United States v. Darrell Caldwell ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-2781
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Darrell B. Caldwell, * Western District of Missouri.
*
Appellant. * [UNPUBLISHED]
___________
Submitted: June 6, 2000
Filed: June 13, 2000
___________
Before WOLLMAN, Chief Judge, HEANEY, and BRIGHT, Circuit Judges.
___________
PER CURIAM.
Darrell B. Caldwell challenges the sentence imposed by the district court on
remand following his appeal in United States v. Caldwell, 88 F.3d 522, 524-27 (8th
Cir.), cert. denied, 519 U.S. 1048 (1996). We affirm.
In 1995, a jury convicted Caldwell of conspiracy to manufacture and distribute
marijuana, in violation of 21 U.S.C. § 846, and manufacturing and possessing
marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At trial,
Caldwell’s codefendant, Gary Jones, testified that for fifteen years Caldwell had sold
him--on average of once a month--between one ounce and three pounds of marijuana.
Jones also linked Caldwell to certain marijuana plants seized in Arkansas. At
sentencing, the district court determined that 6,108.2 kilograms of marijuana (processed
and in the form of marijuana plants) had been seized, and was attributable to Caldwell.
Further, the court credited Jones’s testimony that he had purchased marijuana from
Caldwell over a fifteen-year period, but limited its calculation of drug quantity based
on Jones’s testimony to the five-year period that could have been charged in the
indictment under the statute of limitations. Next, using 6,108.2 kilograms of marijuana
as the annual quantity, the court multiplied it by five, yielding 30,541 kilograms of
marijuana for a base offense level of thirty-eight. See U.S. Sentencing Guidelines
Manual § 2D1.1(c)(1) (1994) (at least 30,000 kilograms of marijuana). Caldwell was
sentenced to 360 months imprisonment and five years supervised release.
On appeal, we vacated Caldwell’s sentence, holding that the district court clearly
erred in concluding that, because a certain quantity of drugs was seized in 1993, the
same quantity could be attributed to Caldwell for each preceding year. We also noted
the government had conceded resentencing was necessary in light of Amendment 516
to the Sentencing Guidelines (reducing equivalency figure for marijuana plant tenfold).
We remanded with the following instructions:
When the [district] court calculates the amount of drugs involved in this
case at resentencing, it may include the amount of marijuana seized by the
government (674.9 kilograms),1 the amount of marijuana Jones testified
to purchasing from Caldwell (anywhere from a minimum of 1.7 kilograms
to a maximum of 81.65 kilograms), and any other amounts linked to
Caldwell by something more than pure speculation.
88 F.3d at 527-28.
At resentencing, the district court held Caldwell responsible for the seized
marijuana plus 81.65 kilograms, representing the quantity of marijuana Caldwell sold
1
For purposes of resentencing, the weight of the 6,037 plants the government
seized was reduced to 603.7 kilograms under Amendment 516; combined with the
additional 71.2 kilograms of processed marijuana seized, the marijuana actually seized
equaled 674.9 kilograms. See Caldwell, 88 F.3d at 527.
-2-
Jones, for a total of 756.55 kilograms. Caldwell objected, arguing that Jones’s
testimony did not support his purchasing 81.65 kilograms of marijuana from Caldwell,
that the record contained no evidence that some 4,867 plants seized in Arkansas had
been cultivated, and that the evidence insufficiently linked him to those plants. The
court responded that the court had ruled on these issues in the initial sentencing, and
the issues “ha[d] been through the Eighth Circuit.” The district court thus determined
the drug quantity to be 756.55 kilograms and resentenced Caldwell to concurrent 160-
month terms of imprisonment.
In the instant appeal, Caldwell challenges the 81.65 kilogram figure, contending
Jones’s testimony was unreliable and uncertain; he also challenges the 486.70 kilogram
figure, again contending Jones’s testimony was unreliable and there was insufficient
evidence linking Caldwell to the Arkansas plants. We agree with the government that
Caldwell’s challenges to the drug-quantity calculation fail, because we specifically held
that the district court was free to include these amounts in its calculation on remand.
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-