United States v. Derden ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 02-50538
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEVEN GLENN DERDEN,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(02-CR-24)
___________________________________________________
February 12, 2003
Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM*:
Defendant-Appellant Steven Glenn Derden appeals from the
sentence imposed by the district court after he pleaded guilty to
stealing and possessing anhydrous ammonia with the intent to
manufacture methamphetamine. We affirm.
I. FACTS AND PROCEEDINGS
In January 2002, Derden and Joshua Self were arrested
following their unsuccessful attempt to steal anhydrous ammonia
from a farm in Mertens, Texas. At the time of the arrest, police
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
discovered, either on the arrestees’ persons or in their vehicle,
six empty propane bottles, heavy-duty rubber gloves of the type
used to protect a person from ammonia burns, $3,240 in cash, a
small knife, and a brass adapter for a propane bottle. When the
police went to the scene of the attempted theft, they discovered
another propane bottle, which was three-quarters full of anhydrous
ammonia. Self confessed to the police that he and Derden were
planning to fill all of the propane bottles with anhydrous ammonia
and then sell the filled bottles in Ft. Worth, Texas, where their
contents would be used in the manufacture of methamphetamine.
The following month, a grand jury indicted Derden on two
counts, one for conspiring to manufacture methamphetamine, and
another for stealing and possessing anhydrous ammonia with the
intent to manufacture methamphetamine. Derden pleaded guilty to
the second count.
Subsequently, Derden appeared before the district court for a
sentencing hearing. Pursuant to the plea agreement with Derden,
the government submitted a motion to dismiss the first count of the
indictment. The Presentence Report (“PSR”) recommended a base
offense level of 26, which was derived from a cumulative drug
quantity of 119.82 kilograms of marijuana, being the total amount
of marijuana and marijuana-equivalent drugs seized from Derden in
the January 2002 arrest and in three arrests in the prior year.
The reason that the probation officer included the drug
quantities from Derden’s three prior arrests in the PSR was that
2
the facts underlying these arrests constituted “relevant conduct.”1
Derden had first been arrested in February 2001 after police
discovered, in his apartment, 13.5 ounces of marijuana, 29.6 grams
of marijuana, and 17.5 grams of methamphetamine (equivalent to
35.41 kilograms of marijuana). Then, in April 2001, police
executed an arrest warrant at Derden’s apartment, seizing 271.53
grams of marijuana and 25.59 grams of methamphetamine (equivalent
to 51.45 kilograms of marijuana). Finally, in May 2001, Derden was
arrested following a traffic stop, and police seized from his
vehicle two propane bottles and two propane adapters, a large
knife, a syringe, 12.41 grams of methamphetamine, and 8.8 grams of
cocaine (equivalent to 26.58 kilograms of marijuana). In the
course of Derden’s three arrests, the police had seized a total of
$5,629 in cash (equivalent to 6.38 kilograms of marijuana).
The PSR also stated that the police knew Derden to be a
manufacturer and distributor of drugs. The PSR reported that
police detective Kendall Novak had averred that Derden had been
manufacturing and distributing methamphetamine for several months
prior to the February 2001 arrest, and that evidence of a
methamphetamine production process was found in Derden’s home.
Also, Derden admitted, following the February 2001 arrest, that the
$1,793 in cash seized by police at that time was “drug money” and
1
The U.S. Sentencing Guidelines (“the Guidelines” or
“U.S.S.G.”) permits district courts to take into consideration,
for sentencing purposes, conduct not specified in the indictment
for which a defendant was convicted. See U.S.S.G. § 1B1.3 (2002).
3
that he had been selling marijuana on a regular basis.
Although Derden conceded that the May 2001 arrest was for
conduct similar to that involved in his January 2002 arrest, he
objected to the inclusion of the drug-quantity information from his
February and April 2001 arrests. At sentencing, the government
sought to support the PSR’s position that the drug quantities from
all of Derden’s prior arrests should be included in the PSR as
relevant conduct, which could be considered as part of a common
scheme in computing a base offense level.2 The “common scheme” was
Derden’s ongoing activities in manufacturing and distributing
drugs. In furtherance of the government’s support of the
information contained in the PSR, it adduced testimony of police
officer Trey West that, typically, the quantities of
methamphetamine seized from Derden in the February and April 2001
arrests were indicative of an intent to distribute, as opposed to
personal use, as was the act of stealing anhydrous ammonia with the
intent to manufacture methamphetamine.
The district court denied Derden’s objections, finding the
evidence sufficient to demonstrate that all three arrests in 2001
were “properly connected” to his January 2002 arrest and thereby
constituted “relevant conduct” as “a common scheme or plan.” The
court thus adopted the PSR’s recommended base offense level of 26,
which, following adjustments, resulted in a total offense level of
2
U.S.S.G. § 2D1.1, cmt. n.6 & 12 (2002).
4
25. The court also granted the government’s motion to dismiss the
first count of the indictment. Accordingly, the district court
sentenced Derden to (1) 60 months’ imprisonment, (2) supervision
for 3 years following his release from prison, and (3) payment of
a $1,000 special assessment. Derden timely filed a notice of
appeal.
II. ANALYSIS
Derden advances two issues on appeal: (1) Did the district
court err when it determined that, under the Guidelines, Derden’s
arrests in February and April 2001 were for acts constituting
“relevant conduct,” and (2) did the district court err in applying
the Guidelines when it used a cross-referenced section that
produced a higher base offense level. We address these claims in
sequence.
A. Relevant Conduct Under the Guidelines.
1. Standard of Review.
We review for clear error a district court’s finding of
relevant conduct in its determination of a defendant’s base offense
level under the Guidelines.3
2. Derden’s Three Arrests in 2001 Were for Relevant Conduct.
In sentencing a defendant for violating the federal drug laws,
3
United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000).
5
“the base offense level can reflect quantities of drugs not
specified in the count of conviction if they were part of the same
course of conduct or part of a common scheme or plan as the count
of conviction.”4 The Guidelines thus provide for two types of
“relevant conduct.”5 First, a “course of conduct” comprises
offenses that “are sufficiently connected or related to each other
as to warrant the conclusion that they are part of a single
episode.”6 A “sufficient connection” between offenses is
determined to exist when three factors are present: “the degree of
similarity of the offenses, the regularity (repetitions) of the
offenses, and the time interval between the offenses.”7 Second, a
“common scheme or plan” is defined as two or more offenses that are
“substantially connected to each other by at least one common
factor, such as common victims, common accomplices, common purpose,
or similar modus operandi.”8
Derden contends on appeal that his two arrests in early 2001
were not part of a “course of conduct,” and thus fail the “relevant
conduct” requirements of the Guidelines. He argues that (1) the
drugs and related materials seized in his various arrests differ in
4
United States v. Moore, 927 F.2d 825, 826 (5th Cir. 1991)
(emphasis added).
5
U.S.S.G. § 1B1.3(a)(2).
6
U.S.S.G. § 1B1.3, cmt. n.9(A).
7
Id.
8
U.S.S.G. § 1B1.3, cmt. n.9(B).
6
type and quantity, (2) the “time interval” between his arrests do
not evidence any consistency or regularity in his actions, (3) his
arrests in February and April 2001 are temporally too attenuated
from his arrest in January 2002 to constitute a “sufficient
connection,” and (4) the only common element in each arrest —— the
methamphetamine —— is insufficient by itself to connect these
events. In sum, Derden maintains that his prior arrests in
February and April 2001 lack the sufficient similarity, regularity
and close temporal relationship needed to qualify as a “single
episode,” which is the defining element of finding a “course of
conduct.”
Derden’s arguments are misdirected, however, because the
probation officer included Derden’s prior arrests in the PSR, not
as evidence of a “course of conduct,” but rather as evidence of a
“common scheme or plan.” In arguing for the adoption of the PSR
before the district court, the government asserted that Derden was
a drug manufacturer and distributer, and that each of his prior
arrests reflected this common purpose.9 The district court adopted
the PSR’s information on Derden’s prior arrests as “relevant
conduct” because it found that these arrests reflected Derden’s
common purpose of manufacturing and distributing drugs.
The district court’s finding of Derden’s common purpose as a
9
U.S.S.G. § 1B1.3, cmt. n.9(B) (explaining that a “common
scheme or plan” consists of “two or more offenses...connected to
each other by at least one common factor, such as...common
purpose”).
7
drug manufacturer and distributer was based on evidence of (1) the
substantial quantity of drugs seized in each arrest, (2) the
substantial amounts of cash seized in each arrest, (3) the
methamphetamine manufacturing process seized from Derden’s
apartment, (4) the police detective’s testimony that Derden was a
known drug distributer, (5) Derden’s February 2001 admission that
he was engaged in drug distribution, (6) the use of anhydrous
ammonia in manufacturing methamphetamine, and (7) the confession by
Self that he and Derden were acting to further the manufacture of
methamphetamine. Derden neither specifically objected to any of
this evidence, nor offered any countervailing testimony or evidence
of his own. Thus, there exists neither relevant evidence nor legal
argument to support Derden’s contention that the district court
clearly erred in its finding that his prior arrests constituted
relevant conduct for purposes of sentencing.
This conclusion is consistent with our past decisions
reviewing sentences based, in part, on “relevant conduct.”
“Particularly in drug cases, this circuit has broadly defined what
constitutes ‘the same course of conduct’ or ‘common scheme or
plan.’”10 Derden has given us no reason to depart from this
practice and adopt his narrow construction of “relevant conduct.”
10
United States v. Bryant, 991 F.2d 171, 176 (5th Cir.
1993). Cf. Moore, 927 F.2d at 827 (noting that “[w]e have
already held that a court properly may consider the amounts of
drugs still under negotiation in an uncompleted distribution when
calculating relevant conduct”).
8
This is particularly true given the fact that all of Derden’s
arrests in 2001 occurred less than a year before the offense to
which he pleaded guilty, for “[i]t is well settled in this circuit
that offenses which occur within a year of the offense of
conviction may be considered relevant conduct for sentencing.”11
When we view the record as a whole, we are not left “with the
definite and firm conviction that a mistake has been made”12 by the
district court in finding that the quantity of drugs and other
factors involved in Derden’s prior arrests constituted relevant
conduct for sentencing purposes.
B. The District Court’s Use of a Cross-Referenced Section in
Setting Derden’s Base Offense Level.
1. Standard of Review.
Derden raises this objection for the first time on appeal.
Accordingly, we will review the district court’s ruling only for
plain error.13 As such, we may act on Derden’s post-sentence
objection only if (1) there was an error, (2) the error was clear,
obvious or readily apparent, and (3) this error affected
11
Ocana, 204 F.3d at 590. See also United States v.
Anderson, 174 F.3d 515, 526-27 (5th Cir. 1999) (affirming
district court’s finding of relevant conduct for illegal timber
removal given “common purpose” and “similar modus operandi,”
despite the occurrence of the acts “over a period of several
years”).
12
Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985) (specifying the standard for reviewing a district court’s
findings for clear error).
13
United States v. Thames, 214 F.3d 608, 612 (5th Cir.
2000).
9
defendant’s substantial rights.14 It bears emphasizing that
determining both that a plain error occurred and that this affected
a defendant’s substantial rights is a very high hurdle for Derden
to surmount, and that such errors “should be corrected on appeal
only if they ‘seriously affect the fairness, integrity, or public
reputation of judicial proceedings.’”15
2. No Plain Error in District Court’s Use of Cross-
Referenced Section.
The district court determined Derden’s base offense level
under § 2D1.1 of the Guidelines, which was cross-referenced by §
2D1.13, the section that was directly applicable to Derden.
Section 2D1.13(c)(1) instructs the sentencing court to use § 2D1.1
if “the offense involved unlawfully manufacturing a controlled
substance, or attempting to manufacture a controlled substance
unlawfully” and the application of § 2D1.1 would result in a higher
offense level.16 In this case, application of § 2D1.13 resulted in
a base offense level of only 12, but the application of § 2D1.1
produced a base offense level of 26. Therefore, the district court
used the latter.
Derden now claims that the district court erred in applying
the cross-referenced § 2D1.1, because he was caught only attempting
14
United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995).
15
United States v. Calverley, 37 F.3d 160, 164 (5th Cir.
1994) (en banc) (quoting United States v. Atkinson, 297 U.S. 157,
160 (1936)).
16
U.S.S.G. § 2D1.13(c)(1).
10
to steal anhydrous ammonia. He argues that § 2D1.13(c)(1) and its
commentary require completion of “the intended offense [of]
attempting to manufacture the methamphetamine with the anhydrous
[ammonia] that [Derden] tried, but failed, to obtain.”
This argument is without merit. First, Derden has offered
nothing to show obvious or clear error in the district court’s
acceptance of the PSR or in the government’s argument that the
instant offense was part of Derden’s ongoing scheme to manufacture
and distribute methamphetamine. Second, Derden pleaded guilty to
stealing and possessing anhydrous ammonia with intent to
manufacture methamphetamine. This is an offense that falls within
the ambit of the plain wording of § 2D1.12(c)(1), which mandates
that the district court use § 2D1.1 when the “offense involves...
attempting to manufacture a controlled substance.”17 Third, and
most important, Derden is asking us to review a factual
determination of the district court —— that Derden was engaged in
an ongoing scheme of manufacturing and distributing drugs —— yet,
as we have held before, “questions of fact capable of resolution by
the district court upon proper objection at sentencing can never
constitute plain error.”18 Thus, even assuming arguendo that we
could determine that the district court committed an obvious or
17
Section 2D1.1(c)(1) (emphasis added).
18
Unites States v. McCaskey, 9 F.3d 368, 376 (5th Cir.
1993) (quoting United States v. Lopez, 923 F.2d 47, 50 (5th Cir.
1991)). See also Vital, 68 F.3d at 119 (quoting same).
11
clear error, we would nevertheless be precluded from revisiting the
court’s finding under this standard of review.
III. CONCLUSION
For the foregoing reasons, Derden’s sentence is AFFIRMED.
12