Appeal from the United States District Court for the Eastern District of Wisconsin. No. 92-CR-84--J.P. Stadtmueller, Chief District Judge.
Before CUMMINGS and CUDAHY, Circuit Judges, and LEINENWEBER, District Judge. *fn*
LEINENWEBER, District Judge.
SUBMITTED NOVEMBER 1, 1995
On April 14, 1992, a grand jury indicted the appellant, Granvel E. Windom ("Windom"), on six counts of possession with intent to distribute heroin and cocaine, and on three firearm related counts. He was convicted by a jury of four of the possession with intent to distribute counts, and the lesser included offense of simple possession on the other two drug counts. He also was convicted of two of the three firearm counts. Because the firearm counts required mandatory minimum consecutive prison terms, he was sentenced to the minimum sentence authorized which was 410 months. *fn1
He appealed to this court and we reversed two possession with intent to distribute counts and a related firearm violation and remanded the case for resentencing. United States v. Windom, 19 F.3d 1190 (7th Cir. 1994), cert. denied, 115 S.Ct. 174 (1994). On remand, the district judge sentenced Windom to 180 months in prison. *fn2
In both sentencing hearings, the District Judge was called upon to make calculations under the sentencing guidelines for the drug possession/distribution counts. He concluded, based on testimony of a DEA agent, that 782.3 grams of cocaine and 16 grams of heroin were attributable to Windom. This resulted in a base offense level of 26 under sec. 2D1.1(a)(3) and the drug quantity table located at sec. 2D1.1(c)(9). The cocaine quantity included 762 grams recovered as a result of a search warrant execution carried out by the Milwaukee Metropolitan Drug Enforcement Group on February 11, 1991, which was attributed by the District Judge to Windom, but with which he had not been charged. Thus, the uncharged conduct constituted over 90 percent of all the cocaine attributed to Windom for sentencing purposes.
At the original sentencing hearing, a special agent with the Bureau of Alcohol, Tobacco and Firearms, Scott Perala ("Perala"), testified concerning the February 11, 1991 incident. His knowledge of and testimony relating to Windom's connection to the drug recovery was based on a report of the Milwaukee County Sheriff concerning ownership and possession of the apartment in which the cocaine was found, and upon information obtained from two reliable informants. The building was owned by a Brenda Faye Brown ("Brown"). However, the utilities were registered in Windom's name. Brown told the sheriff that she had rented the apartment to a Mr. and Mrs. Horton (the "Hortons"). One day in December, 1990 when she went to the premises she met Windom, who told her he was taking care of the premises for the Hortons. On this occasion he paid their rent in cash to her and he continued to pay the rent on subsequent occasions through March, 1991. Brown said that when she went to the premises on the first occasion she found that a security door had been installed without her permission. Perala testified that he had received information from two reliable sources that corroborated the statements of Brown and supplied additional information that Windom and others had rented and were using the apartment for purposes of cutting, packaging and selling cocaine. Windom's role, according to these sources, was as keeper of the residence, to supply security, and to make sales of heroin and cocaine. Perala testified that in his opinion these sources were reliable, which was based on the quality of information that they had provided him and the Milwaukee police and sheriff's departments by these sources in the past. Since both sources were involved in an ongoing investigation concerning a federal court case, he declined to reveal their names. Based on this evidence, the District Judge concluded that Windom was chargeable with the 762 grams of cocaine and that the very best position in which Windom could place himself concerning the disputed drugs was that of a co-conspirator with joint possession of the cocaine with others. The district judge was not asked nor did he find at the first sentencing hearing that Windom played a minor role in the offenses. *fn3
On his first appeal, Windom did not raise as error either the attribution of the 762 grams of cocaine or the failure to find that he had a minor role in the offense. Windom did, however, argue that the 410-month sentence constituted cruel and unusual punishment in violation of the Eighth Amendment. Insofar as we reversed three substantive counts of conviction which had a major impact on his sentence, we remanded the case for resentencing without reaching the propriety of his sentence.
At resentencing, Windom again argued that the evidence tying him to the 762 grams of cocaine was insufficient to attribute the conduct to him. He also raised for the first time that he should be awarded a two-level reduction for having played a minor role in the offense. The district court disposed of the attributable conduct argument by relying on the evidence and findings made in the initial sentencing hearing. He added, however, that certain new information contained in the supplemental presentence report, which he stated he was not relying on either to enhance or reduce the offense level, "simply underscore[d] the fact that the court made the right decision the first time." *fn4 For similar reasons, he declined to award Windom a reduction as a minor participant.
On appeal, Windom contends that the district court clearly erred in including the 760 grams of cocaine as relevant conduct and in denying him a two-level reduction as a minor participant. Initially, the government contends that Windom waived these two contentions by failing to raise them in his first appeal. In support it cites several cases where waiver was found when a Section 2255 petitioner sought to raise non-constitutional errors for the first time. However, these cases are distinguishable because they involve proceedings after final judgments had been entered by the trial court. The law is clear that decisions of a lower court that have not been ruled on by the appellate court can be reconsidered at the request of a party by the lower court at anytime prior to the entry of final judgments. All such decisions are interlocutory and can be reconsidered when justice requires. United States v. Uccio, 940 F.2d 753, 758 (2nd Cir. 1991). This is the reciprocal to the law of the case doctrine: upon remand a district court may reconsider any matter that is not expressly or implicitly part of the decision of the court of appeals. In United States v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994), the government made a similar waiver argument on a appeal of a resentencing. The appeals court stated in response that the "government's position [that failure to raise a guideline argument on the first appeal constitutes waiver] is not correct as a general proposition. . . ." Accordingly, there was no waiver on Windom's part by virtue of failure to raise these matters in his first appeal.
The base offense level for a narcotic offense is in part determined by the quantity of narcotics for which the defendant is accountable. U.S.S.G. sec. 2D1.1(a)(3) and (c). The greater the quantity, the higher the offense level. The quantity includes not only the amount involved in the offense of conviction but the quantity involved in "relevant conduct"; that is, "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. sec. 1B1.3(a)(2) (incorporating by reference U.S.S.G. sec. 3D1.2(d)). A defendant need not be either charged or convicted of carrying out these other acts. United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991). The sentencing judge is required to consider relevant conduct when calculating the base offense level to determine the appropriate guideline range. United States v. Ruiz, 932 F.2d 1174, 1183 (7th Cir. 1991). A district court's calculation of the quantity of drugs involved in the offense and in relevant conduct is a finding of fact and is subject to the "clearly erroneous" standard. United States v. Montgomery, 14 F.3d 1189, 1196 (7th Cir. 1995). We must affirm the quantity finding unless "on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed." Duarte, at 1262. The uncharged conduct need only be supported by a preponderance of the evidence. United States v. Ross, 959 F.2d 1050, 1054 (7th Cir. 1991). The rules of evidence do not apply and the sentencing judge is free to consider a wide range of evidence, including hearsay. United States v. Corbin, 998 F.2d 1377, 1385 (7th Cir. 1993), cert. denied, __ U.S. __, 114 S.Ct. 1124, 127 L.Ed.2d 432 (1994). However, a defendant has a due process right to be sentenced on the basis of reliable information, and the relaxed standards at sentencing are somewhat in tension with that right. United States v. Campbell, 985 F.2d 341, 348 (7th Cir. 1993). We have resolved this tension by requiring that a defendant have a reasonable opportunity to rebut contested hearsay and that the contested hearsay be reliable. To succeed on a challenge the defendant must show that the information before the court was inaccurate and the court relied upon it. Id.; United States v. Musa, 946 F.2d 1297, 1306 (7th Cir. 1991).
The evidence relied upon by the District Judge at the first sentencing hearing included the finding of 762 grams of cocaine by police executing a search warrant at 3119 North 24th Street in Milwaukee. Although Windom was not present at the time of the raid, the utilities to the apartment were registered in his name, he was paying the rent in cash directly to the owner, and rent receipts were prepared in his name. There was a security door installed at the apartment unbeknownst to the owner. In addition, two reliable informants had told the agent that Windom had rented and used the apartment to cut, package, and sell illegal drugs. Windom neither testified nor offered any other evidence to rebut this evidence.
At the second sentencing hearing, the court received substantial amounts of new evidence implicating Windom in a major distribution ring run by a Milwaukee street gang called the "Crypts." *fn5 This evidence revealed that the defendant was connected with at least four other Milwaukee drug houses which were part of the Crypt organization. The source of this evidence was testimony of witnesses in another federal court drug case, United States v. Twan James, et al., (E.D.Wis. Case No. 92-CR-178). While the District Judge stated on the record that he was not relying on this evidence to enhance the offense level under the guidelines, he did, however, appear to consider it as corroborative because he stated that the new evidence "underscored[ed] the fact that the court had made the right decision the first time." Again, Windom produced no evidence to dispute any of these allegations, either new or old. His only remarks concerning drug dealing were made at the elocution stage of the sentencing hearing in which he made an unsworn declaration that he was not a member of the Crypt gang. He, however, did not dispute any of the factual allegations of drug dealing made by any of the out-of-court declarants. The only evidence that Windom did produce disclosed that he had made strides towards rehabilitation and was shaking his drug addiction. All of the information submitted on the subject was either in the record from the prior sentencing hearing or was contained in the presentence report which Windom received prior to the sentencing hearing. Thus, Windom ...