The opinion of the court was delivered by: Judge James F. McClure, Jr.
On September 27, 2007, a grand jury sitting in the Middle District of Pennsylvania handed down a three-count superceding indictment against Paul Surine, Shane Curry and Jimmy Dake, charging them with conspiracy to distribute controlled substances (21 U.S.C. § 846) (Count One); distribution of a controlled substance (21 U.S.C. § 841(a)(1)) (Count Two); and (as against Paul Surine only), possession of a firearm during a drug trafficking crime (18 U.S.C.§ 924(c)(1)) (Count Three).
On May 30, 2008, Surine pled guilty to count one of the first superseding indictment. On September 5, 2008, the court received the Presentence Investigation Report ("PSR") which produced an advisory guideline range of 360 months to life. Surine objected to seven paragraphs in the PSR. His objections can be summarized into three issues that could affect the guideline range: the base offense level, e.g. the amount of cocaine base distributed; the specific offense characteristics, e.g. whether or not the defendant possessed a dangerous weapon, specifically, a firearm; and an aggravating role in the offense; e.g. whether or not he was organizer or leader in the criminal activity.*fn1 If all three issues are resolved in Surine's favor, the guideline imprisonment range would decrease to 120 to 135 months.
Beginning on June 11, 2009 and resuming on June 22, 2009, an evidentiary hearing was held for the parties to present evidence on these objections. The government filed a sentencing memorandum on July 7, 2009. (Rec. Doc. No. 276). Surine filed a sentencing memorandum on July 15, 2009. (Rec. Doc. No. 277). The objections are ripe for disposition.
We will overrule defendant's objections to paragraphs 5, 6, 8, and 9, and sustain his objections to paragraphs 10, 11, and 13 in so far as they are consistent with this Memorandum. The resulting advisory sentencing guideline range is 324 to 405 months.
The facts, taken from the PSR, are as follows. From May 1, 2005 to February 1, 2007, Surine was the (alleged) leader of a conspiracy to distribute crack cocaine in Tioga County. Eight others were also charged in this case or related cases as allegedly part of the conspiracy. Lisa Lehman was Surine's girlfriend. Sonny Surine and Jimmy Dake are the defendant's sons. Shane Curry is Lisa Lehman's son. Others charged are Glenn Glover, Cheryl Gilbert, Donald Carr, and Paul Carr.
Paul Surine lived on a property in Tioga County consisting of several mobile homes, which investigators have described as a "complex." The complex was the hub of the conspiracy, where deliveries of cocaine hydrochloride and crack cocaine would arrive from suppliers from New York State. Cocaine and cocaine base would also be sold from the complex. Allegedly, at least an ounce of cocaine was delivered to the complex every other day throughout the duration of the conspiracy. Of this amount, approximately half was hydrochloride and half was crack. Allegedly, Surine would direct other members of the conspiracy to travel to New York state to pick up the drugs. At the complex, Surine would process cocaine hydrochloride into crack cocaine, and package and distribute the crack cocaine.
Approximately 100 to 200 individuals would purchase cocaine from the Surine complex. Payment was made in either cash or property. Allegedly, Surine would also accept firearms as payment. Allegedly, Surine possessed with intent to deliver in excess of 4.5 kilograms of crack cocaine throughout the course of the conspiracy.
On May 30, 2008, Surine pled guilty to conspiring to possess with the intent to distribute fifty grams or more of cocaine base, from May 1, 2005, up to and including February 1, 2007.
Nine individuals testified over the course of the two days of hearings. Paul Surine testified. Trooper Nick Madigan, the officer in charge of the investigation testified. Other defendants, although not co-defendants, who testified were Lisa Lehman (Surine's girlfriend at the time of the conspiracy), Cheryl Gilbert, and Glenn Glover. As part of their respective plea agreements, all three defendants agreed to cooperate with the government. Non-defendants who testified were Francis Surine (Paul Surine's son), Jessica Starkweather (Paul Surine's niece), Chance Decoursey, and Mary Kay Gregus. We find that the testimony of Paul Surine is not credible, but we do find credible the testimony of all the other witnesses.
Defendant objects to paragraphs 6, 10, 11, and 13 of the PSR. Surine's objection to paragraph 6 is that he did not cook powder cocaine into crack cocaine for resale, but for personal use. Surine's objection to paragraph 10 is that he did not sell one kilogram of crack cocaine to Cheryl Gilbert, and also that he did not receive ten ounces of crack cocaine from individuals called "J" and/or "G." Surine's objection to paragraph 11 is that while he admits he received powder cocaine from Glenn Glover, Cheryl Gilbert, and Shaggy Brockway, he denies distributing this cocaine. He states it was returned to the supplier because it was impure. Surine's objection to paragraph 13 is that he asserts the amount of cocaine possessed by him with intent to deliver is no more than 150 grams.
The Base Offense Level is determined by Guideline § 2D1.1(3), as Surine pled guilty to Conspiracy to Possess with the Intent to Distribute 50 Grams and More of Cocaine Base pursuant to 21 U.S.C. § 846. § 2D1.1(3) sets the offense level as specified in the Drug Quantity Table set forth in subsection (c). The quantity set forth in the presentence report is 4.5 kilograms or more of cocaine base, which results in a base offense level of 38. Surine's objection to the presentence report states that he is only responsible for 150 grams of cocaine base, which would result in a base offense level of 32. However, Surine's sentencing memorandum cites the testimony of Surine, who testified that he sold between 500 and 1,000 grams of cocaine base, which, if true, would result in a base offense level of 34.
Lisa Lehman (who had previously been sentenced to 96 months for her part in the conspiracy) testified that deliveries of crack cocaine and powder cocaine from New York State to the Surine complex took place approximately every three to four days in the beginning of the conspiracy, then it tapered off for a while because they were robbed, and then it started picking up again just before they were caught. (Rec. Doc. No. 272 at 5). Lehman testified that the deliveries cost between $800 to $1,800 per week, possibly an ounce every other day. (Id. at 5-6). She testified that at the beginning half was powder cocaine, half was crack, but by the end it was just crack that was brought. (Id. at 7). The powder cocaine would be processed into crack cocaine, "most of the time" by Paul Surine. (Id. at 6). Lehman also testified that the conspiracy had about 50 to 100 customers, customers who would come to the house 24 hours a day. (Id. ay 8-9). Paul Surine would himself make some of the sales. (Id. at 9). Paul Surine mailed between five and ten money orders to the dealers in New York State. (Id.) Once she saw Paul Surine with a gallon-sized plastic bag approximately three-fourths full of powder cocaine that he processed into crack cocaine. (Id. at 10).
Francis Surine testified that, in the six months he lived with his father, Paul Surine, powder cocaine was delivered to the complex approximately "a couple" times a week, each time being approximately "a couple" ounces. (Id. at 23 and 25). "A couple" of ounces meaning two or three. (Id. at 30). Later in his testimony, Francis Surine admitted that he had testified to the grand jury that suppliers came to the complex daily and would deliver an ounce or two each time. (Id. at 37). Either Lisa Lehman or Paul Surine would place the order with the New York suppliers. (Id. at 27). "Most" of the powder delivered was processed into crack by Paul Surine and Lisa Lehman. (Id. at 25-26). About 20 cars per day arrived to purchase crack. (Id. at 25). The average purchase would be a gram or a "dime." (Id.) The largest purchase he witnessed was 3 grams. (Id.)
Jessica Starkweather testified that Paul Surine and Lisa Lehman supplied her with crack cocaine, at least once daily, at times more than once. (Id. at 44). She made about 200 purchases in six months. (Id. at 46). She testified that she usually purchased crack cocaine, and that she only purchased powder cocaine "a couple" of times. (Id.)
Chance Decoursey testified that he typically purchased not quite half a gram of crack cocaine about 50 times from Paul Surine's trailer. (Id. at 53).
Mary Kay Gregus testified that she purchased between a gram to several grams of crack cocaine, at times six to seven times a day, from either Paul Surine or Lisa Lehman. (Id. at 59-60). She also testified that she was present at times when powder cocaine was processed into crack cocaine at the residence. (Id. at 61). She estimated that she purchased an ounce a week over a six month time span. (Id. at 63). She also ...