United States v. Storey ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
December 17, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 14-5019
v. (D.C. No. 4:13-CR-00156-CVE-1)
(N.D. Okla.)
MATTHEW SCOTT STOREY,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before GORSUCH, SEYMOUR, and BACHARACH, Circuit Judges.
Matthew Storey was waiting in Tulsa on a FedEx package. He wasn’t sure
exactly what it would contain, but he knew it would be drugs. And he knew what
he had to do. It’s a job he had carried out many times before: accept the delivery
and then drop the box on the side of a country road, where someone would pick it
up and smuggle the contents into an Oklahoma prison. The intended recipients
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
were gang members Mr. Storey knew from his own spell in prison for making
methamphetamine and other crimes.
Things didn’t go to plan. FedEx has a policy against transporting
contraband and Joshua Guthery, a longtime employee versed in spotting
suspicious packages, picked out Mr. Storey’s parcel at a sorting facility. Mr.
Guthery saw that the sender had paid in cash, completed the air bill by hand, and
used an awful lot of tape — facts that, in Mr. Guthery’s experience at least,
conspired to suggest contraband. Opening the package, Mr. Guthery found six
vacuum-sealed bundles wrapped in cellophane, a discovery that he thought tended
to confirm his suspicions.
Mr. Guthery called the police. In the meantime, he passed the parcel to
Gary Michener, a coworker, and asked him to investigate further. Mr. Michener
took a razor blade to the bundles and, by the time the police arrived, he had sliced
through most of the cellophane surrounding one bundle. It’s a task he continued
while the officers watched. The bundle split open, revealing methamphetamine.
Soon enough Mr. Storey was arrested and pleaded guilty to drug charges. In
doing so, though, he reserved the right to pursue this appeal.
Mr. Storey argues first and primarily that the government violated his
Fourth Amendment rights by searching the contents of the package; that all
evidence about the drugs must be suppressed; and that the charges against him
should be dismissed. But the district court observed a flaw in the essential
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premise of this argument and so must we: the Fourth Amendment concerns itself
only with searches performed by the government, not by private actors like
FedEx. See, e.g., United States v. Smythe, 84 F.3d 1240, 1242-43 (10th Cir.
1996).
Of course, private actors can effectively become governmental agents when
the state “coerces, dominates or directs [their] actions.” Id. at 1242 (quoting
Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir. 1989)). But the facts don’t
support that kind of conclusion here. Officers didn’t instigate the search. They
didn’t encourage it. They didn’t aid it. They didn’t even become involved until
FedEx employees had already opened the package and one was busy slicing
through bundles inside. We don’t overlook the fact Mr. Guthery has contacted
the police before about suspicious packages, maybe as many as one hundred
times. Neither do we ignore the fact Mr. Guthery and Mr. Michener seemed
intent on helping the police. But private persons are still free to choose to help
the government without becoming governmental agents. See id. at 1243 (finding
no coercion where bus station manager who contacted police searched a package
in the presence of officers); United States v. Alexander, 447 F.3d 1290, 1297
(10th Cir. 2006) (holding that an agency relationship doesn’t develop just because
the government is the beneficiary of a private party’s actions).
In his reply brief Mr. Storey introduces a provocative new fact. He notes
that a federal grand jury in California in July 2014, a year after the events in this
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case, indicted FedEx for conspiring to traffic misbranded prescription drugs for
Internet pharmacies. See Indictment, United States v. FedEx Corp., No. 3:14-CR-
00380-CRB (N.D. Cal. July 17, 2014). But Mr. Storey mentions the fact in a
passing sentence and promptly does nothing with it. We can see how someone
might try to develop further facts and argument around this nub of an idea and
suggest that the impending indictment in California placed such pressure on the
company to cooperate that its actions in Oklahoma were effectively coerced.
Sometimes those facing a potential indictment do agree to become governmental
agents. But in this case we just don’t know. We don’t because Mr. Storey only
mentions the indictment in a single sentence and moves on, leaving the rest to our
imagination. Did the company know of the impending indictment? What
messages did it receive from the government? Did it reach any agreements with
the government? What did it communicate to employees like Mr. Guthery? We
have no idea. And we are not inclined to guess. It is not for courts to conjure
facts and arguments to support a theory so fleetingly floated and quickly dropped.
See Yeomalakis v. FDIC, 562 F.3d 56, 61 (1st Cir. 2009) (“It is not our job . . . to
create arguments for someone who has not made them or to assemble them from
assorted hints and references scattered throughout the brief.”); see also Bronson
v. Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007) (declining to pass upon
“cursory statements” made “without supporting analysis and case law”).
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Mr. Storey’s remaining three challenges to his sentence bear their own
problems.
First, he complains about the quantity of drugs the district court attributed
to him when calculating his advisory guidelines sentence. But under U.S.S.G.
§ 1B1.3(a)(1)(A), a defendant is deemed responsible for all acts and omissions he
willfully caused. The district court found that Mr. Storey willfully agreed to and
caused the receipt of the FedEx package and was thus responsible for the 2.39
kilograms of methamphetamine found inside. We see no reversible error in this
holding. That’s not to say that when calculating the applicable advisory
guidelines range a district court must always find a defendant responsible for the
full amount of drugs contained in every package he receives. Let alone that a
district court must issue a sentence in line with what the advisory guidelines
advise. It is only to say we see no reversible error in the district court’s decision
to hold Mr. Storey responsible for the package’s contents on the facts before us.
It seems every circuit to have faced a similar set of facts has reached a
similar conclusion. See United States v. Ukomadu, 236 F.3d 333, 341 (6th Cir.
2001); United States v. Fullilove, 388 F.3d 104, 107-09 (4th Cir. 2004); United
States v. Johnson, 357 F.3d 980, 985-87 (9th Cir. 2004); United States v.
Franklin, 926 F.2d 734, 736-37 (8th Cir. 1991); United States v. White, 888 F.2d
490, 498-500 (7th Cir. 1989), abrogated on other grounds by Stinson v. United
States, 508 U.S. 36 (1993). Neither do the only two cases Mr. Storey cites
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suggest a different view. One addressed a situation in which the government
offered no drug quantity evidence and the district court was left to guess how
much the defendant should be held responsible for, a problem not present here;
the other concerned the interpretation of a now-defunct section of the guidelines.
See United States v. Davis, 981 F.2d 906, 910-12 (6th Cir. 1992); United States v.
Hayes, 971 F.2d 115, 116-18 (8th Cir. 1992), superseded by guidelines
amendment as stated in United States v. Strange, 102 F.3d 356, 360 n.6 (8th Cir.
1996).
Second, Mr. Storey says the district court should have granted his motion
for a downward departure on the ground that the advisory guidelines range
overrepresented the seriousness of his prior offenses. But we lack jurisdiction to
review a district court’s refusal to depart downward unless “the denial is based on
the sentencing court’s interpretation of the Guidelines as depriving it of the legal
authority to grant” the requested relief. United States v. Fonseca, 473 F.3d 1109,
1112 (10th Cir. 2007). And that’s not what happened here. The district court
never suggested it lacked the authority to grant a downward departure. It just
made clear that it considered Mr. Storey a poor candidate for one, given his
extensive criminal history and his willingness to violate the law again only
months after being released from prison himself.
Finally, Mr. Storey contends his sentence is substantively unreasonable.
But the district court issued a within-guidelines and thus presumptively
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reasonable sentence. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.
2006). In an effort to overcome that presumption, Mr. Storey suggests that the
district court placed undue weight on the amount and purity of the
methamphetamine. But our review of the record confirms that the district court
carefully considered all of the statutorily prescribed sentencing factors, including
Mr. Storey’s criminal history, his willingness to plead guilty, and the sentences of
similarly situated defendants. All of which tends to disprove Mr. Storey’s
complaint and leave us without solid ground for preferencing Mr. Storey’s wish
for a 10-year sentence over the district court’s judgment that 15 years was more
appropriate.
Affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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