Appeal from the United States District Court for the Eastern District of Wisconsin. No. 88 CR-119-J.P. Stadtmueller, Judge.
Cummings, Coffey, and Kanne, Circuit Judges.
Alfred M. Jordan appeals three determinations made by the district court in sentencing him under the Sentencing Reform Act of 1984 to 10 years in prison for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Jordan objects to the district court's decisions to: (1) enhance the sentence for obstruction of justice pursuant to Section 3C1.1 of the United States Sentencing Commission Guidelines (the "Guidelines") on the basis of a finding that Jordan lied to his probation officer about his use of cocaine while awaiting sentencing in this case; (2) reject Jordan's request to reduce the sentence for Acceptance of Responsibility pursuant to Guidelines § 3E1.1 on the basis of a finding that Jordan, again while awaiting sentencing in this case, continued to deal in cocaine; and (3) depart upward from the sentence dictated by the Guidelines for a combination of reasons. We conclude that the district court was not clearly in error in its factual determinations or incorrect in applying the Guidelines with regard to the first two decisions, and that the departure was reasonable on the grounds articulated by the district court. Therefore, we affirm the sentence of the district court.
The events that resulted in Jordan's indictment and conviction occurred during the course of one day. Jordan persisted in criminal conduct as his case proceeded through the criminal justice system, however, and that conduct significantly affected the sentence of confinement ordered by the district court.
On August 3, 1988, a confidential informant for Wisconsin's Division of Criminal Investigation in Milwaukee telephoned Raymond Donaldson and they discussed a sale of cocaine to the informant. That afternoon, the informant met Donaldson and Jordan at Donaldson's residence, where Donaldson and Jordan agreed to sell the informant four ounces of cocaine. Jordan would later testify that he had obtained the cocaine for the deal. Transcript of Change of Plea, October 31, 1988, at 15-16.
Jordan and Donaldson left the house, but were confronted by state and federal agents as they entered a car Jordan was using. Donaldson surrendered, was arrested, and became Jordan's co-defendant in the criminal case that followed.*fn1 Jordan, on the other hand, fled after struggling with an agent and breaking free. While running from the car, he threw a paper bag containing four one-ounce packages of cocaine into the air. As the chase continued, Jordan slammed shut a fence gate, tripping an agent of the Internal Revenue Service's Criminal Investigation Division and causing the agent to dislocate a finger. Surgery to the agent's hand was required. Jordan was captured and arrested after he was discovered underneath the porch of a nearby residence.
Jordan and Donaldson were indicted by a federal grand jury for the Eastern District of Wisconsin of the following: Count I, conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); Count II, possession with intent to distribute four ounces (113.4 grams) of cocaine, also in violation of 21 U.S.C. § 841(a)(1). Jordan was also charged with a third count, assault on a law enforcement officer engaged in performance of his official duties, in violation of 18 U.S.C. § 111. The grand jury also sought forfeiture of the car Jordan was using at the time of his arrest as an instrumentality of the crimes.
Jordan pleaded guilty to Count II of the indictment pursuant to an agreement with the government under which Counts I and III were dropped. He agreed as part of that written plea agreement to forfeit any interest he might have in the car. He was released on a $100,000 bond secured by property.
On December 22, 1988, while he awaited sentencing, Jordan submitted to a urinalysis test by the United States Probation Office. The test yielded a positive result for the presence of cocaine on February 6, 1989. When his probation officer told him of the positive result the next day, Jordan denied using any illegal drugs.
In the meantime, on January 6, 1989, Milwaukee police had stopped a vehicle in front of a known drug house. Inside the car were Jordan, then 33 years old, and a 17-year-old male. Jordan had in his possession a plastic bag containing $3,983 in cash, a beeper, and approximately 7.5 grams of marijuana. The juvenile carried a plastic bag filled with 101 paper packages containing a total of approximately 19 grams of cocaine. Then, on February 8, 1989, a similar scenario was played out. A car containing Jordan and a 14-year-old was stopped by Milwaukee police in the same area. This time, Jordan had a plastic bag in the glove compartment containing $1,617 in cash and cocaine residue. Jordan did not contest the police accounts of these two arrests at his sentencing hearings, nor did he attempt to give those facts innocent explanations. After these incidents were brought to the attention of the district court, Jordan's bail was revoked.*fn2
Federal probation officers assigned to the case initially recommended a "total offense level," the score net of applicable adjustments, of 32 under the Guidelines. At the other axis of the Sentencing Table, Jordan's Criminal History Category was determined to be VI, the maximum level.*fn3 This translated into a sentencing range of imprisonment of 210-262 months, in part because probation officials placed Jordan in the career offender category, pursuant to Guidelines §§ 4B1.1 and 4B1.2.*fn4 After hearing extensive testimony on a range of sentencing and factual issues,*fn5 the district court determined at the final sentencing hearing on April 3, 1989 that no two of Jordan's prior convictions were crimes of violence and therefore he could not be sentenced as a career criminal under the Guidelines. That decision left Jordan with a "base offense level," before adjustments, of 18, with his Criminal History Category level remaining at VI.
The court then added two levels for obstruction of justice under Guidelines § 3C1.1. The court based this enhancement on Jordan's denial of cocaine use even after he was confronted with the positive test results.
As his next step toward fixing a total offense level, the district judge declined to grant Jordan's request for a two-level reduction for Acceptance of Responsibility under Guidelines § 3E1.1. The district court based that decision on the two incidents of drug-related activity during the presentence period. The district court acknowledged Jordan's plea and accompanying admission of responsibility for the possession with intent to distribute. Nevertheless, the court was persuaded that "this is one of those cases where the old adage actions speak louder than words certainly comes into play." Transcript of Sentencing Continuation, April 3, 1989 (hereinafter "Tr.") at 76.
Those two decisions left Jordan with a total offense level of 20. This would dictate a range of imprisonment of 70-87 months at his Criminal History Category. See Sentencing Table, United States Sentencing Commission, Guidelines Manual, at 5.2 (Nov. 1989) (hereinafter Manual). The government urged an upward departure to 180 months, or 15 years, based on the provision in the Guidelines that the court may depart from the sentencing schedule when, but only when, it finds "an aggravating or mitigating circumstance . . . that was not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b). The Probation Office stated in a report to the district court that upward departure "might be considered" because of Jordan's flight from arrest and the injury to the federal agent and also because the two new arrests had not been counted as past criminal conduct in computing Jordan's criminal history category. Addendum to presentence investigation report, Defendant's Br., at 3.
The district court decided to depart upward, but not so far as the government urged and far below the statutory maximum of 20 years in prison and a fine of $1 million. The court sentenced Jordan to serve 120 months and also fined Jordan $2,500.*fn6 The court based its decision to boost the sentence by 33 months above the maximum end of the Guidelines range on the following factors: (1) Jordan's attempt to flee from the agents during the original drug-dealing incident, resulting in injury to one of the agents; (2) the two incidents of criminal activity while Jordan was awaiting sentencing; (3) Jordan's abuse of cocaine while awaiting sentencing; and (4) Jordan's criminal record "as a whole." Tr. at 88-90.
This timely appeal followed entry of the court's sentencing judgment.*fn7