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United States v. Pippen

May 20, 1997




Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.

Nos. 3:94 CR 02 (11), 3:94 CR 02 (10), and 3:94 CR 02 (8) James T. Moody, Judge.

Before CUMMINGS, RIPPLE, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Argued and Submitted November 13, 1996

Decided May 20, 1997

The defendants in this case were all participants in a crack cocaine distribution ring that operated in Benton Harbor, Michigan, Pontiac, Michigan, and Elkhart, Indiana. Just prior to the scheduled jury trial, defendant Damon Pippen pleaded guilty to Count 1 of the superseding indictment, which charged him with conspiracy to distribute in excess of 50 grams of crack cocaine. Defendant Kenya Lark went to trial, and the jury found him guilty on the twelve counts of the superseding indictment that pertained to him. Defendant Thomas Jones also pleaded guilty to a one count indictment that charged him with conspiracy to possess with intent to distribute cocaine base. Before this court, Pippen and Lark complain about various aspects of the sentences they received, while Jones' attorney has filed a no-merit brief under Circuit Rule 51(a) and Anders v. California, 386 U.S. 738 (1967), seeking to withdraw as counsel. We affirm the sentences Pippen and Lark received; we grant the motion of Jones' attorney to withdraw; and we will appoint new counsel for Jones. In a separate order issued today in United States v. Wallace, No. 95-1005, we grant the Anders motion of the attorney for co-defendant Ray Shawn Wallace to withdraw.

Pippen and Lark were actively engaged in the sale and distribution of crack cocaine as early as 1990. Lark maintained a number of crack houses in Benton Harbor, and one witness characterized Pippen as Lark's right-hand man, who would take over if Lark were not around. By late 1990 and early 1991, Lark, Pippen, and Calvin Graham became involved in crack cocaine sales in Pontiac. Lark furnished cocaine to Pippen (then about 17 years old), and both Pippen and Graham (then about 16 years old) sold it from a crack house Lark ran in Pontiac. Lark, Pippen, and others continued their illegal activities over the next couple of years, occasionally spending time in jail on drug-related charges but somehow escaping federal indictments during that period. By mid-1991, the conspiracy had moved into Elkhart and was active in supplying crack cocaine to buyers in the Elkhart housing projects. It was not until January 6, 1994, that the grand jury returned the indictment in this case, which named Pippen, Lark, Jones, and fourteen other co-defendants. Because the issues on appeal differ for each defendant, we consider them separately.

A. Damon Pippen

Pippen argues that the sentencing judge erred when he increased Pippen's offense level by three points based on a finding that Pippen was a manager in the conspiracy for purposes of U.S.S.G. sec. 3B1.1(b). That section provides for a three-level increase if the defendant "was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive . . . ." Pippen claims (1) that the district judge did not make sufficiently specific findings with respect to his managerial role, (2) that the judge should not have relied on testimony presented at Lark's trial without making a finding that it was relevant to Pippen's offense as required by U.S.S.G. sec. 1B1.3, and (3) that the absence of a finding that Pippen had decision-making authority or otherwise helped to run the organization was fatal to the ultimate conclusion that he was a manager.

Although Pippen is correct to point out that the sentencing judge must state in open court the reasons for the particular sentence, see 18 U.S.C. sec. 3553(c), and must make a finding on each part of the presentence report that the defendant challenges, see Fed. R. Crim. P. 32(c)(1), we find that the judge complied with both these rules. In considering the "manager" enhancement, the judge made the following statement at the sentencing hearing:

Based on everything that's in front of me, the evidence that I heard, the Lark trial, the documents that were presented, the Defendant's own statement, that there is no doubt in my mind that [Pippen] does qualify for being in a position as a manager. And therefore, the objection [to the presentence report] is overruled.

This statement was adequate under the standard we described in United States v. McKinney, 98 F.3d 974 (7th Cir. 1996), cert. denied, 117 S. Ct. 1119 (1997), in which we held that the sentencing court may discharge its duty under what is now Fed. R. Crim. P. 32(c)(1) by "making reference to the presentence report . . . especially [if] . . . the defendant has merely objected to the report . . . without offering any evidence of inaccuracy." Id. at 982 (citation omitted). (The McKinney court referred to Fed. R. Civ. P. 32(c)(3)(D), the predecessor to Rule 32(c)(1), but the change in the rule makes no difference for these purposes.) See also United States v. Carson, 9 F.3d 576, 585 (7th Cir. 1993) (affirming enhancement where the record adequately supported the finding). As in McKinney, Pippen did not take issue with any specific part of the presentence report. For its part, the government pointed out that Pippen and Lark had distributed the crack cocaine through a number of other people, that Pippen had recruited at least one person for the group, and that Pippen was Lark's right-hand man. The judge specifically referred to the supporting information in the record, including the presentence report, when he concluded that Pippen was a manager. Although the judge's explanation of his finding was regrettably brief, we find that the record adequately supported his conclusion and thus that the judge did not clearly err in imposing the enhancement. See United States v. Flores-Sandoval, 94 F.3d 346, 349 (7th Cir. 1996); United States v. Fones, 51 F.3d 663 (7th Cir. 1995). We therefore reject Pippen's first and third objections.

Pippen cannot object in general to the fact that the sentencing judge relied on information from his co-defendant's trial. The only question relevant to his second objection is whether the acts on which the judge based his conclusions were part of the same course of conduct for which Pippen had pleaded guilty. See U.S.S.G. sec. 1B1.3(2); Part B, Introductory Commentary. Here, the testimony in question dealt specifically with Pippen's role in the conspiracy -- the precise issue that was relevant for the sec. 3B1.2(b) enhancement. It was not improper for the district judge, who had also presided over Lark's trial, to take this testimony into account when he sentenced ...

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