Appeal from the United States District Court for the Southern District of Illinois.
95-CR-40005-002 J. Phil Gilbert, Chief Judge.
Before BAUER, KANNE, and EVANS, Circuit Judges.
Willie Webb appeals the sentence of 96 months in prison imposed for his conviction for conspiracy to distribute cocaine (21 U.S.C. secs. 841(a)(1) and 846). He claims that the district court clearly erred in denying him a reduction in offense level for acceptance of responsibility under U.S.S.G. sec. 3E1.1, especially in light of the reduction that it granted him under U.S.S.G. secs. 2D1.1(d)(4) and 5C1.2. We affirm.
On February 7, 1995, a confidential informant provided evidence to investigative agents that Willie Webb had just sold him 0.8 grams of crack cocaine at an apartment in Carbondale, Illinois. Later that day, agents executed a search warrant at that apartment, where they found Webb and four other individuals, including Thaddeus Brown. Among the items seized from the apartment were approximately 38 grams of cocaine, as well as drug paraphernalia. During a custodial interview the next day, Webb admitted that he had assisted Brown in the packaging of crack cocaine for resale. He also stated that he took money from customers and gave it to Brown, and that Brown in turn provided the customers with crack cocaine.
Webb and Brown were indicted on February 8, 1995, on one count of conspiracy to distribute cocaine. At their arraignment, Webb and Brown both pleaded not guilty. A magistrate judge ordered Brown detained, but released Webb on $20,000 unsecured bond. A pretrial conference was held, at which time change of plea hearings for Webb and Brown were set for May 18. Brown changed his plea to guilty on May 18; but Webb failed to show up. The district judge issued a warrant for Webb's arrest due to his failure to appear. Webb surrendered himself to the United States Marshal seven months later, on December 18, 1995.
At a change of plea hearing on January 11, 1996, Webb entered an open plea of guilty to the indictment. During the hearing, Webb admitted that he had packaged crack cocaine, and that he knew that Brown had distributed the drugs. However, Webb denied distributing crack cocaine himself, stating in response to the question whether "you and Thaddeus Brown were packaging and distributing crack cocaine": "Well, we were packaging, but I wasn't distribution [sic]." He made additional statements to the same effect during the hearing, such as, "Well, I know I'm guilty of manufacturing because I cut up a couple of things, but other than that . . . ."
The presentence report (PSR) determined that Webb was not eligible for a downward adjustment pursuant to U.S.S.G. sec. 3E1.1, because Webb had "not shown an affirmative acceptance of responsibility for his actions to the probation officer." Webb objected to the PSR, claiming that he was entitled to a three-level reduction under sec. 3E1.1. The objections contended that Webb had followed through on his asserted intention to plead guilty, and that upon counsel's return from an extended leave during the presentencing period, counsel obtained Webb's handwritten statement accepting responsibility. In this statement, which was attached to the objections, Webb "accept[ed] responsibility that I assisted with the packaging of some of the drugs that was [sic] found in 420 South Graham." He also stated that "[o]n Monday Febeary 6 [sic] on three or four different occasions I took money from individuals and gave the money to Thaddas Brown [sic] and in return he gave drugs to them." The objections to the PSR further indicated that Webb planned to seek a two-level reduction under U.S.S.G. secs. 2D1.1(b)(4) and 5C1.2. *fn1 In response to Webb's objections, the probation officer noted that he had received Webb's undated statement on acceptance of responsibility, but suggested that the timeliness of Webb's action should be considered.
At the sentencing hearing on June 20, 1996, both sides presented arguments on the applicability of sec. 3E1.1 and sec. 5C1.2(5). *fn2 The government noted that Webb had never admitted that he had distributed crack cocaine, even though the confidential informant had confirmed that Webb sold cocaine to him on February 7, 1995. Accordingly, the court asked Webb whether he physically distributed drugs on that date, and Webb replied that he did.
After further argument, the district court decided to deny a sec. 3E1.1 reduction, but award a sec. 5C1.2 reduction. The district court made its finding on the sec. 3E1.1 issue "based on several factors, but primarily, the fact that the defendant when he became a fugitive, that in itself is inconsistent with someone accepting responsibility for his criminal activity." In the court's view, Webb "got a break" in not being recommended for an upward adjustment for obstruction of justice, U.S.S.G. sec. 3C1.1, given that "he escaped or attempted to escape from custody before trial or sentencing or willfully failed to appear as ordered for a judicial proceeding." The district court also did not "think that timeliness was manifested here," and opined that "[t]here is an element of timeliness in the acceptance of responsibility and of 3E1.1 as I view it and read the commentary and believe the intent of the Sentencing Commission is [sic]." As to the reduction provided by secs. 2D1.1(b)(4) and 5C1.2, and in particular sec. 5C1.2(5), the district court thought it "kind of strange that a defendant can basically hold out till the time of sentencing and just walk in and say, 'Yeah, I did this and did that[,]' [a]nd provide the government the truthful information." Nevertheless, "in light of what has transpired ...