United States v. Patrick Webb, Jr. ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3830
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Patrick Miller Webb, Jr.
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Eastern
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Submitted: December 12, 2022
Filed: June 12, 2023
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Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.
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SMITH, Chief Judge.
A jury convicted Patrick Webb of distributing a controlled substance near a
protected location, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), 851, and 860(a);
possessing a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1); and being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 922(g)(3) and 924(a)(2). The district court1 sentenced Webb to
380 months’ imprisonment. On appeal, he argues that the district court erred in
instructing the jury and challenges the reasonableness of his sentence. We affirm.
I. Background
A. Factual History
On December 12, 2019, Webb traveled from Des Moines, Iowa, to Dubuque,
Iowa, in order to conduct a sale of methamphetamine to someone he did not know
was a government informant. Webb set up the sale at a car wash located
approximately 750 feet from Cleveland Park. Webb and the informant got into
Webb’s vehicle together and went through the car wash. While inside the car wash
bay, Webb passed a black plastic bag containing 15.8 ounces of methamphetamine
to the informant in the back seat. In exchange, the informant gave Webb $6,000 in
cash.
Law enforcement apprehended Webb after he left the car wash. They retrieved
the methamphetamine from the controlled buy. They then searched Webb’s car,
finding a loaded Ruger 9mm pistol wrapped in a t-shirt. An agent from the Iowa
Division of Narcotics Enforcement interviewed Webb after he had been read his
Miranda2 rights. During the interview, Webb admitted that he knew the informant
because they were in prison together. Webb also admitted that he gave the
methamphetamine to the informant. He acknowledged that he knew he could not
possess firearms because he was a felon. The methamphetamine was sent to the Iowa
Division of Criminal Investigation crime lab, which determined that it was 449.4
grams of pure methamphetamine.
1
The Honorable Charles J. Williams, United States District Judge for the
Northern District of Iowa.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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B. Procedural History
1. Trial
A grand jury charged Webb with three counts. Count 1 alleged that Webb
distributed a controlled substance near a protected location. Prior to trial, the parties
jointly filed proposed jury instructions. However, several of the instructions included
alternative proposals from each party. Instruction No. 12 was one such instruction.
Although both proposals contained three identical elements of Count 1, Webb’s
proposal went further and added an entrapment defense as an element, which read:
Four, either the defendant was willing to distribute 50 grams or
more of actual (pure) methamphetamine before he was approached or
contacted by [the informant]; or the government, or [the informant]
acting on the government’s behalf, did not persuade or talk the
defendant into distributing 50 grams or more of actual (pure)
methamphetamine.
R. Doc. 53, at 22 (emphasis in original).
The parties’ submissions each contained an identical proposed Jury Instruction
No. 15, which also related to Count 1. It read:
If you find the defendant guilty of distributing actual (pure)
methamphetamine as alleged in Count 1, you must determine whether
the location at which the crime occurred was within 1,000 feet of the
real property comprising a playground. The 1,000-foot zone can be
measured in a straight line from the playground irrespective of actual
pedestrian travel routes. The government does not have to prove that the
defendant agreed, knew, or intended that the offense would take place
within 1,000 feet of a playground.
The term “playground” means any outdoor facility (including any
parking lot appurtenant thereto) intended for recreation, open to the
public, and with any portion thereof containing three or more separate
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apparatus intended for the recreation of children including, but not
limited to, sliding boards, swingsets, and teeterboards.
Id. at 27.
The district court also filed proposed instructions. It included the government’s
proposed Instruction No. 12 and the parties’ proposed Instruction No. 15.
Webb objected to the district court’s proposed Instruction Nos. 5, 9, 19, and 22.
He also advised the court that he would ask it to administer his instruction on
entrapment and that he believed that he had made a sufficient showing to warrant the
instruction. Notably, he made no objection as to Instruction Nos. 12 or 15. Ultimately,
the district court adopted Instruction Nos. 12 and 15, which were listed as Nos. 11
and 14, respectively, in the Preliminary Jury Instructions. Webb did not object to
either at trial. The district court gave an entrapment instruction in the Final Jury
Instructions as Instruction No. 27.
The jury found Webb guilty on all counts. Webb moved for acquittal or a new
trial, which was denied by the district court. Webb did not challenge the instructions
in his motion for acquittal or new trial.
2. Sentencing
Before sentencing, probation services amended Webb’s presentence report
(PSR) to apply the career offender enhancement under U.S.S.G. § 4B1.1. This
enhancement increases a defendant’s offense level if that “defendant has at least two
prior felony convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1(a). The PSR explained that Webb’s prior Iowa
convictions of delivery of a controlled substance and possession of a controlled
substance with intent to deliver were predicate offenses for the enhancement.
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The amendment was based on this court’s opinion in United States v.
Henderson, which was issued after the first PSR but before sentencing. 11 F.4th 713,
718–19 (8th Cir. 2021). In Henderson, the panel held that “[t]he career-offender
guideline defines the term controlled substance offense broadly, and the definition is
most plainly read to ‘include state-law offenses related to controlled or counterfeit
substances punished by imprisonment for a term exceeding one year.’” Id. at 718(quoting United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020)). The Henderson
panel explained that the enhancement does not require the substance underlying a
state conviction to be controlled by federal law because “[t]here is no cross-reference
to the Controlled Substance Act in [the Guidelines definition of ‘controlled substance
offense’], like the cross-references to 26 U.S.C. § 5845(a) and 18 U.S.C. § 841(c) in
the [Guidelines] definition of the term ‘crime of violence.’” Id. The panel rejected the
defendant’s overbreadth argument.
The government, relying on Henderson, argued the enhancement applied. It
asserted that because Webb’s prior convictions involved substances that were
regulated by Iowa law, they were necessarily “controlled substance offenses” under
Henderson.
Webb argued that the timing of Henderson implicated “certain due process and
equal protection and, frankly, disparity issues.” R. Doc. 124, at 10:17–18. He argued
that prior to Henderson, the Eighth Circuit had held that state laws broader than the
Guidelines’ definition of “controlled substance offense” could not serve as predicates
for the career offender enhancement. He maintained that his decision to take the case
to trial depended on this prior interpretation of then-existing law. He asserted that
Henderson altered the legal landscape and thus adversely affected his legal strategy
to pursue trial when the PSR was amended to account for Henderson and apply the
career offender enhancement. In response to the amended PSR, he argued that the
enhancement should not apply or, alternatively, that the district court should vary
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downward to a punishment based on a Guidelines calculation without application of
the career offender enhancement.
The district court first noted that Henderson was binding and that it was
compelled to follow it and apply the enhancement. The court also addressed Webb’s
request for a variance based on Henderson’s impact. The court rejected the variance
option, stating, “[D]efendants make judgment calls all the time on how they predict
the guidelines are going to come out at sentencing, and there is no guarantee of how
anybody is going to interpret the guidelines, let alone how the courts are going to
interpret the guidelines or interpret the law.” Id. at 33:1–6. It noted that Webb took
a risk on how the Guidelines would be calculated when he decided to take the case
to trial. It concluded that varying downward based on Henderson would unduly
benefit Webb by preventing him from bearing the consequences of taking that risk.
Additionally, Webb asked that the court consider the disparity created by the
10-to-1 penalty ratio in the Guidelines’ treatment of actual methamphetamine and
mixtures containing methamphetamine. The district court declined, noting that
although it “would vote to alter the current . . . way that ice methamphetamine is
treated in the guidelines and also in the statutes . . . versus powder
methamphetamine,” it deferred to the will of Congress and the Sentencing
Commission. Id. at 33:25–34:4. It also noted that as a practical matter, actual
methamphetamine presents a graver risk per ounce than a mixture of
methamphetamine, which justified the Guidelines’ treatment of the substance.
The district court calculated Webb’s Guidelines range as 420 months to life
based on a total offense level of 37 and a criminal history category of VI. Despite
rejecting Webb’s arguments as to the career offender enhancement and the
methamphetamine disparity, the district court varied downward based on the facts
supporting the protected location enhancement. Specifically, the court explained that
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the enhancement was designed to protect children and that this drug deal did not
place children in danger as it occurred at the outskirts of the 1,000-foot perimeter.
After considering the seriousness of the offense, Webb’s personal
characteristics, his criminal history, and his remorse for the damage done by his
conduct, the district court sentenced Webb to 320 months on Count 1 (distribution
near a protected location) and 120 months on Count 3 (felon in possession), to run
concurrently. It then imposed a consecutive 60-month sentence for Count 2
(possession of a firearm in furtherance of drug trafficking). This produced a sentence
of 380 months, a 40-month downward variance from the low end of the Guidelines
range.
II. Discussion
On appeal, Webb challenges the district court’s decision to separate the
protected location element of Count 1 from the other elements. He argues that doing
so was an abuse of discretion because it constructively amended the indictment and
denied him a complete entrapment defense. He further argues that his trial counsel
was ineffective for failing to object.
Webb also challenges his sentence. He claims that his 380-month sentence is
both procedurally erroneous and substantively unreasonable. For the reasons stated
below, we affirm Webb’s convictions and sentence.
A. Jury Instructions
1. Constructive Amendment and Denial of Defense
The doctrine of invited error bars Webb’s claims that the district court
constructively amended the indictment and denied him a complete entrapment
defense. “[A]n erroneous ruling generally does not constitute reversible error when
it is invited by the same party who seeks on appeal to have the ruling overturned.”
United States v. Campbell, 764 F.3d 874, 878 (8th Cir. 2014) (quoting Roth v.
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Homestake Mining Co. of Cal., 74 F.3d 843, 845 (8th Cir.1996)). In other words, “the
doctrine of invited error applies when the trial court announces its intention to embark
on a specific course of action and defense counsel specifically approves of that course
of action.” Id. (cleaned up).
Here, Webb specifically requested separating the protected location
element—Proposed Instruction No. 15—from the remainder of the elements of Count
1—Proposed Instruction No. 12. Webb then filed objections to certain instructions
but failed to object to either Instruction No. 12 or 15 prior to trial. He further failed
to do so at trial or in his post-trial motion. Webb “cannot complain that the district
court gave him exactly what his lawyer asked.” United States v. Thompson, 289 F.3d
524, 526 (8th Cir. 2002). We, therefore, decline to review either of these claims.
2. Ineffective Assistance of Counsel
Webb does not take issue with his trial counsel’s proposal of the instructions
that he now challenges on appeal. He merely takes issue with his counsel’s failure to
object to the instructions. In any event, his claim fails because Webb cannot show his
lawyer’s failure to object prejudiced him.
“To prove ineffective assistance of counsel, [Webb] must show (1) his
attorney’s performance fell below an objective standard of reasonableness, and (2)
a reasonable probability that, but for that deficient performance, the result of the
proceeding would have been different.” Love v. United States, 949 F.3d 406, 409 (8th
Cir. 2020) (citing Strickland v. Washington, 466 U.S. 668, 688, 697 (1984)). When
the second element of this test “can be dispositive of a case, we need not address the
reasonableness of the attorney’s behavior if the movant cannot prove prejudice.”
United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (citation omitted); see also
Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice . . . that course should be followed.”).
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Here, the record contains testimony, surveillance videos, and body cam footage
that clearly show Webb selling approximately a pound of methamphetamine to a
government informant for $6,000 in a car wash that was within 1,000 feet of a public
park. Thus, given the overwhelming evidence of Webb’s guilt, his counsel’s failure
to object to the jury instructions had no discernible effect on the trial verdict. As such,
we affirm Webb’s convictions.
B. Sentencing
Webb challenges his sentence, arguing that the district court procedurally erred
by relying on Henderson to apply the career offender enhancement and by
considering the Guidelines mandatory on the issue of methamphetamine sentencing
disparities. He additionally argues that his sentence is substantively unreasonable.
“When we review the imposition of sentences, whether inside or outside the
Guidelines range, we apply a deferential abuse-of-discretion standard.” United States
v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quotations omitted). “We
review a district court’s sentence in two steps: first, we review for significant
procedural error; and second, if there is no significant procedural error, we review for
substantive reasonableness.” United States v. O’Connor, 567 F.3d 395, 397 (8th Cir.
2009).
1. Career Offender Enhancement
Webb first argues that this court’s decision in Henderson unforeseeably
expanded the scope of criminal liability under the career offender enhancement.
Webb asserts that before Henderson, United States v. Sanchez-Garcia, 642 F.3d 658(8th Cir. 2011), was the controlling law of the circuit. He argues that under Sanchez-
Garcia, a state statute that criminalized more conduct than a comparable federal law
was overbroad and could not serve as a predicate for a Guidelines career offender
enhancement. He avers that Henderson—which defined “controlled substance
offense” by its plain text and did not require an underlying state law to categorically
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match corresponding federal law—violated his due process and equal protection
rights.
It is an open question whether the Due Process Clause also forbids
retroactive judicial expansion of criminal punishments, as opposed to
criminal liability. But assuming without deciding that the Fifth
Amendment precludes certain retroactive increases in punishment
occasioned by judicial decision, it does so only where such decisions are
unexpected and indefensible.
United States v. Evans, 63 F.4th 1157, 1159 (8th Cir. 2023) (cleaned up).
Like Webb, the defendant in Evans argued that applying Henderson—which
was issued after he was convicted but before he was sentenced—violated his due
process and equal protection rights. Id. at 1159. The Evans panel rejected the
defendant’s due process argument for three reasons. First, it rejected the argument
because Henderson was consistent with the decisions of other circuits. Id. Second, it
rejected the argument because contrary to the defendant’s assertions, Sanchez-Garcia
did not address the question at issue in Henderson. Id. While quoting Henderson, the
panel further explained that Sanchez-Garcia “did not hold that a state law crime must
involve one of the Controlled Substance Act substances to be a ‘controlled substance
offense’ under the career offender Guidelines, but . . . simply affirmed the Guidelines
enhancement at issue without addressing that question.” Id. (cleaned up). Third, the
panel rejected the argument because Henderson’s holding was derived from the plain
text of the Guidelines. Id. Evans concluded that the application of Henderson was
“neither unexpected nor indefensible.” Id.As to the defendant’s equal protection argument, the panel concluded that there
was no equal protection violation if there was “‘any reasonably conceivable state of
facts that could provide a rational basis’ for the application of Henderson.” Id. at
1160 (quoting United States v. Binkholder, 909 F.3d 215, 218 (8th Cir. 2018)). It then
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determined that because Henderson’s holding “was neither unexpected nor
indefensible, its interpretation of the guidelines had a rational basis.” Id.Evans controls here. Henderson’s interpretation of the career offender
enhancement was “neither unexpected nor indefensible” and “had a rational basis.”
Id.3 The district court did not err in applying this enhancement.
2. Methamphetamine Sentencing Disparity
Webb next argues that the district court erroneously considered the Guidelines
mandatory by ignoring the 10-to-1 sentencing disparity between actual
methamphetamine and mixtures of methamphetamine. He argues that the Guidelines’
treatment of the two substances creates an unreasonable disparity and should not
apply. He contends that the district court’s application of the Guidelines despite its
express disagreement with the Guidelines’ treatment of the substances showed that
the court treated the Guidelines as mandatory.
Webb, however, misconstrues the district court’s statements. We do not read
the court’s statement as intimating that it was bound by the Guidelines’ treatment of
actual methamphetamine and mixtures containing methamphetamine. Instead, the
district court expressly deferred to Congress and the Sentencing Commission on the
issue and applied the Guidelines as currently written. In fact, the court stated a
rational basis for the enhancement when it explained that actual methamphetamine
is more potent than mixtures containing methamphetamine. It noted that this meant
that actual methamphetamine has a higher dosage per kilo. The court further noted
that a distributer of actual methamphetamine can cause more people to become
addicted to the drug because actual methamphetamine can produce more doses. Thus,
3
We note that the equal protection analysis in Evans applied a plain error level
of review, whereas here, we review de novo. The standard of review, however, does
not render Evans inapplicable. The analysis concluding Henderson was neither
unexpected nor indefensible provides Henderson has a rational basis.
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the court found that the disparity is reflective of the danger and damage that actual
methamphetamine causes when compared to mixtures containing methamphetamine.
Accordingly, the district court did not treat the Guidelines as mandatory.
3. Substantive Reasonableness
Lastly, Webb’s argument that his sentence was substantively unreasonable
fails. Webb’s argument for substantive unreasonableness stands on the weak pillars
of his arguments for procedural error, which we have already rejected. Further, “[a]
sentence below or within the Guidelines range is presumptively reasonable on
appeal.” United States v. Barraza, 982 F.3d 1106, 1116 (8th Cir. 2020) (quoting
United States v. Canania, 532 F.3d 764, 773 (8th Cir. 2008)). “When a district court
varies downward and sentences below a presumptively reasonable Guidelines range,
it is nearly inconceivable that the court abused its discretion in not varying downward
still further.” United States v. Canamore, 916 F.3d 718, 721 (8th Cir. 2019) (per
curiam). Webb offers no convincing reasoning to rebut this presumption. Thus, his
below-Guidelines-range sentence was not an abuse of discretion.
III. Conclusion
Accordingly, we affirm Webb’s conviction and sentence.
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