United States v. Kevin Lee Davis ( 2006 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    Nos. 06-1055/1227
    ___________
    United States of America,            *
    *
    Appellee/Cross-Appellant,      *
    * Appeal from the United States
    v.                             * District Court for the
    * Southern District of Iowa.
    Kevin Lee Davis,                     *
    *
    Appellant/Cross-Appellee.      *
    ___________
    Submitted: September 25, 2006
    Filed: December 28, 2006
    ___________
    Before WOLLMAN, BRIGHT, and BOWMAN, Circuit Judges.
    ___________
    BOWMAN, Circuit Judge.
    Kevin Lee Davis was convicted of conspiracy to manufacture and distribute
    methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846; conspiracy to
    manufacture and distribute marijuana, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), 846; and
    manufacturing marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(D). Davis appeals,
    challenging the denial by the District Court1 of his motion to suppress, the sufficiency
    of the evidence, and the reasonableness of his sentence. The government cross-
    1
    The Honorable Harold D. Vietor, United States District Judge for the Southern
    District of Iowa.
    appeals, challenging the District Court's drug-quantity calculation at sentencing. We
    affirm the District Court in all respects.
    I.
    On February 24, 2005, an arrest warrant was issued for Kevin Davis on account
    of methamphetamine and marijuana charges. A federal Drug Enforcement Agency
    (DEA) tactical team working in conjunction with Iowa law enforcement officers
    (collectively, "the officers") executed the arrest warrant at Davis's Iowa farmhouse the
    morning of March 15, 2005. For approximately two hours prior to execution, officers
    conducted surveillance of Davis's house and barn from a vantage point approximately
    one-quarter of a mile from the house. The officers observed Davis make two trips
    between his house and barn (which was located approximately 100 yards from the
    house) on an all-terrain vehicle; one trip lasted approximately thirty to forty minutes,
    and the other trip lasted only a few minutes. The officers also noted that three to four
    vehicles and a small trailer were on the property. The officers had prior intelligence
    suggesting that other persons could be inside the house and/or barn. The officers also
    had information that Davis kept firearms in the house.
    In executing the warrant, a team of five officers knocked and announced their
    presence at Davis's front door three times, but received no response. While waiting
    for a response, one team member shouted the word "compromise," which was the
    team's code word to indicate that a person had been seen or heard inside the house.
    At this point, the team broke into the house and conducted a sweep of the house. At
    the same time the team was entering the house, Davis was exiting the house through
    the kitchen door—apparently not in an attempt to escape, but rather to cooperate.
    Davis was immediately spotted and arrested by other officers stationed outside of the
    house. The team that entered and swept the house was not aware that Davis had
    exited the house, been spotted by other officers, or been arrested.
    -2-
    During the team's sweep of the house, officers observed several drug-related
    items in plain view, including: grow lights; water hoses; boxes of plant food and
    fertilizer; planting pots and blocks; drying shelves; marijuana clippings; and a
    homemade rifle. During the sweep, Iowa State Patrolman Chad Peters broke into a
    closet that was padlocked from the outside and discovered rifles and handguns. Davis
    alleged that another officer opened a toolbox and observed a scale during the sweep,
    but the government contended that the toolbox remained unopened until execution of
    the subsequently issued search warrant.
    At the same time the team was entering the house, three officers, including
    Agent Tony Peterson of the Iowa Division of Narcotics Enforcement, conducted a
    sweep of the barn. These officers swept the barn for approximately thirty seconds and
    then went to the house. By that point, Davis had been arrested and the house sweep
    had been completed. During the barn sweep, the officers observed an item they
    believed was an HCl generator, but was identified as a weed sprayer after the
    subsequent search.
    After the arrest and sweeps, the officers obtained a search warrant for Davis's
    property. The affidavit in support of the search warrant contained details of the
    sweeps, including statements that the firearms in the closet were "observed in plain
    view" and that officers observed an HCl generator in the barn. Suppression Hr'g Ex.
    A. The affidavit also contained prior intelligence information indicating Davis's
    involvement with the growth and sale of marijuana. The affidavit was signed by DEA
    Special Agent Tyson Hodges, who was not present during the arrest. Agent Peterson
    had dictated the sweep information to Agent Hodges over the phone;2 and Agent
    2
    The affidavit stated that Agent Hodges learned the information about the sweep
    from DEA Special Agent Frank Feden; however, the testimony during the suppression
    hearing indicated that the sweep observations were relayed by Agent Peterson. See
    United States v. Hollis, 
    245 F.3d 671
    , 673 (8th Cir. 2001) (noting that Franks v.
    Delaware, 
    438 U.S. 154
    (1978), hearing permits the defendant to challenge statements
    -3-
    Peterson had, in turn, received the information that the firearms were observed in plain
    view from Patrolman Peters.
    At trial, the government presented several witnesses who testified about their
    roles in the operation to manufacture and distribute large quantities of
    methamphetamine between 2002 and 2004. According to the witnesses, this operation
    involved the mass purchase of pseudoephedrine pills that were given to various
    individuals, including Davis, who in turn manufactured methamphetamine for resale
    by a seller. Under this arrangement, Davis, with the assistance of another individual,
    manufactured methamphetamine on at least three separate occasions, each time
    producing quantities that required the consumption of 10,000 pseudoephedrine pills.
    After each manufacture, Davis provided the seller with two ounces of
    methamphetamine while retaining the remaining amounts (Davis also sold
    methamphetamine directly to several individuals). Davis told one individual that he
    manufactured four-and-one-half to five ounces of methamphetamine per 5,000
    pseudoephedrine pills.
    Davis also assisted other individuals in the manufacture of methamphetamine
    for the seller, either directly or by providing his barn for use as a lab. These
    manufacturers would pay Davis with methamphetamine or anhydrous in exchange for
    use of the barn. Additionally, Davis directly purchased between 40,000 and 54,000
    pseudoephedrine pills for the manufacture of methamphetamine, which he paid for
    with either money or methamphetamine. One manufacturer saw Davis in possession
    of approximately one-quarter pound of methamphetamine on one occasion.
    The same witnesses also testified about their roles in the manufacture and
    distribution of marijuana between 2000 and 2003. According to the testimony, Davis
    harvested large quantities of marijuana and employed two individuals to trim the
    contained in a search warrant affidavit in certain circumstances).
    -4-
    marijuana. In return for these services, Davis provided these two individuals with
    marijuana. Davis harvested between eighty and one hundred pounds of marijuana
    during the fall of 2001. Additionally, Davis grew approximately 800 marijuana clone
    plants per year between 2000 and 2003 and sold them to three sellers in exchange for
    harvesting services. Finally, Davis sold marijuana to several individuals out of his
    home.
    DEA agents testified that Davis's barn was the type of vented space commonly
    used to manufacture methamphetamine and that the items found in Davis's house
    could be used to manufacture marijuana. The government introduced phone records
    showing calls between the co-conspirator witnesses and Davis. Davis's friends
    testified that they used methamphetamine and marijuana at Davis's house. A neighbor
    testified about the high volume of traffic at Davis's house for short periods during the
    day and night. The jury returned a guilty verdict on all counts.
    At sentencing, the District Court applied the sentencing guidelines and
    calculated a total-offense level of 30 and a criminal history category of I, which
    resulted in an advisory sentencing range of 97 to 121 months of imprisonment. The
    District Court applied a two-level dangerous-weapons enhancement and found that
    Davis was responsible for 4.9 grams of methamphetamine. After considering the 18
    U.S.C. § 3553(a) factors, the District Court sentenced Davis to concurrent terms of
    imprisonment of ninety-seven months for the conspiracy counts and sixty months for
    the manufacturing count.
    II.
    Davis first argues that the District Court erred by failing to suppress evidence
    seized under the search warrant, which was issued based on information obtained from
    -5-
    the protective sweeps of his house and barn.3 Davis conceded the validity of the house
    sweep during oral argument, but still contests the validity of the barn sweep. Davis
    also contends that the officers' inspections of the locked closet and toolbox each
    exceeded the permissible scope of the house sweep.4 We review the District Court's
    factual findings for clear error and its legal conclusions de novo when examining the
    motion to suppress. United States v. Clayton, 
    210 F.3d 841
    , 845 (8th Cir. 2000).
    A.
    Davis first argues that the protective sweep of his barn was invalid under the
    standard announced in Maryland v. Buie, 
    494 U.S. 325
    (1990). In Buie, the Supreme
    Court held that incident to an arrest, officers may, as a precaution and without any
    requisite level of suspicion, "look in closets and other spaces immediately adjoining
    the place of arrest from which an attack could be immediately launched" without first
    securing a search warrant. 
    Id. at 334.
    The Court also held that officers may sweep
    additional areas if "articulable facts which, taken together with the rational inferences
    from those facts, would warrant a reasonably prudent officer in believing that the area
    to be swept harbors an individual posing a danger to those on the arrest scene" exist.
    
    Id. A "protective
    sweep" must be "a quick and limited search of premises . . .
    conducted to protect the safety of police officers or others." 
    Id. at 327.
    It may only
    3
    The government conceded that without the information obtained during the
    sweeps and described in the affidavit, the search warrant would fail for lack of
    probable cause. Suppression Hr'g Tr. at 198; see Michigan v. Clifford, 
    464 U.S. 287
    ,
    294 (1984) (stating that "a criminal search warrant may be obtained only on a showing
    of probable cause to believe that relevant evidence will be found in the place to be
    searched").
    4
    During oral argument, Davis also contended that the officers exceeded the
    scope of a permissible sweep by searching a particular area of his cellar. This point
    was not argued in the briefs and therefore is waived. See Chay-Velasquez v. Ashcroft,
    
    367 F.3d 751
    , 756 (8th Cir. 2004).
    -6-
    extend to a cursory inspection of those spaces where a person may be found and may
    last no longer than is necessary to dispel the reasonable suspicion of danger, and in
    any event, may last no longer than it takes to complete the arrest and depart the
    premises. 
    Id. at 335–36.
    A protective sweep is justified by the threat of accomplices
    launching a surprise attack during an arrest and is particularly important during an in-
    home arrest, due to the heightened potential for an ambush in unfamiliar surroundings.
    
    Id. at 333.
    A protective sweep may be executed after an arrest if there is a reasonable
    possibility that other persons may be present on the premises who pose a danger to the
    officers. United States v. Jones, 
    193 F.3d 948
    , 950 (8th Cir. 1999).
    Because the barn did not immediately adjoin the place of arrest, the question is
    whether the officers conducting the sweep possessed a reasonable belief, based on
    specific and articulable facts, that the barn harbored an individual who posed a danger
    to the officers. 
    Buie, 494 U.S. at 334
    . The District Court held that the officers were
    permitted to conduct the protective sweep of the barn under this standard and that the
    officers also had the authority to sweep the barn in connection with their execution of
    the arrest warrant. Because we hold that the officers' actions were justified under
    Buie, we do not address the District Court's alternative rationale.
    The protective sweep of the barn was justified by several articulable facts and
    resulting rational inferences that created a reasonable suspicion that accomplices could
    pose a threat to the safety of the arresting officers. These facts and inferences include:
    (1) the surveillance officers observed Davis going to and from his barn twice in two
    hours, from which they could infer that he had contact with an accomplice (or
    accomplices); (2) three to four vehicles and a trailer were parked on the property,
    which could indicate the presence of accomplices; (3) the officers had prior
    intelligence of individuals coming to the property to manufacture methamphetamine;
    (4) prior intelligence indicated that Davis possessed firearms, which could indicate a
    danger to officer safety; (5) the officers had been informed that Davis associated with
    dangerous and violent persons, which also could indicate a potential danger to officer
    -7-
    safety; and (6) surveillance cameras were attached to the house, which could indicate
    the heightened possibility of a surprise attack. These facts and inferences, especially
    when considered in the aggregate, would have led a reasonable officer to conclude
    that individuals posing a legitimate threat to his safety could be lurking in Davis's
    barn. While it is true that the barn did not immediately adjoin the area of arrest, the
    barn was not so far removed from the house that a reasonably prudent officer could
    dismiss the potential danger. Considering that Davis had made two trips to the barn
    in two hours and that multiple vehicles were present on the property, the officers could
    reasonably conclude that accomplices were inside the barn. Combined with the
    information that Davis possessed firearms, that he associated with violent persons, and
    that surveillance cameras were mounted outside of the house, it was reasonable for the
    officers to conclude that their safety was threatened and that a protective sweep of the
    barn was permissible.
    Moreover, even if we were to assume that it was improper for the officers to
    conduct a protective sweep of the barn, the evidence observed in plain view during the
    house sweep (which Davis concedes was valid under Buie) satisfied the probable
    cause requirement for issuance of a search warrant. For these reasons, Davis's
    argument regarding the protective sweep of his barn fails.
    B.
    Davis next argues that although the protective sweep of his house was valid
    under Buie, the officers exceeded the permissible scope of the house sweep by
    opening a locked closet door and allegedly opening a toolbox. Because the search
    warrant was partially issued based on the house sweep's observations, Davis contends
    the search warrant was invalid.
    -8-
    A protective sweep must be quick and limited to places where persons could be
    hiding. 
    Buie, 494 U.S. at 327
    . The search should take no longer than necessary to
    complete the arrest and leave the premises. 
    Id. at 335–36.
    The District Court concluded that breaking into the locked closet exceeded the
    scope of a lawful protective sweep, and we agree. The officer who broke the lock
    acknowledged that nothing he observed indicated that anyone was hiding in the closet
    and that if someone were actually hiding inside, the individual would have been
    locked in the closet. However, the District Court also ruled that the "abundant"
    evidence found within the permissible scope of the protective sweeps still established
    probable cause to support the search warrant, and we agree. Ruling at 5.
    Regarding the toolbox, there was conflicting testimony as to whether the
    officers opened a toolbox containing a scale during the house sweep or whether they
    waited until after obtaining a search warrant. Opening a small toolbox would exceed
    the scope of a lawful protective sweep; however, the District Court was not persuaded
    that the officers did in fact prematurely open this toolbox, and we cannot say that this
    finding was clearly erroneous. For these reasons, Davis's argument that the officers
    exceed the lawful scope of the house sweep fails.5
    5
    Our opinion analyzes the validity and proper scope of the sweeps in this case.
    However, brief mention of an issue identified during the suppression hearing is
    warranted. Four officers testified that it is their department's policy to conduct a
    sweep of a house during every home arrest as a matter of course. While we recognize
    the reality that these particular officers are often executing drug-related warrants,
    which frequently involve a threat to officer safety and thereby justify protective
    sweeps, Buie clearly instructs that protective sweeps must be justified on an
    individualized basis. Buie does not allow for a sweep in all 
    cases. 494 U.S. at 334
    n.2. Here, the circumstances justified the protective sweep, and future sweeps must
    be similarly justified in the individual cases, and may not be conducted as a matter of
    course.
    -9-
    C.
    Davis's final argument regarding his suppression motion is that the information
    contained in the search warrant affidavit violated the standard articulated in Franks v.
    Delaware, 
    438 U.S. 154
    (1978), and therefore the warrant was invalid. Davis further
    contends that the good-faith exception described in United States v. Leon, 
    468 U.S. 897
    (1984), should not apply.
    To prevail on a Franks claim, a defendant must show that: (1) the affiant
    knowingly and intentionally, or with reckless disregard for the truth, included false
    information in or excluded material information from the search warrant affidavit; and
    (2) the affidavit, excluding the false inclusion or including the missing material
    information, would not support a finding of probable 
    cause. 438 U.S. at 155
    –56;
    United States v. Clapp, 
    46 F.3d 795
    , 799 (8th Cir. 1995). Neither mere negligence nor
    an innocent mistake will, by themselves, void a warrant. 
    Franks, 438 U.S. at 171
    ;
    
    Clapp, 46 F.3d at 799
    . Probable cause to issue a search warrant exists when an
    affidavit in support of the warrant sets forth sufficient facts to establish that there is
    a "fair probability that contraband or evidence of" criminal activity will be found in
    the particular place to be searched. Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983); see
    
    Clapp, 46 F.3d at 801
    . Probable cause determinations are made in light of the totality
    of the circumstances. 
    Clapp, 46 F.3d at 801
    .
    The threshold issue is whether the statements in the affidavit that the firearms
    in the closet were in "plain view" and that an HCl generator was observed in the barn
    were made with knowing and intentional or reckless disregard for the truth. We agree
    with the District Court that the statement about the HCl generator, which was actually
    a weed sprayer, was an "honest mistake," and therefore does not violate the first prong
    of Franks. Ruling at 4. We also agree with the District Court that the statement that
    the firearms were observed in "plain view" was made in reckless disregard of the
    truth. Ruling at 5. The officer who broke the lock and observed the firearms inside
    -10-
    the closet acted outside the scope of a lawful protective sweep. The firearms,
    therefore, were not in plain view. See Harris v. United States, 
    390 U.S. 234
    , 236
    (1968) (per curiam) (noting that an item is in plain view if it is observed by an officer
    standing in a place where he is legally entitled to be). While some governmental
    actions raise substantially difficult questions about the constitutional limitations on
    governmental conduct, the opening of a closet padlocked from the outside during a
    sweep to look for potential accomplices is not reasonably debatable. Therefore, the
    statement that the firearms were in "plain view" was made in reckless disregard of the
    truth.6
    Under the second Franks prong, however, Davis's argument fails because even
    after excluding the statements about the firearms and HCl generator, the affidavit
    provided probable cause to support the search warrant. Because Davis's Franks claim
    fails, we need not reach the Leon good-faith argument.
    III.
    Davis next argues that there was insufficient evidence to support his
    convictions. We review the evidence, including all reasonable inferences drawn
    therefrom, in the light most favorable to the government and will only reverse if no
    6
    The fact that the affiant, Agent Hodges, was not aware that the firearms were
    not in plain view does not change the result under Franks, nor does the fact that Agent
    Hodges's source of information, Agent Peterson, was also unaware of the truth.
    Patrolman Peters's statement cannot be insulated from a Franks challenge simply
    because it was relayed through two officers who were both unaware of the truth. See
    
    Franks, 438 U.S. at 163
    n.6 (noting with approval the premise that "police [may] not
    insulate one officer's deliberate misstatement merely by relaying it through an
    officer-affiant personally ignorant of its falsity"); accord United States v. Kennedy,
    
    131 F.3d 1371
    , 1376 (10th Cir. 1997) (collecting cases), cert. denied, 
    525 U.S. 863
    (1998).
    -11-
    reasonable jury could have found Davis guilty beyond a reasonable doubt. United
    States v. Espino, 
    317 F.3d 788
    , 792 (8th Cir. 2003).
    A.
    To prove a conspiracy to manufacture or distribute a controlled substance, the
    government must prove that (1) there was an agreement or understanding to
    manufacture or distribute a controlled substance, (2) the defendant knew of the
    agreement or understanding, and (3) the defendant intentionally joined the agreement
    or understanding. 
    Id. at 792.
    A conspiracy may be proved by direct or circumstantial
    evidence. 
    Id. With respect
    to Davis's methamphetamine conviction, the government
    must prove that Davis intended to manufacture or distribute at least fifty grams of
    methamphetamine. See 21 U.S.C. §§ 841(b)(1)(A)(viii), 846.
    There was sufficient evidence to support Davis's conviction for conspiracy to
    manufacture or distribute methamphetamine. The government presented evidence that
    Davis: (1) manufactured methamphetamine for a seller on at least three separate
    occasions; (2) directly assisted other individuals in the manufacture of
    methamphetamine; (3) provided his barn to other individuals for the manufacture of
    methamphetamine; (4) received methamphetamine and pseudoephedrine pills for his
    efforts; and (5) sold methamphetamine himself. The cooperation between Davis and
    the primary seller (i.e., the exchanges of pills and finished methamphetamine), and
    between Davis and the other manufacturers (i.e., the use of his barn for the
    manufacture of methamphetamine) shows both that there was an agreement or
    understanding between Davis and these co-conspirators and that Davis knew of the
    agreement or understanding. Davis intentionally joined the agreement, as shown by
    his voluntary acts, including accepting pills, providing finished methamphetamine,
    allowing the use of his barn for manufacturing, and selling methamphetamine. The
    government satisfied the statutory drug-amount requirement, presenting evidence that
    Davis manufactured two ounces of methamphetamine on three separate occasions, and
    -12-
    that Davis manufactured approximately five ounces of methamphetamine per 5,000
    pseudoephedrine pills.
    Davis essentially attacks this verdict on two grounds, arguing that the testimony
    of the government's key witnesses was speculative and biased, and that the testimony
    of a DEA agent was based on assumptions. Davis contends that the government's co-
    conspirator witnesses were not credible because they testified after reaching plea
    agreements and they did not possess personal knowledge that Davis actually
    manufactured methamphetamine. He argues that the DEA agent's testimony regarding
    the likelihood that Davis's barn was a methamphetamine lab was speculative because
    the presence of a ventilation system could be explained by Davis's ownership of a
    body shop. Finally, Davis contends that the agent's testimony that Davis distributed
    methamphetamine was unsubstantiated because no methamphetamine was found on
    Davis at the time of his arrest.
    Questions of credibility are the province of the jury and are "virtually
    unreviewable on appeal." United States v. Candie, 
    974 F.2d 61
    , 64 (8th Cir. 1992).
    The jury may consider whether a witness has a plea agreement as part of its credibility
    determination. 
    Espino, 317 F.3d at 794
    . Evidence of these witnesses' plea agreements
    was offered, and the jury was free to accept or reject their testimony. Similarly, the
    jury was free to accept or reject the testimony of the DEA agent after considering the
    agent's training and experience and evaluating his opinion. The co-conspirators'
    personal knowledge of Davis's actions was evident from their testimony. The
    government was not required to show that Davis possessed methamphetamine at the
    time of his arrest to support the conviction. It is apparent that the jury accepted the
    testimony Davis now challenges. We will not disturb the verdict because the jury
    exercised its prerogative to credit this testimony.
    -13-
    B.
    With respect to the marijuana convictions, the government was required to
    prove not only that Davis conspired to manufacture or distribute marijuana, see 21
    U.S.C. §§ 841(a)(1), (b)(1)(B), 846, but also that Davis knowingly or intentionally
    manufactured marijuana, see 21 U.S.C. § 841(a), (b)(1)(B).
    There was sufficient evidence to support Davis's marijuana convictions. The
    government presented evidence that Davis: (1) harvested marijuana; (2) employed
    individuals to harvest and trim marijuana; (3) provided marijuana plants to co-
    conspirators; and (4) sold marijuana. Davis's cooperation with others, his harvesting
    of marijuana, and his sale of marijuana shows that there was an agreement or
    understanding to manufacture and distribute marijuana and that Davis knew of the
    agreement or understanding. Davis's voluntary actions, including providing marijuana
    plants to others and selling marijuana, show that he intentionally joined the agreement
    or understanding. Davis's harvesting of marijuana and employment of others show
    that Davis knowingly and intentionally manufactured marijuana.
    Davis again argues that the government's co-conspirator witnesses were
    unreliable due to their plea agreements, and that the DEA agent's testimony regarding
    Davis's manufacture of marijuana was speculative. Just as with the methamphetamine
    count, the jury was free to make credibility determinations and to accept or reject the
    testimony, and we again do not see any proper reason to disturb the jury verdict.
    IV.
    Davis next argues that the ninety-seven month sentence imposed by the District
    Court is unreasonable. We review sentences for unreasonableness. United States v.
    Adams, 
    401 F.3d 886
    , 895 (8th Cir.), cert. denied, 
    126 S. Ct. 492
    (2005). We review
    the District Court's application of the sentencing guidelines de novo and its factual
    -14-
    findings for clear error. United States v. Johnston, 
    353 F.3d 617
    , 625 (8th Cir. 2003),
    cert. denied, 
    541 U.S. 1068
    (2004).
    A.
    Davis first contends that the District Court erred in applying a two-level
    enhancement for possession of a firearm. The guidelines provide for a two-level
    enhancement when the government shows by a preponderance of the evidence, see
    United States v. Atkins, 
    250 F.3d 1203
    , 1214 (8th Cir. 2001), that a firearm was
    present and it is not clearly improbable that the firearm was connected to a drug crime.
    U.S. Sentencing Guidelines Manual § 2D1.1(b)(1), cmt. n.3. A connection between
    a firearm and drug-related activities may be shown by proof that the firearm was
    located in the same place as the drugs or drug-related activity. 
    Atkins, 250 F.3d at 1214
    . Proof that a firearm was located in the same room as drug-related items
    supports the conclusion that the defendant's drug activities were conducted in that
    room and that the gun was used in connection with the activities. United States v.
    Moore, 
    212 F.3d 441
    , 447 (8th Cir. 2000).
    The District Court did not err in applying the enhancement for possession of a
    firearm. Several firearms, including a shotgun, rifles, and handguns were found in the
    same room as marijuana and marijuana-manufacturing items such as seeds and scales.
    Witnesses testified that drug transactions were conducted in the same room as the
    firearms. This close proximity of the firearms to the drug activity—in addition to the
    number and type of weapons involved (i.e., handguns)—support the conclusion that
    the firearms were used in connection with drug activity. Therefore, the District
    Court's finding that it was not clearly improbable that the firearms were connected to
    drug-related activity was not clearly erroneous.
    -15-
    B.
    Davis further contends that the District Court failed to fully consider mitigating
    factors raised during the sentencing hearing—specifically that he had suffered from
    an addiction to methamphetamine, was participating in rehabilitation, intended to
    remain sober, and desired to provide a positive role-model for his children. The
    District Court did consider each of these mitigating factors; Davis's addiction,
    rehabilitation, sobriety, and family were each discussed in detail during the sentencing
    hearing. The District Court also considered the need for deterrence and treatment, as
    well as the circumstances of Davis's crime, before ultimately imposing a sentence at
    the low end of the guidelines. We are satisfied that the District Court did not err in
    this regard.
    V.
    Finally, the government argues that the District Court erred in determining the
    amount of methamphetamine attributable to Davis. Specifically, the government
    contends that the District Court failed to make adequate factual findings in support of
    the methamphetamine quantity attributable to Davis. We review the District Court's
    ultimate factual findings of drug quantity for clear error. United States v. Granados,
    
    117 F.3d 1089
    , 1093 (8th Cir. 1997).
    "The base offense level for drug offenses is determined by the quantity of
    illegal drugs attributable to the defendant." United States v. Candie, 
    974 F.2d 61
    , 64
    (8th Cir. 1992). "Quantity is an issue for the sentencing judge." 
    Id. If the
    defendant
    challenges the drug quantity calculated in the presentence investigation report (PSR),
    the District Court must make a factual determination of the quantity of drugs
    attributable to the defendant. Fed. R. Cr. P. 32(i)(3)(B) ("[F]or any disputed portion
    of the [PSR] or other controverted matter" during sentencing, the District Court must
    "rule on the dispute or determine that a ruling is unnecessary either because the matter
    -16-
    will not affect sentencing, or because the court will not consider the matter in
    sentencing."); 
    Atkins, 250 F.3d at 1212
    ; 
    Candie, 974 F.2d at 64
    . The District Court
    satisfies Rule 32(i)(3)(B) if it "makes a clear statement indicating 'it was relying on
    its impression of the testimony of the witnesses at trial, coupled with its specific
    rejection of the defendant's quantity objections.'" United States v. Villareal-Amarillas,
    
    454 F.3d 925
    , 930 (8th Cir. 2006) (quoting United States v. Flores, 
    73 F.3d 826
    , 835
    (8th Cir.), cert. denied, 
    518 U.S. 1027
    (1996), petition for cert. filed, (U.S. Nov. 13,
    2006) (No. 06-7772)). While the majority of appeals have involved a district court's
    rejection of a defendant's drug-quantity objections, the same specificity requirements
    apply to district courts when the government's drug-quantity calculations are rejected.
    See, e.g., United States v. Randolph, 
    101 F.3d 607
    , 608–09 (8th Cir. 1996).
    In this case, Davis disputed the PSR's drug quantity at sentencing, thereby
    obligating the District Court to make specific factual findings supporting its ruling,
    unless the drug quantity would not have affected sentencing or would not have been
    considered. Drug quantity did affect Davis's sentencing, as the government's proposed
    finding would have resulted in a base-offense level of at least 36. After hearing
    arguments from both Davis and the government advocating different drug-quantity
    determinations, discussing credibility issues of both the government and the defense
    witnesses, and considering the relevant jury instruction not to consider sentencing
    issues in its drug-quantity determination, the District Court found that 4.9 grams of
    methamphetamine were attributable to Davis. The District Court stated, "That's what
    I find, 4.9. I was comfortable with the jury determination on [drug-quantity] when it
    came in, and I'm still comfortable with that, whether it's beyond a reasonable doubt
    standard or a preponderance standard." Sent. Tr. at 28–29.
    The District Court's findings satisfied Rule 32(i)(3)(B). While the government
    contends that the District Court's statement was too conclusory to allow for
    "meaningful appellate review," see 
    Candie, 974 F.2d at 65
    , this narrow reading views
    the statement in isolation and ignores the surrounding context of the District Court's
    -17-
    ruling. The District Court satisfied the first Flores clear-statement requirement during
    the exchange with government counsel when the District Court expressed its
    reservations about the credibility of both the government and the defense witnesses.
    The government argued for a higher drug-quantity determination based on the
    testimony of Davis's co-conspirators, but the District Court declined the invitation to
    rely on that testimony and asked, "All of the witnesses [the government is] relying on
    [to prove drug quantity] really carried a lot of credibility baggage, did they not?"
    Sent. Tr. at 26. The District Court followed this statement by noting that the defense
    witnesses also possessed credibility shortcomings: "We had a lot of tales told in this
    trial by people who had a lot of motive; is that a fair statement?" 
    Id. These statements
    came during arguments by both sides that fully addressed the applicable trial
    testimony and were made by the trial judge who observed firsthand each witness's
    testimony. These credibility determinations are entitled to great deference on appeal.
    See, e.g., United States v. Funk, 
    985 F.2d 391
    , 394 (8th Cir.), cert. denied, 
    508 U.S. 967
    (1993). The District Court satisfied the second Flores clear-statement
    requirement by specifically rejecting the government's drug-quantity calculations,
    which were fully advanced by counsel but ultimately rejected in favor of a lower
    determination consistent with the jury verdict.
    This result is consistent with several cases that have held that a district court's
    quantity findings were sufficient under Rule 32(i)(3)(B) and its precursors. See, e.g.,
    United States v. Jimenez-Villasenor, 
    270 F.3d 554
    , 563 (8th Cir. 2001) (holding that
    the district court's findings were sufficient where the court noted that the parties
    offered competing drug-quantity calculations, heard the parties' respective arguments,
    and ultimately based its finding on trial testimony and other evidence); United States
    v. Brown, 
    91 F.3d 1109
    , 1112 (8th Cir. 1996) (holding that the district court's findings
    were sufficient where the district court merely stated that it credited the trial testimony
    with respect to the drug quantity); United States v. Scott, 
    91 F.3d 1058
    , 1062–63 (8th
    Cir. 1996) (holding that the district court's findings were sufficient where the district
    court expressly rejected the defendant's drug-quantity calculations and stated its
    -18-
    reliance on trial testimony); United States v. Edwards, 
    994 F.2d 417
    , 423 (8th Cir.
    1993) (holding that the district court's drug-quantity findings were sufficient where
    "the district court's comments at the sentencings, and its specific overruling of
    appellants' quantity objections to the PSRs, make it clear that the court credited [the
    government witness's] quantity testimony for sentencing purposes"), cert. denied, 
    510 U.S. 1048
    (1994). Conversely, this case is distinguishable from the cases on which
    the government relies. See, e.g., United States v. Ortega, 
    150 F.3d 937
    , 945–46 (8th
    Cir. 1998) (remanding where district court gave no indication whether the drug-
    quantity finding was based on trial evidence), cert. denied, 
    525 U.S. 1087
    (1999);
    
    Randolph, 101 F.3d at 609
    (remanding where district court gave no explanation for
    its drug-quantity finding); United States v. Coleman, 
    990 F.2d 419
    , 422 (8th Cir.
    1993) (remanding where the district court did not specify which of the government's
    alternative theories it adopted in its drug-quantity finding); United States v.
    Alexander, 
    982 F.2d 262
    , 268 (8th Cir. 1992) (remanding where district court gave
    no explanation as to its drug-quantity finding); 
    Candie, 974 F.2d at 65
    (remanding
    where district court failed to credit or discredit the only drug-quantity witness's
    testimony).
    The District Court made specific witness-credibility determinations and
    specifically rejected the government's proposed drug-quantity calculations. Unlike
    the cases remanding for additional findings, the District Court here provided much
    more than a conclusory statement (or no statement at all), as it considered all relevant
    trial testimony and made a finding that it believed was most clearly supported by the
    record, thereby satisfying Rule 32(i)(3)(B). We hold that the District Court's ultimate
    finding of drug quantity was not clearly erroneous.
    -19-
    VI.
    For the reasons stated, the judgment of the District Court is affirmed.
    ______________________________
    -20-
    

Document Info

Docket Number: 06-1055

Filed Date: 12/28/2006

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (25)

Maryland v. Buie , 110 S. Ct. 1093 ( 1990 )

United States v. Joyce A. Brown, United States of America v.... , 91 F.3d 1109 ( 1996 )

United States v. Sergio Javier Granados , 117 F.3d 1089 ( 1997 )

United States v. Coleen Sue Funk, United States of America ... , 985 F.2d 391 ( 1993 )

United States of America v. Benjamin Franklin Moore , 212 F.3d 441 ( 2000 )

Franks v. Delaware , 98 S. Ct. 2674 ( 1978 )

United States v. Michael Lambert Coleman , 990 F.2d 419 ( 1993 )

United States v. John H. Candie , 974 F.2d 61 ( 1992 )

united-states-v-rodney-alexander-united-states-of-america-v-emmanuel-g , 982 F.2d 262 ( 1992 )

United States v. Lee Warn Scott , 91 F.3d 1058 ( 1996 )

United States v. Ronnell B. Randolph Willie Mitchell , 101 F.3d 607 ( 1996 )

united-states-v-fred-edwards-jr-united-states-of-america-v-michael , 994 F.2d 417 ( 1993 )

United States v. Emmanuel Jones , 193 F.3d 948 ( 1999 )

United States v. Leon , 104 S. Ct. 3405 ( 1984 )

United States v. Keiran George Kennedy , 131 F.3d 1371 ( 1997 )

United States v. Jose Guadalupe Jimenez-Villasenor, Also ... , 270 F.3d 554 ( 2001 )

United States v. Mark E. Clayton , 210 F.3d 841 ( 2000 )

United States v. Leo Adams, United States of America v. ... , 401 F.3d 886 ( 2005 )

United States v. James F. Atkins , 250 F.3d 1203 ( 2001 )

Manuel Admin Chay-Velasquez v. John Ashcroft, Attorney ... , 367 F.3d 751 ( 2004 )

View All Authorities »