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 bri

for appellant.
Dina Michael Chaitowitz, Assistant
________________________

United States Attorney,

whom Donald K. Stern, United States Attorney,

________________

was on brief, for

United States.

____________________

September 25, 1995

____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

After

pleading

guilty

to

both

conspiring and

attempting

distribute more than

21 U.S.C.

5 kilograms of cocaine

minimum of

841(b)(1)(A)(ii).

At

the Violent

Act of

(the "Act"),

1994

certain circumstances,

sentence

10 years

issue

provision in

with intent

prescribed by

here

is the

Crime Control and

18

gives

U.S.C.

the trial

shorter

than

the

to

in violation of

846, the defendant Joseph Wrenn was sentenced

the statutory

impose

to possess

to

21 U.S.C.

meaning

of

Law Enforcement

3553(f),

which,

in

court authority

to

otherwise

mandatory

minimum sentence.

Wrenn

argues that

finding he was not entitled

the 10

the

district

court

under the Act to a

year mandatory minimum

erred

in

reduction of

sentence he received

for his

drug convictions.

complied with

We reject Wrenn's contentions that

the Act's requirement that

provided to the Government

has

he has

he "has truthfully

all information and evidence [he]

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

unintentionally to be sure,

an undercover agent while

cocaine,

indictment

admitting

conversations

he

has

done

so,

by unwittingly being recorded by

discussing his plans to distribute

which

became

He

also says

he

has done

government's allegations

in

the context

against him.

the

says

-22

the

source

of

the

so by

of

pleading

guilty

Congress did

to

the

charges against

not intend the topsy-turvy

him.

Believing

result suggested by

Wrenn, we reject his arguments and affirm.

Section

statutorily-imposed

3553(f)

provides

mandatory

minimum

some

relief

from

sentences where

the

defendant demonstrates:

(1)

the

defendant

criminal

does

history

not

have

point, as

more

than

determined under

the sentencing guidelines;

(2)

the defendant did not use violence or credible

threats of
other

violence or

dangerous

participant to

possess a

weapon

(or

firearm or

induce

do so) in connection

another
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

offense,

as

determined under

others

in

the

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

offenses that were part

offense or

of the same course of

conduct or of a common scheme or plan, but the

fact

that the

useful
the

defendant has

other information

Government

is

no relevant

to provide

already

aware

or

or that
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

provides

drug trade

the factual

operated

backdrop of

out

of federal

this case.

prisons

Wrenn's

co-

-33

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.

inmate became

which,

in

supplier.

a cooperating witness

turn,

The

agent, the

Wrenn met in the

and another

provided

an

The

and turned to

undercover

the FBI,

agent/cocaine

cooperating witness,

Burke, and

visiting area of the penitentiary.

meeting,

which were

other

In that

both tape-recorded,

Wrenn

described himself as a large-scale cocaine trafficker looking

for a new source of supply.

opportunities

federal

to

expand

indictments

Massachusetts.

of

Wrenn said that he and Burke saw

their business

individuals

because

in

of recent

Charlestown,

It is

those tape-recorded discussions

before Wrenn actually made

form the factual

government

with

the buy and was arrested

basis for

all

of

his claim that

the

interpretation of

part of the

scheme" in

the issue

same course of

conduct or of

subsection (f)(5),

the

concerning

his

3553(f)(5).

on appeal

the phrase "offense or

which

he provided

information

criminal conduct contemplated by 18 U.S.C

Wrenn presents

conducted

as concerning

offenses that were

a common plan

and contends that

or

the phrase

refers only to offenses charged in the indictment, as opposed

to all criminal activity in which the defendant engaged.

-44

But

there

whether

is,

as the

"the

Government

has. . . ."

government

defendant

all

has

information

threshold

truthfully

provided
________

and

evidence

the

issue of

to

the

defendant

3553(f)(5) (emphasis added).

Review

of this issue of statutory interpretation is plenary.

United
______

States
______

18 U.S.C.

urges, a

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

admitting to

guilty

plea

requirements.

drug deal.

the facts

hearing,

To make

to

additionally that

presented by the

he

again

government in

fulfilled

him sit down with the

say again what he has twice

nonsensical.

He argues

statute's

government and

Surely, Congress

urges would lead

could not

intended that the very commission

of a criminal offense,

recorded

would protect

from

could

the

by a

government agent,

mandatory minimum

Congress have

the

said before would, he argues, be

But the interpretation Wrenn

absurd consequences.

the

in

sentence for

intended that

entry

if

a defendant

that crime.

of a

have

Nor

guilty plea

would

provide such

said, "We need

protection.

not leave

when we interpret

As the

our common sense

a statute."

490 U.S. 228, 241 (1989).

-55

Supreme Court

at the

has

doorstep

Price Waterhouse v. Hopkins,

_________________
_______

Whatever

evidence"

the

scope

of

the

"information

and

that a defendant must provide to take advantage of

section 3553(f)(5),

we

hold

that

defendant

has

not

"provided" to the government such information and evidence if

the sole manner in which

through

conversations

defendant's

criminal

the claimed disclosure occurred was

conducted

conduct

in

furtherance

which happened

to

of

be

recorded by the government as part of its investigation.

the

tape-

Cf.
___

United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir. 1995)

______________
_________

(provision

provision of

of

information

information to

section 3553(f)(5)).

to

probation

officer

the government for

Nor does it suffice

is

not

purposes of

for the defendant

to

accede to

with

the government's

the court

contemplates

at

an

the plea

affirmative

government no later

court at

hearing.

act

3553(f)(5)

of cooperation

with

the sentencing

as his counsel emphasized

hearing.

offered to postpone sentencing so Wrenn

to

Section

colloquy

the

than the time of the sentencing hearing.

Here, Wrenn did not cooperate,

the

allegations during

the government

for

purposes

And when

to

the court

could make a proffer

of section 3553(f)(5),

he

refused.

Even

terms,

taking

we reject

proceeds.

the defendant's

also

Wrenn did

the factual

argument on

premise

its own

from which

not provide the government with

it

all of
___

the information and evidence he had concerning the very crime

-66

to which he pleaded guilty.

taped conversations

To give but one

he claimed

example, in his

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

the same course of

18

U.S.C.

Commission

after

conduct or of

3553(f)(5).

amended the

sentence

or offenses that

was

We

5C1.2 (Nov. 1994).

a common scheme or

note

Guidelines to

imposed in

were part of

this

that

the

Sentencing

conform with

case.

Application note 3 to

plan."

See
___

the Act

U.S.S.G.

5C1.2 defines

the phrase highlighted by the government to mean "the offense

of conviction

comment.

and all relevant conduct."

(n.3).

Apart

from

making

U.S.S.G.

this observation,

decline the government's invitation, believing

better

left to

case where

question is necessary.

The sentence is affirmed.

________

5C1.2,

we

the matter is

fuller resolution

of

the

-77