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
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
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 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).
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 ...