United States v. Michael Morris ( 2014 )

FILED
NOT FOR PUBLICATION JUL 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30094
Plaintiff - Appellee, D.C. No. 1:12-cr-00155-BLW-11
v.
MEMORANDUM*
MICHAEL DENNIS MORRIS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted July 9, 2014**
Seattle, Washington
Before: ALARCÓN, KLEINFELD, and MURGUIA, Circuit Judges.
Michael Morris challenges the 156-month sentence imposed following his
jury-trial conviction for conspiring to possess with intent to distribute
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Morris challenges his sentence in four ways. First, he argues that he was
deprived of due process because the district court relied on unreliable evidence to
impose a two-level enhancement for obstruction of justice under U.S. Sentencing
Guidelines (“U.S.S.G.”) § 3C1.1. The district court “may consider relevant
information without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient indicia of reliability
to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see also United States v.
Vanderwerfhorst, 576 F.3d 929, 935 (9th Cir. 2009). We review the district
court’s determination of reliability for abuse of discretion. United States v. Felix,
561 F.3d 1036, 1040 (9th Cir. 2009).
The district court based its decision to impose the enhancement on the trial
testimony of Morris’s co-conspirator, Kristopher Hensley. Hensley testified that
while he and Morris were in jail, Morris threatened to stab him if he testified
against Morris. The district court did not abuse its discretion in finding that
Hensley’s testimony was sufficiently reliable. The sentencing judge heard Hensley
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testify under oath and was able to assess his credibility. Morris’s lawyer had the
opportunity to cross-examine Hensley. Further, Hensley’s testimony was
supported by an affidavit from his lawyer, which stated that Hensley reported the
threat to him a day after it happened. See United States v. Chee, 110 F.3d 1489,
1492 (9th Cir. 1997) (holding that a crime victim’s statements were sufficiently
reliable in part because they were made immediately after the crime). Though the
affidavit is hearsay, a sentencing court may consider hearsay that “has sufficient
indicia of reliability.” U.S.S.G. § 6A1.3(a); see also Chee, 110 F.3d at 1492.
Morris cites United States v. McGowan, 668 F.3d 601 (9th Cir. 2012), where
we held that an inmate’s allegations that a prison guard used methamphetamine
and smuggled drugs into prison were unreliable. In McGowan, however, the
district court did not have an opportunity to observe the inmate testify, defense
counsel did not have an opportunity for cross examination, and we saw no reason
why the inmate’s serious and uncorroborated claims had to be believed. Id. at
607–08. This case is distinguishable on all three grounds. We conclude that the
district court did not abuse its discretion in finding that Hensley’s testimony and
his lawyer’s affidavit were sufficiently reliable to demonstrate, by a preponderance
of the evidence, that Morris threatened Hensley.
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Second, Morris contends that the district court should have granted him a
two-level minor-role reduction under U.S.S.G. § 3B1.2(b). We review for clear
error. United States v. Cantrell, 433 F.3d 1269, 1282 (9th Cir. 2006). Even though
Morris was charged only for the drugs with which he was personally involved, he
was not precluded from consideration for a minor-role reduction in light of the
overall conspiracy. § 3B1.2, cmt. n.3(A). Nonetheless, Morris did not meet his
burden of proving that he is “substantially less culpable” than the average
participant. See id.; Cantrell, 433 F.3d at 1282–83. The district court properly
considered the amount of methamphetamine Morris purchased from his co-
conspirators; the frequency of his purchases; that he had methamphetamine, scales,
and packaging materials in his home when he was arrested; and that he sold
methamphetamine to a confidential informant. Because these facts showed that
Morris’s involvement was similar to other mid-level dealers in the conspiracy, the
district court did not clearly err by denying the adjustment.
Third, Morris argues that the district court erred by failing to apply a two-
level reduction for acceptance of responsibility under U.S.S.G. §3E1.1. A
defendant is entitled to the reduction only if he “clearly demonstrates acceptance of
responsibility for his offense.” United States v. Rosas, 615 F.3d 1058, 1067 (9th
4
Cir. 2010) (quoting § 3E1.1). The district court correctly noted that granting
Morris the reduction would be inconsistent with its finding that Morris obstructed
justice. Id.; § 3E1.1, cmt. n.4 (“[C]onduct resulting in an enhancement under §
3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates
that the defendant has not accepted responsibility for his criminal conduct.”).
Thus, the court’s finding that Morris threatened Hensley, “by itself, renders the . . .
decision to deny an acceptance of responsibility reduction reasonable absent an
extraordinary case.” Rosas, 615 F.3d at 1067.
Morris has not demonstrated that he has an extraordinary case. At the
sentencing hearing, Morris argued that he tried to plead guilty but that he and the
government disagreed over the quantity of drugs he would admit to possessing.
The prosecution said that they offered Morris a plea agreement, which he refused,
and the parties never discussed quantity. Given the lack of certainty over the
parties’ communications and the charges to which Morris was willing to plead to,
the district court did not err in finding that Morris did not clearly demonstrate
acceptance of responsibility. The court’s conclusion is further supported by its
finding that Morris attempted to illegally distribute steroids after his conviction.
See United States v. Mara, 523 F.3d 1036, 1038–39 (9th Cir. 2008) (noting that
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consideration of unrelated criminal conduct “can shed significant light on the
genuineness of a defendant’s claimed remorse”).
Fourth, Morris argues that his 156-month sentence is substantively
unreasonable. The district court did not abuse its discretion in imposing Morris’s
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence, which
is in the middle of the advisory Guidelines range, is substantively reasonable in
light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing
factors, including Morris’s criminal history and post-offense conduct. See id.
AFFIRMED.
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