At the second trial, the police officers' testimony was essentially unchanged except that they were also allowed to testify about the packets of cocaine found in the pouch. Expert testimony was also presented to verify it was cocaine. The woman across the hall testified again, but this time she testified the event with the police occurred in a year other than 1989 and her description of the person she saw arrested did not match the undisputed evidence. The private investigator did not testify at the second trial. Defendant argued that the gun was not his. The jury unanimously found Nichols guilty of all three charges.
The question of an appropriate sentence is now before the court. Since the offenses were committed in March 1989, the Sentencing Guidelines apply.
In 1975, while age 17, Nichols committed a residential burglary in violation of Illinois law. He pleaded guilty in 1976 and was sentenced to two years' felony probation. In 1980, Nichols committed a robbery in violation of Illinois law. He pleaded guilty in 1981, was sentenced to three years' imprisonment, and was imprisoned approximately 21 months before being paroled. In 1985, Nichols was found guilty of a 1984 auto theft that violated Illinois law. Nichols was sentenced to three years' imprisonment and was imprisoned approximately one year before being paroled. In 1987, Nichols was found guilty of a 1986 residential burglary in violation of Illinois law. He was sentenced to five years' imprisonment and imprisoned approximately 19 months before being paroled in January 1989. The present offenses were committed less than two months later while Nichols was still on parole.
As further explained in the presentence report, the probation officer has calculated the guideline range as 360 months to life. As required by 18 U.S.C. § 924(c), the mandatory five-year sentence under that statute must be in addition to the sentence on the other two counts. Therefore, that offense is not part of the guidelines calculation. Unless the probation officer's calculation is incorrect or there is sufficient reason for departing from the guidelines, Nichols, who will be 32 in September, faces a minimum sentence of 35 years for possessing a gun while also possessing less than a gram of cocaine that he intended to distribute.
Section 2D1.1 of the Guidelines applies to determining the base offense level for Count One, the cocaine distribution charge.
The base offense level for distribution of less than 25 grams of cocaine (in this case it was less than one gram of a weak mixture) is 12. U.S.S.G. § 2D1.1(c)(16). Under U.S.S.G. § 2K2.1(a) (1988), the base offense level for Count Three, firearms possession, is 9. Because both counts involve the same act and transaction, they are grouped together and the offense level is 12.
Without consideration of the career offender guidelines, Nichols's criminal history category would be V based on three points each for three prior convictions,
two points for committing an offense while on parole, and one point for committing an offense less than two years after his release. The guideline range for an offense level of 12 and criminal history category of V is 27 to 33 months.
Nichols, however, falls into the category of career offender. See U.S.S.G. § 4B1.1. He was over eighteen years old when the present offenses were committed; the present offenses include a controlled substance offense; and he has two prior convictions for a crime of violence, the robbery and the second residential burglary.
If the possible life term on the firearm possession offense is the "offense statutory maximum" to consider under § 4B1.1, then the offense level is 37. See id. § 4B1.1(A). If the maximum term on the distribution charge, which is 20 years (see 21 U.S.C. § 841(b)(1)(C)), is the "offense statutory maximum" to consider, then the offense level is 32. See U.S.S.G. § 4B1.1(C). A career offender's criminal history category is automatically VI. The guideline range for an offense level of 37 and a criminal history of VI is 360 months to life, which is what the probation officer calculated. The guideline range for an offense level of 32 and a criminal history of VI is 210 to 262 months.
In United States v. Jackson, 835 F.2d 1195, 1197-98 (7th Cir.), cert. denied, 485 U.S. 969, 99 L. Ed. 2d 442, 108 S. Ct. 1244 (1988), the Seventh Circuit discussed, in dictum, the ambiguities contained in guideline § 4B1. First is the question of whether possession of a gun by a felon is a crime of violence. The Guidelines definition of a crime of violence that was in existence at the time Nichols committed his offense is applicable to this case. See United States v. McNeal, 900 F.2d 119 (7th Cir. 1990); United States v. Williams, 892 F.2d 296, 304 (3d Cir. 1989). As of March 1989, the Guidelines incorporated the definition of crime of violence contained in 18 U.S.C. § 16 which is:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.