United States v. Barbara Gail Harrison-Philpot

978 F.2d 1520 61 USLW 2347 UNITED STATES of America, Plaintiff-Appellee, v. Barbara Gail HARRISON-PHILPOT, Defendant-Appellant. No. 89-30212. United States Court of Appeals, Ninth Circuit. Argued July 29, 1991. Submission Deferred Aug. 14, 1991. Resubmitted Feb. 14, 1992. Opinion filed July 2, 1992; withdrawn Sept. 23, 1992. Decided Oct. 28, 1992. Michael Filipovic, Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant. Richard A. Jones, and Frank Loomis, Asst. U.S. Attys., Seattle, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before: WRIGHT, BEEZER, and WIGGINS, Circuit Judges. BEEZER, Circuit Judge: 1 Barbara Gail Harrison-Philpot appeals her conviction and sentence for one count of conspiracy to distribute cocaine ( 21 U.S.C. § 846 ), seven counts of distributing or aiding and abetting the distribution of cocaine in furtherance of the conspiracy ( 21 U.S.C. § 841 (a)(1)-(b)(1)(C)), one count of using a communication facility to facilitate the conspiracy ( 21 U.S.C. § 843 (b)-(c)), and one count of using a firearm in connection with drug trafficking ( 18 U.S.C. § 924…

Barbara Gail Harrison-Philpot appeals her conviction and sentence for one count of conspiracy to distribute cocaine ( 21 U.S.C. § 846 ), seven counts of distributing or aiding and abetting the distribution of cocaine in furtherance of the conspiracy ( 21 U.S.C. § 841 (a)(1)-(b)(1)(C)), one count of using a communication facility to facilitate the conspiracy ( 21 U.S.C. § 843 (b)-(c)), and one count of using a firearm in connection with drug trafficking ( 18 U.S.C. § 924 (c)(1)). The district court imposed a 352 month sentence. Harrison-Philpot argues that the district court erred by basing her sentence upon an incorrect quantity of drugs and then enhancing the sentence due to her role in the offense. She also raises numerous challenges to her conviction. We have jurisdiction under 28 U.S.C. § 1291 . We affirm in part, reverse in part, and remand for resentencing

I

SENTENCING ISSUES

The crucial questions presented center on Harrison-Philpot’s sentencing. The pre-sentence report followed the Guidelines in determining Harrison-Philpot’s sentencing range, and the sentence ultimately imposed by the district court fell within that range, However, the district court did not indicate,…

concurring in the judgment:

While I concur in the result reached by the panel and agree with much of the reasoning, I write separately to express my disagreement with the majority’s decision regarding the standard of proof to be ap *1528 plied in determining the quantity of drugs for sentencing purposes.

In this case, the majority would condone a seven fold increase in the sentence of Harrison-Philpot if it can be shown by a preponderance of the evidence- that the quantity of drugs involved in the conspiracy was sufficient to raise the offense level from 16 to 34 under U.S.S.G. § 2Dl.l(c). Because I believe that due process requires application of a higher standard of proof than a mere preponderance of the evidence in such circumstances, I cannot join in the majority’s opinion.

The majority recognizes that this court’s decision in Restrepo “left open the possibility” that “due process might require heightened procedural protections” “if a case involved a severe penalty enhancement.” . See supra (emphasis added). They also indicate, citing Restrepo, that the Supreme Court has recognized “that there may be an exception to the general rule that the preponderance standard satisfies…