United States v. James Hess ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-3551
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
James Hess
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 15, 2016
Filed: July 18, 2016
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Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.
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RILEY, Chief Judge.
Taxidermist James Hess pled guilty to one count of Lacey Act Trafficking in
violation of 16 U.S.C. §§ 3372(a)(1) and 3373(d)(1)(B) for his involvement in the
purchase and sale of a pair of black rhinoceros horns. The district court1 sentenced
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
Hess to 27 months imprisonment, which Hess appeals, alleging the district court
procedurally erred and imposed an unreasonable sentence. Having appellate
jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the district court.
I. BACKGROUND
This case arises out of the United States Fish and Wildlife Service’s
investigation into illegal trafficking of rhinoceros horns and ivory—Operation Crash.2
Operation Crash led investigators to Felix Kha, who was smuggling rhinoceros horns
out of California to buyers in Taiwan and China, where the horns have the highest
market value. James Hess operated a taxidermy business out of his home in
Maquoketa, Iowa, since 2000, and sold wildlife items to Kha. Wade Steffen often
worked as an agent for Kha and traveled throughout the United States to make
purchases on Kha’s behalf.
According to a U.S. Fish and Wildlife Service special agent who testified at
Hess’s sentencing, Hess agreed to sell a pair of black rhinoceros horns to Steffen in
April 2011.3 Hess transported the horns from Iowa to Illinois. In Illinois, Hess sold
the horns to Steffen for $40,000. Steffen shipped the horns to Kha in California.
In August of that year, Hess responded to an online advertisement for a pair of
black rhinoceros horns from a seller residing in Oregon. Hess indicated to the seller
he intended to sell the horns to an Oregon resident. Hess unsuccessfully tried to sell
the horns and later contacted Steffen to see if he was interested in buying another pair
of black rhinoceros horns. Hess and Steffen agreed Hess would purchase the horns
2
“Crash” is a term used to describe a herd of rhinoceroses.
3
The black rhinoceros is listed as an endangered species under the Endangered
Species Act. See 16 U.S.C. § 1533(a)(1), (c)(1); 50 C.F.R. § 17.11(h). It is also
protected under the Convention on International Trade in Endangered Species of
Wild Fauna and Flora.
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from the seller in Oregon, Steffen would sell the horns, and the two would split the
profit of the sale.
Hess traveled to Illinois, where Steffen gave him $17,000 to make the
purchase. On August 23, 2011, Hess flew to Oregon and met with the seller of the
advertised horns. Hess showed the seller a copy of an Oregon driver’s license
supposedly belonging to the in-state buyer for whom Hess was making the purchase.
Hess purchased the horns for $16,000 and shipped them to his Iowa home. After the
horns arrived, Hess and Steffen met in Davenport, Iowa, where Steffen paid Hess half
of the profit he believed they would make on the sale of the horns. Steffen then sold
the horns to Kha for $50,000.4
Hess eventually came to the attention of the Operation Crash investigation and
was arrested. Based on the August 2011 transaction, Hess was charged with one
count of Lacey Act Trafficking, see 16 U.S.C. §§ 3372(a)(1), 3373(d)(1)(B), for
knowingly engaging in conduct involving the sale and purchase of wildlife with a
market value exceeding $350 that was transported and sold in violation of the
Endangered Species Act, 16 U.S.C. §§ 1538(a)(1)(E), (F), and 1540(b). In May 2015,
Hess waived his right to a prosecution by indictment. He pled guilty on May 13,
2015. Hess and the government stipulated to a twelve-level enhancement to Hess’s
offense level under the United States Sentencing Guidelines (U.S.S.G. or Guidelines)
to account for the market value of the horns, which they agreed was between
$200,000 and $400,000.5 See U.S.S.G. §§ 2B1.1(b)(1)(G), 2Q2.1(b)(3)(A) (2014).
4
Hess claims he was unaware Steffen intended to sell the horns to Kha. Hess
also objected to the sale price and market value of the horns set forth in the
presentence investigation report, but later agreed with the government about their
market value.
5
Hess’s charge was based solely on the August 2011 transaction, and he
disputed the relevance of the April 2011 transaction before the district court. Based
on the agreed upon market value, even if the district court had decided to consider the
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Before sentencing, Hess and the government agreed the applicable advisory
Guidelines range was 27 to 33 months imprisonment (offense level 17, category II).
Hess moved for a downward variance, requesting probation, which the government
opposed. At sentencing, the district court denied Hess’s request and sentenced him
to 27 months in prison followed by three years of supervised release. Hess appeals.
II. DISCUSSION
Hess first argues the district court made an “unsustainable finding on the record
presented” when it stated: “In general terms, no, Mr. Hess did not go to Africa and
poach a black rhino. But by his actions, he helped establish a market for these black
rhino horns, and that is a serious offense against the planet.” Because Hess did not
object to the district court’s statement during sentencing, we review this issue for
plain error. See United States v. Black, 670 F.3d 877, 881 (8th Cir. 2012).
Hess claims the district court’s statement was “based on speculation” because
the record does not demonstrate his actions “support[ed] a ‘market’ for poached black
rhino horns.” In Hess’s view, because the horns he purchased in Oregon were first
acquired legally in 1957, he “did not contribute to a market or demand for poached
black rhino horns.” During sentencing, the government called a special agent with
the U.S. Fish and Wildlife Service who explained how the “skyrocketing price” being
paid for rhinoceros horns has “fuel[ed] a huge market in the home countries for the
rhinos in Africa,” contributing to and increasing “the poaching epidemic.” See, e.g.,
United States v. Bernal, 90 F.3d 465, 467 (11th Cir. 1996) (per curiam) (“The purpose
of the Lacey Act is to protect ‘those species of fish and wildlife whose continued
existence is presently threatened’ by ‘gradually drying up the international market for
endangered species,’ thus ‘reducing the poaching of any such species in the country
April 2011 transaction as relevant and include its value in the total market value,
Hess’s offense level under the Guidelines would have remained unaffected because
the total market value would still not have exceeded $400,000. See U.S.S.G.
§§ 2B1.1(b)(1)(G), 2Q2.1(b)(3)(A) (2014).
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where it is found.’” (quoting S. Rep. No. 91-526, as reprinted in 1969 U.S.C.C.A.N.
1413, 1415-16)). The record supports the district court’s statement that Hess’s
actions contributed to establishing and furthering a market for black rhinoceros horns.
Using false identification, Hess purchased a pair of black rhinoceros horns and
shipped the horns across the country—knowing they would be resold. The district
court did not plainly err.
Hess also argues, “[g]iven [his] acceptance of responsibility, his limited
criminal history, and the more lenient sentences for [other] individuals prosecuted as
part of Operation Crash,” the district court imposed an unreasonable sentence and
failed to satisfy the sentencing goals under 18 U.S.C. § 3553(a). We review the
substantive reasonableness of a sentence for an abuse of discretion, affording a
sentence “within the Guidelines range . . . a presumption of reasonableness.” Gall v.
United States, 552 U.S. 38, 51 (2007); see United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc).
The district court thoroughly considered Hess’s criminal history and the effect
the sentence would have on Hess’s relationship with his son, disagreeing with Hess’s
proposition that he is not a “repeat offender.” The district court “carefully
considered” the § 3553(a) factors, stating the sentence must “reflect the seriousness
of the offense, . . . promote respect for the law, be a just punishment, afford adequate
deterrence . . . , protect the public . . . , [and] provide the defendant with needed
education . . . or other correctional treatment.” See 18 U.S.C. § 3553(a)(1), (2).
Responding to Hess’s argument that other individuals prosecuted through Operation
Crash received more lenient sentences, the district court explained it could not
“speculate why judges in different judicial districts across the country decided on a
particular disposition for a particular defendant.”
Having reviewed the sentencing transcript, we conclude Hess has failed to
overcome the presumption of reasonableness we apply to his bottom of the advisory
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Guidelines range sentence. See Gall, 552 U.S. at 51. “‘[T]he court carefully
explained the reasons for its sentence and its refusal to vary downward, and we see
no indication that the court improperly weighed the sentencing factors.’” United
States v. Harlan, 815 F.3d 1100, 1107 (8th Cir. 2016) (alteration in original) (quoting
United States v. Wanna, 744 F.3d 584, 589 (8th Cir. 2014)).
III. CONCLUSION
Finding no error, we affirm.
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