Appeal from the United States District Court for the Western District of Wisconsin.
No. 94 CR 37--Barbara B. Crabb, Chief Judge.
Before RONEY, *fn* FLAUM, and KANNE, Circuit Judges.
James Ewers is a lawyer gone bad. Apparently unhappy with his status as a Madison, Wisconsin, criminal defense lawyer, Ewers decided to emulate some of his clients, so he engaged in selling cocaine. After he was indicted on eight counts of drugand tax-related crimes, Ewers pled guilty to two counts: maintaining a place for the purpose of distributing and using cocaine (i.e. using his Madison law office for cocaine distribution) and filing a false tax return. In sentencing, the district court departed upward eight levels from the Sentencing Guidelines and sent Ewers to prison for 60 months. Ewers appeals his sentence, and we affirm.
From April to November, 1989, Ewers used his law offices to distribute cocaine. He bought the cocaine from Rodney Rhodes and Ira Williams, beginning with one and two ounce purchases and moving up to buying as much as 1.5 kilograms at a time. Ewers then re-sold the cocaine, including substantial amounts to Virgil Vollmer.
The pre-sentence report (PSR) concluded that Williams and Rhodes delivered a total of five kilograms of cocaine to Ewers. To flesh out the information needed for sentencing, the PSR attached the "Prosecution Version" and the "Defendant's Version" of the offenses. The "Prosecution Version" contained narrations of what various witnesses, including Rhodes, Williams, and Vollmer, would testify to if called. It also included impeachment evidence, such as that Rhodes and Williams had admittedly perjured themselves on more than one occasion and that they had received lighter sentences for cooperation with the government. The "Defendant's Version" was Ewers' own version of the events surrounding the charged crimes: essentially that he bought small quantities for personal use. He suggested no additional potential witnesses.
After initially objecting to the adequacy of the proffered evidence contained in the PSR and its attachments, Ewers withdrew his objection. Ewers' counsel in essence stipulated to the information contained in the PSR and its attachments, stating that "all pertinent evidence regarding . . . amounts of drugs involved and . . . the reliability or unreliability of the witnesses" was contained in those documents. Furthermore, Ewers agreed, and still agrees, with the government that the court could properly make its decision on amounts of drugs involved and base any sentencing departure on the basis of the evidence in the PSR and its attachments.
The district court reviewed the evidence submitted and found that the preponderance of the evidence showed that the amount of cocaine involved in Ewers' offense was more than 3.5 kilograms but less than 5 kilograms. The base offense level, as calculated in the PSR, was 16. The district court, finding that the large amount of drugs involved was an aggravating factor not adequately taken into consideration by the 1989 Sentencing Guidelines, see 18 U.S.C. sec. 3353(b), departed upward an additional eight levels. The applicable sentencing range was 51 to 63 months; the court sentenced Ewers to 60 months in prison.
We apply a three-step approach to review an upward departure: (1) we review de novo whether a district court's stated grounds for departure may properly be relied upon to justify the departure; (2) we review for clear error whether the facts that support the grounds for departure actually exist in the case; and (3) we review deferentially whether the degree of departure is appropriate. United States v. Seacott, 15 F.3d 1380, 1386 (7th Cir. 1994). Ewers does not contest the resolution of the first inquiry: he concedes that drug quantity is a proper ground for departure from a sentence imposed pursuant to the 1989 version of sec. 2D1.8, under which he was sentenced. *fn1 See, e.g., United States v. Feekes, 929 F.2d 334, 336-38 (7th Cir. 1991) (approving similar grounds for departure upward from sec. 2D1.6).
Ewers does contest the district court's factual determination that his offense involved 3.5 to 5 kilograms of cocaine. He first argues that the district court erred by applying the wrong evidentiary standard to that determination. We have recognized that the preponderance of the evidence standard is generally the correct inquiry for determinations of drug quantity. See United States v. Schuster, 948 F.2d 313, 315 (7th Cir. 1991). "It is well-settled that where the severity of the punishment is linked to the existence or nonexistence of exculpatory or mitigating facts, the preponderance of the evidence standard satisfies due process." United ...