United States v. Ramsdale , 179 F.3d 1320 ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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FILED
No. 95-3640 U.S. COURT OF APPEALS
-------------------------------------------- ELEVENTH CIRCUIT
07/06/99
D. C. Docket No. 92-03094/LAC THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN DALE RAMSDALE, CHARLES CHRISTOFERSON,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Florida
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(July 6, 1999)
Before EDMONDSON and CARNES, Circuit Judge, and WATSON*, Senior Judge.
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*Honorable James L. Watson, Senior Judge, U. S. Court of International Trade, sitting by
designation.
PER CURIAM:
For the second time, two defendants appeal their sentencing. We see no
reversible errors and affirm.
Background
John Ramsdale and Charles Christoferson were convicted of conspiracy to
manufacture methamphetamine. They appealed their sentences and convictions.
We affirmed their convictions; but remanded the case for a determination of the
kind of methamphetamine involved in the conspiracy. See United States v.
Ramsdale, 61 F.3d 825, 827 (11th Cir. 1995). We also asked for specific findings
on the amount of methamphetamine used to sentence Christoferson. See id. at 832
n.18.
On the morning of the first day’s resentencing hearing, Leo Thomas,
Christoferson’s lawyer, explained he was required to be at a trial in about 30
minutes. After a discussion among the district court and the lawyers for
Christoferson and Ramsdale -- the significance of which underlies this appeal -- it
was decided that Thomas would leave that day’s resentencing hearing to attend the
trial.
2
A DEA chemist, a DEA agent, and the defense’s expert chemist testified at
the resentencing hearing. Their testimony was on the type of methamphetamine
produced by the conspiracy using Phenylacetic Acid (PA) and on the amount of
methamphetamine that could have been produced by Christoferson and Ramsdale
from the PA.
Thomas left the hearing about halfway through the cross-examination of the
DEA chemist by Ramsdale’s attorney. He was absent during the testimony of the
DEA Agent and of the defense’s expert witness. Ramsdale’s attorney cross-
examined the government witnesses.
Thomas made arguments to the court on the second day of the resentencing
hearing. At the end of the resentencing hearing, Christoferson -- who personally
was given no chance to address the district court -- and Ramsdale received
sentences of 360 months each: sentences no greater than they had received
initially.
Discussion
Christoferson argues that he was denied his right to address the district court
at sentencing and his Sixth Amendment right to counsel. Ramsdale and
3
Christoferson both challenge the kind of methamphetamine used for their
resentencing and the amount of methamphetamine.
Christoferson says he was denied his Sixth Amendment right to counsel
because of his lawyer’s absence at part of the resentencing hearing. Several events,
however, prove to us that Christoferson, in fact, had a lawyer representing him at
all times.
Before the hearing began, when the parties and the court first discussed
Thomas’s conflict, Ramsdale’s lawyer said:
I don’t know if it would help at all, I believe that the testimony that’s
going to be solicited will affect both the cases and perhaps that may be
of some help to know that that would be the case, regardless of
whether Mr. Thomas stays or not. I don’t know if that’s going to help
his client, unless they waive a conflict of interest concern.
Later, Thomas said:
I’m proposing that the hearing take place in my absence, after
which I can review the transcript and talk to my client and make a
determination if there’s anything else that needs to be done, if we need
to bring any other witnesses. Maybe not. Probably not, but I don’t
know. The expert testimony is going to apply to both of us. I would
think that would suffice.
4
Thomas added that his client was “agreeable” to the proposal.1 If those
statements were the only evidence of what the pertinent people understood about
the arrangements for Thomas’s absence, we might be unsure if Christoferson was
represented. A later hearing, held at our direction,2 however, clarified
Christoferson’s representation.
At the later hearing, the district court said to Thomas:
I think I can state with accuracy from my memory that at that
particular [resentencing] hearing when you were not here, that Mr.
Christoferson himself agreed and waived your appearance and relied
upon [Ramsdale’s attorney].
More important, Christoferson admitted under oath to having Ramsdale’s
attorney represent him at the resentencing hearing:
The Court: And you don’t recall agreeing to have [Ramsdale’s
attorney] represent you at that hearing?
Christoferson: Yes, sir, I remember that.
The Court: Well, then you obviously had an attorney
representing you, did you not?
1
Thomas specifically said: “Your honor, I talked to my client and that’s agreeable to him to
do it that way.” Christoferson was present at the resentencing hearing.
2
We ordered the district court to hold an evidentiary hearing on Christoferson’s eligibility for
appointed counsel after the resentencing: Thomas sought to withdraw. The Sixth Amendment
issue was raised because Thomas informed the district court that Christoferson was planning an
ineffective assistance of counsel claim based on Thomas’s absence at resentencing.
5
Christoferson: Yes.
The Court: By your own agreement?
Christoferson: Right.
Thomas also added, under oath, that he did not see a difference between
Christoferson’s and Ramsdale’s interests at the sentencing hearing.
Based on all this testimony, we think Ramsdale’s attorney, the district court,
Thomas, and Christoferson all believed that Ramsdale’s attorney was acting as
substitute counsel for Thomas.
For joint representation to deprive Christoferson of his Sixth Amendment
right to effective assistance of counsel, an actual -- not merely speculative --
conflict of interest must exist. See United States v. Risi, 603 F.2d 1193, 1195 (5th
Cir. 1979). Christoferson does not suggest a conflict of interest existed between
Ramsdale and him.
Our review of the record confirms that Ramsdale and Christoferson had no
conflict of interest at the resentencing. The purpose of the hearing was to
determine what kind of methamphetamine and how much methamphetamine to
attribute to Christoferson and Ramsdale for sentencing. Christoferson’s and
Ramsdale’s interests did not conflict: as coconspirators, they each were responsible
6
for the kind and amount of drugs produced by the other. See United States v.
Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993).
Because Christoferson had Ramsdale’s attorney as substitute counsel and
because no conflict of interest existed between Ramsdale and Christoferson, we
think Christoferson had real representation at the resentencing hearing. So, we
reject Christoferson’s Sixth Amendment claim.
We also reject Christoferson’s allocution claim. Under Federal Rule of
Criminal Procedure 32(c)(3)(C), a defendant must be given the chance to address
the sentencing court, before a sentence is imposed. When that opportunity is not
given, but the defendant fails to object, we will remand only if we see “manifest
injustice” as a result of the omission. See United States v. Rodriguez-Velasquez,
132 F.3d 698, 700 (11th Cir. 1998).
We see no manifest injustice as a result of the district court’s failure to
afford Christoferson a chance to allocute at his resentencing. See United States v.
Tamayo, 80 F.3d 1514, 1522 (11th Cir. 1996) (seeing no manifest injustice in
district court’s failure to allow defendant to speak at resentencing hearing).
7
Christoferson does not suggest a manifest injustice.3 So, another remand is not
required.
Christoferson’s allocution arguments based on United States v. Taylor, 11
F.3d 149 (11th Cir. 1994) are not compelling. In Taylor, we remanded a case
because the district court failed to allow the defendant to address the court at
resentencing. Taylor is distinguishable because Taylor claimed that, at his original
sentencing, he had no opportunity to allocute and because the district court, in
Taylor, “set aside [the original sentencing package] in its entirety.” Id. at 152.
This case is more like Tamayo, in which we said not allowing the defendant to
address the court was no reversible error: we relied mainly on the limited nature of
the remand instructions. See Tamayo, 80 F.3d at 1518-20. As in Tamayo, our
remand instructions were limited here. Furthermore, the district court and the
parties understood the remand was a limited one: not every issue applicable to
sentencing would be revisited. Christoferson, therefore, is not entitled to a remand
based on his inability to address the district court at resentencing.
3
He does argue, however, that his failure to object was the result of the district court’s failure
properly to elicit objections. We disagree. The district court asked if there was “anything else . .
. necessary in this resentencing” after announcing the sentence. Thomas then stated an objection
on Christoferson’s behalf to the sentence. Thomas, therefore, understood the district court to be
eliciting objections. Thomas’s articulation of an objection distinguishes this case from United
States v. Snyder, 941 F.2d 1427, 1428 (11th Cir. 1991) (in a case where no objections were
made, inquiring if parties had “anything further” is not sufficient effort at drawing objections).
8
We do not need to spend much time writing about Ramsdale’s and
Christoferson’s remaining claims. We think the original trial testimony (on the
value of the methamphetamine sold in this case) combined with the testimony of
the DEA Agent at the resentencing (that the value of the drugs in this case and the
continuing nature of Ramsdale and Christoferson’s drug business meant the drug
was D-methamphetamine) is sufficient to support the district court’s finding on the
kind of methamphetamine.4 Cf. Reece v. United States, 119 F.3d 1462, 1470 (11th
Cir. 1997) (no ineffective assistance for lawyer’s failure to object to use of D-
methamphetamine sentencing guidelines because drugs sold by petitioner had
street value and, therefore, was D-methamphetamine).
We also think the district court committed no reversible error by attributing
42 kilograms of D-methamphetamine to Ramsdale and Christoferson. Ramsdale
and Christoferson argue that attributing 42 kilograms of PA to them was a mistake
and that finding 42 kilograms of PA converted to an equal amount of
methamphetamine -- a conversion ratio of 100% or 1:1 -- was also mistaken.
4
Despite Ramsdale’s and Christoferson’s suggestions to the contrary, the district court partly
relied upon this testimony to reach its conclusion. After discussing the chemical process used to
create D-methamphetamine, the district court said:
And I further find that the evidence suggests that that was done in this case, based
upon the testimony as to the price that they were selling the mixture for, over a
continuing period of time.
9
We cannot say that attributing 42 kilograms of PA to Ramsdale and
Christoferson was a reversible error. The district court said there was “direct
evidence and testimony about immediate plans” to have 21 kilograms of PA
shipped “in the very near future” (in addition to the 21 kilograms ordered earlier).
We see no evidence in the record to support the district court’s finding that
Ramsdale and Christoferson were expecting to make another 21 kilogram purchase
soon.
The statement of Matt Reed, an accomplice, is that they would “probably
make a 15 kilo buy [of PA] every three weeks.” We accept that the record shows
that a 15 kilogram shipment “in the very near future” is concrete enough to
attribute to Ramsdale and Christoferson. See United States v. Taffe, 36 F.3d 1047,
1050 (11th Cir. 1994) (conspirator defendants can be sentenced based on drugs that
defendants planned to steal in the future). And if we attribute 36 kilograms (21
kilograms plus 15 kilograms) of PA to Ramsdale and Christoferson, their sentences
are unchanged.5 So, the 6-kilogram error of the district court does not require us to
reverse or remand this case.
5
Under the pertinent edition of the sentencing guidelines, Ramsdale’s and Christoferson’s
base offense levels would be unchanged from those in the PSI: they were sentenced using a base
offense level of 38. A base offense level of 38 applies if the defendant is involved with at least
30 kilograms of methamphetamine. See U.S.S.G. § 2D1.1(c) (1992).
10
We also accept, as not clearly erroneous, the district court’s decision on the
credibility of the expert chemists. The district court accepted the testimony of the
chemist who testified at trial to a 100% conversion ratio between PA and
methamphetamine. Although the two chemists testifying at the resentencing
hearing provided different conversion ratios than the trial expert had provided, we
will allow the district court’s finding that their testimony “was unable to
specifically say and to counter the opinion of [the trial] expert, because their range
went from zero to 110%.” See generally Amadeo v. Zant, 486 U.S. 214, 226-27
(1988) (accepting district court credibility determinations).
In summary, we see no reversible error on Christoferson’s claims about right
to counsel or allocution; and we see no reversible error on the kind or amount of
methamphetamine attributed to Christoferson and Ramsdale.
AFFIRMED.
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