Argued October 31, 2014.
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:14-cr-00029-bbc-1--. Barbara B. Crabb, Judge.
For United States of America, Plaintiff - Appellee: Rita M. Rumbelow, Attorney, Office of The United States Attorney, Madison, WI.
For Carl Morris, Defendant - Appellant: Kelly A. Welsh, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI.
Before POSNER, ROVNER, and HAMILTON, Circuit Judges.
Rovner, Circuit Judge.
Carl Morris pled guilty to one count of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Although the district court sentenced him below the guidelines range, it did so without addressing his principal arguments in mitigation. Because we cannot determine from this record whether the court considered those arguments in fashioning the sentence, we vacate and remand for re-sentencing.
Morris was with a friend one day when that friend sold crack cocaine to another man. Not knowing that the buyer was a
confidential informant, Morris then called the man and offered to sell him crack cocaine. The informant initially requested a quarter ounce of crack from Morris. On December 3, 2012, Morris delivered less than half that amount (3.288 grams) to the informant but charged him for the full amount. The informant then ordered another quarter ounce and asked to be reimbursed for the earlier shortage. On December 5, 2012, Morris delivered slightly more than a quarter ounce (7.447 grams) of crack to the informant. At the direction of his police handlers, the informant then substantially increased his order, asking for an ounce and a half of crack cocaine. Morris agreed to the sale but on December 19, 2012, he delivered an ounce and a half (45 grams) of a counterfeit substance that contained no crack cocaine in exchange for $1900. Morris was charged in a two-count indictment with the first two deliveries. He eventually pled guilty to the charge related to the second delivery.
A probation officer prepared a Presentence Investigation Report (" PSR" ) calculating the guidelines range applicable to the offense conduct (the December 5 delivery) as well as relevant conduct (the December 3 delivery and the uncharged December 19 delivery of a counterfeit substance). See U.S.S.G. § 1B1.3 and Application Note 9. Under Application Note 4 of U.S.S.G. § 2D1.1, counterfeit substances are treated the same as controlled substances when calculating the guidelines range, and so the PSR held Morris accountable for 55.735 grams of crack cocaine. Guidelines sentences for drug crimes are heavily influenced by the quantity of drugs involved and so Morris's sentence was driven largely by the counterfeit substance, which accounted for more than 80% of the drug weight. Moreover, the guidelines tables penalize crack cocaine offenses much more harshly than powder cocaine crimes, applying an 18:1 sentencing ratio. In Morris's case, the PSR set forth a guidelines range of 57 to 71 months of imprisonment.
Morris filed a sentencing memorandum arguing first that the government had engaged in sentencing entrapment by directing the confidential informant to order a much greater quantity of crack cocaine than Morris had previously sold. He contended that the record contained no evidence that he had a history of selling or an ability to sell such a large quantity of drugs. That he never could have filled such a large order was ...