United States v. Stein, Ryan J.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 11, 2007*
Decided December 14, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 07-1510
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois
v. No. 05 CR 40033
RYAN J. STEIN, J. Phil Gilbert,
Defendant-Appellant. Judge.
ORDER
A jury found Ryan Stein guilty of conspiring to manufacture and distribute
more than 50 grams of a substance containing methamphetamine. See 21 U.S.C.
§§ 846, 841(a)(1), (b)(1)(B). At sentencing the district court found, over Stein’s
objection, that he was accountable for approximately 900 grams of
methamphetamine. Because Stein had a prior drug-felony conviction, the court’s
calculation triggered a mandatory minimum prison sentence of 20 years. See id.*
This appeal is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
No. 07-1510 Page 2
§ 841(b)(1)(A). Stein’s only argument on appeal is that the evidence underlying the
court’s drug-quantity calculation is unreliable. Because the court did not clearly err
in its drug-quantity calculation, we affirm his sentence.
Twenty-eight government witnesses testified at Stein’s trial about his role in
producing, using, and distributing methamphetamine. Shane Clutts, who had
pleaded guilty to the conspiracy, testified that at one point Stein was his “main
partner.” Clutts said that he and Stein were on a meth-cooking “spree” before being
arrested in May 2004 for stealing lithium batteries (a methamphetamine precursor)
from a Wal-Mart store. During that arrest, officers searched Stein’s truck and
found ephedrine pills and other materials commonly used to produce
methamphetamine. Clutts testified that after their arrest, he and Stein cooked
methamphetamine together at least 20 more times, with each “cook” yielding
between 5 to 15 grams. Clutts said that their post-arrest yields were smaller than
the amounts they produced before their arrest.
Kevin Bruce—who had pleaded guilty to being a part of a separate
methamphetamine-manufacturing conspiracy—testified that after he met Stein in
late 2003, they cooked methamphetamine together five times. They used two jars
each time, producing 14 to 18 grams per jar. Bruce testified that on another
occasion he saw Stein weigh out 18 grams of methamphetamine, which Stein
planned to sell to pay back a debt he owed Bruce.
The jury found Stein guilty and returned a special verdict form stating that
the government proved beyond a reasonable doubt that the conspiracy involved in
excess of 50 grams of a substance containing methamphetamine. A probation
officer prepared a PSR recommending that the district court hold Stein accountable
for approximately 900 grams. She based her calculation in part on a statement that
Rodney Kimes—who did not testify at Stein’s trial—provided to police. Kimes said
that he saw Stein cook methamphetamine 40 to 50 times. He said that on ten
occasions Stein produced seven grams, and the remaining times he produced 15 to
18 grams. Kimes also said that he once saw Stein with four jars, each containing 15
grams of methamphetamine. The probation officer—using the low end of these
estimates—thus determined that Kimes had seen Stein with 580 grams of
methamphetamine.
The probation officer also attributed 320 grams to a statement that Clutts
gave to police. Clutts said that he cooked methamphetamine with Stein in two
different time periods: in the first period they cooked together 20 to 40 times,
producing 8 to 20 grams each time, and in the second, they cooked together 20
times, producing 8 to 10 grams each time. Adding together the amounts described
in Kimes’s and Clutts’s statements, the probation officer recommended that the
court hold Stein accountable for approximately 900 grams of methamphetamine.
No. 07-1510 Page 3
Stein filed written objections to the probation officer’s calculation, stating
only that “[t]here was absolutely no credible evidence to suggest [Stein]’s role in
methamphetamine cooks involv[ed] this quantity.” Stein presented no evidence at
the sentencing hearing to support his objection. But the government presented the
testimony of Detective Michael Ryan—the officer who took Kimes’s and Clutts’s
statements. Ryan confirmed that their statements were consistent with the
probation officer’s report. He testified that Kimes’s statement also was consistent
with information he gathered through his investigation. In particular, Ryan said
that Kimes provided details about Stein’s attempt to steal anhydrous from a farm,
and Kimes’s description matched a sheriff’s report of the incident.
The district court found that Clutts’s and Kimes’s statements respectively
showed that 320 and over 400 grams of methamphetamine were attributable to
Stein as relevant conduct. It also found that Bruce’s trial testimony showed that
Stein was accountable for an additional 158 grams. Because the offense involved at
least 500 grams of methamphetamine, but less than 1.5 kilograms, the court
calculated a base offense level of 32. See U.S.S.G. § 2D1.1(c). Applying the base
offense level against Stein’s criminal history category, the court determined that the
guidelines range was 151 to 188 months. But because Stein had a previous
conviction for manufacturing methamphetamine, the court concluded that it was
bound by the statutory minimum of 20 years. See 21 U.S.C. §§ 841(b)(1)(A); 851.
Accordingly, the court sentenced Stein to 240 months’ imprisonment.
Stein argues that the district court erred in crediting the statements of
Kimes, Clutts, and Bruce because their statements were unreliable. Stein has not
specified what he thinks the appropriate calculation is, other to argue that it should
be less than 500 grams—the threshold triggering the 20-year minimum. We review
a district court’s findings of relevant conduct, including its drug-quantity
calculations, only for clear error. United States v. Artley, 489 F.3d 813, 821 (7th Cir.
2007).
As an initial matter, we note that Stein introduced no evidence at sentencing
to support his argument that Kimes’s and Clutts’s statements as reported in the
PSR are insufficiently reliable. At sentencing the government has the burden “to
prove the amount of drugs attributable to a defendant by a preponderance of the
evidence.” Artley, 489 F.3d at 821. But the district court may base its calculation
on the PSR as long as its information is sufficiently reliable, and it is the
defendant’s burden to show that the PSR is unreliable. Id. at 821; United States v.
Romero, 469 F.3d 1139, 1147 (7th Cir. 2006). Where a defendant does not provide
any evidence that casts doubt on the PSR, the court may rely on it entirely. Artley,
489 F.3d at 821; United States v. Taylor, 72 F.3d 533, 547 (7th Cir. 1995). Here,
Stein offered no evidence at all to support his contention that the PSR was
No. 07-1510 Page 4
unreliable, nor did he even explain at sentencing why he thought it was unreliable.
This failure alone is enough to doom Stein’s appeal. But there is more.
The statements as reported in the PSR bear “sufficient indicia of reliability”
to support their “probable accuracy.” See U.S.S.G. § 6A1.3(a); United States v.
Wilson, 502 F.3d 718, 721-22 (7th Cir. 2007). Detective Ryan testified that the PSR
accurately reported Kimes’s and Clutts’s statements. Stein complains that Ryan’s
testimony is hearsay, but that is a non-starter; a sentencing court “clearly errs by
considering hearsay evidence only if the evidence was devoid of any indicia of
reliability.” United States v. Sanchez, No. 06-3852, 2007 WL 3036808, at *5 (7th
Cir. Oct. 19, 2007). The record contains substantial corroboration for Kimes’s
statements. For example, Ryan confirmed that Kimes’s description of Stein’s
attempt to steal anhydrous is consistent with an independent sheriff’s report
describing the incident. Numerous trial witnesses confirmed Kimes’s statement
that Stein was a frequent producer of methamphetamine, and one witness
confirmed that Kimes was helping Stein cook methamphetamine. Moreover, Clutts,
Bruce, and two other witnesses corroborated Kimes’s report that Stein produced
amounts near the range of 15 to 18 grams of methamphetamine during each
cooking session.
Stein tries to cast doubt on Kimes’s statements by labeling them
“implausible” and by pointing out that Kimes did not specify that he cooked
methamphetamine with Stein during the period charged in the indictment. But
Kimes said that he met Stein during the three or four months leading up to his May
2004 interview, so the interactions he described must have occurred within the
relevant period. And he has not explained why it was implausible for Stein to
produce upward of 500 grams of methamphetamine in a three- to four-month period
when several witnesses testified that he had many people gathering
pseudoephedrine pills and other precursors for him.
Because Kimes saw Stein with more than 500 grams of methamphetamine,
his statement alone is enough to trigger the 20-year mandatory minimum. See 21
U.S.C. § 841(b)(1)(A). Stein nonetheless mounts a cursory challenge to the district
court’s decision to credit Clutts’s statement and Bruce’s testimony, which, according
to him, lack clarity. But both Clutts and Bruce gave enough detail for the court to
conclude that they were telling the truth. Clutts specified—both in his statement to
Ryan and in his trial testimony—that he cooked methamphetamine with Stein
around 20 times during two different time periods before and after their 2004
arrest. Several trial witnesses confirmed that Clutts and Stein cooked
methamphetamine together. Bruce specified that he met Stein around November
2003, and he said that each time they cooked methamphetamine together they did
so at a residence “on Giant City blacktop” that Stein shared with someone named
Randy Runion. Stein simply has not articulated a persuasive reason why we would
No. 07-1510 Page 5
second-guess the district court’s decision to credit Clutts’s and Bruce’s testimony.
See United States v. White, 360 F.3d 718, 720 (7th Cir. 2004).
For these reasons, the judgment of the district court is AFFIRMED.