Appeal from the United States District Court for the District of Minnesota. Honorable David S. Doty.
Counsel who presented argument on behalf of the appellant was David L. Warg of Minneapolis, Minnesota.
Counsel who presented argument on behalf of the appellee was Jon M. Hopeman of Minneapolis, Minnesota. The names of Jerome G. Arnold, Jon M. Hopeman and Denise Reilly of Minneapolis, Minnesota were on the brief of the appellee.
Fagg, Circuit Judge, Heaney, Senior Circuit Judge, and Beam, Circuit Judge. Heaney, Senior Circuit Judge, concurring.
Vicki Lou Hammer appeals from her conviction and 188-month sentence for conspiracy to possess with intent to distribute cocaine from 1984 to May 18, 1989, in violation of 21 U.S.C. § 846 (1988). Hammer was an important participant in the conspiracy to distribute cocaine in the Twin Cities headed by Ralph "Plukey" Duke. Five co-conspirators who made deals with the government testified at her trial (which was separate from that of several of the conspirators, including Duke, who were tried together) that she made many cross-country trips transporting cocaine by car, allowed her house in St. Paul to be used as a storage place and distribution center for drugs, and personallyorganized transactions and made deliveries. Despite this testimony, Hammer argues that the evidence was insufficient to support her conviction. She claims, incredibly, that she never knew Duke was involved with drugs and that her seeming acts of participation were merely instances of her innocent association with drug dealers. In addition, Hammer argues that the district court misapplied the relevant-conduct provision of the sentencing guidelines. See U.S.S.G. § 1B1.3(a). She argues that the evidence does not prove that she conspired to possess the particular amounts used by the district court in calculating her base offense level. Our review of the record, however, convinces us otherwise. To this extent, Hammer's argument merely restates her sufficiency argument. Because we find no error, our recitation of the strong evidence against Hammer would have no precedential value. The judgment of the district court is affirmed. See 8th Cir. R. 47B.
HEANEY, Senior Circuit Judge, concurring.
I concur. The evidence was clearly sufficient to sustain Vicki Lou Hammer's conviction for conspiracy to possess and distribute five kilograms or more of cocaine from 1984 to 1988. The recordalso supports the 188-month guideline sentence imposed -- the sentence was based on trial evidence which established that Hammer transported and stored fifty or more kilograms of cocaine as a part of a conspiracy with Ralph ("Plukey") Duke. See U.S.S.G. § 2D1.1(c)(4).
I write separately to highlight several concerns that I have with the sentencing guidelines and their application in the Plukey Duke cases. These cases involved twenty-four defendants, the vast majority of whom were convicted of drug trafficking crimes. From my review of the record, it is clear that there is a great disparity in sentence length among defendants with similar degrees of involvement in the drug ring. The sentencing disparity results not from decisions made by the district judge, but from charging decisions and plea bargains made by the prosecutor. Moreover, some charging practices violate a defendant's right to due process. I turn first to the issue of disparity.
1. The Proportionality of the Sentences. The sentences imposed on drug traffickers in the Plukey Duke cases illustrate that sentencing disparity continues to exist under the guidelines, that defendants who go to trial pay a heavy premium for their choice, and that the prosecutorlargely determines the sentence of the defendant by deciding who to charge, what to charge, and when to charge.*fn1 To illustrate these points, I initially present the following tables. Note that the defendants who pled guilty all received shorter sentences than those who went to trial.
PLUKEY DUKE DEFENDANTS WHO WENT TO TRIAL
Defendant Sentence Time Served*fn2
Plukey Duke 3 life terms Same
Ralph Nunn 25.0 yrs. 21.4 yrs.
Doris Admon 20.0 yrs. 17.2 yrs.
Shawn Regan 19.6 yrs. 16.8 yrs.
Kevin Beal 16.3 yrs. 14.0 yrs.
Vicki Hammer 15.7 yrs. 13.5 yrs.
Serena Nunn 15.7 yrs. 13.5 yrs.
Kim Willis 15.7 yrs. 13.5 yrs.
Walter Hughes 15.0 yrs. 12.9 yrs.
PLUKEY DUKE DEFENDANTS WHO PLED GUILTY AND TESTIFIED
AT ONE OR MORE OF THE DUKE TRIALS.
Defendant Sentence Time Served
David Youmans 12.6 yrs. 10.8 yrs.
Ramon Hutchinson 9.0 yrs. 7.8 yrs.
Joseph Ballard 4.5 yrs. 4.0 yrs.
Loren Duke 1.0 yrs. 1.0 yrs.