United States District Court, M.D. Pennsylvania
November 22, 2005.
UNITED STATES OF AMERICA
MICHAEL ALLEN MORGRET.
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
II. Findings of Fact
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 second majority opinion issued in that case, written
by Justice Breyer.
Whereas the scope of Justice Stevens's opinion (cited by
Morgret) is limited to the conclusion that a constitutional
violation had occurred under the mandatory sentencing guideline
scheme, Justice Breyer's opinion sets forth the remedy to cure
that violation. In that second majority opinion, the court in
Booker excised the provisions of the guidelines which made them
mandatory. Morgret's position appears to be based on his view
that the constitutional violation discussed in Justice Stevens's
opinion remains despite the issuance of Justice Breyer's opinion.
As we stated in our order of June 24, 2005,
[w]hen both opinions are applied in a given case, we
are of the view that no constitutional right held by
a defendant is violated if a court makes findings of
fact based on a preponderance of the evidence in
order to apply advisory sentencing guidelines. See
Booker, 125 S. Ct. at 766-767 (other than the
specific provisions of the guidelines cited and excised by the court, all remaining provisions of
the guidelines remain in effect); U.S.S.G. § 6A1.3
Commentary (providing that the court may resolve
factual disputes based on a preponderance of the
Order of June 24, 2005, pp. 2-3) For those same reasons we will
deny Morgret's motion to apply the "beyond a reasonable doubt"
standard to the objections to his pre-sentence report.
Before delving into the merits of Morgret's objections to his
pre-sentence report, we will briefly review the facts relied upon
by the government and Probation Officer to establish the advisory
guideline imprisonment range set forth in Morgret's pre-sentence
The quantity of drugs attributed to Morgret by the government
and Probation Officer is at least 2.5 kilograms of cocaine powder
and at least 50 grams of cocaine base (or crack cocaine), which
establishes a Base Offense Level of 32. The Total Offense Level
of 36 was determined by applying a two-level upward adjustment
for possessing a firearm in connection with the offense, and a
similar adjustment for obstruction of justice. Although Morgret
has entered a guilty plea to counts 1 and 6 of the second
superseding indictment, no downward adjustment for acceptance of
responsibility has been applied because of the relevant conduct
which Morgret has denied.
Morgret's twelve prior convictions result in a Criminal History
Score of 15. The Probation Officer added two points because the
instant federal offenses occurred less than two years after his release from imprisonment. The total of 17 Criminal
History Points results in Morgret's placement in Criminal History
Category VI. The resulting advisory Guideline Imprisonment Range
is 27 years to 33 years and 9 months.
The paragraphs of the pre-sentence report to which Morgret
objects are 8 through 27, 29, 30, 33, 34, 36, 39, 40, 41, 44, 59,
65, 77, 78, 94, and 95.*fn2
To a large extent Morgret's objections to paragraphs 8 through
27, 29, 30, 34, 39, 40, 41, 77, 78, 94 and 95 overlap and may be
discussed jointly. The primary argument underlying Morgret's
common objection to those paragraphs, which is the only argument
developed to any appreciable extent in Morgret's brief supporting
his objections, is that
[i]nasmuch as [the] facts [set forth in those
paragraphs] were not specifically contained in a
written stipulation executed by Mr. Morgret and
Counsel, not admitted on the record by Mr. Morgret at
the Change of Plea, and were not proven beyond a
reasonable doubt at trial, under the holding in
Blakely, and under the Stevens majority Opinion on
Booker/Fanfan, they cannot appear in the
(Brief in Support of Post-Booker/Fanfan Objections to
Pre-sentence Report, p. 6) Morgret contends that our reliance
upon any disputed fact in the pre-sentence report would necessitate the sort of judicial fact-finding
specifically prohibited by the Stevens majority
opinion in Booker/Fanfan, and would result in an
increase in the Defendant's sentence beyond the
statutory maximum based upon the quantity of drugs
actually admitted to.
(Brief in Support of Post-Booker/Fanfan Objections to
Pre-sentence Report, pp. 6-7)
In essence this argument is a challenge to our authority
independently to make any finding of fact which is applied to
enhance Morgret's sentencing exposure under the advisory
guidelines. For the reasons stated in our order of June 24, 2005,
which are quoted above in discussing Morgret's motion concerning
the applicable burden of proof, we are of the view that our
authority to make findings of fact in determining a defendant's
advisory guideline imprisonment range survives the United States
Supreme Court's holdings in Booker. Morgret's blanket objection
to our authority to make such findings, based on a preponderance
of the evidence, is overruled.
The conclusions set forth above compel us to apply and rely
upon the facts set forth in the pre-sentence support which have
been proven by a preponderance of the evidence at Morgret's
We will address Morgret's remaining specific objections in
their order of significance, from greatest to least. The most
important facts relate to the quantity of drugs attributable to
Morgret. These facts essentially relate to paragraph 40 of the pre-sentence report, which states that Morgret's current advisory
guideline imprisonment range is based on his involvement with at
least 2.5 kilograms of cocaine powder and at least 50 grams of
cocaine base (or crack cocaine).
Morgret's initial argument concerning the quantity of drugs
attributable to him is that, as a matter of law, he can not be
held responsible for each and every ounce of cocaine powder and
crack cocaine purchased by any of the co-conspirators. He
contends that the substantial quantities of drugs used by the
co-conspirators themselves, or given to their friends at parties,
are irrelevant to determining the amount of drugs for which he is
Our consideration of this issue beings with the observation
that Morgret has pled guilty to conspiracy to possess with the
intent to distribute, and the distribution of, crack cocaine and
powder cocaine. The Court of Appeals for the Third Circuit has
held that "a sentence in a criminal conspiracy is based upon all
relevant conduct and not merely offense conduct." United States
v. Boone, 279 F.3d 163, 177 (3d Cir. 2002). In reaching that
conclusion, the court in Boone adopted the following reasoning
of the United States Court of Appeals for the First Circuit:
[a defendant] convicted of conspiring to distribute
controlled substances, . . . is responsible for all
"drugs [he or she] personally handled or anticipated
handling, and, under the relevant conduct rubric, for
drugs involved in additional acts that were
reasonably foreseeable by [him or her] and were
committed in furtherance of the conspiracy." Id. (quoting United States v. Rivera-Maldonado, 194 F.3d 224, 228
(1st Cir. 1999).
The advisory United States Sentencing Guidelines further
Relevant Conduct for a drug trafficking conviction
includes not only all controlled substances involved
"during the commission of the offense of conviction,"
but also those substances involved as "part of the
same course of conduct or common scheme or plan as
the offense of conviction."
United States v. Boone, 279 F.3d 163
, 178 (3d Cir. 2002) (quoting
U.S.S.G. § 1B1.1(a)(2)).
Based on the cited authority, we are of the view that the
quantity of drugs for which Morgret is responsible includes all
of the drugs purchased and sold, or otherwise distributed, by any
co-conspirator in furtherance of the conspiracy. The evidentiary
record in this case clearly establishes that the goals of the
conspiracy were to purchase bulk quantities of cocaine (and a
small quantity of crack cocaine) in New York City and sell enough
cocaine to fund the co-conspirators' personal drug habits. The
conspirators also cooked and distributed additional crack cocaine
during their parties.
Specifically with respect to powder cocaine, the illegal
activity at issue here is the purchase of cocaine in New York
City from one group of people and transporting it to Pennsylvania
for consumption by another group of people. We are of the view
that the use of a portion of the cocaine by the conspirators themselves, and by their friends free of charge, is of no moment.
All of the drug-trafficking in this case was part of the same
course of conduct or common scheme and therefore should be
included in the drug quantity attributable to Morgret.
With that legal standard in mind, we turn to the facts of this
case, beginning with the facts to which Morgret has admitted.
Morgret concedes that his drug trafficking was part of the
conspiracy described in the indictment. On the first page of the
nine-page "Amended Statement of Facts and Reasons in Support of
the Guilty Plea," filed on August 25, 2003, Morgret specifically
acknowledges Schmidt as a "co-conspirator." Those concessions
allow us to attribute to Morgret the same quantities for which
Schmidt has accepted responsibility.
In connection with his guilty plea, Schmidt stipulated under
oath that he was responsible for the distribution of 2.5
kilograms of cocaine and 125 grams of cocaine base. Morgret has
admitted that he was involved in the same drug conspiracy as
Schmidt. Schmidt's stipulation, in conjunction with Morgret's
admission, provides one basis to overrule Morgret's objections
relating to the quantity of drugs attributable to Morgret.
However, the admission and stipulation are not the only basis in
the record to overrule those objections.
The evidence presented at Morgret's pre-sentence hearing
supports the government's representations concerning the quantity of powder cocaine and crack cocaine to be considered in
sentencing Morgret. Before recounting the details of that
evidence, we note that this conspiracy involved Michael Allen
Morgret, Roger Gordon Schmidt, James Crossley, Mandy Jo Bennett
Duck, Robert E. Morgret, Jr., Eric Rupert, and Brian Andrus.
Michael Allen Morgret and Schmidt were the organizers and leaders
of the conspiracy; only those two knew the full extent of the
conspiracy, including the frequency of the trips to New York City
to purchase drugs and the amounts purchased.
Only Crossley, Andrus, Rupert, and Schmidt testified at
Morgret's pre-sentence hearing. Because of their limited
knowledge of the conspiracy, the cumulative testimony of
Crossley, Andrus, Rupert presents an incomplete picture of the
conspiracy's full scope. Schmidt's testimony is especially
significant because he was the only witness at the pre-sentence
hearing who possessed a full understanding of the conspiracy's
The evidence of record demonstrates that the conspirators
pooled their money to purchase cocaine powder in bulk quantities
in order to purchase the drug at a discounted price. During the
conspiracy (from late October of 2001 to March of 2002)
co-conspirators traveled once or twice each week to New York City
to purchase cocaine. The conspirators' collective appetite for
cocaine powder was strong enough that they began producing crack cocaine. In an effort to satisfy and fund their own drug habits,
the conspirators sold a portion of the cocaine powder brought
back from New York City to individuals who were not
Specifically with respect to cocaine powder, the evidence
introduced at the pre-sentence hearing regarding the number of
trips taken by members of the conspiracy and the amounts
purchased between October of 2001 and March of 2002 supports the
government's assertion that the conspiracy distributed at least
2.5 kilograms, or 88.184905 ounces, of cocaine powder.*fn3
Eric Rupert purchased at least 4.5 ounces on his first three
trips to New York City. Brian Andrus made at least 12 trips and
on each of them purchased at least 6 ounces of cocaine. On one
occasion Andrus purchased at least 8 ounces. Multiplying 11 trips
by 6 ounces, and adding 8 ounces for the twelfth trip results in
approximately 74 ounces being purchased on trips involving
Andrus. Crossley purchased an additional 6 ounces on trips which
did not include Rupert or Andrus.
Because we have used the lowest figures stated by each witness,
that is the very least amount attributable to Morgret while
Andrus was still participating in the conspiracy. Andrus's
involvement ended right after Christmas of 2001 because he stole cocaine from Morgret and Schmidt. At that point the conspiracy
was responsible for 4.5 ounces from the first three trips taken
by Rupert, 74 ounces purchased by Andrus, and the 6 ounces
purchased by Crossley may be added to that, resulting in at least
There is no indication in the record that the conspiracy lost
any momentum when Andrus and the conspirators parted company.
To the 84.5 ounce figure may also be added the quantities sold
to the undercover agent in February (16.2 grams) and March (44
grams) of 2002. While that precise total may not meet the
threshold of 88.184905 ounces, it is significant to note that
many trips by the conspirators to New York City to obtain drugs
are not reflected in our calculation. Based on the totality of
the evidence presented to us, and considering the frequency of
the trips taken and the quantities purchased in furtherance of
the conspiracy, we find that a total of at least 88.184976 ounces
of cocaine was purchased and distributed by Morgret and his
co-conspirators in furtherance of the conspiracy.
The amount of crack cocaine (at least 50 grams) which the
government seeks to ascribe to Morgret in this case has also been
proven. Schmidt testified that on one trip to New York Morgret
purchased an amount of crack cocaine which was only four grams
short of two ounces. That amount, in and of itself, is sufficient to meet the government's threshold. Nonetheless, there
is evidence that crack was purchased in New York City on at least
one other occasion. We may also consider the crack cooked in
Schmidt's bar, some of which was sold.
All of Morgret's objections relating to the quantity of drugs
attributable to him are overruled. The Probation Officer properly
determined the Base Offense Level to be 32 in paragraph 40 of the
The next objection to consider is that pertaining to paragraph
41 of the pre-sentence report in which a two-level upward
adjustment is applied pursuant to United States Sentencing
Guideline §§ 2D1.1(b)(1) and 3D1.2(c) because a firearm was
possessed in connection with the offense. At some point during
the conspiracy Brian Andrus learned that Schmidt kept a gun (a.38
caliber pistol) in the truck which was often driven to purchase
cocaine in New York City. Schmidt told Morgret about the location
of that weapon, although Schmidt was not sure that it was ever in
the truck when Morgret used it to go to New York City to purchase
cocaine. However, Morgret was a passenger in the truck on many
occasions when it was used for that purpose.
Even if the instances concerning the truck are completely
disregarded, the evidence demonstrates that Morgret handled the
weapon at Schmidt's bar and Duck's residence. Morgret also
carried a 9 mm handgun during the existence of the conspiracy. The testimony of Andrus and Schmidt at the pre-sentence hearing
concerning the locations and times in which those guns had been
handled by Morgret establishes by a preponderance of the evidence
that Morgret possessed a firearm in connection with the drug
conspiracy. The Probation Officer properly adjusted Morgret's
sentence upwards by two levels pursuant to U.S.S.G. §§
2D1.1(b)(1) and 3D1.2(c) in paragraph 41 of the pre-sentence
report. We will overrule Morgret's objection to that paragraph.
The next objection to consider is that to paragraph 44 in which
the Probation Officer adjusted Morgret's offense level upwards by
two levels for obstruction of justice pursuant to U.S.S.G. §§
3C1.1 and 3D1.2(c). The Probation Officer references paragraphs
18, 29, and 32 of the pre-sentence report in support of that
Paragraph 32 is the first paragraph under the heading
"Adjustment for Obstruction of Justice." That paragraph states
Michael Morgret willfully attempted to obstruct or
impede the administration of justice during the
course of the prosecution of the instant offenses of
conviction, and the obstructive conduct related to
the defendant's offenses of conviction. After his
arrest by state authorities on March 9, 2002, Roger
Schmidt had Michael Morgret and Robert Morgret remove
firearms from his home before the Pennsylvania State
Police executed a search warrant. Thus, the defendant
concealed evidence that was material to an official
investigation (see paragraph 18). Pursuant to
U.S.S.G. § 3C1.1, Application Note 4(d), a two level
enhancement is applicable when the defendant destroys
or conceals or directs or procures another person to
destroy or conceal evidence that is material to an
official investigation or judicial proceeding . . . or
attempts to do so.
(Pre-sentence Report, p. 11, ¶ 32) Although Morgret initially
objected to that paragraph, he has withdrawn that
Because paragraph 18 is incorporated into
paragraph 32, Morgret's withdrawal of his objection to paragraph
32 is tantamount to a withdrawal of the objection to paragraph 18
as well. Morgret expressly admits the material facts in those
paragraphs on page 5 of his "Amended Statement of Facts and
Reasons in Support of the Guilty Plea," which was filed on August
The admitted facts relating to paragraphs 18 and 32 of the
pre-sentence report justify the two-level upward adjustment
imposed by the Probation Officer in paragraph 44. Consequently,
there is no need to consider the accuracy of the assertions in
the third paragraph referenced in 44, which is paragraph 29
(dealing with Morgret's alleged threatening of a witness). The
upward adjustment for obstruction of justice is proper regardless
of the accuracy of the representations in paragraph 29. We need
not resolve disputes which are immaterial to a defendant's
sentencing. See Fed.R.Crim.P. 32(i)(3)(B) (court may determine
that a ruling on a dispute is unnecessary because the matter will
not affect sentencing). Based strictly on the accuracy of the information in paragraphs 18 and 32 of the pre-sentence report,
Morgret's objection to paragraph 44 of the report is overruled.
Morgret's next objection relates to paragraphs 33, 34, and 59
of the pre-sentence report, in which the Probation Officer
"denies him any reduction in [the] Base Offense Level for
Acceptance of Responsibility." (Defendant's Post-Booker/Fanfan
Objections to Pre-sentence Report, p. 8) Morgret contends that he
is entitled to the downward adjustment for acceptance of
responsibility because he "did enter a timely plea." (Id.)
The Probation Officer concluded that Morgret does not qualify
for any reduction for acceptance of responsibility because 1)
Morgret has denied very significant facts relating to the instant
offenses, and 2) Morgret has obstructed justice. See
Pre-sentence report, p. 11, ¶ 34 (citing U.S.S.G. § 3E1.1,
Application Note 4, which provides that conduct which supports an
obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1
ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct).
Morgret appears to base this objection primarily upon his view
of the holding in Booker. On page 6 of his objections, Morgret
[t]he Supreme Court's holding in Booker/Fanfan
leads to the conclusion that mere denial of relevant
conduct, for which judicial fact-finding is no longer
allowed, cannot be used to enhance the Defendant's
Base Offense Level beyond what it would be if the
facts were to be admitted. (Defendant's Post-Booker/Fanfan Objections to Pre-sentence
Report, p. 6)
There are two reasons to overrule Morgret's objections to
paragraphs 33, 34, and 59. The first is that those objections are
based on Morgret's flawed reading of Booker, which we rejected
in the earlier portions of this opinion. The second reason to
overrule these objections is that the Probation Officer correctly
noted that a defendant's obstruction of justice indicates that he
has not accepted responsibility. Morgret has obstructed justice
in this case and is therefore not entitled to any downward
adjustment for acceptance of responsibility. Morgret's objections
to paragraphs 33, 34, and 59 are overruled.
The next objections to consider are to paragraphs 65 and 78,
concerning the computation of Morgret's Criminal History Score
and Category. In paragraph 65 the Probation Officer assigned
Morgret three Criminal History Points for committing the offenses
of unsworn falsifications and retail theft on November 30, 1984.
In paragraph 78 the Probation Officer added two Criminal History
Points "because the defendant committed the instant offense less
than two years after release from imprisonment on a sentence
counted under U.S.S.G. § 4A1.1(a). . . ." (Pre-sentence Report,
p. 19, ¶ 78) We first address Morgret's objection to paragraph 78. Once
again Morgret relies upon his reading of Booker to support this
objection. Morgret contends that
[a]lthough the Booker/Fanfan decisions specifically
except the fact of previous convictions, it was not
admitted during the Change of Plea hearing that Mr.
Morgret was still on probation when involved in the
instant crime. Pursuant to the holdings in
Booker/Fanfan, it would require judicial
fact-finding to make this determination, and this
sort of fact finding is no longer permitted.
(Defendant's Post-Booker/Fanfan Objections to Pre-sentence
Report, p. 8) Based on our prior conclusion that we possess the
authority to make such findings of fact, we overrule Morgret's
objection to paragraph 78.
We further note that Morgret has not raised any factual error
concerning the date of any offense set forth in the pre-sentence
report. The unchallenged information of record clearly supports
the two points added by the Probation Officer in paragraph 78 of
the pre-sentence report.
With respect to paragraph 65, Morgret argues that the
assignment of the three points in that paragraph is erroneous
because the offenses at issue occurred "outside the 15 years
[sic] limitation for counting old offenses." (Defendant's
Post-Booker/Fanfan Objections to Pre-sentence Report, p. 8)
As noted above, the Probation Officer assigned 17 Criminal
History Points to Morgret. A defendant with 13 or more Criminal
History Points is placed in Criminal History Category IV. (Chapter VI, Part A) If we sustained Morgret's objection to
paragraph 65 he would retain 14 Criminal History Points and would
still be put in Criminal History Category IV. Consequently, any
ruling on this objection will have no bearing on Morgret's
Criminal History Category determination.
We will exercise our authority set forth in Federal Rule of
Criminal Procedure 32 and elect not to rely upon the contents of
paragraph 65 in sentencing Morgret. As a result, we need not rule
on his objection to that paragraph. Fed.R.Crim.P. 32(i)(3)(B)
(court may determine that a ruling on a dispute is unnecessary
because the matter will not affect sentencing).
The next objection to consider is that to paragraph 94, which
states that "[t]he guideline imprisonment range is 324 to 405
months." Morgret's objection to that paragraph is based on the
other, specific objections set forth above, which we have denied.
For the reasons set forth above, we will overrule his objection
to paragraph 94.
The penultimate objection to consider is to paragraph 95, which
states that "[t]he plea agreement has no impact on the
computation of the sentencing guidelines." Morgret's objection is
[p]ursuant to the holdings in Booker/Fanfan, it is
the position of the Defendant that the plea
agreement, the written statement, and the facts
admitted in open court and on the record during the
Change of Plea Hearing on August 25, 2003, are
controlling. (Brief in Support of Defendant's Post-Booker/Fanfan Objections to
Pre-sentence Report, p. 9) This objection is overruled because it
is based on an erroneous interpretation of Booker.
The final objection to consider, which we deem the least
significant, is to paragraph 36, in which the Probation Officer
merely recites the charges alleged in counts 1 and 6 of the
second superseding indictment. Morgret's objection is that he
"has not admitted to all seven of the substantive offenses as set
forth in this paragraph." (Id., p. 7) The Probation Officer's
description of the offenses in the indictment is not tantamount
to an assertion that Morgret has admitted to all of the conduct
within the scope of that description. The Probation Officer's
description is accurate and its inclusion in the pre-sentence
report does not in any way incriminate Morgret. We will overrule
his objection to that paragraph.
IV. Conclusions of Law.
1. The government is required to prove the material
facts used to determine Morgret's advisory sentencing
guidelines by a preponderance of the evidence.
2. The United States Supreme Court's holdings in
United States v. Booker, ___ U.S. ___,
125 S. Ct. 738 (2005), did not affect our authority to make
findings of fact, based on a preponderance of the
evidence, to determine the defendant's advisory
guideline imprisonment range. 3. The Probation Officer properly concluded that a
two-level upward adjustment applies pursuant to
United States Sentencing Guideline §§ 2D1.1(b)(1) and
3D1.2(c) because a firearm was possessed in
connection with the offense.
4. The Probation Officer properly concluded that a
two-level upward adjustment applies pursuant to
U.S.S.G. §§ 3C1.1 and 3D1.2(c) for obstruction of
5. The Probation Officer properly concluded that
Morgret is not entitled to any downward adjustment
for acceptance of responsibility.
An appropriate order will be entered. ORDER
1. Morgret's oral motion to apply the "beyond a
reasonable doubt" evidentiary standard to the
objections to his pre-sentence report is denied.
2. All of Morgret's objections, except that to
paragraph 65, are overruled.
3. No ruling on Morgret's objection to paragraph 65
is necessary because a ruling on that objection will
have no bearing on Morgret's sentence.
4. Morgret shall, within 20 days after the date of
this order, file a brief addressing the sentencing
factors set forth in 18 U.S.C. § 3553(a).
5. All subsequent briefing on the sentencing factors
shall be in accordance with this court's local rules.
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