United States v. Nitch, Douglas ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2603 & 05-2604
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOUGLAS L. NITCH and
CURTIS PATTERSON,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Illinois.
No. 02-CR-40078-JPG—J. Phil Gilbert, Judge.
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ARGUED MAY 5, 2006—DECIDED FEBRUARY 21, 2007
____________
Before KANNE, WOOD, and SYKES, Circuit Judges.
WOOD, Circuit Judge. Douglas Nitch and Curtis Pat-
terson were convicted by a jury of conspiracy to man-
ufacture with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)
and 846 and 18 U.S.C. § 2. Nitch was sentenced to a term
of 168 months in prison, and Patterson was sentenced to
120 months. Nitch appeals both his conviction and his
sentence, claiming that there was an impermissible
variance between the single conspiracy charged in the
indictment and the multiple conspiracies proven at the
trial, and that his sentence is unreasonable. Patterson
challenges only his conviction, arguing that certain
2 Nos. 05-2603 & 05-2604
physical evidence introduced at trial was the fruit of an
unlawful search and should have been suppressed. For
the reasons explained below, we affirm the convictions of
both men, as well as Nitch’s sentence.
I
This case involves a conspiracy to manufacture and
distribute methamphetamine in the town of McLeansboro,
Illinois. According to the testimony presented at trial, in
1999, while he was still a high school student, Nitch
learned to manufacture methamphetamine. At the time,
he was apparently one of only a few people in the town
with this skill. Over the course of the next year or so,
Nitch “cooked” methamphetamine for various people in
town and instructed several others in the manufacturing
process. As things developed, certain people were respon-
sible for obtaining the raw ingredients necessary to
produce the drug; they gave the ingredients to the cooks
(such as Nitch) in exchange for a share of the finished
product.
In either late 2000 or early 2001, Nitch left town for
Missouri. His departure, however, did not disturb the
methamphetamine business in McLeansboro, which con-
tinued without him. Later in 2001, Patterson joined
the McLeansboro meth group. His home became a central
location for the sale and use of the drugs they produced.
In May 2003, a federal grand jury indicted Nitch and 13
others on charges of conspiracy to manufacture metham-
phetamine and to possess it with intent to distribute. A
fourth (and final) superceding indictment charged Nitch,
Patterson, and two others with involvement in the con-
spiracy. Prior to trial, Patterson unsuccessfully moved
to suppress methamphetamine and drug paraphernalia
that was seized from a car in which he was a passenger.
Nos. 05-2603 & 05-2604 3
At trial, in addition to the physical evidence against
Patterson, prosecutors presented testimony from nine
members of the conspiracy who earlier had reached plea
agreements with the government. The jury convicted
both men, and both now appeal.
II
A
We begin with Nitch’s challenge to his conviction. Since
Nitch did not raise his variance argument at trial, we
review the jury’s verdict only for plain error. Under this
standard, Nitch must show that “(1) an error has occurred,
(2) it was ‘plain,’ (3) it affected a substantial right of the
defendant, and (4) it seriously affected the fairness,
integrity, or public reputation of the judicial proceed-
ings.” United States v. Duran, 407 F.3d 828, 834 (7th Cir.
2005) (internal quotation marks and citations omitted);
see generally United States v. Olano, 507 U.S. 725, 732-37
(1993) (discussing plain error review in detail).
A conspiracy variance claim is nothing more than “a
challenge to the sufficiency of the evidence supporting
the jury’s finding that each defendant was a member of
the same conspiracy.” United States v. Townsend, 924
F.2d 1385, 1389 (7th Cir. 1991); see also United States v.
Williams, 272 F.3d 845, 862 (7th Cir. 2001) (citing to
Townsend’s explanation of a conspiracy variance claim). As
a result, “[e]ven if the evidence arguably established
multiple conspiracies, there is no material variance from
an indictment charging a single conspiracy if a reasonable
trier of fact could have found beyond a reasonable doubt
the existence of the single conspiracy charged in the
indictment.” Williams, 272 F.3d at 862.
The thrust of Nitch’s argument is there must have
been more than one conspiracy in this case because he left
4 Nos. 05-2603 & 05-2604
McLeansboro before Patterson became involved in drug
activities there. Although Nitch acknowledges that num-
erous witnesses described their involvement in his meth-
amphetamine operation as well as their work with
Patterson individually, he emphasizes that no witness
testified to seeing the two defendants in the same place
at the same time. Nitch argues that this compels a finding
that there were, at the very least, two separate conspira-
cies, one involving Patterson and another involving
himself.
The government takes the position that no such con-
clusion is inevitable. It describes the conspiracy as con-
sisting of “a large number of methamphetamine addicts
in McLeansboro . . . [who] taught each other how to
produce methamphetamine and helped each other get
the supplies needed to make the drug” in order to accom-
plish the “shared goal” of “produc[ing] a steady supply
of methamphetamine so as to feed their shared addic-
tions.” The government emphasizes that the evidence
showed that Nitch was an early and important part of this
conspiracy. The fact that Nitch and Patterson joined and
participated in the conspiracy at different times, it con-
cludes, is legally irrelevant.
We agree with the government that the evidence sup-
ported the jury’s finding of the single conspiracy charged
in the indictment. The testimony of the first government
witness, Christopher Campbell, served to bridge the
temporal and geographical gap between the participa-
tion of Nitch and that of Patterson. Campbell testified
that he manufactured methamphetamine with Nitch in
McLeansboro until Nitch left for Missouri. After Nitch’s
departure, Campbell moved to Missouri and lived with
Nitch. Still later, Campbell returned to McLeansboro, met
Patterson, and began supplying him with ingredients to
manufacture the drug. Campbell testified that when he
returned from Missouri, several of the same people who
Nos. 05-2603 & 05-2604 5
were involved with the manufacture and distribution of
methamphetamine when Nitch was in McLeansboro had
continued their activities with Patterson.
“To join a conspiracy . . . is to join an agreement, rather
than a group.” Townsend, 924 F.2d at 1390. Thus, the
government was not required to show that Nitch and
Patterson met with one another or even were acquainted
with each other; rather, the government needed only to
prove that Nitch joined the agreement alleged. Id. at 1389.
Based on our review of the evidence, we have little trouble
concluding that a reasonable juror could have found
beyond a reasonable doubt that there was a single multi-
year conspiracy to manufacture methamphetamine in
McLeansboro, in which both Nitch and Patterson partici-
pated.
B
Nitch next challenges his sentence, contending that the
district court did not adequately explain its sentencing
decision and, in particular, failed properly to address
the sentencing factors listed in 18 U.S.C. § 3553(a).
At sentencing, Nitch’s counsel urged the court “to
sentence the defendant to the minimum sentence which
it can find,” emphasizing that in the five years since he
committed the crime Nitch had held down a job and
started a family. Nitch’s lawyer did not, however, specifi-
cally refer to any of the factors set forth in § 3553(a). The
government argued for a sentence at the top of the advi-
sory Guidelines range, pointing out, among other things,
that Nitch had twice tested positive for marijuana use
while out on bail.
In explaining its decision to sentence Nitch to 168
months, the district court stated only:
6 Nos. 05-2603 & 05-2604
Mr. Nitch, I sentenced you to 14 years. It was not the
top of the guideline, not at the bottom. You messed up
when you were out on bond and that affected you. The
jury found you guilty beyond a reasonable doubt, and
the jury believed, based upon the testimony, that you
were involved in more than you believed you were
involved in. And I know you got started at an early
age, young age in this, and I know you tried to get out,
but the law is the law. And you knew better.
Nitch contends that this explanation of his sentence
was inadequate and renders his sentence unreasonable.
Under the law of this circuit, a sentence that is properly
calculated under the Guidelines is entitled to a rebuttable
presumption of reasonableness. United States v. Gama-
Gonzalez, 469 F.3d 1109, 1110-11 (7th Cir. 2006); United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). “The
defendant can rebut this presumption only by demon-
strating that his or her sentence is unreasonable when
measured against the factors set forth in § 3553(a).”
Mykytiuk, 415 F.3d at 608. A sentencing judge is not
required to “discuss the application of the statutory
factors to the defendant [ ] in checklist fashion,” but rather
must only provide “an adequate statement of the judge’s
reasons, consistent with section 3553(a), for thinking the
sentence that he has selected is indeed appropriate for
the particular defendant.” United States v. Dean, 414
F.3d 725, 729 (7th Cir. 2005).
Although Nitch makes passing reference to several of
the factors listed in § 3553(a), the only argument he
develops is that the district court did not give sufficient
consideration to his “history and characteristics,” in
particular, the fact that he became involved with metham-
phetamine at a young age and that he left McLeansboro
to escape involvement with methamphetamine. But the
record shows otherwise. It is apparent from the district
Nos. 05-2603 & 05-2604 7
court’s statement that “I know you got started at an
early age, young age in this, and I know you tried to get
out,” that the court did consider Nitch’s history and
characteristics, including his youth. The court obviously
was not persuaded, however, that when weighed against
other evidence—such as Nitch’s continued drug use—this
factor alone merited a lower sentence.
We recognize that the Supreme Court has issued a
writ of certiorari to determine whether presumptions like
the one adopted in Mykytiuk are consistent with United
States v. Booker, 543 U.S. 220 (2005). United States v.
Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1,
2006), cert. granted, 75 U.S.L.W. 3246 (U.S. Nov. 3, 2006)
(No. 06-5754). We have therefore also assessed the rea-
sonableness of Nitch’s sentence without applying any
presumptions. Even from that perspective, we cannot say
that the district court’s choice was unreasonable. As the
district court noted, Nitch continued to use drugs while
he was out on bond, and he was involved in a relatively
large conspiracy. A significant sentence (as 168 months
certainly is) cannot be called unreasonable, even taking
into account Nitch’s age at the time of his criminal activi-
ties.
III
Patterson’s conviction was based in part on evidence
that was seized from a car in which he was a passenger.
Patterson moved unsuccessfully to suppress this evidence,
which he claimed was the fruit of an unlawful search—
unlawful because the police officer who made the stop
lacked reasonable suspicion. He now renews his challenge
to the suppression ruling.
On April 5, 2003, a police officer in Morganfield, Ken-
tucky, was flagged down in a Wal-Mart parking lot by a
8 Nos. 05-2603 & 05-2604
store employee. The employee informed the officer that
two individuals had just purchased four boxes of Sudafed,
an over-the-counter nasal decongestant whose active
ingredient, pseudoephedrine, is used to make metham-
phetamine. After the employee identified the car, which
was still in the lot, the officer stopped the vehicle. A
subsequent search turned up several bags of metham-
phetamine as well as drug paraphernalia.
After Patterson and the driver of the car were indicted
in Kentucky state court on drug charges, they successfully
moved to suppress the evidence seized from the car as
the fruit of an unlawful search. They were not so lucky
in this federal case. Here, based on the same facts, the
district court refused to suppress, reasoning that Pat-
terson lacked standing to challenge the evidence because
he was only a passenger in the car and therefore lacked
any reasonable expectation of privacy with regards to the
vehicle’s contents. See Rakas v. Illinois, 439 U.S. 128, 134
(1978); United States v. Washburn, 383 F.3d 638, 643 (7th
Cir. 2004). Patterson argues that this was error.
Although Patterson obviously suffered enough injury
in fact from the search to permit him to challenge the
action of the police, see Minnesota v. Carter, 525 U.S. 83,
887-88 (1998); Rakas, 439 U.S. at 140, and his injury is
redressable, we nevertheless find it unnecessary to
consider whether his Fourth Amendment rights were
violated. If there was any error in the admission of this
evidence, it was harmless. The record contains ample
testimonial evidence connecting Patterson to the charged
conspiracy. This evidence alone was sufficient to con-
vict Nitch. We thus have no doubt that the jury would
have reached the same conclusion regarding Patterson’s
participation in the conspiracy even without physical
evidence of his possession of drugs.
Nos. 05-2603 & 05-2604 9
IV
We AFFIRM the judgments of the district court in both
Nitch’s and Patterson’s cases.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-21-07