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United States v. Solomon

March 23, 2010

UNITED STATES OF AMERICA
v.
WANDA SOLOMON



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER

Presently before the Court for disposition is the MOTION FOR RELIEF PURSUANT TO U.S.S.G. 1B1.10(C) - AMENDMENT 9filed pro se by Wanda Solomon and the RESPONSE in opposition filed by the government. For the reasons that follow, the Motion will be denied.

Background

On November 10, 2005, a federal grand jury sitting in the Western District of Pennsylvania returned a one-count indictment at Criminal No. 05-350 against Cadee Akins, Wanda Solomon, and Khaliah Solomon. All three defendants were charged with Conspiracy to Distribute and Possess With Intent to Distribute Cocaine and 50 Grams or More of Crack Cocaine, from on or about August 2004 to August 2005, in violation of Title 21, United States Code, section 846.

On November 14, 2005, Wanda Solomon made her initial appearance and was detained pending a detention hearing. On November 18, 2005, Wanda Solomon appeared for her detention hearing and arraignment, wherein she entered a plea of not guilty and was released on a $25,000 unsecured bond with conditions including pretrial supervision.

On March 28, 2006, a federal grand jury sitting the Western District of Pennsylvania returned a Superseding Indictment at Criminal No. 05-385 against Jelani Solomon, Claron Hanner, and Wanda Solomon. The three defendants were all charged in Count One of the Superseding Indictment with Conspiracy to Distribute and Possess with Intent to Distribute 5 Kilograms or More of a Mixture and Substance Containing a Detectable Amount of Cocaine, from in and around 1999 and continuing to in and around November, 2005, in violation of Title 21, United States Code, § 846. Ms. Solomon was not charged with any other alleged violations in the Superseding Indictment.

On March 29, 2006, Wanda Solomon appeared for her initial appearance and arraignment and entered a plea of not guilty to Count One of the Superseding Indictment. Her bond was continued.

On August 2, 2006, Wanda Solomon appeared before the Court and changed her previously entered plea of not guilty to guilty at Count One of the Indictment filed at Criminal No. 05-350 and Count One of the Superseding Indictment filed at Criminal No. 05-385.

A Presentence Investigation Report ("PSI") was prepared by the Probation Office on September 19, 2006, with an Addendum to the PSI prepared on October 20, 2006. The 2005 edition of the Guidelines Manual, including amendments effective November 1, 2005, were used in calculating Ms. Solomon's offense level computations. Pursuant to USSG § 3D1.2(d), the counts of conviction were grouped together.

USSG 2D1.1(a)(3)(c)(3), the guideline for a violation of Title 21, United States Code, § 846, called for a base offense level of 34 based on at least 15 kilograms but less than 50 kilograms of cocaine. In Paragraph 24 of the PSI, the Probation Officer specifically explained the computation of the total base offense as follows:

Pursuant to USSG § 2D1.1, Commentary, Application Note 10, multiple drug types are to be converted to their marijuana equivalency and combined for a total base offense level. The quantity of cocaine base attributable to defendant for purposes of the sentencing guideline calculations is 106.9 grams (2,138 kilograms of marijuana), and the quantity of cocaine attributable to the defendant is 15 to 50 kilograms (3,000 to 10,000 kilograms of marijuana). In this case, it is not clear where exactly in the range the defendant's cocaine amount falls. In a light most beneficial to the defendant, it is assumed that the amount of cocaine attributable to her conduct is 15 kilograms.*fn1 Therefore, based on the information provided by the Government, the inclusion of the crack cocaine would not increase the amount above the range of 15 to 50 kilograms of cocaine.

PSI, at ¶ 24 (emphasis added).

Defendant, through counsel, filed a Position with Respect to Guideline Sentencing Factors, in which she made several factual corrections and/or clarifications and objected, inter alia, to the Probation Office's calculations involving the crack / cocaine disparity. In response, the Probation Office again reiterated that the "crack / cocaine disparity is not an issue in this case, as noted in paragraph 24 of the Presentence Report, the inclusion of the crack cocaine would not increase the amount above the 15 to 50 kilograms of cocaine. Should the defendant withdraw her guilty plea at Docket No. 05-385, the disparity may become a relevant factor for consideration at the time of sentencing." Addendum at unnumbered page 2.

On November 17, 2006, the Court issued its Tentative Findings and Rulings in which it too addressed the crack / cocaine ratio ...


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