The opinion of the court was delivered by: Judge McClure
On May 12, 2005, a jury sitting in the Middle District of Pennsylvania found defendant Domonique Haynes, along with co-defendant Antonio McIntosh, guilty of various drug-related offenses. On August 31, 2006, Haynes was sentenced to 324 months imprisonment. The same day, we sentenced McIntosh to 420 months imprisonment. The defendants jointly filed an appeal to the Third Circuit.
While the appeal was pending, Officer Dustin Kreitz, a member of the Lycoming County Drug Task Force who was involved in the investigation of this case and who testified at trial, was indicted by a state grand jury on various charges, including perjury and obstruction of justice. The defendants requested summary remand from the Third Circuit to develop a record as to whether Kreitz perjured himself during defendants' trial, as well as further investigation of defendants' Brady and confrontation issues in light of Kreitz's indictment. On October 12, 2007, the Third Circuit granted defendants' request for summary remand.
On March 5, 2008, Haynes pled guilty to a two-count superceding information charging defendant with criminal conspiracy under 18 U.S.C. § 371 and use of a communications facility to cause and facilitate the distribution and possession with the intent to distribute cocaine base, also known as crack cocaine, under 21 U.S.C. § 843(b). On March 24, 2008 co-defendant McIntosh pled guilty to an identical information.
On May 28, 2008, we held a sentencing hearing in which Haynes raised various objections to the presentence investigation report that was prepared by the United States Probation Office. In addition, defense counsel filed a sentencing memorandum which requests a variance under 18 U.S.C. § 3553. (Rec. Doc. No. 629.) For the following reasons, the court will overrule defendant's objections to the presentence investigation report. We conclude that the advisory guideline sentence is 108 months but will grant Haynes a downward variance of 11 months.
Defendant raises four different sentencing issues. First, he argues that he should only be held responsible for 50 grams of crack cocaine, rather than the 241.42 grams found in the presentence investigation report. Second, he argues that there is insufficient evidence to apply a two-level enhancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). Third, he argues that the sentences for both counts of the superceding information should run concurrently, not consecutively. Finally, he requests a variance under § 3553 due to the fact that co-defendant McIntosh is likely to receive a sentence of 108 months but is substantially more culpable and has a more extensive criminal history .
Defendant asserts that he should only be held liable for 50 grams of crack cocaine, rather 241.21 grams. As a preliminary matter, we note that the critical number is whether defendant is responsible for 150 grams or more of crack cocaine. U.S.S.G. § 2D1.1(a)(3) states that the offense level for a drug trafficking offense involving at least 50 grams but less than 150 grams is 30, while the offense level for at least 150 grams but less than 500 grams is 32.
U.S.S.G. § 1B1.3(a)(1)(B) concerns relevant conduct and instructs us to hold defendant accountable for "all reasonably foreseeable acts and omissions in furtherance of the jointly undertaken criminal activity that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." Under this standard, based on the testimony presented at trial as discussed in the presentence investigation report, we find by a preponderance of the evidence that defendant is accountable for at least 150 grams of crack cocaine. Therefore, we will overrule this objection.
B. Two-Level Enhancement for Possession of a Firearm
U.S.S.G. § 2D1.1(b)(1) states that "[i]f a dangerous weapon (including a firearm) was possessed [during the commission of the drug trafficking offense], increase [the offense level] by 2 levels." Defendant essentially argues that there is not sufficient evidence to prove that he possessed a firearm in connection with the drug trafficking offense. We will overrule this objection for the same reasons we overruled the objection at the defendant's previous sentencing. Tamirra Smith, a co-defendant in this case, testified at trial that she lived with defendant during the time the offense was committed and that he had a safe at the residence that contained cocaine, crack cocaine, marijuana, Xanax, and a handgun. (Tr. of May 4, 2005, at 72-74.) She further testified that when defendant was arrested, she gave the drugs and gun to co-defendant McIntosh. (Id. at 85-87.) Similarly, Alicia Welch testified that she saw a safe in defendant's residence containing drugs and a gun. (Tr. of May 2, at 56-58.) The testimony of Smith and Welch was uncontradicted.
Therefore, we find by a preponderance of the evidence that defendant possessed a dangerous weapon in connection with a drug trafficking offense and will overrule this objection. As a result, defendant's total offense level is 31, with a criminal history category of VI, yielding a guideline range of 188 to 235 months. Yet, as we will discuss in the next section, this range will be ...