United States v. Hill ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 29 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-6053
v. (W. District of Oklahoma)
(D.C. No. CR-96-27-2-A)
DANNY RAY HILL,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
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); 10th Cir. R. 34.1.9. This court therefore
honors the parties’ requests and orders the case 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Appellant Danny Ray Hill was charged with (1) conspiracy to distribute
methamphetamine; (2) possession of methamphetamine with intent to distribute;
and (3) maintaining a place for the purpose of manufacturing, distributing, and
using methamphetamine. Hill pleaded guilty to possession of methamphetamine
with intent to distribute, in violation of 21 U.S.C. § 841, and the other two counts
were dismissed. The district court sentenced Hill to 121 months of imprisonment
and five years of supervised release. The sentence was based on an adjusted
offense level of thirty-two.
Hill appeals the district court’s calculation of his sentence on three
grounds. He contends that the district court erred in (1) determining the drug
quantities used to calculate the base offense level; (2) applying a two-level
enhancement for possession of a firearm; and (3) failing to resolve the conflict
between a five-year and ten-year mandatory minimum sentence.
I. Drug Quantities Used to Calculate Base Offense Level
At sentencing, the district court held Hill accountable for (1) 69 grams of
actual methamphetamine (with a marijuana equivalency of 690 kilograms) found
at a Rock Creek Road residence; (2) 57 grams of actual methamphetamine (with a
marijuana equivalency of 570 kilograms) producible from chemicals found in a
van Hill was driving; (3) 113 grams of actual methamphetamine (with a marijuana
equivalency of 1130 kilograms) producible from chemicals found at his Sandra
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Drive residence; and (4) 18 ounces of methamphetamine (with a marijuana
equivalency of 510.3 kilograms) based on the testimony of John Robert Laden. In
sum, the district court attributed a marijuana equivalency of 2900.3 kilograms to
defendant. Based on this marijuana equivalency, the district court held that Hill’s
base offense level was thirty-two under U.S.S.G. § 2D1.1.
Hill specifically challenges all the above drug quantities except the
eighteen ounces of methamphetamine testified to by Mr. Laden. 1 In the
alternative, Hill claims the district court improperly held that the 69, 57 and 113
grams were “actual methamphetamine,” rather than methamphetamine, and the
base offense level calculated by the court was thus too high.
At sentencing, the government has the burden of proving drug quantities
and types by a preponderance of the evidence. See United States v. Lande, 40
F.3d 329, 331 (10th Cir. 1994); United States v. Deninno, 29 F.3d 572, 580 (10th
Cir. 1994). A sentencing court may rely on estimates of drug quantities as long as
the estimates are “based on information with a minimum indicia of reliability.”
See Deninno, 29 F.3d at 578. This court reviews the sentencing court’s factual
1
In his argument, Hill does not appear to dispute the 18 ounces of
methamphetamine attributed to him based on the testimony of Mr. Laden, nor
does he appear to dispute its marijuana equivalency of 510.3 grams. Even if Hill
were to dispute this amount, Mr. Laden’s testimony regarding the approximate
amounts of methamphetamine he observed during drug transactions was sufficient
to support the district court’s attribution of 18 ounces of methamphetamine to
defendant.
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findings regarding the quantities of drugs attributable to a defendant for clear
error. See United States v. Hardwell, 80 F.3d 1471, 1497 (10th Cir. 1996), reh’g
on other grounds, 88 F.3d 897 (10th Cir. 1996); United States v. McKneely, 69
F.3d 1067, 1078 (10th Cir. 1995).
The district court’s findings concerning the sixty-nine grams of
methamphetamine found at the Rock Creek Road residence are not clearly
erroneous. Michael Wayne Childers, a forensic chemist for the Oklahoma State
Bureau of Investigation, testified that methamphetamine was present in two
liquids found at the Rock Creek Road residence. Furthermore, he described how
the methamphetamine could be converted to powder from the liquids and testified
that sixty-nine grams of “actual methamphetamine” could be extracted from the
liquids. In light of Mr. Childers’ testimony, the sentencing court did not clearly
err in determining the above drug quantity.
Because there was testimony that the amount was pure methamphetamine,
the court further did not clearly err in finding the sixty-nine grams constituted
“actual methamphetamine” with a marijuana equivalent of 690 kilograms. See
U.S.S.G. § 2D1.1 Application Note 10. In addition, despite Hill’s contention that
he was merely present at the Rock Creek Road residence and was not involved in
the manufacture of methamphetamine, there is sufficient basis in the record for
the district court to hold him accountable for the methamphetamine found at the
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residence: he was arrested at the Rock Creek Road residence; his fingerprints
were on laboratory equipment found at the residence; and testimony linked him
to the manufacture of methamphetamine with codefendant Leslie Monson.
While defendant also challenges his accountability for and the quantity of
methamphetamine producible from the precursor chemicals found in his van and
at his Sandra Drive residence, this court need not consider these challenges
because the additional quantities would not affect Hill’s base offense level.
Together, the sixty-nine grams of actual methamphetamine found at the Rock
Creek Road residence and the eighteen ounces of methamphetamine testified to by
Mr. Laden produce a marijuana equivalence of 1200.3 kilograms (690 kilograms
+ 510.3 kilograms). Section 2D1.1(c) of the Sentencing Guidelines sets the base
offense level at thirty-two when the defendant is held accountable for “[a]t least
1,000 KG but less than 3,000 KG of Marihuana.” U.S.S.G. § 2D1.1(c). Hill’s
base offense level is thus thirty-two regardless of the methamphetamine
producible from chemicals found in his van and his Sandra Drive residence.
Given Hill’s base offense level, the adjustments made to that level by the
district court, and his criminal history category, the Sentencing Guidelines
provide an incarceration period of 121-151 months. 2 See U.S.S.G. § Fifth
2
Hill’s only challenge to the adjustments made to his base offense level is
addressed below. Hill does not challenge his criminal history category.
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Amendment tbl. Hill received the lowest sentence within this range, 121 months.
As a consequence, he cannot argue that the additional methamphetamine
attributed to him negatively impacted his sentence. We therefore affirm the
district court’s determination of Hill’s base offense level.
II. Enhancement for Possession of Firearm
Hill contends the district court erred in applying a two-level enhancement
for possession of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). The gun
was found during a traffic stop in February 1996. Hill argues the weapon
enhancement is inapplicable because he did not possess the firearm during the
crime for which he was convicted, possession of methamphetamine with intent to
distribute in September and November of 1995.
This court reviews the trial court’s factual findings at sentencing for clear
error, while we review the trial court’s legal interpretation of a Sentencing
Guideline de novo. See United States v. Earls, 42 F.3d 1321,1326 (10th Cir.
1994).
Section 1B1.3 of the Sentencing Guidelines requires courts to consider
relevant conduct when sentencing a defendant. See U.S.S.G. § 1B1.3. In United
States v. Roederer, 11 F.3d 973 (10th Cir. 1993), this court held that the relevant
conduct provision of the Sentencing Guidelines applies to weapons enhancements
under § 2D1.1(b)(1). See id. at 982. Thus, in evaluating whether the
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enhancement should be applied, the sentencing court looks not only at the offense
of conviction but also at all acts “‘that were part of the same course of conduct or
common scheme or plan as the offense of conviction.’” See id. (quoting U.S.S.G.
§ 1B1.3(a)(2)); see also United States v. Falesbork, 5 F.3d 715, 720 (4th Cir.
1993) (“Even when a guilty plea is entered on a single count of possession, the
court must nevertheless look to the entire relevant conduct in determining the
sentence. That conduct includes . . . . possession of a gun while engaging in drug
sales related to, though distinct from, the crime of conviction.” (citations
omitted)).
In order to establish weapon possession, the government must prove by a
preponderance of the evidence “‘that a temporal and spatial relation existed
between the weapon, the drug trafficking activity, and the defendant.’” Roederer,
11 F.3d at 982 (quoting United States v. Eastland, 989 F.2d 760, 770 (5th Cir.
1993)). The necessary proximity is generally established by “‘evidence that the
weapon was found in the same location where drugs or drug paraphernalia are
stored or where part of the transaction occurred.’” Id. at 983 (quoting United
States v. Hooten, 942 F.2d 878, 882 (5th Cir. 1991)).
Officer Robert Negri testified that during the February traffic stop, a
shotgun was found next to the driver’s seat of the van and the vehicle also
contained chemicals and equipment for manufacturing methamphetamine. The
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district court found the conduct of Hill and the van’s passengers was “closely
related to the offense of conviction,” and identified the intended sale of
contraband as a “common thread.” The court further found that Hill was, at a
minimum, in joint possession of the weapon and that, as driver of the van, Hill
was situated “better than anyone else to brandish the weapon.” Based on the
record, these findings are not clearly erroneous.
Because the district court found the weapon was possessed during conduct
closely related to the offense of conviction, the weapon enhancement is
applicable. The government need not show the weapon was possessed during the
offense to which defendant pleaded guilty. Therefore, this court affirms the two-
level weapon enhancement.
III. Conflict as to Mandatory Minimum Incarceration Period
Hill entered his guilty plea to possession of methamphetamine with intent
to distribute, in violation of 21 U.S.C. § 841, on June 26, 1996. At that time, the
district court advised him the mandatory minimum sentence of incarceration for
his offense was five years and the maximum punishment that could be imposed
was forty years in prison, a fine, and supervised release. In December 1996, a
revised Presentence Investigation Report stated that the offense carried a
mandatory sentence of not less than ten years nor more than life imprisonment.
Hill claims that this change in the mandatory minimum and maximum terms of
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imprisonment is a result of this court’s decision in United States v. Richards, 87
F.3d 1152 (10th Cir.) (en banc), cert. denied, 117 S. Ct. 540 (1996). Richards
was decided after Hill pleaded guilty but prior to his sentencing. Based on these
facts, Hill makes two arguments: (1) the application of Richards is a violation of
the Ex Post Facto Clause of the Constitution and (2) the district court’s failure to
properly advise him of the mandatory minimum and maximum penalties violated
Rule 11(c) of the Federal Rules of Criminal Procedure and rendered his plea
involuntary.
Defendant’s ex post facto argument is appropriately framed as a due
process issue.
The Ex Post Facto Clause is a limitation upon the powers of the
Legislature and does not of its own force apply to the Judicial Branch
of government. Petitioner’s claims arise out of judicial interpretation
of a statute, and therefore, his rights derive from the Due Process
Clause. Because, however, an unforeseeable judicial enlargement of
a criminal statute, applied retroactively, operates precisely like an ex
post facto law, we apply ex post facto principles to decide the due
process issue.
Lustgarden v. Gunter, 966 F.2d 552, 553-54 (10th Cir. 1992) (citations and
quotations omitted). The relevant inquiry for this court under due process
analysis is whether the change in this court’s interpretation of 21 U.S.C § 841 was
foreseeable. See id. at 554. If the interpretive change was foreseeable, it does
not violate defendant’s due process rights. See id. The fact that this court relied
on the “plain meaning” of the language in § 841 when it decided Richards is
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evidence of the decision’s foreseeability. See id.; see also Richards, 87 F.3d at
1157. We need not address the foreseeability of Richards, however, because we
conclude Richards had no impact on defendant’s sentencing.
Richards held that liquid by-products containing methamphetamine
constitute a “mixture or substance” for purposes of 21 U.S.C. § 841(b) and,
therefore, the entire weight of the liquid by-products should be included in
determining a defendant’s statutory minimum and maximum sentences. See
Richards, 87 F.3d at 1157. Because Richards only addresses the determination of
statutory minimum and maximum sentences, it does not affect the calculation of
drug quantities under the Sentencing Guidelines, nor does it impact a defendant’s
sentence unless the applicable Sentencing Guideline range falls above the
statutory maximum or below the statutory minimum. Under the Sentencing
Guidelines, the district court properly determined that Hill had an adjusted total
offense level of thirty-two with an incarceration range of 121-151 months. Thus,
regardless of whether the statutory mandatory minimum was five years or ten
years, under the Guidelines the minimum sentence Hill could have received was
121 months, absent exceptional circumstances which are inapplicable here.
Because 121 months is greater than both the five and ten-year statutory mandatory
minimums under 21 U.S.C. § 841(b), Richards had no effect on Hill’s sentencing.
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Defendant’s ex post facto challenge to the applicability of Richards is therefore
irrelevant.
Hill also asserts that the district court violated Rule 11(c) of the Federal
Rules of Criminal Procedure by failing to properly advise him of the accurate
minimum and maximum punishments at the time he entered his guilty plea. At
the plea hearing, the prosecutor informed the district court that the statutory
mandatory penalty was not less than five years nor more than forty years, but did
not provide the court with information regarding the attributable drug quantities
which ultimately determine the statutory penalty. Relying on the information
provided by the prosecutor, the district court then advised defendant of these
statutory minimum and maximum penalties. However, based on the quantity of
drugs attributed to Hill at the sentencing hearing, higher mandatory minimum and
maximum sentences were applicable.
Rule 11(c) provides, in part, that
[b]efore accepting a plea of guilty or nolo contendere, the court must
address the defendant personally in open court and inform the
defendant of, and determine that the defendant understands the . . .
nature of the charge to which the plea is offered, the mandatory
minimum penalty provided by law, if any, and the maximum possible
penalty provided by law . . . .
F.R.C.P. 11(c). Thus, erroneous information regarding the minimum and
maximum mandatory sentences violates Rule 11(c).
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It appears that Rule 11(c) was violated. A violation of Rule 11(c),
however, does not necessarily render defendant’s plea involuntary. Rule 11(h)
requires this court to apply a harmless error analysis, providing that “[a]ny
variance from the procedures required by [Rule 11] which does not affect
substantial rights shall be disregarded.” F.R.C.P. 11(h). Rule 11(h) requires a
defendant to demonstrate that knowledge of the omitted or inaccurate information
“‘would have changed his decision to plead guilty.’” United States v. Wright, 930
F.2d 808, 810 (10th Cir. 1991) (quoting United States v. Gomez-Cuevas, 917 F.2d
1521, 1527 (10th Cir. 1990)).
The record contains no evidence Hill would have changed his plea had he
known that ten years was the mandatory statutory minimum. Hill was aware that
the Presentence Investigation Report calculated his mandatory statutory minimum
sentence at ten years. 3 At the sentencing hearing, his own counsel expressly
recognized that 121 months was the minimum applicable sentence. After
determining the drug quantities attributable to Hill, the district court took a recess
during which time defendant had an opportunity to talk to his counsel. When the
court reconvened, both defendant and his counsel were asked if they had anything
3
Hill made a written objection to the higher statutory minimum and
maximum sentences cited by the Presentence Investigation Report on the ground
that they were inconsistent with the statutory sentences he was advised of during
his plea hearing; however, he did not contend that these higher sentences rendered
his plea involuntary, nor did he move to withdraw his plea.
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to add after the court calculated the adjusted offense level; each responded in the
negative. Similarly, neither of them when asked offered a reason why the
sentence should not be imposed at that time. Thus, despite ample opportunities
during the sentencing hearing, Hill never contested the higher minimum sentence
on the ground that it rendered his plea involuntary, nor did Hill suggest that he
wished to withdraw his guilty plea.
Further, Hill was aware at the time he pleaded guilty that his punishment
would be determined in accordance with the Sentencing Guidelines. Before
accepting Hill’s guilty plea, the district court properly instructed him that this
case was subject to the Federal Sentencing Guidelines. The sentence Hill actually
received, 121 months of incarceration followed by supervised release, was based
on the Sentencing Guidelines, and was not affected by the statutory minimum and
maximum penalties. Under the Guidelines, the minimum sentence Hill could have
received was 121 months. Because 121 months is greater than both the five and
ten-year statutory mandatory minimums under 21 U.S.C. § 841(b), the statutory
mandatory minimum had no impact on his sentence. Additionally, the 121 month
sentence is within the five to forty-year statutory range disclosed to
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Hill by the district court at the time he entered his guilty plea. As a consequence,
any violation of Rule 11(c) was harmless error.
The judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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