hotel could be used to fund the purchase of six or
seven kilograms of cocaine. (U/O)
92. Schmidt, Michael Morgret and Andrus discussed
obtaining bulk quantities of cocaine with the
insurance proceeds, selling the cocaine bought with
the insurance proceeds, and then splitting up the
proceeds of the cocaine sales, with Schmidt receiving an amount equaling his
initial investment in the hotel. (U/O)
93. During the discussion, Schmidt, Michael Morgret
and Brian Andrus agreed that the conspirators would
set the fire at the hotel on a slow evening so that
no one would get hurt, and selected Christmas Eve as
the time for the fire. (U/O)
94. Schmidt told Michael Morgret and Brian Andrus not
to use a car that anyone would recognize. (U)
95. On December 24, 2001, one of the conspirators
obtained the use of a vehicle and an empty milk jug
from a female friend. (U)
96. Michael Morgret and Andrus used gasoline to set
the hotel on fire. (U/O)
97. On March 7, 2002, co-conspirator Mandy Jo
[Bennett] Duck traveled with Michael Morgret and
co-conspirator James Russell Crossley to New York
where they obtained approximately 44 grams of cocaine
powder and 18 grams of crack cocaine. (U)
98. Morgret, Duck, and Crossley then transported
those substances back to Pennsylvania, where they met
the undercover agent in the Wegman's parking lot. (U)
99. At that location, Morgret delivered to the
undercover agent approximately 11 grams of crack
cocaine and 17 grams of cocaine powder, and a search of the vehicle
recovered the remaining drugs.
100. Morgret's co-conspirator Roger Gordon Schmidt
stipulated under oath for purposes of his sentencing
that he was responsible for the distribution of 2.5
kilograms of cocaine (500 kilograms marijuana
equivalent) and 125 grams of cocaine base (1000
kilograms to 2500 kilograms marijuana equivalent).
101. Morgret's co-conspirators Mandy Jo Bennett Duck
and James Russell Crossley stipulated under oath for
purposes of sentencing that they were responsible for
conspiring to distribute approximately 60.2 grams of
cocaine powder and approximately 18 grams of crack
As a threshold matter we address Morgret's motion to apply the
"beyond a reasonable doubt" standard to his objections to the
pre-sentence report. The motion is based exclusively on Morgret's
interpretation of the initial majority opinion issued in the case
of United States v. Booker, ___ U.S. ___, 125 S. Ct. 738
(2005), written by Justice Stevens.
As noted by the government at the conclusion of Morgret's
pre-sentence hearing, in presenting this motion Morgret requests
us to revisit ground that we have already covered in this case. In ruling on Morgret's motion to apply the "beyond a reasonable
doubt standard, we incorporate and rely upon the reasoning and
conclusions set forth in our order of June 24, 2004, in which we
denied his motion to impanel a jury for Morgret's pre-sentence
In both that prior motion and his pending motion concerning the
burden of proof, the flaw in Morgret's position is that it takes
into account only one of the two majority opinions issued by the
United States Supreme Court in Booker. Morgret does not
consider the ...