On Appeal from the United States District Court for the Western District of Wisconsin.
No. 94 CR 39--John C. Shabaz, Judge.
Before BAUER, CUDAHY and RIPPLE, Circuit Judges.
ARGUED SEPTEMBER 22, 1995
Vincent Townsend was charged with conspiracy to distribute cocaine base and possession of cocaine base with intent to distribute. See 21 U.S.C. secs. 841(a)(1) and 846. Mr. Townsend pleaded guilty to the second count, possession. On April 10, 1995, he was sentenced to 108 months in prison and five years of supervised release. Mr. Townsend appeals the sentencing court's calculation of the amount of cocaine base included in his relevant conduct and the court's denial of an additional one-level adjustment for acceptance of responsibility. See U.S.S.G. sec. 3E1.1(b). For the reasons set forth in the following opinion, we affirm in part and reverse and remand in part the judgment of the district court.
In March 1993, a series of arrests in Madison, Wisconsin led police to Vincent Townsend. *fn1 First Dwight Walker told Madison Police Detective William Searls that Brian Beal and Franklin Robinson had supplied him with cocaine base and had sold cocaine base out of Walker's apartment. Walker described Beal and Robinson; he then informed Detective Searls that they were at the Highlander Motel, that they were from Chicago, and that they worked for Beal's cousin, another Chicagoan named "Vincent."
When officers detained, questioned and later arrested Beal and Robinson at the Highlander Motel, they found 1.48 grams of cocaine base in baggies (sometimes called "gem packs") in the snow where Robinson had been standing and 24.9 grams of cocaine base under the carpet in the motel room. Beal eventually told Detective Searls that the drugs in the motel room belonged to Vincent Townsend and that Robinson sold Townsend's cocaine base in Wisconsin. Beal also stated that he had come to Wisconsin four or five times with Vincent Townsend to drop off cocaine base for Robinson at the apartment Robinson shared with Daphne Walker. In a separate interview, Robinson admitted that he had obtained the cocaine base from Vincent Townsend. He explained that he had sold Townsend's cocaine base in Madison for the prior five or six months. He received deliveries from Townsend twice a month. Dwight Walker later identified Beal and Robinson from their photographs and confirmed that they dealt cocaine base for Vincent Townsend.
Others who were interviewed by Officer Searls also implicated Mr. Townsend in the conspiracy. *fn2 On March 31, 1993, Robinson's girlfriend, Daphne Walker, testified before the grand jury that Vincent Townsend was the "leader," that he brought cocaine base to Robinson approximately twice a month, and that the drug proceeds were "wired" back to Vincent Townsend in Chicago. On August 25, 1993, Franklin Robinson testified before the grand jury as well. He stated that Vincent Townsend first brought an eighth of an ounce of cocaine base (an "eight-ball") for him to sell in Madison, and that Mr. Townsend continued, thereafter, to bring cocaine base from Chicago about every other week for six months, eventually delivering one ounce of cocaine base each time. Robinson also verified that Beal, Vincent Townsend's cousin, joined the conspiracy and sold cocaine in Madison. Drug proceeds were then "wired" back to Mr. Townsend. Western Union corroborated that testimony: Between June 20, 1992, and February 3, 1993, Vincent Townsend received $5,693 via Western Union from individuals in Madison; in all, $13,419 was wired to or from Mr. Townsend during that time period.
On the basis of that information, a federal grand jury indicted Mr. Townsend. He eventually pleaded guilty to the second count of the indictment, possession with intent to distribute. In its presentence report, the government submitted that Mr. Townsend possessed approximately 95.85 grams of cocaine base between June 1992 and March 1993 *fn3 and 26.38 grams found at the motel on March 3, 1993. The defendant filed objections and amended objections *fn4 to the presentence report.
B. The Sentencing Determination
At the sentencing hearing conducted by the district court on April 10, 1995, Mr. Townsend admitted supplying to Beal and Robinson the 24.9 grams of cocaine base found on March 3, 1993. However, he denied responsibility for any prior cocaine transactions with those two men and insisted he was not their source for whatever cocaine base they may have distributed in Madison before March 1993. He also contended that the Western Union transfers did not represent drug proceeds. He claimed, in his Objection to the Presentence Report, that the wire transfers were made to a stepbrother for car payments, to another man to buy car rims and tires, and for monies borrowed by various people. In support of that statement, Mr. Townsend submitted two affidavits indicating that wire transfers to Yolanda Robinson and to Rona Mosely were not for drug-related activities.
Nevertheless, the court believed that the evidence overwhelmingly reflected "that the grams involved are at least 50 and as much as 150." R.34 at 15. Based on Mr. Townsend's admissions, the court initially determined that Robinson, Beal and the defendant were involved with the gem packs weighing 1.48 grams that were found outside the motel room in the snow and the 24.9 grams found in the motel room. The court then determined that Mr. Townsend was the source of supply for Beal and Robinson prior to March 1, 1993. It accepted Robinson's and Daphne Walker's sworn statements to the grand jury that Robinson was selling Mr. Townsend's cocaine base over a period of six to seven months prior to the motel incident. The court then estimated that Mr. Townsend came to Madison delivering an ounce of cocaine once a month, for an additional amount of seven ounces. After noting that the defendant was not earning any money from gainful activity but that he was getting money from somewhere, the court concluded that Mr. Townsend's Western Union transfers represented drug proceeds. It noted the presentence report's calculation that 95.85 grams of cocaine base could be attributed to Townsend. To ensure against over-estimating the amount, the court accepted only ...