United States v. Devon Howard Toepfer

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 09, 2008
No. 06-12609 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-60090 CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEVON HOWARD TOEPFER,
Defendant-Appellant.
________________________
No. 06-12718
________________________
D. C. Docket No. 04-60090 CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY ERIC TOEPFER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 9, 2008)
Before WILSON, COX and BOWMAN *, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Devon Howard Toepfer challenges several of the
district court's evidentiary rulings as well as the 140-month sentence the court
imposed after a jury found him guilty of conspiring to manufacture and possess
with intent to distribute marijuana, 21 U.S.C. §§ 841 and 846; manufacturing and
possessing marijuana with intent to distribute, id. § 841; and distributing diazepam,
id. Jeffrey Eric Toepfer appeals the 123-month sentence the district court imposed
after he pleaded guilty to conspiring to manufacture and possess with intent to
distribute marijuana, 21 U.S.C. §§ 841 and 846; manufacturing and possessing
marijuana with intent to distribute, id. § 841; and conspiring to launder money, 18
U.S.C. § 1956.
I. Devon. We review a district court's evidentiary rulings for abuse of
*
Honorable Pasco Bowman, II, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
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discretion, United States v. Miles, 290 F.3d 1341, 1351 (11th Cir.) (per curiam),
cert. denied, 537 U.S. 1089 (2002), and we review questions of constitutional law
de novo, United States v. Brown, 364 F.3d 1266, 1268 (11th Cir.), cert. denied,
543 U.S. 879 (2004). Devon first argues that the court's refusal to suppress
recordings of his conversations with confidential informant Mark Hastings and
unindicted co-conspirator Dan Boller amounted to a violation of his Sixth
Amendment right to confrontation and the Supreme Court's holding in Crawford v.
Washington, 541 U.S. 36, 68 (2004). In Crawford, the Court held that the Sixth
Amendment operates to exclude only "testimonial" hearsay of a declarant who is
unavailable at trial and who the defendant had no prior opportunity to cross-
examine. Id. at 68. Moreover, the Sixth Amendment right to confrontation "does
not bar the use of testimonial statements for purposes other than establishing the
truth of the matter asserted." Id. at 60 n.9; see United States v. Byrom, 910 F.2d
725, 737 (11th Cir. 1990) (noting that a confidential informant's statements in a
taped conversation with defendant are admissible to provide context, so long as the
informant's statements are not admitted for the truth asserted). Here, the recorded
statements of Hastings and Boller were not used to prove the truth of the matters
asserted in those statements. Rather, the statements were offered merely to provide
context to Devon's admissions about his activities, knowledge, and intent, and thus
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did not run afoul of the Confrontation Clause. See, e.g., United States v.
Hendricks, 395 F.3d 173, 183–84 (3d Cir. 2005). Accordingly, the District Court's
admission of the recordings did not violate Devon's Sixth Amendment right to
confrontation or the Supreme Court's holding in Crawford because the statements
were not offered for the truth of the matters asserted therein.
Devon also argues that the court's refusal to suppress the Hastings and Boller
recordings violated his Sixth Amendment right to counsel because at the time of
the recordings, he was represented in a state matter. Devon's argument is
unavailing. The Sixth Amendment right to counsel is offense-specific and does not
attach to uncharged crimes—even if those crimes are factually related to the crime
for which formal proceedings have been initiated. Texas v. Cobb, 532 U.S. 162,
173 (2001). Devon was arrested November 8, 2001, on state misdemeanor charges
for possession of drug paraphernalia. When prosecution on those charges
commenced, his Sixth Amendment right to counsel attached with respect to those
charges. See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (noting that right to
counsel attaches "at or after the initiation of adversary judicial criminal
proceedings" (citations omitted)). When the state charges were dismissed on
October 24, 2002, however, Devon's Sixth Amendment right to counsel on those
charges was extinguished. See United States v. Alvarado, 440 F.3d 191, 196 (4th
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Cir.), cert. denied, 127 S. Ct. 81 (2006). The recorded conversations with Hastings
occurred on June 22, 2000, before Devon was represented by counsel on the state
charges. The recorded conversations with Boller occurred on February 13 and 25,
2003, after the state charges had been dismissed and Devon's Sixth Amendment
right to counsel on those charges had been extinguished. Accordingly, Devon's
Sixth Amendment right to counsel with respect to the state charges does not
provide a basis for excluding the Hastings and Boller recordings from his trial on
federal charges.
Devon also contends that admission of the recordings violated his Fifth
Amendment right to counsel. The Fifth Amendment right to counsel may be
invoked only during custodial interrogation or when such interrogation is imminent
but, unlike the Sixth Amendment right to counsel, it is not offense-specific. United
States v. Grimes, 142 F.3d 1342, 1348 (11th Cir. 1998), cert. denied, 525 U.S.
1088 (1999). Because Devon's recorded statements to Hastings and Boller were
not the product of custodial interrogation, the Fifth Amendment right to counsel
does not provide a basis for exclusion of this evidence.
To the extent Devon argues that the government engaged in outrageous
misconduct amounting to a due process violation and requiring exclusion of the
recordings, he has failed to provide any evidence to support those allegations. See
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United States v. Russell, 411 U.S. 423, 432 (1973) (requiring proof that
government conduct was a violation of "fundamental fairness or shocking to the
universal sense of justice" (citations omitted)).
Devon next argues that the district court erred in refusing to suppress the
evidence seized from his van and his condominium after his November 2001,
arrest on state charges. With respect to the drug paraphernalia seized from Devon's
van, because Devon failed to provide any substantive argument on the merits of
this issue in his briefing to this Court, electing instead to rely on the suppression
motions he filed in the district court, we consider this argument waived. See
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)
(deeming issue waived where party failed to include substantive argument and
made only passing reference to the order appealed from). And even if Devon had
not waived this argument on appeal, there was probable cause to stop the van and
arrest Devon after officers observed the van's driver commit a traffic infraction, see
United States v. Holloman, 113 F.3d 192, 194 (11th Cir. 1997) (per curiam)
(noting that an otherwise valid traffic stop is not made illegal when used as
subterfuge to advance drug interdiction efforts), and saw the drug paraphernalia in
plain sight through the van's windows, see Horton v. California, 496 U.S. 128, 130
(1990) (holding that officers may seize evidence in plain view without a warrant).
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After Devon was arrested and the paraphernalia was seized from his van,
officers sought a search warrant for Devon's condominium. The officers prepared
a search warrant affidavit describing their extensive experience investigating
marijuana grow houses, the circumstances of Devon's arrest, the drug paraphernalia
recovered from the van, and the fact that a certified narcotics-detection dog had
alerted to the odor of drugs at the front door of Devon's condominium unit. The
affidavit was sufficient to establish the probable cause necessary to support the
issuance of a search warrant for Devon's condominium. See, e.g., United States v.
Banks, 3 F.3d 399, 402 (11th Cir. 1993) (per curiam) (holding that probable cause
is established when drug-trained canine alerts to drugs), cert. denied, 510 U.S.
1129 (1994). In short, the district court did not abuse its discretion by admitting
the evidence obtained from the search of Devon's van and condominium.
Devon argues that for purposes of calculating his sentencing range under the
advisory guidelines, the district court was obligated to use the number of marijuana
plants found by the jury in its special verdict. After carefully reviewing the record,
particularly those pages of the transcript identified in Devon's brief, we find no
support for Devon's assertion that the government and the district court consented
to be bound at sentencing by the jury's determination of drug quantity in Devon's
trial. Moreover, even if there was an agreement between Devon and the
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government, the agreement would not preclude the district court from fulfilling its
obligation under the Sentencing Guidelines to conduct independent findings of fact
necessary for imposing a reasonable sentence. Cf. United States v. Forbes, 888
F.2d 752, 754 (11th Cir. 1989) (holding that sentencing court is not bound by
stipulations of fact in plea agreement).
Devon contends that the district court violated his constitutional rights by
imposing a sentence based on acquitted conduct, on criminal acts committed
outside the relevant statute of limitations, and on a drug quantity greater than that
found by the jury. We disagree. Because the district court applied the guidelines
in an advisory manner as required under Booker v. United States, 543 U.S. 220,
264 (2005), and Devon's sentence did not exceed the statutory maximum allowed
by the jury verdict, see Rita v. United States, 127 S. Ct. 2456, 2465–66 (2007), the
court did not violate Devon's Fifth or Sixth Amendment rights by calculating his
sentence based on judge-found facts, including acquitted conduct, see United
States v. Duncan, 400 F.3d 1297, 1304–05 (11th Cir.), cert. denied, 546 U.S. 940
(2005), criminal acts outside the statute of limitations period, United States v.
Behr, 93 F.3d 764, 765–66 (11th Cir. 1996), and a drug quantity greater than that
found by the jury, United States v. Chau, 426 F.3d 1318, 1323–24 (11th Cir. 2005)
(per curiam).
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Nor did the court err by enhancing Devon's sentence based on his leadership
role in the conspiracy because the government proved by a preponderance that
Devon exercised some degree of control, influence, or leadership over the
organization. See United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993)
(per curiam).
We are unpersuaded by Devon's argument that the district court erred by
failing to make particularized findings concerning the drug quantity for which he
was responsible. A "defendant is accountable for all quantities of [drugs] with
which he was directly involved and, in the case of a jointly undertaken criminal
activity, all reasonably foreseeable quantities of [drugs] that were within the scope
of the criminal activity that he jointly undertook." U.S.S.G. § 1B1.3 cmt. n.2. The
district court generally must make individualized findings concerning the scope of
criminal activity undertaken by a defendant before determining the drug quantities
reasonably foreseeable in connection with that level of activity. United States v.
Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993). "If the court does not make
individualized findings, the sentence may nevertheless be upheld if the record
supports the amount of drugs attributed to a defendant." Id. Based on our review
of the record, including the trial and sentencing transcripts and the PSI, we
conclude that the district court had ample evidence to support its findings that
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Devon was directly involved with and responsible for the 3,744 marijuana plants
found by the district court.
Devon argues for the first time on appeal that the district court committed
procedural sentencing error under Booker because the court failed to consider the
18 U.S.C. § 3553(a) factors in calculating his sentence. We have held that "it is the
defendant's burden, in the district court, to object to procedural irregularities based
on Booker. Absent an objection, we will review such claims for only plain error."
United States v. Ochoa-Garcia, No. 07-11740, 2007 WL 3120315, at *5 (11th Cir.
Oct. 26, 2007) (unpublished per curiam) (adopting the reasoning in United States
v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006), cert. denied, 127 S. Ct.
3043 (2007)); United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007)
(conducting plain-error review of an unpreserved claim that the method used to
calculate a defendant's sentence was unreasonable); United States v. Garcia, 233
F. App'x 311, 312 (4th Cir. 2007) (unpublished per curiam) (same), cert. denied,
128 S. Ct. 1108 (2008); United States v. Knows His Gun, 438 F.3d 913, 918 (9th
Cir.) (same), cert. denied, 547 U.S. 1214 (2006).
Under plain-error review, the defendant must establish that the district court
committed an error, that the error was plain, and that the error affected his
substantial rights. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.),
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cert. denied, 545 U.S. 1127 (2005). If the defendant can establish these facts, we
may exercise our discretion to notice the forfeited error, but will do so only if the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
Even if we assume that the district court committed plain error by neglecting
to consider the § 3553(a) factors at Devon's sentencing, Devon cannot show that
the error affected his substantial rights. For an error to affect substantial rights, it
"must have been prejudicial: It must have affected the outcome of the district court
proceedings." United States v. Olano, 507 U.S. 725, 734 (1993). Devon points to
no evidence in the record showing that if the district court had explicitly
considered the § 3553(a) factors, the court would have imposed a different
sentence. Because Devon cannot show that the error affected his substantial rights,
his argument asserting procedural sentencing error must fail.
Finally, we decline to consider Devon's claims of ineffective assistance of
counsel as those claims are more appropriately raised in a collateral proceeding.
See United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.), cert. denied, 537
U.S. 1037 (2002).
II. Jeffrey. At his change of plea hearing, Jeffrey admitted to the offenses
outlined in the superseding indictment but declined to admit to the number of
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marijuana plants for which he was responsible, insisting that there were not more
than 1,000 plants and that the district court must sentence him based on the number
of plants found by the jury in Devon's trial.
With the government's drug-quantity witnesses present and prepared to
testify, Jeffrey's attorney stated at the sentencing hearing, "Based on the PSI in this
case . . . , we understand that there would be certain testimony from witnesses and
we are willing to . . . permit the Court to rule on . . . what is listed in the PSI as to
both the amount of plants, the leadership role and the other enhancements." Tr. of
Sent. at 2–3. In response, the government did not call its drug-quantity witnesses,
abandoned its arguments for a three-level enhancement under U.S.S.G. § 2J1.7,
and conceded to a three-level departure for acceptance of responsibility. The
district court then found that the drug quantity was "correctly computed at
. . . 5,350 plants. I recognize that the defense maintains that the Court should
accept the jury verdict in [Devon's] case of 661 plants, but I do not." Id. at 8.
Because Jeffrey invited the district court to rule on drug quantity based on
the 5,350 plants described in the PSI, electing not to put the government to its
burden of proof at the sentencing hearing, Jeffrey cannot now complain that the
government failed to present evidence regarding the number of plants for which he
was responsible. See United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998)
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(per curiam) (noting that appellate court generally will not review an error invited
by a defendant).
To the extent that Jeffrey raises the same arguments raised by Devon
regarding the district court's obligation to use the jury's drug-quantity finding to
impose Jeffrey's sentence, the court's consideration at sentencing of acquitted
conduct and criminal acts outside the statute of limitations, and the court's failure
to make particularized findings regarding the extent of Jeffrey's involvement in the
conspiracy, we reject those arguments for the reasons already explained.
The district court did not err by enhancing Jeffrey's sentence based on his
leadership role in the conspiracy. Based on the facts in the PSI, the district court
was presented with ample evidence to conclude that Jeffrey exercised some degree
of control, influence, or leadership over the organization. See Yates, 990 F.2d at
1182.
Finally, we reject Jeffrey's argument that because the district court failed to
adequately consider the § 3553(a) factors, his sentence is unreasonable. Assuming
that Jeffrey preserved this argument for appeal, we conclude that the district court
adequately considered the § 3553(a) factors and imposed a reasonable sentence.
At his sentencing hearing, Jeffrey argued for a sentence at the low end of the
advisory guidelines range based on his history and characteristics. The
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government countered that the sentence should be on the high end of the guidelines
range based on Jeffrey's criminal conduct while on supervisory release and his lack
of rehabilitation. After "consider[ing] the statements of all the parties," the court
imposed a sentence of 123 months' imprisonment, a sentence within the advisory
guidelines range. Tr. of Sent. at 14. "[A]n acknowledgment by the district court
that it has considered the defendant's arguments and the factors in [§] 3553(a) is
sufficient under Booker." United States v. Talley, 431 F.3d 784, 786 (11th Cir.
2005) (per curiam); see also Rita, 127 S. Ct. at 2468 (holding that a district court's
brief statement of reasons for a within-guidelines sentence was sufficient).
Contrary to Jeffrey's contentions, the record reflects that the parties presented
evidence and argument addressing the § 3553(a) factors, which the district court
adequately acknowledged and considered in imposing Jeffrey's sentence.
For the reasons stated above, we AFFIRM the conviction and sentence of
Devon Howard Toepfer and the conviction and sentence of Jeffrey Eric Toepfer.
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