United States v. Holbrook ( 2000 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUN 23 2000
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                       No. 99-6268
    MARK HOLBROOK,                                     (D.C. No. 98-CR-239-C)
    (W.D.Okl.)
    Defendant-Appellant.
    ORDER AND JUDGMENT       *
    Before SEYMOUR , Chief Judge, EBEL and BRISCOE, 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)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument
    Defendant Mark Holbrook, who pleaded guilty to manufacturing
    methamphetamine in violation of 21 U.S.C. § 841(a)(1), appeals the sentence
    This order and judgment is not binding precedent, except under the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.
    imposed by the district court. We exercise jurisdiction pursuant to 28 U.S.C.
    § 1291 and affirm.
    I
    The Presentence Investigation Report (“PSIR”) filed in this case sets forth
    the following facts. Responding to “reports of a man with a gun,” Oklahoma City
    police officers followed and detained Holbrook in March 1998. PSIR at 7 (¶ 15).
    While searching Holbrook’s vehicle, officers discovered a loaded revolver, drug
    paraphernalia, and 810 grams of ephedrine/pseudoephedrine.      1
    In September 1998,
    the Federal Bureau of Investigation (“FBI”) learned from confidential sources that
    Holbrook sold a man named Brian Stone 1.5 grams of methamphetamine; Stone
    also reported that he had seen an ounce of methamphetamine in Holbrook’s
    kitchen.   Based on this and other confidential information, the FBI “established
    surveillance” at Holbrook’s Oklahoma City residence.       PSIR at 3 (¶ 5). Shortly
    thereafter, FBI agents observed a man named Russell Trail leaving Holbrook’s
    home. The agents stopped Trail and found in Trail’s possession 6.9 grams of
    methamphetamine “of 50 percent purity.”       
    Id. at 4
    (¶ 6). Trail informed the
    agents that the drugs “had come from the methamphetamine laboratory” located in
    Holbrook’s garage.   
    Id. The agents
    then arrested Holbrook and searched his
    1
    In addition, while frisking Holbrook officers discovered a hypodermic
    syringe, 33.4 grams of marijuana, and 11 tablets of Valium.
    2
    vehicle. That search led to the discovery of a ziplock bag containing 13.7 grams
    of 54.1 percent pure methamphetamine and 60 tablets of “60 mg.
    pseudoephedrine.”    
    Id. (¶ 8).
    After obtaining a warrant, the agents searched
    Holbrook’s residence and found a methamphetamine laboratory, a baggie
    containing 560 grams of ephedrine, and 17.67 grams of 80 percent pure
    methamphetamine (also known as “actual” methamphetamine).
    FBI agents obtained additional information in mid-September 1998. At that
    time the agents learned that Holbrook had been using Trail’s residence to
    manufacture drugs.    The agents discovered that between mid-October and early
    November 1998, Holbrook and Trail conducted “three and one-half cooks” at
    Trail’s house.   
    Id. at 8
    (¶ 18). Holbrook told Trail that he (Holbrook) intended to
    sell three ounces of this methamphetamine for $3,000.     The agents also received
    information that Holbrook previously purchased at least one ounce of
    methamphetamine from Trail.
    Holbrook then proceeded to make two methamphetamine sales to
    undercover officers. Both of these sales occurred in early November 1998.        The
    first sale involved 12.9 grams of methamphetamine.      During the course of the
    sale, Holbrook stated that the methamphetamine had been “cooked with
    ephedrine” because that was the best way to ensure “a quality product with a good
    yield.” 
    Id. at 5
    (¶ 10.b). The second sale involved 83.4 grams of
    3
    methamphetamine.     After arresting Holbrook in connection with this sale, officers
    discovered an additional two grams of actual methamphetamine.
    One month later, in December 1998, FBI agents paid a visit to Trail at his
    residence. Trail admitted that he was friends with Holbrook and that the two men
    cooked methamphetamine together at Trail’s house.     Trail also stated that
    Holbrook provided the “necessary chemicals” for Trail to manufacture the drugs.
    
    Id. at 5
    -6 (¶ 11). Agents searched Trail’s residence and found glassware, a “two-
    layer liquid” suspected to be methamphetamine oil, “white powdery substances,”
    and a potpourri of chemicals (including iodine, lye, red phosphorous, and
    ephedrine). 
    Id. at 6
    (¶ 12). Subsequent laboratory reports confirmed that these
    materials contained 8.47 grams of actual methamphetamine and 33.9 grams of a
    methamphetamine “mixture.”     
    Id. (¶ 13).
    Trail later informed the agents that
    Holbrook conducted at least one methamphetamine “cook” per week in February
    and March of 1998.   
    Id. (¶ 14).
    These “cooks” produced a total of at least four
    pounds of methamphetamine.     
    Id. 2 A
    grand jury returned an eight-count indictment against Holbrook. In
    exchange for the government’s promise not to pursue the remaining charges,
    Holbrook agreed to plead guilty to Count 3 of the indictment. Count 3 charged
    2
    “[T]o avoid double-counting with later amounts,” the government
    ultimately attributed three (rather than four) pounds of this methamphetamine to
    Holbrook. PSIR at 6-7 (¶ 14).
    4
    Holbrook with manufacturing methamphetamine in violation of 21 U.S.C.
    § 841(a)(1). Holbrook’s plea agreement specified that the maximum term
    Holbrook could receive for this offense was “life imprisonment.” Appellant’s
    Appendix at 1. Holbrook expressly acknowledged in the plea that “[n]o
    agreement exists concerning a sentencing departure under the Sentencing
    Guidelines or concerning a reduction of sentence” under Federal Rule of Criminal
    Procedure 35(b).   
    Id. at 5
    .
    Prior to sentencing, Holbrook’s counsel filed objections to the PSIR.
    Holbrook objected to (1) the government’s calculation of drug quantities, which
    attributed to Holbrook 17,217.56 kilograms of marijuana equivalent; (2) an
    enhancement for the “emission of a hazardous substance;” and (3) an
    enhancement for “recruiting another defendant to the offense.” Motion to
    Withdraw as Attorney and       Anders Brief (“ Anders Brief”) at 2-3; Brief of
    Plaintiff-Appellee at 5. After the district court was assured at the sentencing
    hearing that Holbrook had received a copy of the PSIR and had discussed it with
    counsel, Holbrook’s attorney withdrew the objection to the government’s
    calculation of drug quantities. Holbrook stated on the record that this was
    consistent with his wishes.     Holbrook’s attorney apparently withdrew the
    objection based on an “informal discussion” that occurred before the parties
    entered the courtroom “that the amounts of drugs were so high and the amount
    5
    required before the offense level would drop, even if [Holbrook] were successful
    on the objectio[n],” would not change the sentencing range.   Anders Brief at 3.   3
    3
    The following colloquy occurred at the sentencing hearing:
    THE COURT: This case has been set for sentencing having
    been a week or so ago. I have forgotten the exact date we were here
    so that the probation officer could consider the objections which had
    been misdirected and hadn’t been included in the pre-sentence report
    before last week. That has now taken place. . . . The pre-sentence
    investigation report has been amended to reflect those remaining
    objections, and let me ask you, Mr. Holbrook, have you received a
    copy of the amended report and had sufficient time to discuss it with
    [your counsel] Mr. Wallace for purposes of today’s proceedings?
    DEFENDANT HOLBROOK: Yes, Your Honor.
    THE COURT: Mr. Wallace do you confirm that?
    MR. WALLACE: Yes, ma’am.
    ***
    THE COURT: According to the findings and
    recommendations of the probation offices, the total offense level in
    this case is 39. The criminal history category is 1 and the resulting
    guideline imprisonment range is 262 to 327 months. To these
    conclusions, the Defendant has lodged a number of objections
    relating primarily to drug amounts contained in various paragraphs
    of the pre-sentence report. Mr. Wallace, according to our
    conversation immediately before this hearing, your client may wish
    to withdraw those objections or not.
    MR. WALLACE: Your Honor, if the Court please, the
    objections concerning the amounts we are prepared to withdraw. We
    would like to proceed with our objections to the special offense
    characteristic in paragraph 28 concerning emission of a hazardous
    substance and paragraph 30 adjustment for role in the offense
    alleging that he recruited and supervised the activities of Russell
    Trail.
    THE COURT: Mr. Holbrook, is this consistent with your
    wishes, what Mr. Wallace has stated?
    DEFENDANT HOLBROOK: Yes, ma’am.
    (continued...)
    6
    The district court granted Holbrook’s remaining objections, assigned Holbrook “a
    criminal history category of 1 and a total offense level of 35,” and determined
    that the “imprisonment range” under the Guidelines was between 168 and 200
    months. Aple. Supp. App. at 50. The court sentenced Holbrook to 168 months in
    prison, followed by five years of supervised release.
    II
    Holbrook’s argument on appeal is threefold. Holbrook contends that (1)
    the quantity of drugs attributed to him in the PSIR was unsupported by the record;
    (2) he did not use a weapon to commit the underlying offense and thus should not
    have been subject to a two-level enhancement under United States Sentencing
    Guidelines (“U.S.S.G.”) § 2D1.1(b)(1); and (3) he met all of the requirements set
    forth in U.S.S.G. § 5C1.2, and therefore should have received a two-level
    reduction under U.S.S.G. § 2D1.1(b)(6). Holbrook’s first argument is similar (but
    3
    (...continued)
    THE COURT: This was as noted in our informal discussion
    before coming in the courtroom, the amounts of drugs are so high
    and the amount required before it would drop, the offense level is so
    great that even – I believe in Mr. Wallace’s judgment, you will
    correct me if I am stating this wrong, even if the Defendant were
    successful on the objections on which he might be successful, it
    wouldn’t change the guideline range at all; is that correct?
    MR. WALLACE: That’s correct, Your Honor.
    THE COURT: I will proceed, then[,] to the two objections that
    you mentioned. . . .
    Aple. Supp. App. at 47-49.
    7
    not identical) to the objection he voluntarily withdrew at the sentencing hearing.
    Holbrook’s second and third arguments were never presented to the district court
    in any form.
    Holbrook’s failure to bring these issues to the district court’s attention
    forecloses his appeal.     Because Holbrook declined to argue these points to the
    district court, “the only appropriate standard of review is plain error.”         United
    States v. Deninno , 
    29 F.3d 572
    , 580 (10th Cir. 1994);        see also United States v.
    Svacina , 
    137 F.3d 1179
    , 1187 (10th Cir. 1998) (affirming that “failure to object
    generally precludes review except for plain error”). However, “[t]his court has
    held repeatedly that factual disputes not brought to the attention of the court do
    not rise to the level of plain error.”   Svacina , 137 F.3d at 1187 (citing, among
    other cases, United States v. Yarnell , 
    129 F.3d 1127
    , 1137-38 (10th Cir. 1997));
    see also United States v. Green , 
    175 F.3d 822
    , 837 (10th Cir.) (“A defendant
    [must] raise alleged factual inaccuracies in a presentence report before the district
    court in order to preserve the issue on appeal.”) (brackets in original, citation
    omitted), cert. denied , 
    120 S. Ct. 132
    (1999). Holbrook’s objection to the amount
    of drugs attributed to him in the PSIR is indisputably factual. In support of this
    argument Holbrook repeatedly decries the lack of “reliable evidence” linking him
    to the methamphetamine seized by law enforcement officials.            See , e.g. ,
    Appellant’s Supplemental Brief on Appeal at 3, 7, 9. Holbrook’s second and
    8
    third objections also involve contested facts. For example, a factual premise
    underlying both arguments is that “there were no weapons discovered” during the
    commission of the charged offense.          
    Id. at 11,
    12.
    Holbrook cannot salvage his direct appeal by claiming ineffective
    assistance of counsel. Citing    Strickland v. Washington , 
    466 U.S. 668
    (1984),
    Holbrook argues that his trial lawyer breached a duty by failing to make the
    objections now asserted and by providing faulty legal advice.         As we explained in
    United States v. Wiseman , 
    172 F.3d 1196
    (10th Cir.),        cert. denied , 
    120 S. Ct. 211
    (1999),
    [i]neffective assistance of counsel claims should be brought in
    collateral proceedings, not on direct appeal.   United States v.
    Galloway , 
    56 F.3d 1239
    (10th Cir. 1995). Among the reasons for our
    holding in Galloway , we noted that by postponing consideration of
    ineffective assistance claims to collateral review, “at the very least
    counsel accused of deficient performance can explain their reasoning
    and actions, and the district court can render its opinion on the merits
    of the claim.” We also noted the importance of having the district
    court, with its familiarity with counsel’s performance, consider
    ineffective assistance claims in the first instance.
    
    Id. at 1207
    (pinpoint citations omitted);      accord United States v. Gell-Iren , 
    146 F.3d 827
    , 831-32 (10th Cir. 1998). Because this is not one of those “rare
    circumstances” in which the record pertaining to an ineffective assistance claim
    “has been adequately developed by the district court prior to appeal,”       see United
    States v. Carter , 
    130 F.3d 1432
    , 1442 (10th Cir. 1997), we dismiss Holbrook’s
    allegations against his trial attorney without prejudice.
    9
    III
    The sentence imposed by the district court is AFFIRMED. After he filed
    his initial brief, Holbrook filed pro se a “Motion to Supplement the Proceedings.”
    Because it appears to present additional objections to the PSIR that were not
    raised in district court, that motion is DENIED. The motion of Holbrook’s
    counsel to withdraw as Holbrook’s counsel is GRANTED.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    10