EASTERN DISTRICT OF KENTUCKY
PIKEVILLE
UNITED STATES OF AMERICA,
Plaintiff
v.
LEON COMBS
Defendant
Pikeville Criminal Action No. 01-27
Friday, August 3, 2001
1:10 p.m.
TRANSCRIPT OF SENTENCING
BEFORE HONORABLE JOSEPH M. HOOD
UNITED STATES JUDGE
APPEARANCES:
For the Plaintiff: Hon. Kenneth R. Taylor
Assistant United States Attorney
110 W. Vine Street
Lexington, KY 40588
For the Defendant: Hon. Derek Gordon
139 Market Street
Lexington, KY 40507
Court Reporter: Kathryn E. Marshall
330 W. Broadway
Frankfort, KY 40601
(502) 223-3626
[NOTE: This hearing was actually held in Frankfort, KY not Pikeville, KY]
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Friday, April 3, 2001
Afternoon Session - 1:10 p.m.
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THE COURT: Madame Clerk, call the matter on, please.
THE CLERK: Yes, Your Honor. Pikeville Criminal Action No. 01-17, United States of America v. Leon Combs. This matter being called for sentencing, Your Honor.
THE COURT: Let the record reflect that the United States is present in the courtroom by counsel, the defendant is present in the courtroom with counsel. Ready to proceed, Mr. Taylor?
MR. TAYLOR: Yes, Your Honor.
THE COURT: Mr. Gordon?
MR. GORDON: Yes, sir.
THE COURT: There was an objection to the presentence report filed by the United States. It would appear that the probation officer has amended that presentence report, and there is an objection to that amended presentence report by the defendant. Would you like to state your objection, Mr. Gordon?
MR. GORDON: Judge, obviously, the objection is the same objection that initially the government had objected to, and that is that in regard to the conviction as relates to Mr. Combs in regard to the two guns, the initial report �
THE COURT: Well, there�s more than two guns.
MR. GORDON: Excuse me?
THE COURT: There was more than two guns.
MR. GORDON: But another gun conviction.
THE COURT: Yeah.
MR. GORDON: A second gun conviction, I should say. Wherein the initial report indicated that he was looking at 60 months consecutive to the actual guideline range on the drugs as opposed to now that they amend him where he is looking at five years, 60 months, and then the second gun conviction carries an additional 25 years consecutive. Not only is that harsh, cruel and unusual, which I think in a case like this, I mean, this type of sentence is absolutely ludicrous, Judge.
Unfortunately, there�s not much that I�m going to be able to do about it at this point, nor is there much that you�re going to be able to do about it.
You know, the thing, 30 years for this type of conduct, wherein�and I know this doesn�t amount to a hill of beans, but I�m giving a couple of minutes of my displeasure about the sentencing, that�s all. I guess the case that that brings to mind is you�ve got a guy that goes and robs 20 banks in a district and ends up getting a total of five years. I don�t know what the message is from Congress or what have you, but it just doesn�t seem right how a gun can go in and put all these people in fear for their life and get five years, and then this fellow who basically�this should be categorized, in my opinion, is just �now, I�m getting back to the point little bit�is just one transaction.
There was some testimony from some of these witnesses that there was some � well, one witness is all there was � an exchange of Oxycontin for these guns. And then the day that they went to execute the search warrant or arrest him, Leon had exited his trailer to enter his vehicle and in his in his pocket was, you know, a gun, which he had just picked up prior to that. Of course, we don�t know if the jury believed that or not because they found him guilty. I mean, the case law is clear. There�s no question about it. I�ve read the case law. It�s clear. There isn�t any 6th Circuit case law. I think what I remember all the case law is outside of our circuit. And so the other thing that seems to be somewhat clear, if � and this is a hard stretch, but if the incidents were such that they could be categorized to just one incident, then I don�t believe the enhancement would apply.
Now, there�s no question that, you know, there�s some � there�s testimony concerning guns being transferred, Oxycontin, and then the date in question this gun being in his pocket, and it�s hard for me to argue, I suppose, that that is just one event, you know, one incident.
THE COURT: Seems to be pretty discrete circumstances, don�t they?
MR. GORDON: Well, that�s what � well, certainly different than the circumstances that are here, unfortunately, from what I can tell. And you know, I think I only saw a couple of cases. I think initially they sort of held that way and then even, unless it was so limited in nature that one incident, that, you know, I think maybe that if he did something in the morning and then maybe did something later in the evening that that could fall under the enhancement. So it�s really changed �
THE COURT: What you�re saying is if that eight o�clock in the morning you sold Oxycontin while carrying a pistol, that would be one offense, but it would be the same thing as if at noon you sold Oxycontin and were carrying the same pistol. You could only have circumstance.
MR. GORDON: Right. Right. So, you know, the law is, in my opinion, clear. It doesn�t appear to be any law in the 6th Circuit. It�s all outside of our circuit. And for purposes of this record, the only thing I can argue is that the enhancement should not apply and that we have no law in our circuit and that this entire ordeal was nothing more than a continuation of just one incident.
THE COURT: Okay. Thank you. Mr. Taylor?
MR. TAYLOR: Well, whether I like the case or the law, of course, I�m bound to seek to uphold it. I believe Mr. Gordon realizes that this, under the law, is interpreted by the other circuits, constitutes two separate 924(c)�s, and therefore you will note the second or subsequent offense clause of 924(c) which has the enhanced penalty.
Personally, if I were citing the issue in the Court of Appeals, I might take a different view as to whether or not a second conviction can occur before the first conviction, but the courts have deemed it to be so. That being the case, I believe the Court is bound to impose the 25 year consecutive on the second offense.
I will say that, of course, I just got the call this morning that Mr. West couldn�t be here, but in looking through the file real quickly, I see that there was a plea offer that did not involve the second offense. So Mr. Combs has rolled the dice and it come up snake eyes. So it was with full knowledge of the risk that he went to trial.
THE COURT: Reply from Mr. Gordon?
MR. GORDON: Well, I guess in response to that, yeah, there was a plea offer, and then, not only that, I, throughout the trial advised my client that, in fact, there was some question, was it 20, was it 25? Regardless of what it was, there was going to be a minimum of 25 if we got convicted of both matters. So I advised him clearly on the potential penalty. There�s no question about that. It still doesn�t make it easy today, obviously.
But, you know, I don�t really have anything else to say now, Judge. It�s just � it just � I think this type of behavior � I�m amazed that the law takes this into consideration and deems it to be an enhanced penalty like they do. It just seems to me, like I said at the outset, it seems to be a little cruel and unusual for this type of sentence for this type of behavior. That as it may, I guess he has to suffer the consequences.
THE COURT: During the course, or I think even before the trial started, there was a question raised, I think, as to whether the second offense, if a conviction was obtained, would carry the enhanced penalty. And, obviously, you can�t make a ruling on something that hadn�t happened, yet. But the government advised that it was their position at that time that they were separate and discrete offenses which would lead to the enhanced penalty. With the government�s position fully in mind, Mr. Combs elected to go to trial as he had the right to do. The government proved that they were separate and discrete offenses. The offense in which Justin � I think it was Justin � I can�t remember the young man�s name � testified that he sold weapons to or exchanged weapons, firearms, long rifles to Mr. Combs in exchange for Oxycontin, and I believe the date was sometime around January 21st.
MR. GORDON: I believe it was the 22nd. The guy�s name was Josh Miller.
THE COURT: Josh Miller. Yeah, Josh Miller. And as a consequence, when it was discovered that these weapons were missing, his parents or relatives, rather, parents and other relatives, went to the police and talked to them and a search warrant or an arrest warrant was obtained for Mr. Combs. They found Mr. Combs in possession of a firearm, a pistol, in his pocket, jacket pocket, and a substantial number of Oxycontin tablets and other pills in his undershorts. That would seem to be a � clearly a separate and distinct possession of a firearm in connection with a drug trafficking offense. Consequently, I think that the objection to the determination that the second offense carries a mandatory 25-year sentence is not well taken. You and Mr. Combs come around, Mr. Gordon.
There was some calculating guidelines. There was a total weight of Oxycontin, or oxycodone, in the amount of 6.687 grams. This is equivalent to 3.34 kilograms of marijuana. There was some hydromorphine involved. This is equivalent to 2 kilograms of marijuana. There was some alprazolam tablets. That�s equivalent of .4375 grams of marijuana. The total of all the marijuana equivalency is 5.34, which under the guidelines places it in a base offense level of 14. There were no upward adjustments. That gives an adjusted offense level of 14. The criminal history reflects no criminal history points. Combination of those two calls for a custodial sentence of 15 to 21 months.
There�s no period of supervised release � or probation, rather, is not possible. There�s a period of supervised release of not less than three nor more than five years upon release from custody. The fine is 4,000 to $250,000.00, and there�s a special assessment of $100.00 per count. Of course, there is the 360 months to be served consecutively to any guideline sentence that I impose. Would you like to speak on behalf of the defendant, Mr. Gordon?
MR. GORDON: Well, if it may please the Court, unfortunately, not much more to say, Judge. This is a � you know, I could say that the jury, you know, didn�t listen and that is an incorrect verdict, but the jury did listen to some extent, I think, because, obviously, they found him no guilty on his guns that were allegedly stolen, which I don�t think there was any proof to that effect.
THE COURT: They were stolen. The question is, did he know about it.
MR. GORDON: Did he know they were stolen, that�s right. Obviously, they determined he did not know. And, you know, he, you know, the thing about these cases and it�s always like this, you know, you get � you spend time with them and even though they may not follow your advice, you get to know them and you get to know his family, and you know, in this case they actually, since I knew we were going to try it, I went down to the residence where they live and spent time with them, and, you know, got ready for the case, and here we are today and still, you know, it�s very difficult. He�d never been in any trouble before. He�s basically � it�s the first time he�s been caught by the law, and here he is getting ready to face an unbelievable amount of time, as we all know, and as I said earlier there�s nothing that you can do.
His wife, Michelle, sent you a letter and responded to it. I got a copy of it, and Leon knows about it. So I could ask you � I could ask you to sentence him at the low end of the guidelines, but, you know, there�s so � the difference in the low end of the guidelines in this case and the top end of the guidelines really doesn�t mean a whole lot. But this is the unfortunate thing about, you know, these types of cases and doesn�t make it any easier for me and doesn�t make it any easier for him. Just have to, you know, appeal it and see what happens.
It�s a most unfortunate situation because even if he had been doing things in the past, this was the first time he�s had a run-in with the law, and this sentence for his conduct in this type of a case, you know, I�ve tried many cases and conduct has been much, much greater than this, and the sentence has been much, much less than this. But that�s what the law is. And we knew the law. Certainly, he knew the law prior to taking on this, you know, this chance, this risk in front of this jury, and they determined that he was involved and they believed this Josh Miller who was really the only witness against him. And, therefore, at least as far as today goes, we have to suffer the consequences. So that�s all I have. That�s all I have to say, Your Honor.
THE COURT: Okay. Mr. Combs, do you have anything to say before I impose sentence?
LEON COMBS: The only thing I would like to bring before the Court, Your Honor, is that in February I had contacted Internal Affairs to do an investigation in this. Roger West told me in front of my ex-lawyer, Leonard Brashear, and my wife at Post 13 in Hazard when I went for my discovery packet, that he did not have to prove I was guilty; I had to prove I was innocent. So I contacted Internal Affairs, and they told me to put a letter in writing, that it had to clear their certification board, talking to Captain Steve Simpson. He called me by phone and left a message on my answering machine that my letter had cleared their certification board and that he would be in Hazard within a week to conduct the investigation at Post 13. Well, three days later, I received a letter in the mail that said that upon the instructions of Roger West, he had requested that the investigation not be done, that it would interfere with his criminal case. I think that that knocked me out of a legal step to prove that I was innocent.
THE COURT: Okay. Thank you. Well, you know, whatever Mr. West told you, whether that happened or not, the jury was certainly instructed that you wouldn�t have to prove that you were innocent. As a matter of fact, the jury was steadfastly and firmly advised in the instructions that you have no obligation at all, and it was the government that had the duty to prove you guilty beyond a reasonable doubt. So that being the case, the jury heard the evidence and rendered a verdict and found you guilty beyond a reasonable doubt.
It probably didn�t help you, Mr. Combs, that they found the Oxycontin stuffed in your underwear shorts outside of prescribed � out of prescription bottles. That probably didn�t help you at all. Made it pretty difficult for, you know, for anybody to really believe that you were innocent.
The jury did find the government hadn�t proved its case of the stolen firearms, and that was fairly � was a justified verdict in my mind. It was certainly justified if they believed Josh Miller and if they believed what he said to find you guilty on the first counts and counts involved in the transfer of Oxycontin to him in exchange of firearms. The evidence certainly would find that a man was carrying controlled substances outside a marked container in his underwear seeing him stuffing it in his underwear when the police comes up, the jury would believe that would indicate that you were dealing with Oxycontin and that you had a firearm in your jacket. So I think that the jury�s verdict was warranted by the evidence.
I don�t see if Mr. West said that how that precluded you from having any kind of what you had, a fair trial.
It�s the judgement of this Court, pursuant to the Sentencing Reform Act of 1984, that the defendant, Leon Combs, be and hereby is committed to the custody of the Bureau of Prisons to be in prison for a term of 375 months which consists of terms of 15 to 21 months on Counts One and Two, and to be served consecutively with each other; a term of five years on Count Three to be served consecutive to the sentences of Count One and Two; and a term of 25 years on Count Four to be served consecutively to the sentences imposed in Counts One, Two, and Three.
Upon release from imprisonment the defendant shall be placed on supervised release for a term of five years. Within 72 hours from the release from the custody of the Bureau of Prisons, the defendant shall report in person to the probation office in the district to which the defendant is released. While on supervised release, the defendant shall not commit another federal, state, or local crime, shall comply with the standard conditions which have been adopted by this Court, and shall comply with the following additional conditions:
The defendant shall not unlawfully possess or use controlled substances and shall abstain from the use of alcohol. The defendant shall not possess a firearm as defined in 18 USC Section 921. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter as directed by the probation officer. The defendant shall pay any financial penalty that is imposed by this judgement, and that remains unpaid at the commencement of the term of the supervised release.
In addition, the defendant shall comply with the following special conditions:
The defendant shall submit to urine and breath testing and, if necessary, substance abuse treatment at the direction or discretion of the probation officer during the term of supervision. This condition is based on Mr. Combs� substance abuse history.
It is further ordered that the defendant shall pay the United States a special assessment of $400.00 which shall be due immediately. Court finds that the defendant does not have the ability to pay the fine and will waive the fine in this case.
Recommendation?
MR. GORDON: I guess a place that will accept him closest to his residence, which is in Hazard.
THE COURT: Federal Correctional Institution in Manchester. I�m going to recommend, too � it won�t help you get any time off your sentence, but it will help you later in life � that you be enrolled in the high intensity drug treatment program there, which, that�s, of course, voluntary.
LEON COMBS: I haven�t had a pain pill with my broke back since August 23rd,[NOTE: This probably should say April 23rd] Your Honor. I don�t think I need anymore drugs.
THE COURT: Okay, I don�t recommend it, then. You don�t want it, I won�t recommend it. There�s other people that do need it.
You have the right to appeal your sentence and conviction to the United States Court of Appeals for the 6th Circuit, which on proper appeal will make a determination as to whether I committed an error of law in imposing the sentence that I did. If you wish to take an appeal, you must file your notice of appeal within 10 days of the date of entry of judgement in your case, which I anticipate will probably be the first of next week.
If you wish to take an appeal but cannot afford the cost of an appeal or the services of an attorney on appeal, counsel will be appointed to represent you, and you�ll e allowed to appeal in forma pauperis, that is without payment of cost. If you wish to take an appeal but for some reason can�t get a hold of Mr. Gordon, all you have to do is contact our clerk�s office and they�ll file a notice of appeal on your behalf. Do you understand your rights, sir?
LEON COMBS: Yes, sir.
THE COURT: Madame Clerk, would you have him sign the acknowledgment, please?
THE CLERK: Yes, Your Honor.
THE COURT: I may have said, if there was an error in the trial, the appeal can be on that, too. So, anything else, Mr. Taylor, in this matter?
MR. TAYLOR: No, Your Honor.
THE COURT: Mr. Gordon?
MR. GORDON: Anything further, did you say?
THE COURT: Yes, sir.
MR. GORDON: No, Your Honor.
THE COURT: The defendant is committed to the custody of the Marshal. Court will be in recess until Court in course. I�d like to see counsel in chambers.
(Proceedings concluded at 1:35 p.m.)