United States v. Luke Atwell ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1753
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UNITED STATES OF AMERICA
v.
LUKE A. ATWELL
Luke Atwell,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
District Court No. (3-13-cr-00560-002)
District Judge: The Honorable Freda L. Wolfson
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 14, 2018
Before: SMITH, Chief Judge, CHAGARES, and FUENTES, Circuit Judges
(Filed: July 26, 2018)
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OPINION *
_____________________
SMITH, Chief Judge.
A jury found Luke Atwell and Christopher Castelluzzo guilty of conspiring to
distribute and to possess with the intent to distribute the drugs methylone, cocaine, MDMA,
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
and marijuana, all in violation of 21 U.S.C. § 846. Atwell appeals, contending that the
District Court erred in four respects: 1) attributing to him at sentencing responsibility for
six-plus kilograms of methylone seized at an apartment in East Orange, New Jersey; 2)
applying the enhancement in United States Sentencing Guideline (U.S.S.G.) § 3B1.1(b) for
being a manager or supervisor; 3) refusing to apply a downward adjustment for acceptance
of responsibility under U.S.S.G. § 3E1.1; and 4) denying his motion to suppress. 1 For the
reasons set forth below, we will affirm.
Homeland Security Investigations (HSI) Special Agents arrested Atwell and
Castelluzzo at a U.S. Post Office in Manville, New Jersey, after the Special Agents effected
a controlled delivery to Atwell of a package from China containing 2.9 kilograms of
methylone. Approximately a month before the controlled delivery, Agents with the Drug
Enforcement Administration seized a package containing 6.624 kilograms of methylone
from an apartment in East Orange, New Jersey, that was being used to package drugs. A
search of the apartment yielded certain personal items belonging to Castelluzzo, as well as
items to be used to package and ship the drugs. While the search was being executed,
Atwell arrived, purportedly for the purpose of giving a pair of winter gloves to Rafael
Santiago-Soto, who was in the apartment and was directing the packaging of the drugs. At
sentencing, over Atwell’s objection, the District Court attributed to Atwell the methylone
from both the controlled delivery and the seizure at the East Orange apartment. On appeal,
Atwell asserts that he did not have notice and an opportunity to challenge the 9-plus
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction
under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
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kilograms of methylone attributed to him. He also contends that “there is barely an iota of
evidence connecting” him to the 6-plus kilograms seized from the apartment. Atwell’s Br.
25.
Atwell’s assertion that he was deprived of notice and an opportunity to challenge
the drug quantity raises a due process claim. We exercise plenary review over this claim.
United States v. Ausburn, 502 F.3d 313, 321 (3d Cir. 2007). Because the drug
quantification was set forth in the presentence investigation report and because Atwell
challenged that quantification at the sentencing hearing, there is no merit to Atwell’s due
process claim.
“We review a district court’s findings of fact regarding quantity of drugs for clear
error.” United States v. Freeman, 763 F.3d 322, 337 (3d Cir. 2014). We reject, as did the
District Court, Atwell’s contention that there is no evidence connecting him to the 6-plus
kilograms of methylone seized at the apartment. The Court cited not only Atwell’s
presence at the apartment, but also evidence that made clear that he was familiar with both
the apartment and Santiago-Soto. In addition, the Court noted that the activity taking place
in the apartment was in furtherance of the criminal conspiracy of which Atwell and
Castelluzzo were convicted. We conclude the District Court did not err in its calculation
of the quantity of drugs for which Atwell was responsible.
Atwell also objects to the District Court’s three point enhancement of his offense
level under U.S.S.G. § 3B1.1(b) for being a manager or supervisor of “criminal activity
[that] involved five or more participants.” He asserts that the enhancement is inapplicable
because the participants must be “criminally responsible themselves.” Atwell Br. 28
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(citing U.S.S.G. § 3B1.1 cmt. n.1). Atwell further contends that there is no evidence to
support that he exercised the type of authority needed to apply the enhancement.
Here, too, we apply clear error review to the District Court’s factual findings and
“exercise plenary review over legal questions.” United States v. Helbling, 209 F.3d 226,
243 (3d Cir. 2000). We conclude that application of the § 3B1.1(b) enhancement did not
constitute error. The District Court thoughtfully considered Atwell’s argument and
identified the requisite participants involved in the offense. Because the offense of
conviction was a § 846 drug conspiracy, we conclude that the participants could be
criminally liable. See United States v. Perez, 280 F.3d 318, 343 (3d Cir. 2002). The
sentencing transcript belies Atwell’s position that the evidence fails to show he exercised
the type of authority required for the enhancement to apply. Indeed, Atwell ignores that
the District Court specifically cited e-mails, as well as Castelluzzo’s trial testimony, to
support Atwell’s managerial role in the conspiracy.
According to Atwell, the District Court also erred by refusing to apply a downward
adjustment for his acceptance of responsibility under U.S.S.G. § 3E1.1. Atwell explained
that he was willing to accept a plea agreement but was compelled to stand trial because the
agreement was contingent on Castelluzzo entering a plea. He also asserted that he had
“done nothing but profess his innocence and work with the government to achieve an
appropriate and expedited resolution of the charges.” Atwell Br. 33. In light of the District
Court’s finding that Atwell had yet to admit his guilt and express remorse, the District
Court did not err by refusing to apply this adjustment.
Finally, Atwell claims that warrantless searches of Castelluzzo’s cell phone at the
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scene of the arrest and of Castelluzzo’s home resulted in a violation of Atwell’s Fourth
Amendment rights. He further contends that the affidavits in support of several search
warrants failed to establish probable cause. In reviewing the denial of a motion to suppress,
we apply clear error review to factual findings and plenary review to issues of law. United
States v. Stabile, 633 F.3d 219, 230 (3d Cir. 2011). In reviewing a probable cause
determination, we conduct a deferential review to ascertain if there was a “‘substantial
basis’ for concluding that probable cause existed.” United States v. Whitner, 219 F.3d 289,
296 (3d Cir. 2000).
Atwell lacks standing to challenge the searches of Castelluzzo’s cell phone and
home. United States v. Stearn, 597 F.3d 540, 552 (3d Cir. 2010) (citing Rakas v. Illinois,
439 U.S. 128, 139 (1978), as “black-letter law” that proponent of a suppression motion
must assert his own rights). There is no merit to Atwell’s probable cause challenge.
For the reasons set forth above, we will affirm the judgment of the District Court.
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