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United States v. Vopravil

decided: December 6, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSEPH VOPRAVIL, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 88 CR 124 -- Terence T. Evans, Judge.

Cummings, Cudahy, and Easterbrook, Circuit Judges.

Author: Cummings

CUMMINGS, Circuit Judge. Joseph Vopravil pled guilty to one count of an indictment charging possession with intent to distribute and distribution of one ounce of cocaine, in violation of 21 U.S.C. § 841(a)(1). He was sentenced to four years in prison, followed by three years of supervised release and was fined $10,000 pursuant to the Sentencing Guidelines promulgated under the Sentencing Reform Act. He appeals from this sentence, arguing that the district court misapplied the Guidelines. We affirm.

BACKGROUND

On August 31, 1988, Vopravil was indicted by a federal grand jury on two counts of possession with intent to distribute and distribution of cocaine (Counts 1 and 2) in violation of 21 U.S.C § 841(a)(1), and on one count of use of a telephone to facilitate possession with intent to distribute and distribution of one kilogram of cocaine (Count 3) in violation of 21 U.S.C. § 843(b). Pursuant to a plea agreement entered into on November 4, 1988, Vopravil pled guilty to Count 2 of the indictment and the prosecutor agreed to dismiss the other two counts.

The facts as set forth in the record indicate that in April 1988 a confidential informant told government agents that he had been purchasing personal use quantities of cocaine from one Rick Kaiser, who in turn purchased the cocaine from Vopravil. Acting on behalf of the government, the informant contacted Kaiser and told him that he was interested in purchasing a kilogram of cocaine from Vopravil. Kaiser made arrangements for the informant to speak to Vopravil directly. Shortly thereafter, Vopravil telephoned the informant and stated that he would supply the informant with a kilogram of cocaine and gave the informant his home telephone number. On May 16, 1988, and again on May 23, 1988, Vopravil sold one ounce of cocaine to the informant. These two sales are the subject of Counts 1 and 2 of the indictment. Negotiations for the sale of a kilogram of cocaine continued, and the transaction was scheduled for June 27, 1988. On that date Vopravil met the informant at the designated meeting place. An undercover agent accompanied the informant to this meeting. Vopravil indicated that he wanted to complete the transaction at another location, but the undercover agent objected. At that point Vopravil fled.*fn1

Vopravil specifically admitted all of these facts in the following exchange with District Judge Warren during the November 4, 1988, proceedings at which the judge accepted the plea agreement:

THE COURT: Did you have some conversation with [the informant] in which you agreed that you could supply a kilo?

VOPRAVIL: Yes.

THE COURT: And did you subsequently, * * * on May 16, 1988, have a transaction in which you sold him one ounce of cocaine?

VOPRAVIL: Yes, I did.

THE COURT: And later on May 23, 1988, did you meet the same individual and after a phone arrangement sell him another ounce of cocaine?

VOPRAVIL: Yes, ...


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