United States v. Charles E. Wiig , 190 F. App'x 521 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4184
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Charles E. Wiig, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 20, 2006
Filed: August 11, 2006
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Before WOLLMAN, HANSEN, and BENTON, Circuit Judges.
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PER CURIAM.
Charles Wiig was found guilty by a jury of distributing less than fifty grams of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1), and was
sentenced by the district court1 to 262 months’ imprisonment. On appeal, he
challenges the sufficiency of the evidence supporting his conviction and the
reasonableness of the sentence. We affirm.
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The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
I.
On September 23, 1998, Richard Haseloh, a Nebraska State Patrol narcotics
investigator, supervised a controlled methamphetamine buy at Wiig’s apartment.
George Brown, who agreed to cooperate with the state in exchange for a reduction
in criminal charges against him, told the investigator that he had arranged to purchase
a half ounce of methamphetamine from Wiig for $550. Investigator Haseloh
provided Brown with the money and equipped him with an audio transmitting device
to record the transaction. Investigators then watched as Brown entered Wiig’s
apartment. No one entered or left the apartment while Brown was inside.
The audio recording of the tape indicates that Brown asked a person if the price
was still $550 for a half ounce of methamphetamine. At that person’s insistence,
Brown agreed to use some methamphetamine. After Brown left the apartment, he
turned over to investigators methamphetamine that he had purchased in the
apartment. Wiig was subsequently arrested. On September 28, 1998, he called his
mother, Mary McIntosh, and asked her to clean out his apartment. McIntosh went
with a friend to clean the apartment, where the friend found a yellow rock-like
substance in a mattress. Suspecting that the substance was either drugs or dried
cheese, McIntosh threw it into a dumpster. The next day, she returned to the
apartment to continue cleaning and discovered approximately $3600 in cash in a
suitcase. McIntosh testified that the substance and the money were in a bedroom that
had once been occupied by Wiig’s roommate, but she did not know whether the
roommate was still living in the apartment.
On November 19, 1998, Wiig was indicted for conspiracy to distribute and
possess with the intent to distribute methamphetamine and possession with intent to
distribute methamphetamine. After pleading not guilty, he was released to a halfway
house pending trial. On March 2, 1999, he failed to return to the halfway house.
Wiig fled from the law for more than six years before he was finally arrested on April
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19, 2005. While he was a fugitive from justice, he wrote a letter to his mother
admitting ownership of the items and estimating that she had thrown out drugs worth
between $3000 and $6000.
The cooperating witness, Brown, did not testify at Wiig’s trial, but McIntosh
said that the voice on the audio recording “sounds like Chuck [Wiig].” A police
officer testified about an incident in Lexington, Nebraska, in which Wiig fled from
the officer. When the officer tackled Wiig, he found a small plastic bag of
methamphetamine lying near Wiig. Wiig was charged with attempted possession of
methamphetamine. A Nebraska State Patrol officer testified that he supervised three
other controlled methamphetamine buys involving Wiig and that Wiig had been
convicted of distributing a controlled substance in Hall County, Nebraska, based on
those transactions.
Following Wiig’s conviction and the denial of his motion for a new trial, the
presentence report (PSR) placed him at a base offense level of 18. A two-level
enhancement for obstruction of justice increased the base offense level to 20.
Because Wiig was designated as a career offender, however, the offense level was
enhanced to 34. The district court ultimately determined that Wiig should be placed
in criminal history category VI, which resulted in an advisory guideline range of 262
to 327 months’ imprisonment. As noted above, the district court sentenced Wiig to
262 months’ imprisonment.
II.
We review de novo the sufficiency of the evidence, viewing the evidence in the
light most favorable to the verdict and upholding it if, based on the all of the evidence
and taking all reasonable inferences in favor of the verdict, any reasonable juror
could find the defendant guilty beyond a reasonable doubt. United States v.
Roberson, 439 F.3d 934, 941-42 (8th Cir. 2006). Wiig argues that there is not
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sufficient evidence to prove beyond a reasonable doubt that he was the man in his
apartment who sold the methamphetamine to Brown. He points out that his mother
did not unequivocally identify his voice on the recording, and that at some point there
had been a roommate living in the apartment. We conclude, however, that the
circumstantial evidence was sufficient to allow a reasonable juror to find Wiig guilty
beyond a reasonable doubt of distributing methamphetamine. Cf. United States v.
Resnick, 745 F.2d 1179, 1185-86 (8th Cir. 1984) (upholding conviction for cocaine
distribution based on “compelling circumstantial evidence” even though the police
did not witness the actual transactions).
Several pieces of circumstantial evidence point to Wiig’s guilt. He occupied
the apartment where the drug transaction took place, and Brown told the officers that
he was going to buy the methamphetamine from Wiig. Wiig’s mother indicated that
the voice of the dealer on the recording sounded like Wiig’s. Following his arrest,
Wiig asked his mother to clean the apartment, an indication that he was at that time
solely in control of the apartment and not jointly occupying it with a roommate. His
mother found a suitcase full of money and a substance that Wiig later identified in a
letter to be drugs belonging to him. Fifth, Wiig fled for six years in an attempt to
avoid being brought to book, circumstantial evidence of his consciousness of guilt.
United States v. Melson, 7 F.3d 750, 752 (8th Cir. 1993). In light of this evidence,
a reasonable juror could find beyond a reasonable doubt that Wiig was the person
who sold methamphetamine to Brown on September 23, 1998.
III.
Our review of the reasonableness of a sentence is akin to abuse of discretion
review. United States v. Haack, 403 F.3d 997, 1003-04 (8th Cir. 2005). A sentence
within the guideline range is presumptively reasonable. United States v. Lincoln, 413
F.3d 716, 717 (8th Cir. 2005). To rebut that presumption, Wiig must show that the
district court failed to consider a relevant factor that should have received significant
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weight, gave significant weight to an improper or irrelevant factor, or otherwise
committed a clear error of judgment. United States v. Davidson, 437 F.3d 737, 741
(8th Cir. 2006).
The only argument that Wiig makes concerning the unreasonableness of the
sentence is a cursory claim that the district court failed to adequately consider the fact
that his crime was not a violent crime and that his father was incarcerated during most
of Wiig’s childhood. These facts were before the district court, however, and there
is no evidence that they were not considered. Moreover, given Wiig’s status as a
career offender and his six-year flight from the law, we cannot say that he has
rebutted the presumption that his guideline sentence is reasonable.
The judgment is affirmed.
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