United States v. John D. Behler ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2993
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
John D. Behler, *
*
Appellant. *
*
*
*
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Submitted: April 23, 1999
Filed: August 4, 1999
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Before BEAM and HANSEN, Circuit Judges, and MOODY,1 District Judge.
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HANSEN, Circuit Judge.
Thi s is Behler's third appeal of the sentence imposed upon him following his
1992 convictions on several drug trafficking charges. As a result of the most recent
1
Th e Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
remand, the district court2 imposed a two-level sentencing enhancement after finding
that Behler possessed a firearm during the commission of his drug crimes. See U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (Oct. 1987). Behler argues that the
district court erred by applying this enhancement, by not reopening all sentencing
issues, and by ordering special conditions of supervised release. We affirm.
I.
The facts underlying Behler's drug trafficking convictions are fully set forth in
our prior opinions. See United States v. Behler, 14 F.3d 1264, 1266-68 (8th Cir.)
(Behler I), cert. denied, 513 U.S. 960 (1994); see also United States v. Behler, 100
F.3d 632, 634-35 (8th Cir. 1996) (Behler II), cert. denied, 118 S. Ct. 153 (1997). We
summarize only those facts necessary to the present appeal. Behler was involved in
substantial drug trafficking, typically acquiring methamphetamine in Colorado and
selling it to people in Nebraska and Iowa. At trial, Linda Wiegert, one of Behler's
former live-in girlfriends, testified that from 1984 to 1987, "Behler made numerous trips
to Colorado to purchase methamphetamine," and that "he always kept a .44 magnum
handgun with him at home and on the trips." Behler I, 14 F.3d at 1266. A subsequent
live-in girlfriend, Nora Houston, similarly testified that during 1987 and later, Behler
made many trips to Colorado to purchase methamphetamine and always carried a
handgun with him. Id. Both witnesses testified that he then would deliver the drugs
to a regular group of customers. Id. at 1270.
In May 1989, while monitoring his telephone calls, law enforcement officials
learned that Behler planned to engage in a methamphetamine transaction at his
residence. Law enforcement officers maintained surveillance of Behler's residence and
following the methamphetamine sale, they arrested Behler and searched the residence.
2
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
2
Officers found, among other things, a loaded .44 magnum handgun and a small amount
of methamphetamine. Id. at 1266-67. A federal indictment charged Behler with
conspiracy to distribute methamphetamine (count I), use of a firearm in relation to a
drug trafficking offense in violation of 18 U.S.C. § 924(c) (count II), use of a telephone
in furtherance of a drug felony (count III), and distribution of methamphetamine (count
IV). A federal jury found Behler guilty on all four counts. Id. at 1267.
In Behler's first appeal, we affirmed his convictions but remanded for
resentencing on three of the four counts due to an ex post facto violation in the district
court's application of the United States Sentencing Guidelines. See
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caution, however, the district court alternatively found that the originally imposed
enhancements still were appropriate. Behler appeals.
II.
A.
Behler argues that the vacation of his section 924(c) conviction unbundled his
entire
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was unaffected by such enhancements, its vacation merely provided an opportunity to
consider a previously unavailable firearm enhancement to the sentence on the drug
counts. The district court had no basis for revisiting issues previously decided both by
it and by us regarding Behler's role in the offense or obstruction of justice.
Additionally, our prior opinion limited the scope of the remand. We expressly
stated that we were provisionally vacating the drug convictions for one purpose: "so
that the district court may consider whether Behler's sentence on the drug counts should
be enhanced under USSG § 2D1.1(b)(1) (Oct. 1987)." Behler II, 100 F.3d at 640. The
district court correctly interpreted our prior opinion and properly limited the scope of
Behler's resentencing by considering only whether the drug counts should be enhanced
due to Behler's possession of a firearm. In light of the law of the case and the limited
language of our prior opinion, we decline to consider Behler's arguments relating to the
propriety of enhancements based on his role in the offense or obstruction of justice.
B.
Behler argues that the district court erred in assessing a two-level sentencing
enhancement pursuant to USSG § 2D1.1(b)(1). Basically, Behler contends that the
government's witnesses were not credible and that the government failed to prove a
nexus between his possession of a firearm and his drug activities. The district court's
assessment of credibility, however, is virtually unreviewable, see United States v.
Phelps, 168 F.3d 1048, 1057 (8th Cir. 1999), and we review for clear error the district
court's finding that a weapon was sufficiently connected to the offense for purposes of
USSG § 2D1.1(b)(1). See United States v. Belitz, 141 F.3d 815, 817 (8th Cir. 1998).
Section 2D1.1(b)(1) mandates a two-level increase to a defendant's base offense
level if the defendant possessed a firearm or other dangerous weapon during the
commission of the offense. Sentencing courts are required to apply this adjustment if
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a weapon was present, "unless it is clearly improbable that the weapon was connected
with the offense. For example, the enhancement would not be applied if the defendant,
arrested at his residence, had an unloaded hunting rifle in the closet." USSG §
2D1.1(b)(1), comment. (n.3) (Oct. 1987). Thus, we will sustain an enhancement
pursuant to this specific offense characteristic if the government shows first "that the
weapon was present and second, that it was not clearly improbable that the weapon had
a nexus with the criminal activity." Brown v. United States, 169 F.3d 531, 532 (8th
Cir. 1999) (internal quotations omitted).
Behler does not challenge the presence of a firearm, but he contends that it was
only used for hunting purposes as his witnesses testified at the resentencing hearing.
Although the district court credited the testimony of Behler's witnesses, their testimony
is inapposite because they admitted they were not involved in Behler's drug dealing
activities. Their testimony thus has no direct bearing on whether Behler carried a
firearm in connection with his drug offenses. The government presented F.B.I.
testimony of statements made by Behler's ex-wife, Joannie Behler Moore. She began
living with Behler sometime before their marriage in 1989 and remained married to him
until 1993. During their relationship, she traveled with Behler to Colorado on trips to
purchase methamphetamine. She told F.B.I. Special Agent Humphrey that Behler
carried a gun on those trips and usually kept it on the front seat of the car. The district
court considered the similar trial testimony of Linda Wiegert and Nora Houston,
Behler's prior live-in girlfriends, who said Behler always had a gun in the car on their
trips to Colorado to purchase drugs. The district court also noted that on the day of
Behler's arrest following a drug transaction at his residence, law enforcement officials
found a gun in Behler's bedroom. Based on all of this evidence, the district court found
that Behler had possessed a firearm during the commission of his crimes and imposed
the two-level enhancement pursuant to USSG § 2D1.1(b)(1).
Having reviewed the record and the district court's memorandum, we see no
reason to second-guess the district court's credibility assessments, and the district court
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did not clearly err in finding that Behler possessed a firearm during the commission of
his drug trafficking offenses. See, e.g., United States v. Hall, 171 F.3d 1133, 1153 (8th
Cir. 1999) (holding that a § 2D1.1(b)(1) enhancement was supported by a loaded gun
found in the closet of the defendant's bedroom); United States v. Darden, 70 F.3d 1507,
1547 (8th Cir. 1995) (holding that the enhancement was supported by a finding that the
defendant carried a weapon in his car while selling or transporting drugs), cert. denied,
517 U.S. 1149 and 518 U.S. 1026 (1996). It was not clearly improbable that the
firearm was connected with Behler's drug offenses.
C.
Behler argues that the district court abused its discretion in formulating special
conditions for his supervised release.3 Specifically, Behler challenges three special
terms: (1) the total prohibition on his purchase, use, or distribution of alcohol; (2) the
requirement that he attend and complete any diagnostic evaluation, treatment, or
counseling program for alcohol and/or controlled substances as directed by his
probation officer; and (3) the requirement that he provide his probation officer with
access to any requested financial information.
We afford sentencing judges wide discretion when imposing terms of supervised
release. See United States v. Prendergast, 979 F.2d 1289, 1292-93 (8th Cir. 1992).
The 1987 Guidelines state that in order to fulfill any authorized purpose of sentencing,
3
As an aside, we note that the law of the case did not preclude the district court
from imposing new terms of supervised release on remand. The district court is free
to modify the terms of supervised release at any time after considering factors such as
the nature and circumstances of the offense or the history and characteristics of the
defendant. See United States v. Yankton, 168 F.3d 1096, 1098 n.6 (8th Cir. 1999)
(noting "that 18 U.S.C. § 3583(e)(2) grants the district court flexibility to modify or
reduce the terms of the supervised release at any time prior to the expiration of the
period of supervised release").
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a sentencing court may impose any condition that is "reasonably related to (1) the
nature and circumstances of the offense, and (2) the history and characteristics of the
defendant." USSG § 5D3.3(b) (Oct. 1987). In imposing any sentence, Congress
requires the district court to consider the need for adequate deterrence to criminal
conduct, to protect the public from further crimes of the defendant, and to provide the
defendant with needed training or treatment. See 18 U.S.C. § 3553(a) (Supp. IV
1987); see also United States v. Prendergast, 979 F.2d 1289, 1292-93 (8th Cir. 1992).
Finally, a special term of supervised release may not inflict a "greater deprivation of
liberty than is reasonably necessary" to accomplish the purposes and policies set forth
by Congress and the Sentencing Commission. 18 U.S.C. § 3583(d)(2), (3) (Supp. V
1988); accord Prendergast, 979 F.2d at 1293.
First, Behler argues that the restriction on the purchase or use of alcohol is not
warranted because his offense did not involve alcohol, the record contains no evidence
that he has ever abused alcohol, and the sentencing recommendation suggests a mere
possibility of cross addiction. We have held that a sentencing court abuses its
discretion by imposing a total alcohol ban in circumstances where the record evidence
does not support such a restriction. See, e.g., United States v. Bass, 121 F.3d 1218,
1223-24 (8th Cir. 1997); Prendergast, 979 F.2d at 1292-93. In Prendergast, we found
an abuse of discretion where the district court had imposed a total alcohol prohibition
as a special term of supervised release following the defendant's conviction of a wire
fraud offense. In that case, the record indicated that alcohol played no role in the
offense, the fraud proceeds had not been used for any type of drug activity, and there
was no evidence that Prendergast was in need of any substance abuse rehabilitation.
Prendergast, 979 F.2d at 1292-93.
Relying on Prendergast, we also found an abuse of discretion where the district
court imposed a total alcohol prohibition on a defendant convicted of a drug trafficking
crime. See Bass, 121 F.3d at 1223-24. We noted that although the defendant had
"used marijuana on a somewhat regular basis," there was no evidence that the
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defendant was prone to alcohol abuse and the district court merely assumed that there
might be a problem of cross addiction (replacing the marijuana use with alcohol abuse).
Id. at 1224. We held that the district court abused its discretion by basing a total
alcohol prohibition on nothing more than assumptions.
Behler's case presents a close question on this issue, but we believe his case is
ultimately distinguishable from those listed above. Behler's crimes involved substantial
drug trafficking of methamphetamine while possessing a firearm. His personal history
includes years of substance abuse (admittedly from 1968 to 1989), consisting largely
of methamphetamine abuse along with infrequent use of cocaine and LSD. Though he
describes his use of alcohol as moderate, the evidence before the district court in the
form of the probation officer's confidential sentencing recommendation, indicated that
any use of alcohol would limit Behler's ability to maintain a drug-free lifestyle. (See
Sent. Recommendation at 2, May 21, 1998) ("[A]ccording to the National Institute on
Drug Abuse (1994), the use of any intoxicants, including alcohol, limits a recovering
person's ability to maintain a drug-free lifestyle."). Additionally, the record indicates
that any use of alcohol is inconsistent with the treatment philosophy of most substance
abuse recovery programs nationwide. Thus, unlike the situation in Bass where we said
the district court's reasoning was based on nothing more than an assumption, the record
in the present case provided the necessary foundation for determining that any alcohol
use would hinder the defendant's rehabilitation process.
To Behler's credit, we note that there is no indication that alcohol played any role
in his offense, and his probation officer indicated that "there is no direct evidence that
the defendant has ever abused alcohol." (Sent. Recomm. at 2, May 21, 1998.) He has
no family history of alcohol abuse, no prior offenses resulting from the use of alcohol,
and during his stay in prison since 1992, he has completed a substance abuse treatment
program. Nevertheless, the district court was entitled to rely on the evidence of record
indicating that an alcohol ban is necessary for Behler's total rehabilitation. This is
consistent with the statutory goals of deterrence and protecting the public from future
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offenses. Our prior case law limits the district court's discretion only insofar as the
court imposes limitations on the basis of pure speculation or assumptions unrelated to
the rehabilitative process. See Bass, 121 F.3d at 1224. Accordingly, we conclude that
the district court did not abuse its discretion by imposing a total ban on alcohol use as
a special condition of supervised release in this case.
Second, Behler challenges the condition that he attend and pay for any diagnostic
evaluation, counseling, or treatment as directed by his probation officer. Behler asserts
that he has no ongoing substance abuse or alcohol problem to warrant this imposition
and that such programs have a religious component in which he cannot be forced to
participate. This special condition allows Behler's probation officer to seek evaluations
to indicate whether or not further substance abuse treatment is necessary, and it does
not specifically designate any particular treatment program (except by example). When
imposing this condition, the district court commented, "I don't expect any problem with
drinking or drugs by you, Mr. Behler, and I'm putting that in only in case some future
problem does develop." (Sent. Tr. at 143.)
Participation in an approved substance abuse program is a discretionary
condition that may be imposed "[i]f the court has reason to believe that the defendant
is an abuser of narcotics, other controlled substances or alcohol." USSG §
5B1.4(b)(23) (Oct. 1987); accord United States v. Cooper, 171 F.3d 582, 587(8th Cir.
1999). A user of controlled substances is by definition an abuser, and treatment is
appropriate. See Cooper, 171 F.3d at 587. There is no question that Behler has been
a substance abuser of methamphetamine, the drug which was the subject of his illegal
distribution offenses. Because no specific treatment plan has yet been ordered for
Behler, he has no First Amendment claim at this point. We conclude that the district
court did not abuse its broad discretion by ordering evaluation and treatment as directed
by the probation officer. See id.
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Third, Behler argues that because he was not ordered to pay restitution or a fine,
the district court abused its discretion by ordering him to provide his probation officer
with access to financial information. We disagree. The United States Sentencing
Guidelines provide a policy statement recommending that the district court impose a
special condition requiring access to requested financial information "[i]f the court
imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant
to pay a fine." USSG § 5B1.4(b)(18) (Oct. 1987). This policy statement, however,
does not preclude the district court from requiring financial disclosure in otherwise
appropriate situations, for instance, when warranted by the nature and characteristics
of the offense and the need for deterrence and protection as articulated in 18 U.S.C. §
3553(a). In this case, the district court understood that money and greed were at the
heart of Behler's drug distribution offenses and believed that monitoring Behler's
financial situation would aid in detecting any return to his former lifestyle of drug
distribution. We conclude that these findings are consistent with the statutory factors
and the Sentencing Commission's policy statements.
D.
We have considered the arguments made in Behler's pro se brief and find them
to be without merit. Finally, we deny his motion to supplement the record and to
proceed under duress and protest.
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III.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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