United States v. Robert E. Huffman ( 2004 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-2037
    ___________
    United States of America,                *
    *
    Plaintiff - Appellee,              *
    * Appeal from the United States
    v.                                 * Court of Appeals from the
    * Western District of Missouri.
    Robert E. Huffman,                       *
    *      [UNPUBLISHED]
    Defendant - Appellant.             *
    ___________
    Submitted: November 19, 2003
    Filed: January 13, 2004
    ___________
    Before LOKEN, Chief Judge, McMILLIAN and BEAM, Circuit Judges.
    ___________
    PER CURIAM.
    Robert E. Huffman pleaded guilty to conspiring to distribute more than five
    grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846.
    After a contested sentencing hearing, the district court1 sentenced Huffman to eighty-
    seven months in prison. Huffman appeals, arguing that the court clearly erred in
    denying him a two-level downward adjustment for his “minor participant” role in the
    offense, see U.S.S.G. § 3B1.2(b), and in imposing a two-level increase for possession
    1
    The HONORABLE NANETTE K. LAUGHREY, United States District Judge
    for the Western District of Missouri.
    of a firearm in connection with a drug offense, see U.S.S.G. § 2D1.1(b)(1). We
    affirm.
    A. Huffman’s Role in the Offense. A confidential informant introduced
    Huffman to undercover narcotics detective Jeff Weiler in May 2001. In the next two
    weeks, Weiler purchased crack and powder cocaine from Huffman on four occasions.
    Twice, Huffman went “home” to pick up the narcotics, once returning with co-
    defendant Alan Arnold. By following Huffman, police learned that “home” was
    Arnold’s residence. They conducted a warrant search of the residence after the fourth
    buy, seizing quantities of crack and powder cocaine, marijuana, and several firearms,
    and arresting Arnold, who admitted the seized drugs were his. Police also found
    documents linking Huffman to the residence and his fingerprint on the stash of
    marijuana, though Huffman had recently moved out of the Arnold residence.
    Huffman was later arrested and admitted that he lived at Arnold’s residence and sold
    narcotics with Arnold during the conspiracy period.
    A defendant is entitled to a minor participant reduction if he proves that he “is
    less culpable than most other participants.” U.S.S.G. § 3B1.2, cmt. n.5. This
    determination is made “by comparing the acts of each participant in relation to the
    relevant conduct for which the participant is held accountable.” United States v.
    Padilla-Pena, 
    129 F.3d 457
    , 471 (8th Cir. 1997), cert. denied, 
    524 U.S. 905
    and 
    524 U.S. 906
    (1998). At sentencing, the district court first found Huffman responsible for
    the five grams of crack cocaine encompassed by his guilty plea, plus 14.49 grams of
    powder cocaine. That drug quantity produced a base offense level of 26, rather than
    the base offense level of 30 or 32 urged by the government. Turning to Huffman’s
    role in the conspiracy offense, the district court acknowledged that Arnold was more
    culpable but found that Huffman was not a minor participant “given the quantity of
    drugs that he’s being held responsible for.”
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    Huffman argues that, even as to this lesser quantity, he was a “far more minor”
    participant than Arnold and Arnold’s unknown suppliers. However, given the
    dominant role Huffman played in the four sales to Detective Weiler, his efforts to
    encourage additional purchases, and his admission that he sold drugs for Arnold to
    other friends and acquaintances, the district court did not commit clear error in
    denying a minor participant reduction. Cf. United States v. Chatman, 
    119 F.3d 1335
    ,
    1341 (8th Cir.), cert. denied, 
    522 U.S. 976
    (1997); United States v. McGrady, 
    97 F.3d 1042
    , 1043 (8th Cir. 1996); United States v. Tauil-Hernandez, 
    88 F.3d 576
    , 581-82
    (8th Cir. 1996), cert. denied, 
    520 U.S. 1121
    (1997).
    B. The Firearm Enhancement. During the warrant search of Arnold’s
    residence, the police found three long guns in a hall closet and a handgun near the
    bedroom refrigerator in which most of the drugs were found. At the sentencing
    hearing, Kansas City Detective Gregory Pelter testified that he interviewed Huffman
    after his arrest. When asked whether Huffman told him what he received in exchange
    for narcotics, Pelter responded, “He said they would . . . exchange money, guns, TV’s,
    VCR’s, food stamps” (emphasis added). Huffman testified later in the hearing and
    denied making this admission:
    Q.     What’s your recollection of that conversation [with Detective
    Pelter]?
    A.     . . . I told him that I recollected one time when I was in . . . Mr.
    Arnold’s truck that he stopped with me in the vehicle. We looked
    at two shotguns. No transaction was made and nothing more
    happened at that time. That’s all I said. I never said that nothing
    was traded at that time . . . .
    Q.     Are you saying that -- was it traded later?
    A.     To my knowledge, I don’t know. No.
    Based on this conflicting testimony, the district court imposed the two-level
    enhancement for possession of a firearm in connection with a drug offense,
    -3-
    explaining, “I believe the officer in regards to that statement, and I do not believe the
    defendant in regards to that statement.”
    On appeal, Huffman concedes, as he must, that a two-level increase under
    § 2D1.1(b)(1) is warranted for “obtaining a gun in exchange for drugs.” United
    States v. Rogers, 
    150 F.3d 851
    , 858 (8th Cir. 1998), cert. denied, 
    525 U.S. 1113
    (1999). But Huffman argues that Arnold’s conduct in trading drugs for guns may not
    be attributed to Huffman for sentencing purposes because it was not the reasonably
    foreseeable conduct of a co-conspirator. We agree that a co-conspirator’s sentence-
    enhancing conduct must be reasonably foreseeable. See 
    Tauil-Hernandez, 88 F.3d at 579
    . Here, Huffman admitted that he knew Arnold would, on occasion, trade the
    drugs they were selling for guns. Huffman denied making this admission, but the
    district court credited Detective Pelter’s testimony. The transcript of the sentencing
    hearing supports that credibility finding, which is virtually unreviewable on appeal.
    The judgment of the district court is affirmed.
    ______________________________
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