United States v. Keeler ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0456n.06
Filed: August 1, 2008
No. 04-4476
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ROBERT WILLIAM KEELER, ) NORTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
Rogers, Circuit Judge. This case is part of a consolidated appeal involving thirteen
defendants who were members of the Outlaw Motorcycle Club (“OMC”), an international
motorcycle club with chapters across the country and around the world. In 1997, the Federal Bureau
of Investigation and state law enforcement agencies began an investigation into the Green region of
the OMC, which consists of chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville, Kentucky;
Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation, a grand jury
in the Northern District of Ohio returned a 40-count indictment in 2003 charging the defendants with
various offenses, including Racketeer Influenced and Corrupt Organizations Act (“RICO”), drug
trafficking, and firearms offenses. The defendants were tried before an anonymous jury.
No. 04-4476
United States v. Keeler
Defendant Robert W. Keeler was convicted on one count of substantive RICO in violation
of 18 U.S.C. § 1962(c), one count of RICO conspiracy in violation of 18 U.S.C. § 1962(d), one count
of conspiracy to possess with intent to distribute narcotics in violation of 21 U.S.C. § 846, and six
counts of unlawful use of a communication facility in violation of 21 U.S.C. § 843(b) and 18 U.S.C.
§ 2. He was acquitted on one count of firearms conspiracy. Following the trial, Keeler was
sentenced to a total of 96 months in prison.
Keeler helped to establish the OMC chapter in Fort Wayne, Indiana, in 2001 and then became
its first president. As a member of the OMC leadership, he attended “bosses meetings” where
official OMC policy was set. Among other things, these meetings were held to discuss and make
policies pertaining to OMC drug distribution. The drug trade was a central feature of OMC chapters
in the Green region, and the Fort Wayne chapter was no exception. Keeler personally engaged in
drug transactions with member Danny Hedges and member Gary Watkins, the latter having become
a confidential informant for the Government. Keeler acquired cocaine from Hedges and sold 46.7
grams of methamphetamine to Watkins. Keeler also traveled to Florida with other OMC members
to meet with their methamphetamine supplier. In addition, he exercised some regulatory control over
the Fort Wayne members’ drug sales. For example, in chapter meetings he discussed using the drug
trade to finance the purchase of a new chapter clubhouse, and he also discussed with other members
the possibility of placing a “tax” on the profits of their drug sales in order to support the operations
of the Fort Wayne chapter. Furthermore, he set local OMC drug policy by refusing to ban the sale
or use of methamphetamine by members in the Fort Wayne chapter. In response to the fact that the
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United States v. Keeler
Louisville chapter had considered such a ban, Keeler proclaimed, “As long as Fort Wayne’s going,
and I’m the boss here [,] [the OMC Ft. Wayne members are] allowed to do what the F they want.”
On April 8, 2003, Keeler was named in a 40-count indictment issued in the Northern District
of Ohio. As the culmination of a wide-ranging, six-year investigation of the OMC Green region, the
indictment charged Keeler and 37 other OMC members with various federal crimes. In particular,
Keeler was charged with five offenses: (1) RICO in violation of 18 U.S.C. § 1962(c); (2) RICO
conspiracy in violation of 18 U.S.C. § 1962(d); (3) conspiracy to possess with intent to distribute
narcotics in violation of 21 U.S.C. § 846; (4) unlawful use of a communication facility in violation
of 21 U.S.C. § 843(b) and 18 U.S.C. § 2; and (5) firearms conspiracy in violation of 18 U.S.C. §
924(o). He was convicted of all but the firearms conspiracy.
At the sentencing hearing, the Government sought a base offense level of 36 on the basis that
Keeler was responsible for possessing and/or distributing at least 5 kilograms, but less than 15
kilograms, of methamphetamine. The Government also sought a four-level enhancement because
of Keeler’s leadership role in the OMC. Keeler naturally sought a lower offense level. He argued
that his base offense level should have been 26 because he was responsible for at least 50 grams, but
less than 200 grams, of methamphetamine. He also objected to the leadership enhancement.
Furthermore, he requested that his offense level be reduced by two levels to reflect his acceptance
of responsibility, and he asked for departures based on imperfect entrapment and his poor health.
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After hearing each side’s arguments, the district court determined Keeler’s base offense level
to be 30, which corresponds to a quantity of methamphetamine of at least 350 grams, but less than
500 grams. See U.S.S.G. § 2D1.1(c)(5). The district court then applied a four-level enhancement
pursuant to U.S.S.G. § 3B1.1(a) for Keeler’s leadership role in the criminal enterprise, finding that
“the evidence which I heard at trial demonstrated beyond a reasonable doubt that Mr. Keeler was an
organizer and leader . . . .” Next, the district court denied Keeler’s request for a two-level reduction
for acceptance of responsibility as well as his request for a downward departure for imperfect
entrapment. The district court did, however, grant him a downward departure because of his poor
health. That departure reduced Keeler’s offense level from 34 to 29, thereby giving him a Guidelines
range of 87-108 months. The district court sentenced Keeler within that range by imposing a 96-
month sentence for his RICO, RICO conspiracy, and drug conspiracy offenses. As to the offenses
of unlawful use of a communication facility, the district court imposed the statutory maximum
sentence of four years. All of the sentences were ordered to run concurrently.
On appeal, Keeler argues that his narcotics conspiracy conviction should be reversed because
it is not supported by sufficient evidence. He also contends that his sentence should be vacated for
three reasons: (1) that his base offense level should have been set at 19 instead of 30; (2) that he was
improperly assessed a four-level enhancement based on an erroneous finding that he had occupied
a managerial role within the OMC; and (3) that he was erroneously denied an imperfect-entrapment
departure. These arguments are without merit.
I.
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United States v. Keeler
Keeler’s narcotics conspiracy conviction is supported by sufficient evidence. Conviction of
narcotics conspiracy under 21 U.S.C. § 846 requires the Government to prove that an agreement to
violate the drug laws existed, and that the defendant “‘knew of, intended to join, and participated in
the conspiracy.’” United States v. Conrad, 507 F.3d 424, 432 (6th Cir. 2007) (quoting United States
v. Walls, 293 F.3d 959, 967 (6th Cir. 2002)). Proof of an explicit, formal agreement among the co-
conspirators is not necessary. See United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005)
(quoting United States v. Avery, 128 F.3d 966, 970-71 (6th Cir. 1997)). Instead, “[t]he existence of
a conspiracy ‘may be inferred from circumstantial evidence that can reasonably be interpreted as
participation in the common plan.’” Id. (quoting Avery, 128 F.3d at 971). Additionally, “a
defendant’s knowledge of and participation in a conspiracy may be inferred from his conduct and
established by circumstantial evidence.” Id. (quoting United States v. Salgado, 250 F.3d 438, 447
(6th Cir. 2001)).
The existence of a drug-distribution agreement among OMC members is evidenced by the
fact that they bought and sold drugs from each other, as well as by the fact that the OMC leadership
regulated its members’ drug-dealing activities and considered “taxing” their profits to support the
organization. Keeler’s actions as president of the Fort Wayne OMC chapter demonstrate that he
knowingly and intentionally joined this conspiracy and participated in it. He personally engaged in
drug transactions with at least two OMC members — Hedges and Watkins — and played a role in
setting drug-dealing policies for his chapter and the entire OMC organization. Moreover, the
evidence indicates that Keeler and other members discussed using proceeds from drug dealing to
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finance the activities of the Fort Wayne chapter. He also traveled to Florida with other OMC
members to meet with their supplier of methamphetamine. In light of all of this evidence, Keeler’s
sufficiency-of-the-evidence argument must fail because there is enough proof for a rational jury to
be convinced of Keeler’s guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319 (1979).
Keeler disputes this conclusion. He correctly points out that a conspiracy charge cannot be
proven solely on the basis of an agreement between a defendant and a Government agent since
Government agents cannot count as co-conspirators. See United States v. Williams, 274 F.3d 1079,
1084 (6th Cir. 2001) (citing United States v. Pennell, 737 F.2d 521, 536 (6th Cir. 1984)). On the
basis of this rule, he argues that his conviction must be overturned because the Government did not
prove that he made drug sales to anyone other than Gary Watkins, who was acting as a Government
agent at the time. There are two problems with this argument. First, it defines the conspiracy too
narrowly. The evidence shows that the agreement to distribute drugs existed among Keeler and
many other OMC members, not merely between Keeler and Watkins. The fact that Keeler was part
of a larger OMC drug conspiracy that went beyond him and Watkins is evidenced by his
participation in the making of OMC drug policies, his trip to Florida to meet with OMC drug
suppliers, his acquisition of drugs from Danny Hedges, his conversations with Watkins pertaining
to placing a “tax” on the drug profits of OMC members, and even by his sale of drugs to Watkins.1
1
Although Watkins’s status as a Government agent prevents his drug-related conversations
with Keeler and his drug transaction with Keeler from being used to prove that there was a
conspiracy solely between Keeler and Watkins, both the transaction and the conversations can be
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In short, this evidence shows that an agreement to distribute drugs existed among Keeler and many
other OMC members. Because there is no evidence that these other members were also Government
agents, it is immaterial that Keeler’s only sale of drugs was made to Watkins.
The second fault in Keeler’s argument is that it assumes that proof of a drug sale is necessary
to prove an agreement to distribute drugs. Proof of an agreement to commit an offense does not
require proof that the offense was actually committed. In order to prove the existence of an
agreement to distribute drugs, the Government need not prove that Keeler distributed any drugs,
much less that he distributed drugs to individuals other than Watkins. Proof of the agreement to
distribute drugs does not require evidence of more than a tacit understanding among the parties. See
Martinez, 430 F.3d at 330 (quoting Avery, 128 F.3d at 970-71). This threshold was reached — and
surpassed — here.
II.
Keeler’s base offense level was correctly determined to be 30. When an individual is
convicted of a RICO offense, his base offense level is the greater of 19 or the highest offense level
applicable to the underlying racketeering activities. See U.S.S.G. § 2E1.1(a). In this case, there were
three separate racketeering activities underlying Keeler’s substantive RICO offense — conspiracy
to distribute drugs, use of a communication facility in the distribution of drugs, and tampering with
considered as evidence of a conspiracy among Keeler and other individuals. See United States v.
Hayden, 68 F. App’x 530, 532 (6th Cir. 2003) (citing United States v. Esparsen, 930 F.2d 1461,
1472 n.11 (10th Cir. 1991); United States v. Elledge, 723 F.2d 864, 866 (11th Cir. 1984)).
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a witness, victim, or an informant. In such situations, the district court must use the highest offense
level among the multiple racketeering acts. See U.S.S.G. § 1B1.1, Commentary, Application Note
5. Therefore, because the highest offense level among the three was the 30 that the Guidelines
provided for the drug conspiracy, the district court correctly set Keeler’s base offense level at 30
instead of 19.
Keeler claims that the district court erred in determining that the Guidelines provided a base
offense level of 30 for the drug conspiracy,2 but he is wrong. In cases like Keeler’s, where the
offense of conviction does not establish that death or serious bodily injury resulted from the use of
the controlled substance at issue, the offense level applicable to a drug offense is determined
according to the quantity of drugs involved. See U.S.S.G. § 2D1.1(a)(3). A base offense level of
30 corresponds to a quantity of methamphetamine of at least 350 grams but less than 500 grams. See
U.S.S.G. § 2D1.1(c)(5). The district court applied this offense level based on its finding that Keeler
was responsible for up to 500 grams of methamphetamine. This finding cannot be reversed unless
it is shown to be clearly erroneous, see United States v. Wittingen, 519 F.3d 633, 637 (6th Cir. 2008)
(quoting United States v. Gale, 468 F.3d 929, 934 (6th Cir. 2006)), and Keeler has not met this
standard. He contends that the district court could not have found him responsible for more than the
46.7 grams of methamphetamine that he sold to Gary Watkins because that was the only amount that
2
Keeler also claims that the district court should not have considered any offense level
attributable to the drug conspiracy because there was not sufficient evidence to prove that he was
guilty of the drug conspiracy charge. This issue need not be addressed because, as discussed in the
previous section, there is plenty of evidence to support a finding of guilt on Keeler’s drug conspiracy
charge.
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he was proven to have sold. This argument, however, ignores the rule that “a defendant may be
sentenced based upon quantities of drugs attributable to other members of a conspiracy, provided
the district court finds that those quantities were known to the defendant or were reasonably
foreseeable to him.” United States v. Jennings, 83 F.3d 145, 150 (6th Cir. 1996) (quoting United
States v. Moss, 9 F.3d 543, 552 (6th Cir. 1993)). Given his level of involvement in the OMC
narcotics conspiracy, it is easy to conclude that the quantity of drugs involved in other OMC
members’ transactions was known to Keeler or at least reasonably foreseeable to him. Therefore,
the district court appropriately sentenced Keeler based on the quantities of drugs distributed by other
members of the conspiracy.
After setting Keeler’s base offense level at 30, the district court properly enhanced it to 34
because there was sufficient evidence to find by a preponderance of the evidence that he had been
“an organizer or leader of a criminal activity that involved five or more participants . . . .” U.S.S.G.
§ 3B1.1(a). Keeler admits that he was president of the Ft. Wayne OMC chapter, but he contends that
he was merely a figurehead who had no real authority or leadership role. The evidence indicates
otherwise. In determining whether the § 3B1.1(a) enhancement applies, this court considers the
following factors:
the exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal activity, and the degree of
control and authority exercised over others.
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United States v. Hernandez, 227 F.3d 686, 699-700 (6th Cir. 2000) (quoting U.S.S.G. § 3B1.1(a),
Commentary, Application Note 4). Taking these factors into account, the enhancement was
warranted in this case because the evidence shows that Keeler exercised decision-making authority,
participated in planning the OMC’s criminal activities, and exercised significant control over others.
For instance, his leadership role is demonstrated by his statement that “As long as Fort Wayne’s
going, and I’m the boss here[,] [the OMC Ft. Wayne members are] allowed to do what the F they
want.” The fact that he attended OMC bosses meetings and helped set OMC drug-distribution
policies also indicates that he was a leader in the organization. Finally, his leadership position is
evidenced by the fact that he ordered Gary Watkins and Dan Hedges to take voice stress tests to
prove that they were not cooperating with the Government. Keeler would not have had such control
over others had he not been a leader or organizer of the OMC criminal enterprise.
Aside from the question of whether there was sufficient evidence to apply the managerial
enhancement, Keeler also argues that the enhancement was improperly applied because the district
court’s ruling on his objection to the enhancement did not comply with the requirements of Rule
32(i)(3)(B) of the Federal Rules of Criminal Procedure. Rule 32(i)(3)(B) says that a district court,
at sentencing, “must — for any disputed portion of the presentence report or other controverted
matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will
not affect sentencing, or because the court will not consider the matter in sentencing.” Fed. R. Crim.
P. 32(i)(3)(B). Keeler claims that the district court fell short of its duty to comply with this rule
because it failed to make factual findings on the question of leadership. This contention, however,
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ignores the fact that the district court did make factual findings on that issue when it stated that “the
evidence which I heard at trial demonstrated beyond a reasonable doubt that Mr. Keeler was an
organizer and leader . . . .” Although brief, this statement is a sufficient ruling on Keeler’s objection.
It satisfies this court’s requirement of “literal compliance” with Rule 32(i)(3)(B) because it shows
that the district court actually found facts by at least a preponderance of the evidence rather than
blindly embracing the presentence report. See United States v. White, 492 F.3d 380, 415-16 (6th Cir.
2007).
Finally, this court cannot address Keeler’s argument that he was entitled to a departure based
on imperfect entrapment. This court lacks the authority to review a district court’s refusal to grant
a departure unless the district court mistakenly believed that it lacked the authority to do so. See
United States v. Puckett, 422 F.3d 340, 345 (6th Cir. 2005) (citing United States v. Stewart, 306 F.3d
295, 329 (6th Cir. 2002)). In this case, the district court denied the departure because it found that
the evidence “belies entrapment,” not because it was under the impression that it lacked authority
to grant the departure.
III.
For the foregoing reasons, Keeler’s convictions and sentence are AFFIRMED.
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