United States District Court, W.D. Virginia
Debbie H. Stevens, Special Assistant United States Attorney, Abingdon, Virginia, for United States.
Brian Jackson Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.
OPINION AND ORDER
JAMES P. JONES, District Judge.
In this Opinion, I resolve a dispute relating to the defendant's advisory guideline sentencing range.
Jamel Chawlone Brown is an inmate confined to the United States Penitentiary Lee County ("USP Lee"), located in this judicial district. He pleaded guilty in this court without a plea agreement to an Indictment charging possession of heroin by an inmate, in violation of 18 U.S.C. § 1791(a)(2), (b)(2) (Count One), and possession of heroin, in violation of 21 U.S.C. § 844(a) (Count Four). In advance of sentencing, a presentence investigation report ("PSR") was prepared by a probation officer of this court. The probation officer calculated the defendant's scoring under the U.S. Sentencing Guidelines Manual ("USSG") and in the final version of the PSR, determined that the defendant had a Total Offense Level of 15, with a Criminal History Category of V, resulting in an advisory sentencing range of 37 to 46 months imprisonment. The defendant does not object to this scoring (although he requests a downward variance to a sentencing range of 24 to 30 months), but the government contends that the proper Total Offense Level is 27, resulting in a sentencing range of 120 to 150 months. In addition, it requests an upward variance to 276 months (23 years) - the statutory maximum.
The parties have presented evidence and argument relevant to the proper guideline range, and the issues are now ripe for decision.
As a first step in the sentencing process, a district court is required to correctly calculate the defendant's advisory Sentencing Guidelines range. See Freeman v. United States, 131 S.Ct. 2685, 2692 (2011) ("The Guidelines provide a framework or starting point... for the judge's exercise of discretion" in sentencing). The government has the burden of proving application of the contested sentencing factors by a preponderance of the evidence. See Thomas W. Hutchison, et al., Federal Sentencing Law and Practice 1869-71 (2013).
There remain three contested issues. The first is whether the cross reference in USSG § 2P1.2(c) applies to increase the defendant's offense level. The second is whether an aggravating role increase of two offense levels under USSG § 3B1.1(c) is appropriate. The final issue is whether a grouping enhancement under USSG § 3D1.4 should be imposed. These issues will be addressed seriatim, following my findings of fact.
As shown by the information set forth in the PSR, as well as the evidence before me at the hearing on the proper advisory guideline range, including testimony by Brown's codefendant Ashley Wilson, my findings of fact are as follows.
The defendant, then 32 years old, and Wilson, then age 18 and living in southern Ohio, developed a romantic relationship through prison correspondence and telephone conversations. They discussed her coming to visit him at USP Lee and he eventually asked her to bring him contraband. At some point thereafter she received a package mailed to her at her home, consisting of a baby blanket wrapped around a plastic bag containing 24 quarter-sized colored balloons, each about the same weight. She assumed that the balloons contained drugs, although she did not know the type. Brown did not tell her that the drugs were for his personal use and she did not know him to have a drug problem or use heroin.
Following Brown's directions, Wilson traveled to USP Lee on Friday, September 21, 2012, for visiting time with Brown. She brought all 24 balloons with her, hiding them in her panties. She had planned to put some of the balloons in her mouth prior to the visit, so that she could pass them to Brown by a kiss upon arrival. Under the prison's visiting rules, an inmate may be embraced and kissed once upon arrival and once when the visit ends. Because of her nervousness, she had not put any balloons in her mouth when she arrived. Brown was surprised, but tried to calm her down and with four minutes to go in visiting time, directed her to the bathroom, where she put three of the balloons in her mouth. When she returned, she and Brown kissed and she transferred the balloons to his mouth. She then left the prison. Brown drank some water and swallowed the balloons.
The plan had been that she would transfer the remaining balloons to him in the course of two additional visits over the weekend. When Wilson returned on Saturday, she was advised that Brown was not available because he was in a "dry cell." In fact, prison staff had become suspicious of the interaction between the two in the visitation room and had placed Brown in a special cell where he eventually defecated two of the balloons, which were determined to contain together 1.8 grams of heroin. Wilson was later interviewed by FBI agents, and eventually admitted her involvement. She has pleaded guilty and is awaiting sentencing.
After charges were brought against both Brown and Wilson, Brown called her several times to discuss the case and at one point sent her a false affidavit for her to sign, which denied that she had passed him drugs. She was also contacted by other people with connections to Brown, in a clear attempt to intimidate her and influence her testimony.
It is more likely than not that the total quantity of heroin contained in the 24 balloons that Brown planned to have smuggled to him by Wilson exceeded 20 grams, since they were all approximately the same size. According to the testimony of a Bureau of Prisons investigator at USP Lee, Michael Blevins, which testimony I credit, this is a distribution quantity of heroin for prison inmates, rather than a user quantity. Further, the facts in evidence show that Brown has no history in prison of drug use, although he claimed to the probation officer that he had been using heroin. As shown by the prison investigator's testimony, a gram of heroin at USP Lee typically sells among inmates for $1, 200. Inmates pay for smuggled drugs through transfers of money into other inmates' prison accounts from the outside, or by transfers between individuals outside of prison.
The Sentencing Guidelines direct that the court must determine the appropriate guideline section applicable to the offense of conviction. USSG § 1B1.2. The guideline for providing or possessing contraband in prison in violation of 18 U.S.C. § ...