United States v. Joey Loesel , 728 F.3d 749 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3543
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Joey Matthew Loesel
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: June 12, 2013
Filed: August 26, 2013
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Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Joey Matthew Loesel pled guilty to conspiring to manufacture and distribute
at least 50 grams of actual methamphetamine and 500 grams of a meth mixture or
substance — in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). The district
court1 sentenced him to 180 months’ imprisonment. He appeals, attacking a
sentencing enhancement, his girlfriend’s pseudoephedrine purchases attributed to
him, and the evidence used to determine the guideline range. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
I.
Almost daily from 2005 to 2011, Loesel and his girlfriend used meth or tried
to get it. They purchased pseudoephedrine (a drug used to make meth) from
pharmacies, and delivered it to meth “cooks.” Loesel assisted with meth production
on a farm, in residential areas, and in a moving vehicle. A warranted search of the
farm uncovered “a very large methamphetamine cooking site,” with three active meth
labs. Chemicals, substances, and equipment for manufacturing meth were strewn
“throughout the entire property.” Corroding tanks stored anhydrous ammonia.
Collectively, ten locations on the farm had over 10 grams of pure meth, and 3,100
grams of meth mixtures used in the lithium-ammonia-reduction method. There were
enough pseudoephedrine pills and empty packs to produce over 164 grams of pure
meth.
Loesel entered a proffer agreement. The government could use information in
it “to rebut any factual position taken by or on his behalf in connection with
sentencing issues or for any other reason.” At sentencing, he challenged an
enhancement for causing substantial risk of harm to human life or the environment.
He disputed attributing to him his girlfriend’s pseudoephedrine purchases. He
objected to the government introducing information from his proffer to support the
drug quantity. The district court used the information, attributed the purchases to
him, and imposed the enhancement.
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
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II.
Loesel believes he did not create a substantial risk of harm to human life or the
environment under U.S.S.G. § 2D1.1(b)(13)(C)(ii), because of the meth farm’s “rural
location.” This court reviews de novo “the application of the substantial risk of harm
standard to the undisputed facts.” United States v. Pinnow, 469 F.3d 1153, 1156 (8th
Cir. 2006) (citations omitted). Factors to consider include: (1) the quantity of
chemicals at the lab, and how they were stored; (2) how any “hazardous or toxic
substances were disposed,” and their likely release into the environment; (3) the
duration and extent of manufacturing; and (4) the lab’s location, and the number of
human lives placed at substantial risk of harm. U.S.S.G. § 2D1.1 cmt. n.20(A) (now
cmt. n.18(B)); see United States v. Wells, 706 F.3d 908, 917 (8th Cir. 2013). Though
courts must consider these factors, they can “take into account the dangers inherent
in methamphetamine manufacturing.” Pinnow, 469 F.3d at 1157.
Here, the factors favor enhancement. Under the first and second factors, the
search revealed over 10 grams of pure meth, 3,100 grams of meth mixtures, and
evidence of enough pseudoephedrine to produce over 164 grams of pure meth. See
United States v. Whited, 473 F.3d 296, 299-300 (6th Cir. 2007) (applying the
enhancement for 1.23 grams of pure meth). The meth farm had three active meth
labs. Numerous substances and chemicals – some in corroding tanks – and
equipment used to produce meth were found throughout the entire property. These
substances and chemicals are toxic and “can cause explosions and fires.” Pinnow,
469 F.3d at 1156 (citation omitted).
As to the third and fourth factors, for years, in several locations, Loesel helped
manufacture meth using the lithium-ammonia-reduction method. “The many risks to
human life and to the environment from this method of manufacture are well known.”
Id. at 1157, citing United States v. Chamness, 435 F.3d 724, 727 (7th Cir. 2006), and
United States v. Allen, 297 F.3d 790, 796 (8th Cir. 2002). It produces “toxic and
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often lethal waste.” Id. at 1156 (citation omitted). Though the farm was remote,
Loesel, his co-conspirators, the farm owner, and the officers who searched the farm
were exposed to the meth labs. Even if the conspirators and owner “assumed the
risk,” as Loesel asserts, they were nonetheless “human lives placed at substantial risk
of harm.” See U.S.S.G. § 2D1.1 cmt. n.20(A); cf. United States v. Davidson, 409
F.3d 304, 314 (6th Cir. 2005) (not applying the enhancement where the defendants
tried once to make meth in a remote, locked barn, and the operation did not: involve
“an unusually large quantity of hazardous materials”; exist “for an unusually long
period of time”; or “actually result[] in the disposal of the materials in a way harmful
to human life or the environment”). Also, manufacturing occurred in residential areas
and in a moving vehicle, placing additional lives at substantial risk. Considering the
scope of meth activity, the district court did not err in applying the enhancement. See
Pinnow, 469 F.3d at 1157 (holding the offense created a substantial risk of harm
where the defendant, “staying in various hotels,” possessed “a substantial quantity of
pseudoephedrine, enough to manufacture fifty grams of pure meth[], plus other
chemicals and equipment used in the lithium ammoni[a] reduction method”).
III.
Loesel claims the district court should not have attributed to him his
girlfriend’s pseudoephedrine purchases, because they were not reasonably foreseeable
to him. “The district court’s drug quantity . . . determinations are factual findings .
. . review[ed] for clear error, applying the preponderance-of-the-evidence standard.”
United States v. Walker, 688 F.3d 416, 420 (8th Cir. 2012). “Only if this court has
a definite and firm conviction that a mistake has been made, will it reverse the
sentencing court’s factual findings.” United States v. Two Elk, 536 F.3d 890, 909
(8th Cir. 2008).
“When calculating drug quantity in . . . a narcotics trafficking conspiracy, the
sentencing court may consider all transactions[,] known or reasonably foreseeable to
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the defendant,” that furthered the conspiracy. United States v. Payton, 636 F.3d
1027, 1046 (8th Cir. 2011). A co-conspirator’s testimony “may be sufficiently
reliable evidence” for the court to “base its drug quantity calculation for sentencing
purposes.” Id. “Drug quantities purchased for personal use by a member of the
conspiracy are relevant in determining the total drug quantity attributable to the
defendant.” Walker, 688 F.3d at 422. The “sentencing court should consider the
similarity, regularity, and temporal proximity of the conduct in determining whether
it is part of the same course of conduct or common scheme or plan.” Payton, 636
F.3d at 1046-47.
According to Loesel’s girlfriend, they used meth, or worked together to get it,
almost daily for years. This included buying pseudoephedrine from pharmacies, and
distributing it to meth manufacturers. Loesel contends that some of her purchases
were “secretive,” and she never “accepted her role exclusively within a larger unit.”
He relies on United States v. Palafox-Mazon, 198 F.3d 1182 (9th Cir. 2000). There,
each defendant was responsible only for his personal drug quantity, with “no
evidence suggesting that the Defendants accepted their ‘role within a larger unit.’”
Palafox-Mazon, 198 F.3d at 1190-91. But unlike Loesel, the defendants there neither
pled guilty to conspiracy, nor undertook “joint criminal activity.” Id. at 1185, 1187,
1191. Given Loesel and his girlfriend’s extensive joint meth use and
pseudoephedrine distribution, it was reasonably foreseeable to him that – even in his
absence – his girlfriend would purchase pseudoephedrine from pharmacies. Her
testimony shows she accepted a role in the conspiracy. “In light of this ongoing
arrangement,” the district court did not clearly err in attributing to him his girlfriend’s
pseudoephedrine purchases. See United States v. Voegtlin, 437 F.3d 741, 748 (8th
Cir. 2006) (attributing to the defendant a pseudoephedrine purchase by a co-
conspirator, though the defendant did not direct her to make it, because she “routinely
obtained pills for [him]”).
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IV.
Loesel argues the district court used information in the proffer agreement to
determine the guideline range, violating U.S.S.G. § 1B1.8(a). This court reviews “the
district court’s factual findings for clear error, and its interpretation and application
of the guidelines[] de novo.” United States v. Robinson, 639 F.3d 489, 495 (8th Cir.
2011); see United States v. Perry, 640 F.3d 805, 810 (8th Cir. 2011).
If the government agrees that self-incriminating information in a proffer cannot
be used against the defendant to determine the guideline range, the sentencing court
may use such information only “to the extent provided in the agreement.” U.S.S.G.
§ 1B1.8(a); Perry, 640 F.3d at 810. This court “interpret[s] contracts between
defendants and the Government according to general contractual principles.” Perry,
640 F.3d at 811.
Loesel contends that the district court used self-incriminating information
about meth dealing to determine the drug quantity attributable to him, and thus the
guideline range. (The information detailed meth activity in the Northern District of
Iowa, where he testified under an immunity agreement inapplicable here.) The
proffer agreement states that self-incriminating statements cannot “be used to
determine the appropriate guideline sentence.” But it lists exceptions, including “to
rebut any factual position taken by or on [Loesel’s] behalf in connection with
sentencing issues or for any other reason.”
He asserts the exception does not apply. Not so. At sentencing, he claimed his
girlfriend’s pseudoephedrine purchases were not attributable to him. According to
Loesel, his claim is a “legal theory,” not a factual position. Drug quantity is a
question of fact. See Walker, 688 F.3d at 420. The government used his proffer
statements about meth use and distribution to rebut Loesel’s factual position about
drug quantity — which is permitted under the agreement. Cf. Perry, 640 F.3d at 812-
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13 (holding the proffer agreement was violated where “information . . . from the
proffer session could be used against [the defendant] only if he . . . [materially]
contradicted statements made during the proffer session—and . . . only as
‘impeachment or rebuttal evidence, or as the basis for a prosecution for perjury or
false statement’”). The district court did not err in using that information to
determine the guideline range.
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The judgment of the district court is affirmed.
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