United States v. Shelbourne Selwyn ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2164
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United States of America, *
*
Appellee, *
* Appeal From the United States
v. * District Court for the
* District of South Dakota.
Shelbourne Selwyn, *
*
Appellant. *
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Submitted: November 16, 2004
Filed: February 23, 2005
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Before WOLLMAN, HEANEY, and FAGG, Circuit Judges.
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HEANEY, Circuit Judge.
Following a jury trial, Shelbourne Selwyn was convicted of possession with
intent to distribute methamphetamine or aiding and abetting possession with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district
court1 sentenced Selwyn to 21 months of imprisonment with three years of supervised
release. On appeal, Selwyn claims that the evidence was insufficient to support his
conviction and further challenges the sentence imposed by the district court. We
affirm the conviction, but remand for resentencing.
1
The Honorable Lawrence J. Piersol, Chief Judge, United States District Court
for the District of South Dakota.
BACKGROUND
We recount the evidence in the light most favorable to the jury verdict. United
States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003). On March 12, 2003, Bureau
of Indian Affairs (BIA) Officer Stephanie Star and BIA Special Agent Randy
Vettleson went to Selwyn’s home to investigate a report that Selwyn was using
methamphetamine while children were present. At his home, Selwyn consented to
a urinalysis and to the search of his home. Selwyn admitted methamphetamine use
after the officers told him that the urinalysis was positive for drug use. Selwyn also
admitted possession of drug paraphernalia, including plastic baggies, light bulbs and
pen tubes found in the house. In a locked safe, the officers found nine baggies of
methamphetamine, $150, a scale measuring up to one gram, and other drug
paraphernalia. The baggies of methamphetamine were separated by size, with smaller
baggies in one ziplock bag, and larger baggies in another ziplock bag. Selwyn denied
ownership of the methamphetamine in the safe, and denied that he was associated
with the distribution of methamphetamine.
At trial, Alice Waln testified that she purchased methamphetamine from
Selwyn on March 11, 2003. She entered Selwyn’s home and followed Selwyn to a
back bedroom where she watched him take the methamphetamine from a locked
compartment. She paid him $25 for the drug and left. Later in the day, she called
Selwyn and returned to purchase another $25 worth of methamphetamine. Rena
Rainbow also testified that she went to Selwyn’s home three or four times in February
and March of 2003 to purchase methamphetamine. On one occasion, she followed
Selwyn into a back bedroom and saw him take methamphetamine from a closet to sell
to her.
A jury convicted Selwyn of possession with intent to distribute
methamphetamine or aiding and abetting the possession with intent to distribute
methamphetamine. The jury did not make any finding regarding the amount of
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methamphetamine involved. Selwyn’s presentence report suggested that he
possessed 17.7 grams of methamphetamine for distribution. Selwyn objected to this
portion of the report, claiming that methamphetamine he kept for personal use should
be deducted. At sentencing, the district court found that some of the
methamphetamine was used rather than sold and concluded that Selwyn possessed a
total of 7.17 grams for distribution. The district court denied the defendant’s motion
for downward departure based on family ties and responsibilities, and denied
Selwyn’s motion for a two-point reduction as a minor participant in the
methamphetamine sales. The court determined that Selwyn had a guideline range of
21 to 27 months and sentenced Selwyn to 21 months imprisonment.
Selwyn appeals, claiming that there was insufficient evidence to support his
conviction, that the court erred in sentencing by denying a downward departure based
on family ties, not reducing his offense level as a minor participant, and that he was
sentenced in violation of the Sixth Amendment because the sentence was based on
drug quantity findings not admitted by Selwyn or proved to a jury beyond a
reasonable doubt.
ANALYSIS
Because Selwyn did not move for acquittal at the close of the government’s
case, our review is for plain error. United States v. McCaghren, 666 F.2d 1227, 1232
(8th Cir. 1981). We review the facts in the light most favorable to the verdict, and
will resolve conflicts in favor of the verdict; we will sustain the verdict if there is any
interpretation of the evidence that could lead a reasonable-minded jury to find the
defendant guilty beyond a reasonable doubt. United States v. Hamilton, 332 F.3d
1144, 1148-49 (8th Cir. 2003).
Selwyn argues essentially that the methamphetamine found in the house was
intended for personal use, and that he was neither involved in, nor aware of, the
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methamphetamine sales. Two witnesses testified that they personally purchased
methamphetamine from Selwyn, and that they saw Selwyn remove the
methamphetamine from the locked case in the bedroom. Selwyn asserts that Alice
Waln’s testimony was not a sufficient basis for his conviction because it was
inconsistent in some details. These inconsistencies may have had some impact on the
believability of Waln’s testimony; however, “we can neither weigh the evidence nor
assess the credibility of witnesses.” United States v. Stroh, 176 F.3d 439, 440 (8th
Cir 1999). Waln’s testimony adequately supports the jury’s conclusion that Selwyn
was involved in the sale of methamphetamine. We therefore affirm Selwyn’s
conviction.
Selwyn contends that he was sentenced in violation of the Sixth Amendment.
No drug quantity was stated in the indictment or found by the jury. The district court
determined at sentencing that Selwyn possessed 7.17 grams for distribution, which
increased Selwyn’s base offense level from 12 to 16 and the sentencing range from
10 to 16 months to 21 to 27 months. Compare USSG § 2D1.1(c)(14) with §
2D1.1(c)(12). Facts “necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.” United
States v. Booker, 125 S. Ct. 738, 756 (2005). Selwyn objected to drug quantity
findings, preserving this issue for appeal. See United States v. Fox, No. 03-3554;
2005 WL 195429 at *8 (8th Cir. Jan. 31, 2005). We therefore remand to the district
court for resentencing. Because Selwyn is entitled to resentencing in light of Booker,
we do not address Selwyn’s additional claims beyond noting that they may be
considered at the new sentencing proceeding.
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CONCLUSION
We affirm the judgment of the district court and remand for reconsideration of
Selwyn’s sentence. We deny Selwyn's motion to file a supplemental brief.
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