United States v. Daniel John Marshall , 411 F.3d 891 ( 2005 )

HEANEY, Circuit Judge,

dissenting.

I respectfully dissent. In my view, the district court clearly erred by ignoring Daniel John Marshall’s consistent statements that he cooked methamphetamine two times, in favor of Officer Robinson’s testimony that he recalled Marshall telling him about a year earlier that he had cooked methamphetamine four times. I would remand this matter for resentencing with application of the safety valve and base offense level of 28.⁵

Robinson interviewed Marshall on January 30, 2002 after Robinson and others searched Amy al-Munasif s house. At that time, Robinson had been on the DEA Drug Task Force for less than a month. Robinson contemporaneously took handwritten notes of the encounter and later wrote an official report, both of which are part of the record. His notes contain basic information, such as the method Marshall used to manufacture methamphetamine, and reflect the details of only two cooks. Marshall admitted to Robinson that he recently had been consuming a large amount of methamphetamine. He further related that the methamphetamine manufacturing supplies at the residence were his, and indicated that the officers would find roughly 700 pills of pseudoephedrine.⁶ Marshall was not arrested at that time.

Despite the January interview, the government waited nearly nine months before charging Marshall with any federal offense. The reason for the delay is unclear, since Marshall was the sole defendant and no extensive investigation beyond the initial search and interrogation appears to have been completed before charging. By the time he was charged, Marshall had left Iowa, secured a job in South Carolina, and rid himself of his methamphetamine addiction. He was arrested on November 7, 2002, and returned to Iowa.

According to representations made by Marshall’s counsel, Marshall sought to dispose of his case as quickly as possible. He admitted to the conduct alleged, but disputed the claim that he cooked methamphetamine four times. Although he entered into a plea agreement, Marshall maintained that he only cooked twice, and altered the plea agreement documents to omit any reference to engaging in four cooks. He pled guilty on January 30, 2003, less than three months after being-charged.

Marshall appeared eligible for safety valve relief, so long as he fully debriefed with the government as to the details of his offense. See USSG § 5C1.2(a)(5) (requiring defendant to “truthfully provide[ ] to the Government all information and evidence the defendant has concerning the offense” in order to qualify for safety valve relief). He met with the government on June 20, 2003. At this hearing, he remained adamant that he only engaged in two cooks, and Robinson remained equally adamant that Marshall admitted to four cooks during their earlier encounter. The government then suggested that Marshall was being untruthful, and recommended that the district court deny safety valve relief.

At sentencing, the government disclosed Robinson’s handwritten notes to defense counsel for the first time. These notes do not reflect that Marshall manufactured methamphetamine four times; they particularize only two cooks. Below these details, Robinson had written “4 times before 300 pills apiece.” (Appellant’s Addendum at 1.) The government argued that this note buttressed Robinson’s claim that Marshall cooked four times. Marshall, on the other hand, suggested that the note meant merely that he bought 300 pills of pseudoephedrine on four different occasions.

The district court sided with the government, which resulted in a much higher sentence for Marshall. Since it found Marshall not truthful, he was ineligible for the two-level safety valve reduction. See USSG §§ 2Dl.l(b)(6), 5015(a) (mandating two-level reduction in offense level for drug defendants who, inter alia, truthfully debrief on their offenses of conviction). Applying a base offense level of 30 and other adjustments, Marshall was left with a sentencing range of 70 to 87 months, as opposed to a range of 46 to 57 months, which would have applied if the court had credited Marshall’s testimony.

Although I recognize that we typically defer to a district court’s decisions on the veracity of witnesses, United States v. Tucker, 243 F.3d 499, 506 (8th Cir.2001), such deference is based on the principle that the district court is in the best position to make such determinations, United States v. Mendoza-Gonzalez, 363 F.3d 788, 794 (8th Cir.2004). Here, the district court’s statement of reasons indicate that it disbelieved Marshall based on its hunch that Marshall was attempting to mitigate his culpability: “I credit his first statement to law enforcement on January 30, 2002, during which he said he cooked methamphetamine four times. By the time he got to his safety valve interview, he was trying to minimize his criminal conduct by saying he only cooked two times.” (Sent. Tr. Vol. II at 98-99.)

The district court opined that Marshall initially told Robinson he cooked four times, and then later changed his story when he realized that four instances of manufacturing would result in a more severe sentence than two because of the higher yield. For a defendant with a GED, no record of legal training, and no prior federal offenses, it is an unwarranted leap of faith to assume he recognized that United States Sentencing Guideline section 2D1.1, which applies to violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii), and 846 (Marshall’s offense of conviction), calls for a base offense level of 30 for offenses involving 35 to 50 grams of actual methamphetamine (the range if Marshall cooked four batches), and a base offense level of only 28 for those involving 20 to 35 grams of actual methamphetamine (the range if Marshall cooked two batches).⁷ While one could certainly speculate that Marshall educated himself about the sentencing guidelines through conversations with counsel, the record does not support such conjecture. Marshall has insisted that he only cooked twice since the time of his initial meeting with his lawyer in the fall of 2002, well before his safety valve interview the following June.

Although the majority suggests that the district court was forced to make a decision to believe one side of two conflicting accounts, that was simply not the case. This is not a case in which we are presented with hard evidence that contradicts the defendant’s claim. The only apparent conflict concerns Marshall’s own statements: whether the district court would believe what Robinson claims Marshall said on January 30, 2002, or whether it would believe what Marshall has consistently maintained to be the truth.

Robinson’s notes detail only two instances of manufacturing. Marshall indicated he used about 550 pseudoephedrine pills altogether-250 one time and 300 another, and officers found roughly 650 unused pills that Marshall agreed were his, for a grand total of 1200 pills. In this context, it is likely that the reference in Robinson’s notes to “4 times 300 pills apiece” meant that Marshall had bought 300 pseu-doephedrine pills on four occasions, for a total of 1200 pills. Robinson, however, maintained that despite the fact that Marshall’s interpretation was consistent with the accounting of pills used and unused, Marshall told him he manufactured methamphetamine on four occasions.

When Marshall was asked at sentencing about the apparent conflict between Robinson’s recollection and his own, he stated that if he indeed told Robinson he cooked four times, he misspoke. Marshall was struggling with a serious methamphetamine addiction, and was under the influence of the drug when Robinson questioned him. Given that, he agreed that it was entirely conceivable that he mistakenly told Robinson he cooked four times, or that Robinson either did not hear him correctly or misunderstood him. What is less plausible, however, is that Marshall actually did cook four times rather than two. Marshall was unequivocal that he only manufactured methamphetamine twice, and his testimony to that effect should have been credited. I would reverse the district court and remand for resentencing.

5 . I concur in the majority's holding that Marshall is not entitled to relief under United States v. Booker,-U.S.-■, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). I continue to believe that a defendant's challenge to the factual basis for a sentence enhancement preserves his Sixth Amendment sentencing claim. See United States v. Pirani, 406 F.3d 543, 555-62 (8th Cir.2005) (en banc) (Heaney, J., dissenting). Moreover, I adhere to the view stated by Judge Bye in Pirani, that defendants who did not properly preserve their Booker claims in the district court are nonetheless generally entitled to resentencing under a constitutional regime. Pirani, 406 F.3d at 562-67. Because a majority of our court held to the contrary on both counts, however, I do not dissent on this basis.

6 . Marshall’s estimate was correct; officers recovered 653 pseudoephedrine tablets.

7 . If Marshall did possess such extensive knowledge of the sentencing guidelines and was indeed changing his story to avail himself of the most lenient sentence, one would certainly expect him to recognize that if he simply agreed at the safety valve interview that he cooked four batches of methamphetamine, he would have been sentenced within a range two levels lower than what he actually received on account of the application of the safety valve. See USSG §§ 2D 1.1 (b)(6), 5C1.2(a).