Appeal from the United States District Court for the Western District of Wisconsin.
No. 94 CR 56--Barbara B. Crabb, Chief Judge.
Before POSNER, Chief Judge, COFFEY and ROVNER, Circuit Judges.
DECIDED DECEMBER 20, 1995
Catherine A. Demski, Gary P. Taylor, Sr. and Harley Pryne appeal their respective sentences, which stem from participation in a drug distribution conspiracy based in western Wisconsin between Spring of 1992 and mid-February of 1993. Five of the key players in this conspiracy, including the appellants, were indicted by a federal grand jury on June 22, 1994 and charged in Count I of the indictment with having conspired to distribute cocaine between July 1, 1991 and February 13, 1993, in violation of 21 U.S.C. sec. 841(a) and 21 U.S.C. sec. 846. Count II charged all of the defendants except Demski with conspiring to distribute marijuana during the same time period. Count III charged Charles Taylor, Jason Craig, and Pryne with possession with intent to distribute cocaine on September 30, 1992, in violation of 21 U.S.C. sec. 841(a)(1). The fourth count of the indictment charged Charles and Gary Taylor and Pryne with possession with intent to distribute cocaine on or about February 12-13, 1993, in violation of 21 U.S.C. sec. 841(a)(1).
The appellants entered into written plea agreements in late September 1994. Gary Taylor, Sr. and Pryne agreed to plead guilty to Count IV of the indictment. Demski agreed to waive prosecution and plead guilty to a one-count information charging her with an attempt to possess cocaine with intent to distribute on or about February 12-13, 1993, in violation of 21 U.S.C. sec. 846. The district court accepted these pleas and sentenced the defendants on December 14, 1994. Demski was sentenced to 150 months imprisonment, to be followed by five years of supervised release, and ordered to pay a criminal assessment penalty of $50, plus $198 in restitution to the Wisconsin Crime Laboratory. Gary Taylor, Sr. and Pryne were each sentenced to a prison term of 87 months, to be followed by five years of supervised release, and ordered to pay a criminal assessment penalty of $50, plus $198 in restitution to the Wisconsin Crime Laboratory.
Demski, Pryne, and Gary Taylor, Sr. appeal their senences, arguing: (1) that the district court incorrectly determined the quantities of cocaine attributable to them for sentencing purposes, and (2) that Catherine Demski was improperly denied a three-point reduction in her offense level for acceptance of responsibility. We AFFIRM.
In the Summer of 1991, 28-year old Catherine Demski was living in Wisconsin Rapids, Wisconsin, where she operated a business called "Metro Liquidators" and cared for her infant son. Charles Taylor *fn2 moved to Wisconsin Rapids that summer and established a drywall business known as "Taylor Drywall." Charles met Demski during the summer, and he moved into her apartment above Metro Liquidators.
By the Fall, Charles Taylor was using cocaine recreationally. He began to sell marijuana and cocaine the next Spring, and shortly thereafter established a drug distribution network that included Demski and himself, at least half a dozen runners or couriers, and a drug source in Zion, Illinois, as well as numerous customers in the Wisconsin Rapids area. Antonio Guerrero, who lived in Zion, Illinois, supplied the drugs through Charles' brother, the appellant Gary Taylor, Sr., who also lived in Zion. Occasionally, Demski and Charles would drive to Zion to pick up the cocaine, and at times Gary would transport the drug shipments to Wisconsin. By and large, however, Charles employed runners or couriers (including the appellant Harley Pryne) to transport the drugs from Illinois to Wisconsin. The runners would often transport cars, children, or tools back and forth between the two states as a cover for the drug operation. When the runners returned to Wisconsin Rapids with cocaine, Demski and Charles would retain some of the drug for their own use and "cut" the remainder with Inositol. *fn3 Thereafter, they would weigh and package the cut cocaine for distribution to their customers. Demski kept records documenting how much cocaine had been "fronted" (supplied to customers on credit) and how much money each customer owed.
Customer Ray Ninneman: Spring 1992--December 1992
Ray Ninneman was one of the individuals to whom Charles sold drugs. Ninneman informed police detectives that he regularly obtained drugs from Charles Taylor between the Spring of 1992 and December of 1992. Ninneman related that he would usually pick up the cocaine at the Taylor-Demski apartment, where he observed Demski weighing and packaging cocaine while also "keeping an eye on the cash flow." According to Ninneman, Charles Taylor was orchestrating two or three trips to Illinois per week during the time frame between Spring 1992 and December 1992, and obtaining between two and eight ounces of cocaine on each trip.
Customer and Distributor Chad Kuehl: April 1992--December 1992
Chad Kuehl, who began purchasing marijuana from Charles Taylor in April of 1992 and later bought cocaine from him, eventually became a trusted associate of Taylor. Kuehl told investigators that in the early Fall of 1992, a member of the conspiracy travelled to Illinois roughly every three days. Later in the Fall, according to Kuehl, the trips often occurred daily and involved between two and eight ounces of cocaine. At one time, Charles Taylor told Kuehl that he was getting $10,000 worth of cocaine a week. Kuehl stated that he and Charles Taylor "figured it out one day" and calculated that the conspiracy had distributed twenty pounds of cocaine and one hundred pounds of marijuana between July and December of 1992.
Courier William Nelson: May 1992--September 1992
William Nelson, Charles Taylor's first drug courier, travelled to Zion, Illinois during the Spring, Summer, and early Fall of 1992 to pick up cocaine and marijuana from Charles' brother, Gary Taylor, Sr. Nelson's live-in girlfriend, Marilyn Draxler, was interviewed by Government investigators following the indictments in this case and recalled that Nelson began running drugs for Charles Taylor in May or June of 1992. Nelson himself gave varying accounts of his role in the conspiracy. He testified before the grand jury that he made drug runs once or twice a week "basically all summer, right up until a little bit before deer hunting [season]" (November) and that he picked up five or six ounces of cocaine per trip. More recently, when interviewed by a probation officer, Nelson recalled smaller amounts of cocaine (three to four ounces) and less frequent trips (generally once a week).
Courier Jason Craig: Summer 1992--Fall 1992
In the Summer of 1992, Charles Taylor persuaded Jason Craig (whom he had met in Illinois) to move to Wisconsin Rapids, promising him a job in his drywall business and a place to stay. Craig recalled for the grand jury and the author of the Presentence Investigation Report ("PSR") that he moved in with Charles Taylor and Catherine Demski just before the Fourth of July 1992. According to the PSR:
Craig learned immediately that Charles Taylor used cocaine because he would do so on the job sites. He immediately learned that Charles Taylor sold marijuana, and in about July he learned that Charles Taylor also sold cocaine. By the end of July, Craig had seen Charles Taylor with . . . cocaine . . . and observed [him] weighing cocaine on a triple beam scale.
Craig recalled that he began to run drugs for Charles Taylor during mid or late August. On the first of these expeditions, Charles Taylor gave Craig an envelope to deliver to his brother Gary Taylor, Sr. Craig went to Zion and delivered the envelope, receiving in exchange a package approximately 6 inches X 8 1/2 inches. Upon returning to Wisconsin Rapids, Craig gave the package to Charles Taylor, who opened it in Craig's presence, revealing cocaine. Craig then observed Taylor cut the cocaine and weigh it for distribution.
Craig recalled making about seven additional trips to Illinois from late August through the Fall. Craig stated that on four or five of these forays, he was accompanied by the appellant Pryne. Craig stated that he always picked up drugs from Gary Taylor, Sr. and that the usual amount of cocaine for each pick-up was four ounces.
Courier Harley Pryne: August 1992--February 1993
The appellant Harley Pryne joined the conspiracy in late August or early September and was soon pressed into service as a courier or runner transporting drugs between Zion and Wisconsin Rapids. Charles, who was selling cocaine to Pryne for his personal use, took advantage of Pryne's addiction and his indebtedness to enlist his help. *fn4
Pryne recalled making about seven trips to Illinois between October 1992 and February 13, 1993, often with Craig. Pryne estimated the usual amount of each pick-up at three ounces (less than the amount estimated by Craig). *fn5 On December 15, Pryne was injured in a car accident and entered a drug treatment program, temporarily interrupting his participation in the conspiracy. After his release from drug therapy on January 20, 1993, however, Pryne resumed his cocaine habit vis-a-vis Charles Taylor and took part in a run to Illinois on February 12-13, 1993, which led to his arrest.
The Trip to Arizona: September 1992
In late September, Charles Taylor, Jason Craig, Harley Pryne, William Nelson, and an individual named Randy Popp drove to Arizona, where they obtained somewhere between five and twelve ounces of cocaine and approximately two pounds of marijuana. They returned to Wisconsin within a few days.
Search of Taylor-Demski Apartment: December 1992
On December 6, pursuant to a search warrant, police searched the apartment shared by Charles Taylor and Catherine Demski. While they found only small amounts of cocaine and marijuana, they discovered drug paraphernalia (scales, sifters, Inositol, a drug ledger) suggesting that Taylor and Demski (the sole occupants of the apartment as far as the record reveals) were engaged in the business of processing and distributing drugs. Taylor was arrested. *fn6
On the same day, the police executed a search warrant at the home of Chad Kuehl, where they discovered similar drug paraphernalia. Kuehl was arrested for possession of drug paraphernalia and for earlier sales of controlled substances to an undercover officer. He told police that Charles Taylor had been his source for these transactions. Kuehl also informed the police that he had recently observed Charles Taylor counting out $16,000 in cash in preparation for a trip on which Taylor himself would go to Illinois and pick up eight ounces of cocaine. Finally, Kuehl related that he had observed Charles Taylor with between six and eight ounces on the evening of December 5.
Cocaine Sale to Detective Jackie Albers: February 1993
In February of 1993, local law enforcement officers successfully infiltrated the drug distribution conspiracy spearheaded by Charles Taylor and obtained valuable information about its operations. Stacey Lecas, who had purchased cocaine from Jason Craig since October of 1992, began cooperating with the Government as of February of 1993. *fn7 On February 10, Lecas contacted Charles Taylor to arrange for a purchase of cocaine by her friend "Allie." Unbeknownst to Charles Taylor, "Allie" was Detective Jackie Albers, an undercover officer working for the Marshfield, Wisconsin police department. When Lecas phoned Catherine Demski, trying to find Charles, Demski informed her that Charles was arguing with the source over price and asked if she was interested in going to Illinois to pick up the drugs herself. When Lecas replied that she was not interested, Demski suggested sending Harley Pryne for the drugs, stating: "We send Harley all the time. We give him four or five grand, six grand, it doesn't matter 'cause he's good for it, and so what we want to do is see who wants to come up with something and then we just give him the money and then he takes off and he's good for it." Lecas remained dubious. Charles Taylor finally agreed to let Allie accompany Pryne on his trip to Illinois on February 12, 1993. In addition to Allie's cocaine, Pryne was scheduled to pick up an ounce of cocaine for another customer, Tom Arnold, who had already paid Demski $1,600 for the ounce.
On February 12, Charles Taylor and Detective Albers drove to a gas station near Wisconsin Rapids to rendezvous with Pryne. On the way, Charles informed "Allie" that he made his money selling cocaine and that his business, Taylor Drywall, was a cover for his drug trafficking activity. When Charles Taylor and Detective Albers arrived at the gas station, Charles gave Pryne a large amount of cash, Pryne got into "Allie's" car, and the two drove to Zion.
During the trip, Pryne revealed that he had joined Charles Taylor's drug distribution operation during the Summer of 1992, that one of the conspirators went to Illinois to pick up cocaine at least twice a month (but sometimes as often as two or three times per week), and that the usual amount of cocaine transported on each trip was eight ounces.
When Pryne and Albers arrived at Gary Taylor, Sr.'s house in Zion, Pryne delivered the cash to Gary, who told Albers that he would return shortly with her "tools." After some time, Gary returned and directed Pryne to a car parked some distance from his house, where two plastic baggies of cocaine were buried in the snow next to the rear tires.
That night, on the return trip to Wisconsin with Detective Albers, Pryne divulged further details about the Taylor conspiracy. He repeated that the organization sent a runner to Illinois at least twice a month and that the usual amount of cocaine transported was eight ounces. On this occasion, Pryne admitted that a runner went to Illinois as frequently as every few days and that the pickups at times involved an additional three to five ounces of cocaine. Pryne told Albers that in the wake of the December search by the police, Charles Taylor no longer stored cocaine at the apartment he shared with Demski. Rather, he stored the drugs at his house in Wisconsin ...