United States v. Donald Hartle ( 1996 )

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No. 95-4239
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Donald Dean Hartle, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 26, 1996
Filed: July 1, 1996
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Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
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PER CURIAM.
Donald Dean Hartle challenges the ninety-month sentence imposed by
the District Court1 after he was convicted of conspiring to possess with
intent to distribute, and possessing with intent to distribute,
methamphetamine; and using a communication facility to facilitate the
commission of a felony, in violation of 21 U.S.C. §§ 841(a)(1), 843(b), and
846 (1994). We affirm.
Hartle first contends he was entitled to an acceptance-of-
responsibility reduction. We conclude the District Court did not clearly
err in denying Hartle the reduction. See United States v. Hawkins, 78 F.3d
348, 352 (8th Cir. 1996) (standard of review), petition for cert. filed,
No. 95-9212 (U.S. June 1, 1996). While assertion of the right to a trial
does not automatically preclude
1
The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota.
Hartle from consideration for the reduction, he proceeded to trial,
requiring the government to prove the elements of its case; he has not
pointed to any pre-trial statements or conduct which would indicate he
accepted responsibility; and neither his post-trial voluntary admission of
his involvement in the offense nor his mere expression of remorse entitle
him to the reduction. See U.S.S.G. § 3E1.1, comment. (n.2) (1995); United
States v. Byrd, 76 F.3d 194, 196 (8th Cir. 1996) (defendant bears burden
of proof concerning acceptance of responsibility); United States v. Roggy,
76 F.3d 189, 194 (8th Cir.) (defendant's "mere expression of remorse" does
not warrant § 3E1.1 reduction), cert. denied, 116 S. Ct. 1700 (1996).
Next, Hartle contests the quantity of methamphetamine attributed to
him. We conclude the District Court did not clearly err in holding him
accountable for 100 to 400 grams of methamphetamine, given Hartle's
admission in the presentence report that he received a minimum of ten
packages each containing at least one-half ounce of methamphetamine, i.e.,
five ounces or 141.75 grams. See United States v. Newton, 31 F.3d 611, 614
(8th Cir. 1994) (standard of review); United States v. Wright, 29 F.3d 372,
374 (8th Cir. 1994) (district court properly relied on defendant's
admission in determining drug quantity).
Finally, Hartle contends he should not have been assessed a two-level
increase under U.S.S.G. § 2D1.1(b)(1) (1995) for possession of a dangerous
weapon. We conclude the government proved by a preponderance of the
evidence that the guns at issue were present during the offense and that
it was not clearly improbable that they were connected to Hartle's criminal
activity. See United States v. Kinshaw, 71 F.3d 268, 271 (8th Cir. 1995).
Hartle's reliance on United States v. Khang, 904 F.2d 1219, 1224 (8th Cir.
1990), in which the government conceded no evidence existed establishing
a nexus between the weapon and the defendant's drug activity, is misplaced.
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Accordingly, the judgment of the District Court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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