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United States v. Partee

August 21, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JERRY K. PARTEE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 00 CR 50049--Philip G. Reinhard, Judge.

Before Posner, Manion, and Kanne, Circuit Judges.

The opinion of the court was delivered by: Kanne, Circuit Judge

ARGUED APRIL 2, 2002

Defendant Jerry K. Partee pleaded guilty to conspiracy to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and was sentenced to 408 months of imprisonment. He appeals, arguing that his sentence was unconstitutional, that the district court erred in calculating the "relevant conduct" of his offense, that the district court erred by imposing a sentencing enhancement for "obstruction of justice," and that the district court erred by failing to reduce his sentence for "acceptance of responsibility." We affirm.

I. History

After Partee pleaded guilty, the government introduced evidence of relevant conduct pursuant to United States Sentencing Guideline § 1B1.3 at Partee's sentencing hearing. This evidence included testimony from four of Partee's former drug associates and related to Partee's drug activities from November 1997 until October 2000. For example, Andre Malone stated that between November 1997 and April 1998, he purchased 2.25 to 4.50 ounces of crack every two or three weeks from Partee. Malone further stated that between April 1998 and September 1998, he purchased 0.25 to 0.50 kilograms of crack per week from Partee.

Next, William Simpson testified that he met Partee in the summer of 1998 and shortly thereafter began processing powder cocaine into crack for him. Simpson testified that over a seven-month period, he processed approximately 0.25 to 0.50 kilograms of crack per week for Partee. Ellsworth Dismuke then testified that on three occasions in 1999, he helped Partee acquire one kilogram of crack from Dismuke's friend, Kenji Pace. Dismuke also stated that he personally sold Partee 0.25 kilograms of crack in 1999 and that he witnessed Simpson processing powder cocaine into crack for Partee on several occasions. Finally, Perry Woodard testified that between August 2000 and October 2000, he sold approximately $600 to $2000 worth of crack for Partee every day. Further, Woodard stated that he observed Partee processing powder cocaine into crack on several occasions and that Partee obtained his cocaine from a person named "KP."

Prior to Partee's sentencing hearing, Partee indicated to the probation officer completing his Pre-Sentence Report ("PSR") that he had been legally employed at Flemons' Express during 1997 and 1998. At the sentencing hearing, however, the government introduced testimony from Robert Flemons, the owner of Flemons' Express, who stated that Partee had never worked for him. Further, Flemons testified that he fabricated pay stubs on Partee's behalf because Partee told him that he needed to show the probation officer that he had a job. Finally, the government introduced IRS records indicating that Partee had not filed federal income tax returns between 1997 and 1999.

The district court initially calculated Partee's offense level to be 38, finding that the government's relevant conduct evidence proved "1.5 KG or more of Cocaine Base." Next, the district court found that Flemons' testimony was truthful and therefore enhanced Partee's sentence by two levels for obstruction of justice pursuant to United States Sentencing Guideline § 3C1.1. Finally, the district court enhanced Partee's sentence by two levels, finding that Partee was a "leader in criminal activity." *fn1 Thus, the district court calculated Partee's offense level to be 42, and sentenced him to 408 months of imprisonment.

II. Analysis

A. Apprendi

Partee's first argument on appeal is that the district court's relevant conduct findings violated the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). However, Apprendi only applies to sentences beyond the prescribed statutory maximum. See United States v. Jones, 245 F.3d 645, 651 (7th Cir. 2001); Talbot v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000). In this case, Partee was convicted of conspiracy to distribute "50 grams or more" or crack, an offense that has a statutory maximum sentence of life imprisonment. 21 U.S.C. § 841(b)(1)(A). However, Partee was sentenced to 408 months of imprisonment, a sentence less than this statutory maximum. Thus, because Partee's sentence did not exceed the statutory maximum, the district court's relevant conduct findings did not violate Apprendi. See Talbot, 226 F.3d at 869 ("[W]hen the statutory maximum is life imprisonment, Apprendi is beside the point.").

B. Relevant Conduct

Next, Partee contends the district court erred in finding that 1.5 kilograms or more of crack were attributable to him. We review a district court's calculation of the quantity of drugs attributable to a defendant as relevant conduct for clear error. See United States v. Spiller, 261 F.3d 683, 691 (7th Cir. 2001). Special deference is given to findings based upon credibility determinations, "which can ...


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