
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 94-2089                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JOSEPH WRENN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Robert  L. Sheketoff, with  whom Sheketoff  & Homan  was on brief,            ____________________             __________________        for appellant.            Dina Michael  Chaitowitz, Assistant  United States Attorney,  with            ________________________        whom Donald K.  Stern, United States Attorney,  was on brief, for  the             ________________        United States.                                 ____________________                                  September 25, 1995                                 ____________________                      LYNCH, Circuit Judge.  After  pleading  guilty   to                      LYNCH, Circuit Judge.                             _____________            both  conspiring and  attempting  to possess  with intent  to            distribute more than  5 kilograms of cocaine  in violation of            21 U.S.C.   846, the defendant Joseph Wrenn was sentenced  to            the statutory  minimum of  10 years  prescribed by  21 U.S.C.              841(b)(1)(A)(ii).   At  issue  here  is the  meaning  of  a            provision in  the Violent  Crime Control and  Law Enforcement            Act of  1994  (the "Act"),  18  U.S.C.   3553(f),  which,  in            certain circumstances,  gives  the trial  court authority  to            impose  a  sentence  shorter  than  the  otherwise  mandatory            minimum sentence.                      Wrenn  argues that  the  district  court  erred  in            finding he was not entitled  under the Act to a  reduction of            the 10  year mandatory minimum  sentence he received  for his            drug convictions.  We reject Wrenn's contentions that  he has            complied with  the Act's requirement that  he "has truthfully            provided to the Government  all information and evidence [he]            has  concerning the offense or offenses that were part of the            same course of conduct or of a common scheme or plan . . . ."            18  U.S.C.     3553(f)(5).     He  says  he   has  done   so,            unintentionally to be sure,  by unwittingly being recorded by            an undercover agent while  discussing his plans to distribute            cocaine,  conversations  which  became  the  source   of  the            indictment  against him.   He  also says  he  has done  so by            admitting  the  government's allegations  in  the context  of                                         -2-                                          2            pleading  guilty  to  the  charges against  him.    Believing            Congress did  not intend the topsy-turvy  result suggested by            Wrenn, we reject his arguments and affirm.                      Section   3553(f)   provides   some   relief   from            statutorily-imposed  mandatory  minimum  sentences where  the            defendant demonstrates:                      (1)  the  defendant  does  not  have  more  than  1                           criminal  history  point, as  determined under                           the sentencing guidelines;                       (2)  the defendant did not use violence or credible                           threats of  violence or  possess a  firearm or                           other  dangerous  weapon  (or  induce  another                           participant to  do so) in connection  with the                           offense;                      (3)  the offense did not result in death or serious                           bodily injury to any person;                      (4)  the  defendant was  not an  organizer, leader,                           manager,  or  supervisor  of  others   in  the                           offense,  as  determined under  the sentencing                           guidelines and was not engaged in a continuing                           criminal  enterprise, as defined  in 21 U.S.C.                           848; and                      (5)  not  later than  the  time of  the  sentencing                           hearing, the defendant has truthfully provided                           to the Government all information and evidence                           the  defendant has  concerning the  offense or                           offenses that were part  of the same course of                           conduct or of a common scheme or plan, but the                           fact  that the  defendant has  no relevant  or                           useful  other information  to provide  or that                           the  Government   is  already  aware   of  the                           information shall not preclude a determination                           by the court  that the defendant has  complied                           with this requirement.            18 U.S.C.   3553(f).                      The  drug trade  operated  out  of federal  prisons            provides  the factual  backdrop of  this case.   Wrenn's  co-                                         -3-                                          3            defendant,  Joseph  Burke, while  incarcerated at  the United            States Penitentiary at Lewisburg, asked a fellow inmate if he            could provide  Wrenn with a  large supply of  cocaine, saying            Wrenn was a cocaine distributor in Massachusetts.  The  other            inmate became  a cooperating witness  and turned to  the FBI,            which,   in  turn,   provided  an   undercover  agent/cocaine            supplier.   The  agent, the  cooperating witness,  Burke, and            Wrenn met in the  visiting area of the penitentiary.  In that            and another  meeting,  which were  both tape-recorded,  Wrenn            described himself as a large-scale cocaine trafficker looking            for a new source of supply.  Wrenn said that he and Burke saw            opportunities  to  expand  their business  because  of recent            federal   indictments   of   individuals    in   Charlestown,            Massachusetts.                      It is  those tape-recorded discussions    conducted            before Wrenn actually made  the buy and was arrested    which            form the factual  basis for  his claim that  he provided  the            government   with  all  of  the  information  concerning  his            criminal conduct contemplated by 18 U.S.C   3553(f)(5).                      Wrenn presents  the issue  on appeal  as concerning            interpretation of  the phrase "offense or  offenses that were            part of the  same course of  conduct or of  a common plan  or            scheme" in  subsection (f)(5),  and contends that  the phrase            refers only to offenses charged in the indictment, as opposed            to all criminal activity in which the defendant engaged.  But                                         -4-                                          4            there  is,  as the  government  urges, a  threshold  issue of            whether  "the  defendant  has  truthfully  provided   to  the                                                       ________            Government  all   information  and  evidence   the  defendant            has. . . ."  18 U.S.C.   3553(f)(5) (emphasis added).  Review            of this issue of statutory interpretation is plenary.  United                                                                   ______            States  v. Holmquist, 36 F.3d 154, 158 (1st Cir. 1994), cert.            ______     _________                                    _____            denied, 115 S. Ct. 1797 (1995).            ______                      Wrenn   argues   that   he   has   "provided"  such            information, albeit inadvertently, in his taped conversations            setting up the  drug deal.   He argues  additionally that  in            admitting to  the facts  presented by the  government in  the            guilty  plea   hearing,  he  again  fulfilled  the  statute's            requirements.  To make  him sit down with the  government and            say again what he has twice  said before would, he argues, be            nonsensical.   But the interpretation Wrenn  urges would lead            to  absurd consequences.    Surely, Congress  could not  have            intended that the very commission  of a criminal offense,  if            recorded  by a  government agent,  would protect  a defendant            from  the  mandatory minimum  sentence for  that crime.   Nor            could  Congress have  intended that  entry  of a  guilty plea            would  provide such  protection.   As the  Supreme Court  has            said, "We need  not leave  our common sense  at the  doorstep            when we interpret  a statute."  Price  Waterhouse v. Hopkins,                                            _________________    _______            490 U.S. 228, 241 (1989).                                         -5-                                          5                      Whatever   the  scope   of  the   "information  and            evidence"  that a defendant must provide to take advantage of            section 3553(f)(5),  we   hold  that  a   defendant  has  not            "provided" to the government such information and evidence if            the sole manner in which  the claimed disclosure occurred was            through  conversations   conducted  in  furtherance   of  the            defendant's  criminal  conduct  which happened  to  be  tape-            recorded by the government as part of its investigation.  Cf.                                                                      ___            United  States v. Rodriguez, 60 F.3d 193, 196 (5th Cir. 1995)            ______________    _________            (provision  of  information  to  probation  officer  is   not            provision of  information to  the government for  purposes of            section 3553(f)(5)).   Nor does it suffice  for the defendant            to  accede to  the government's  allegations during  colloquy            with  the court  at  the plea  hearing.   Section  3553(f)(5)            contemplates  an  affirmative  act  of cooperation  with  the            government no later  than the time of the sentencing hearing.            Here, Wrenn did not cooperate,  as his counsel emphasized  to            the  court at  the sentencing  hearing.   And when  the court            offered to postpone sentencing so Wrenn  could make a proffer            to  the government  for  purposes  of section 3553(f)(5),  he            refused.                      Even  taking  the defendant's  argument on  its own            terms,  we reject  also  the factual  premise  from which  it            proceeds.  Wrenn did  not provide the government with  all of                                                                   ___            the information and evidence he had concerning the very crime                                         -6-                                          6            to which he pleaded guilty.  To give but one  example, in his            taped conversations  he claimed  to have numbers  of reliable            customers to whom he supplied cocaine, but he supplied nary a            name to the government.                      Finally, the government urges us to decide here the            scope  of the phrase "offense  or offenses that  were part of            the same course of  conduct or of  a common scheme or  plan."            18  U.S.C.    3553(f)(5).     We  note  that  the  Sentencing            Commission  amended the  Guidelines to  conform with  the Act            after  sentence  was  imposed in  this  case.   See  U.S.S.G.                                                            ___              5C1.2 (Nov. 1994).   Application note 3 to    5C1.2 defines            the phrase highlighted by the government to mean "the offense            of conviction  and all relevant conduct."   U.S.S.G.   5C1.2,            comment.  (n.3).   Apart  from  making  this observation,  we            decline the government's invitation, believing  the matter is            better  left to  a  case where  a  fuller resolution  of  the            question is necessary.                      The sentence is affirmed.                                      ________                                         -7-                                          7
