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United States v. Carter

August 27, 1997

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

MARVER LIN CARTER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 95 CR 28 William C. Lee, Chief Judge.

Before BAUER, CUDAHY and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

ARGUED MAY 23, 1997

DECIDED AUGUST 27, 1997

After Marver Carter and an accomplice were caught with cocaine in his car, Carter pleaded guilty to conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. sec. 846. The district court accepted his plea and began the process of calculating his sentence under the United States Sentencing Guidelines. Carter requested a downward departure for his strong family and community ties, U.S.S.G. sec. 5H1.6, stable work history and record of good works, U.S.S.G. sec. 5H1.5 & sec. 5H1.11, genuine remorse and immediate acceptance of responsibility for his crime, U.S.S.G. sec. 3E1.1, as well as for his substantial cooperation with law enforcement and prosecution, U.S.S.G. sec. 5K1.1. The district court denied his request and sentenced him to 168 months in prison, the shortest sentence within the applicable guideline range. Carter appeals, contending that the district court applied the guidelines formalistically without considering the purposes of sentencing as they relate to his specific case and without considering his exceptional circumstances. He further argues that the district court erred in not requiring the government to seek a downward departure in return for his cooperation. We have jurisdiction under 28 U.S.C. sec. 1291 and 18 U.S.C. sec. 3742(a)(1) & (2). *fn1 We affirm.

I. Factual Background

On August 23, 1995, on their way from Tucson, Arizona to Fort Wayne, Indiana, Marver Carter and his passenger were stopped by Sergeant Ed Delmore of the Collinsville, Illinois police, for having no license plates. Sergeant Delmore questioned each separately and, after receiving contradictory explanations from the two about their travels, he told them the car would have to be towed. Sergeant Delmore then asked for and received permission to search the car. In a suitcase, Sergeant Delmore found what, from his experience, appeared to be a kilogram package of cocaine. He arrested Carter and his passenger. Continuing his search, Sergeant Delmore found what appeared to be four more kilograms of cocaine in the suitcase. A field test of one of the packages proved Sergeant Delmore correct. Both suspects were read their Miranda rights and they agreed to cooperate.

Carter placed a taped call to his buyer in Fort Wayne, Indiana. Drug Enforcement Agency agents then escorted Carter to Fort Wayne to meet his buyer at a motel. After the drug transaction took place, police arrested the buyer, Jiermal Walker, who also agreed to cooperate. This led to the arrest of another buyer, Shaft Jones. All four men were indicted on September 22, 1995. On March 6, 1996 Carter pleaded guilty without a plea agreement.

The probation office prepared its presentence investigation report (PSI), which noted a substantial number of Carter's virtues. According to the PSI, Carter is a married father of three young children. While on bail, Carter worked at the Sunnyside School District as a teacher's aide and specialized in working with disabled children. Carter did not blame others for his predicament and held no grudges toward those who arrested and prosecuted him. These circumstances led the probation officer to consider Carter to be somewhat unique and unlike most defendants. Under the Sentencing Guidelines, Carter's base offense level was calculated as 34, to which four points were added under U.S.S.G. sec. 3B1.1 because of his role as a leader or organizer. Then three points were subtracted under U.S.S.G. sec. 3E1.1 for Carter's acceptance of responsibility. This led to an adjusted offense level of 35. Carter had no prior criminal history, placing him in Category I, and resulting in a sentence range of 168 to 210 months.

Carter requested a downward departure, citing his family and community ties, work history and unique level of remorse. He requested that the district court examine the four purposes of sentencing (deterrence, incapacitation, retribution and correction) in considering a departure, arguing that these purposes would be fully served by a more lenient sentence. He also cited his immediate acceptance of responsibility for his crime and his cooperation with prosecutors. The district court denied Carter's requests and sentenced him to 168 months in prison (the guideline minimum).

II. Legal Analysis

Carter now argues that the district court erred in not granting him a downward departure. First, Carter argues that the court failed to consider the purposes of sentencing in not taking his specific circumstances into account. Second, Carter argues that the district court applied the guidelines formalistically and rigidly, misinterpreting their requirements. Finally, Carter argues that the district court erred in not requiring the government to move for a downward departure based on his cooperation. We consider each argument in turn.

We review for abuse of discretion. See Koon v. United States, 116 S. Ct. 2035, 2046-48 (1996); United States v. Billingsley, 115 F.3d 458, 466 (7th Cir. 1997). A district court abuses its discretion when it makes an error of law. Koon, 116 S. Ct. at 2047-48. A district court's decision to depart (or not) from the guidelines is "due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court." Id. at 2046. "District courts have an institutional advantage over appellate courts in making" sentencing determinations, id. at 2047, and we accept the ...


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