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U.S. v. NORRIS

April 27, 2001

UNITED STATES OF AMERICA
V.
GLEN NORRIS, DEFENDANT.



The opinion of the court was delivered by: Nickerson, District Judge.

AMENDED MEMORANDUM AND ORDER

This Memorandum and Order amends and augments the court's Memorandum and Order dated February 1, 2001.

In this case defendant Glen Norris pleaded guilty to Count One of the indictment charging that between June 17 and June 23, 1999, he conspired with others to distribute and possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846 and 841(b)(1)(A). A second count remains pending. Under 21 U.S.C. § 841(b)(1)(A) the penalty is a term of imprisonment that "may not be less than ten years or more than life."

I

The Probation Department's presentence report sets forth a summary of the alleged "offense conduct" as follows. On June 21, 1999, Norris agreed to buy from an informant six kilograms of cocaine at $18,000 per kilogram. On June 25, 1999, Norris and two of his alleged partners, Irvin Hall and Michael Mitchell, met with the informant in the kitchen in Norris's house. The informant and Hall counted $90,000 in cash on the kitchen table. Then the informant departed, pretending he would return with cocaine.

When Drug Enforcement Administration agents returned they arrested Norris, Hall, and Mitchell and seized the $90,000 on the table and another $25,000 at the foot of the table. In response to questions by the agents, Norris admitted there was a weapon in the house and led them to a loaded weapon on a shelf of a dresser inside a bedroom closet on the second floor.

Hall made post-arrest statements to the agents to the effect that on prior occasions he had assisted Norris by counting money for cocaine purchases. He said that once he counted about $60,000, a second time about $90,000, and a third time about $100,000. These incidents, not alleged in the indictment, were said to have occurred some time prior to the June dates stated in the indictment.

The probation department added the $115,000 seized in Norris's residence to the total $250,000 that Hall said he had previously counted. The probation report concluded that the entire amount of $365,000 was attributable to Norris and was sufficient to buy 20.27 kilograms of cocaine at $18,000 a kilogram.

The Guidelines Base Offense Level for conviction of a crime involving a range of at least 5 kilograms and less than 15 kilograms of cocaine is 32. After subtracting three levels for Norris's acceptance of responsibility by pleading guilty the offense level would be 29, calling for a guideline sentence of 97 to 120 months imprisonment. Norris had a record of three prior convictions for harassment of his estranged wife, giving him a Criminal History Category of II. The statutory sentence could be no less than 121 months.

The Probation Department added two levels, raising the Base Offense Level to 34, based on 20.27 kilograms of cocaine, the amount that the presentence report recited Norris conspired to distribute. The figure represents 14.7 kilograms attributed to the amount of cocaine allegedly purchasable by the money counted by Hall, plus the 6 kilograms allegedly involved on the June dates stated in the indictment.

The Probation Department added two further levels pursuant to Guideline 2D1.1(b)(1) because Norris possessed a firearm allegedly in connection with the crime. The Probation Department also added an additional two levels because it found under Guideline 3B1.1(c) that Norris had supervised the criminal activity of Hall. After subtracting three levels for Norris's acceptance of responsibility, the Probation Department found the resulting Offense Level to be level 35, calling for imprisonment of 188 to 235 months.

The appropriate sentence turns on the effect of the Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

II

In his allocution pleading guilty to the indictment Norris admitted to dealing in cocaine on June 17 and June 23, 1999. But he did not admit to the alleged earlier counting of money to buy cocaine. Nor did he admit to supervising Hall or to possessing the ...


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