Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division.
No. 95 CR 40055 William L. Beatty, Judge.
Before POSNER, ESCHBACH, and EVANS, Circuit Judges.
DECIDED FEBRUARY 18, 1997
After Steven Otis' conviction on drug charges, the district court imposed a longer sentence than that recommended by the applicable guideline range. Otis appeals this upward departure on three grounds: (1) he did not receive notice of the court's intent to depart; (2) the circumstances did not provide a valid basis for an upward departure; and (3) the district court failed to give reasons for the extent of the upward departure. For the reasons stated below, we remand for resentencing.
When law enforcement officers searched Steven Otis' home, they found large quantities of marijuana and guns. Otis later pled guilty to conspiracy to distribute and to possess with intent to distribute marijuana, see 21 U.S.C. sec. 846, possession with intent to distribute marijuana, see 21 U.S.C. sec. 841, and using and carrying a firearm during a drug trafficking offense, see 18 U.S.C. sec. 924(c). The third charge was dismissed on the government's motion based on Bailey v. United States, 116 S. Ct. 501 (1995) (holding mere possession insufficient to convict of using a firearm during a drug trafficking offense), and Otis was convicted of the first two charges. After his arrest, Otis cooperated with police to gain evidence against his co-conspirator and supplier, Stephen Brenningmeyer. Apparently, Brenningmeyer was involved in a larger drug conspiracy known as the "English conspiracy," through which he obtained his drugs and sold to others besides Otis. Brenningmeyer was arrested and, like Otis, agreed to cooperate with the police; however, he was subsequently shot, presumably by someone who discovered this cooperation.
At Otis' sentencing, the district court found that there was insufficient evidence to show Otis had anything to do with the Brenningmeyer shooting, and thus refused to increase Otis' sentence for obstruction of justice. It also found that Otis was not "technically" part of the larger "English" conspiracy. Based on these facts, Otis' offense level was 25, which gave a sentencing range of 57-71 months. However, upon making this finding, the court stated its view that Otis' crime
may well be more significant than that range would indicate. Granted that I have said there is not enough evidence to persuade me that Mr. Otis had anything to do with Mr. Brenningmeyer's shooting. You can't get away from the fact that if you look at this operation as a whole, we've got guns, we've got shootings, we've got an operation covering two states. Sent. Tr. at 47.
Upon so stating, the court invited the government to make arguments as to an upward departure.
After arguments, the court decided to depart upward from the guidelines by two levels, resulting in a sentencing range of 70 to 87 months, and sentenced Otis to the 87 month maximum. The court's reasons for departing included that Otis "was certainly part of one conspiracy which overlapped with other conspiracies which pretty well blanketed apparently Southern Illinois and parts of Kentucky with buying and selling marijuana." Sent. Tr. at 51. The court also said that the shooting of Brenningmeyer served to show the "seriousness of this offense" and that Otis would be receiving a light sentence in comparison to similar cases without the upward departure. Otis now appeals his sentence claiming the court's upward departure was error.
Otis first argues that he must be resentenced because the court gave him insufficient notice of its intent to depart from the guidelines. We agree. The district court must provide reasonable notice of its intent to depart, identifying the specific ground on which the court is contemplating departure. Burns v. United States, 111 S. Ct. 2182 (1991); United States v. Muzika, 986 F.2d 1050, 1055 (7th Cir. 1993); see also United States v. Jackson, 32 F.3d 1101, 1105-06 (7th Cir. 1994) (requiring reasonable notice that court intends to enhance sentence on previously unidentified ground). The defendant has a right to ...