United States v. Anita Louise Speller ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1071
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Anita Louise Speller, *
*
Appellant. *
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Submitted: October 22, 2003
Filed: January 30, 2004
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Before RILEY, BEAM, and SMITH, Circuit Judges.
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RILEY, Circuit Judge.
Anita Louise Speller (Speller) pled guilty to conspiracy to distribute 500 grams
or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846;
conspiracy to distribute cocaine and cocaine base within 1000 feet of a protected
location, in violation of 21 U.S.C. §§ 846 and 860; and criminal forfeiture under 21
U.S.C. § 853. Denying Speller’s request for a mitigating role reduction, the district
court1 sentenced Speller to 130 months imprisonment. Speller appeals, arguing the
district court erred in denying her request for a role reduction. We affirm.
I. BACKGROUND
In 1999, Speller’s husband, Herbert Speller (Herbert), was released from prison
and reestablished connections to drug dealers, eventually connecting with cocaine and
marijuana distributors in California. Herbert received cocaine and marijuana
shipments several times a month at Herbert’s and Speller’s residence at 114 Quincy
Street in Waterloo, Iowa. Speller signed for the packages, knowing they contained
cocaine. Herbert resold and delivered the cocaine to the “Click,” a group with which
Speller’s son, John King (King), was affiliated. Speller also delivered packages of
cocaine to Herbert’s customers. The Click used “the house on the hill,” located at
220 Lewis Street in Waterloo, which Speller inherited from her father, to distribute
crack cocaine. The Click also distributed crack cocaine in Sullivan Park, a Waterloo
playground. King and other Click members sold about two ounces of crack cocaine
per day from January 1999 to February 2000. They obtained the crack cocaine from
Herbert, who, before his arrest in February 2002, had obtained over 45 kilograms of
cocaine and over 1000 pounds of marijuana.
Herbert’s and Speller’s residence is within 1000 feet of Sullivan Park. Drugs
and drug proceeds were stored in the home, and drug suppliers and couriers called the
home or came by to meet with Herbert about drug-related matters. Speller knew
Herbert used the home for these illegal purposes, and Speller personally distributed
over 50 grams of crack cocaine from the home during a series of drug sales. Also,
Speller once traveled with Herbert to Des Moines, Iowa, to pick up 3 kilograms of
cocaine and 15 pounds of marijuana from California drug couriers. In connection
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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with the trip, Speller had several conversations with the couriers and helped the
couriers locate Herbert to complete the transaction.
The government charged Speller and King2 with conspiring to distribute 50
grams or more of cocaine base, conspiring to distribute 500 grams or more of cocaine,
conspiring to distribute cocaine base within 1000 feet of a playground, and criminal
forfeiture. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), 846, 853, 860.
Speller pled guilty to conspiring to distribute 500 grams or more of cocaine,
conspiring to distribute cocaine and cocaine base within 1000 feet of a playground,
and criminal forfeiture. At sentencing, the district court assigned Speller a base
offense level of 33, supported by Speller’s personal distribution of at least 50 grams
of crack cocaine and her involvement in distributing drugs within 1000 feet of a
playground. Speller received a three-level reduction for acceptance of responsibility,
resulting in a total offense level of 30. With a criminal history category of III, the
sentencing range was 121-151 months. The district court denied Speller a two-level
minor role reduction, because Speller was only held responsible for drugs she
personally distributed and not for any drugs others distributed. The district court
sentenced Speller to 130 months imprisonment and eight years supervised release.
II. DISCUSSION
“‘The correct application of the guidelines is a question of law subject to de
novo review,’ while a ‘factual determination of the sentencing court is reviewed
under a clearly erroneous standard.’” United States v. Tirado, 313 F.3d 437, 440 (8th
Cir.), cert. denied, 123 S. Ct. 73 (2003) (quoting United States v. Collins, 104 F.3d
143, 144 (8th Cir. 1997)). “Whether a defendant qualifies for a role reduction is a
question of fact.” United States v. Thurmon, 278 F.3d 790, 792 (8th Cir. 2002). The
Sentencing Guidelines provide a base offense level reduction of two to four levels to
2
King was charged with additional drug offenses for which Speller was not
charged.
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reflect a mitigating role in an offense for defendants “substantially less culpable than
the average participant” in the offense. U.S.S.G. § 3B1.2, cmt. n.3(A). “A two-level
reduction is authorized where a defendant’s role is minor but not minimal.” United
States v. Ramos-Torres, 187 F.3d 909, 915 (8th Cir. 1999). A minor participant is a
defendant “who is less culpable than most other participants, but whose role could not
be described as minimal.” U.S.S.G. § 3B1.2, cmt. n.5.
Speller has the burden to prove she is entitled to the minor participant role
reduction. United States v. Surratt, 172 F.3d 559, 567 (8th Cir. 1999). “To determine
whether [Speller] was entitled to a reduction for [her] role in the offense, we must
first define the relevant conduct for which [s]he was held accountable when the
district court assessed [her] base offense level.” Thurmon, 278 F.3d at 792. This is
the crux of Speller’s appeal. The “same relevant conduct is used not only in
determining the defendant’s base offense level, but also for any role in the offense
adjustments made pursuant to Chapter 3 of the Guidelines.” United States v.
McCarthy, 97 F.3d 1562, 1574 (8th Cir. 1996). “The propriety of a downward
adjustment is determined by comparing the acts of each participant in relation to the
relevant conduct for which the participant is held accountable and by measuring each
participant’s individual acts and relative culpability against the elements of the
offense.” Ramos-Torres, 187 F.3d at 915. Reduction for a defendant’s role in an
offense is not warranted when the defendant “was not sentenced upon the entire
conspiracy but only upon his own actions.” Id.
The district court held Speller accountable only for the drugs she personally
distributed, i.e., 50 grams of cocaine base, and assessed a base offense level of 33.
The district court found no legal basis to reduce Speller’s base offense level for
Speller’s role in the offense, because Speller was not being held accountable for drugs
other conspirators distributed. The district court noted that, if Speller were held
accountable for the drugs other conspirators had distributed, her base offense level
would be much higher than 33. The record supports the district court’s observation.
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King’s conduct involved over 1.5 kilograms of cocaine base, and the district court
sentencing Herbert held him accountable for 21,454.66 grams of marijuana, 5,188.2
grams of cocaine, and over 1.5 kilograms of cocaine base. Speller did not object to
these facts reported in her Presentence Report (PSR). Accordingly, the district court
was free to accept the PSR as true for sentencing purposes. See United States v.
Young, 272 F.3d 1052, 1055 (8th Cir. 2001) (“[U]nless a defendant objects to
specific factual allegations contained in the PSR, a district court may accept the facts
as true for purposes of sentencing.”).
Speller asks the court to consider only 50 grams of cocaine base in calculating
her base offense level, and then asks the court to consider all the other drugs involved
in the conspiracy in determining her role in the offense. Speller’s construction would
result in a double reduction to her base offense level and would be contrary to the
Sentencing Guidelines. See McCarthy, 97 F.3d at 1574. An additional reduction for
Speller’s role in the offense was not warranted, and we find no error in the district
court’s denial of this reduction.
III. CONCLUSION
Because the district court did not err in denying Speller a minor role reduction,
we affirm.
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