United States v. Frederick Lowell

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 01-1043
*
UNITED STATES OF AMERICA, * Appeal from the United
* States District Court
Plaintiff - Appellee, * For the District of
* Nebraska.
versus *
* [UNPUBLISHED]
*
FREDERICK H. LOWELL, *
*
Defendant - Appellant. *
*
Submitted: June 13, 2001
Filed: June 29, 2001
Before WOLLMAN, Chief Judge, BOWMAN and HAMILTON,1 Circuit Judges.
PER CURIAM.
On December 15, 1999, Frederick Lowell (Lowell) was charged by
a federal grand jury sitting in the District of Nebraska with
conspiracy to distribute and to possess with the intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1)
and 846. On May 8, 2000, pursuant to a plea agreement with the
government, Lowell entered a plea of guilty. On December 8, 2000,
the district court sentenced Lowell to 135 months’ imprisonment
with five years of supervised release. The judgment of the
1
The Honorable Clyde H. Hamilton, United States Circuit Judge
for the United States Court of Appeals for the Fourth Circuit,
sitting by designation.
district court2 was entered on December 12, 2000. Lowell appeals,
contending that the district court erred in calculating the amount
of methamphetamine attributable to him for sentencing purposes. We
affirm.
I
According to Lowell’s testimony at the plea hearing, during
the course of the conspiracy,3 Dan Jennings (Jennings) went to
Lowell’s house and left a package for Dena Edwards (Edwards) on a
table in the house. Lowell acknowledged at the plea hearing that
he knew the package left by Jennings contained methamphetamine. A
short time after Jennings left the package, Edwards arrived at
Lowell’s house and opened the package in the presence of Lowell.4
Following Lowell’s entry of his guilty plea, a presentence
investigation report (PSR) was prepared by a United States
Probation Officer. The probation officer found that Lowell was
responsible for the distribution of at least 1.5 but less than five
kilograms of methamphetamine, resulting in a base offense level of
thirty-four, United States Sentencing Commission Guidelines Manual
(USSG) § 2D1.1(c)(3). Because he found that Lowell possessed a
dangerous weapon during the course of the conspiracy, the probation
officer increased Lowell’s offense level by two levels pursuant to
USSG § 2D1.1(b)(1). After reducing Lowell’s offense level by three
levels for acceptance of responsibility, id. §§ 3E1.1(a) and (b),
the probation officer found Lowell’s total offense level to be
thirty-three. The probation officer found Lowell’s criminal
2
The Honorable Richard G. Kopf, Chief Judge, United States
District Court for the District of Nebraska.
3
The indictment alleged that Lowell conspired with “other
persons, some known and some unknown” beginning “at least as early
as June 15, 1997, and continuing until at least on or about
September 30, 1999.”
4
At the plea hearing, Lowell acknowledged that on occasion he
was Jennings’ bodyguard when Jennings went to collect the proceeds
of a methamphetamine transaction.
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history category to be three, resulting in a guideline range of 168
to 210 months’ imprisonment.
Lowell objected to the PSR on three grounds. First, he
objected to the probation officer’s finding that he was responsible
for the distribution of at least 1.5 but less than five kilograms
of methamphetamine. Next, he objected to the probation officer’s
finding that he possessed a dangerous weapon during the course of
the conspiracy. Finally, Lowell objected to the probation
officer’s criminal history calculation, contending that the
probation officer erred when he included two prior sentences Lowell
received in Nebraska state court.5
At the beginning of the sentencing hearing on December 8,
2000, the district court sustained Lowell’s objection to the weapon
enhancement. The district court then sustained Lowell’s objection
to the probation officer’s decision to include, in his criminal
history calculation, the April 1999 sentence in York County Court
for possession of a controlled substance.6 Thereafter, three
witnesses testified on behalf of the government, each pursuant to
a plea agreement requiring cooperation with the government.
5
The first prior sentence challenged by Lowell was a six-month
sentence he received in April 1999 in York County Court for
possession of a controlled substance. The probation officer
assessed two criminal history points for this sentence pursuant to
USSG § 4A1.1(b) (“Add 2 points for each prior sentence of
imprisonment of at least sixty days not counted in (a).”). The
second sentence challenged by Lowell was a nine-month sentence he
received in March 1999 in Lancaster County Court for possession of
a controlled substance. The probation officer assessed no criminal
history points for this sentence pursuant to USSG § 4A1.2(a)(1)
because the sentence imposed for this offense was for conduct part
of the charged conspiracy in this case.
6
The district court’s decision to exclude, in its criminal
history calculation, the April 1999 sentence in York County Court
for possession of a controlled substance did not result in a change
in Lowell’s criminal history category, as the exclusion of this
sentence did not result in a sufficient reduction in Lowell’s
criminal history points to lower his criminal history category from
three to two.
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The first of the government’s witnesses was Jennings.
Jennings testified that he supplied Lowell with methamphetamine on
a weekly and sometimes bi-weekly basis for a little over a year
beginning in the summer of 1997. When asked how much
methamphetamine he supplied Lowell from June 1997 through August
1998, Jennings indicated that he supplied Lowell with five pounds
of methamphetamine.
The government’s next witness was Michael Parrow (Parrow).
Parrow testified that he purchased methamphetamine from and sold
methamphetamine to Lowell during the course of the conspiracy.
Parrow testified that during the course of the conspiracy he
purchased from and/or sold to Lowell between two and one-half and
three ounces of methamphetamine.
The government’s final witness was Shawn Post (Post). Post
testified that he sold Lowell two ounces of methamphetamine in the
fall of 1998. Post also testified that, during the course of the
conspiracy, he supplied Jennings with quarter-pound quantities of
methamphetamine “almost every week for about four months.”
At sentencing, the government also introduced the deposition
of Edwards. In her deposition, Edwards testified that she
purchased at least three grams of methamphetamine from Lowell on
three occasions during the course of the conspiracy. Edwards also
testified that she saw Lowell with a baseball-size quantity of
methamphetamine. According to the government’s witnesses, a
baseball-size quantity of methamphetamine was at least two ounces.
The district court credited the testimony of the government’s
witnesses and found that Lowell was responsible for 2,066 grams of
methamphetamine. According to the district court, Lowell was
responsible for 2,010 grams of methamphetamine from his dealings
with Jennings and another fifty-six grams from his dealings with
Post. In the district court’s view, its drug quantity calculation
was “fairly conservative.”
The district court’s finding of drug quantity resulted in a
base offense level of thirty-four for Lowell, USSG § 2D1.1(c)(3).
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With a reduction of the three levels for acceptance of
responsibility, id. §§ 3E1.1(a) and (b), Lowell’s total offense
level was thirty-one. Coupled with a criminal history category of
three, Lowell’s guideline range was 135 to 168 months’
imprisonment. The district court sentenced Lowell to 135 months’
imprisonment with five years of supervised release.
II
On appeal, Lowell argues that the district court erred in
calculating the amount of methamphetamine attributable to him for
sentencing purposes. The gist of Lowell’s argument is that the
district court erred in crediting the testimony of the government’s
witnesses because the testimony of these witnesses was
uncorroborated and inherently unreliable.
We review the district court’s drug quantity determination
under the clearly erroneous standard. United States v. Granados,
202 F.3d 1025, 1028 (8th Cir. 2000). Under this standard, “we will
reverse a determination of drug quantity only if the entire record
definitely and firmly convinces us that a mistake has been made.”
Id. (citation and internal quotation marks omitted). The district
court’s credibility determinations concerning drug quantity are
“‘virtually unreviewable on appeal.’” United States v. Gonzalez-
Rodriguez, 239 F.3d 948, 954 (8th Cir. 2001) (quoting United States
v. Sample, 213 F.3d 1029, 1034 (8th Cir. 2000)).
The base offense level for a drug offense is determined by
calculating the amount of drugs attributable to the defendant.
United States v. Atkins, 250 F.3d 1203, 1211 (8th Cir. 2001). In
drug conspiracy cases such as this one, the amount of drugs
attributable to the defendant is calculated in the following
manner:
“A defendant convicted of conspiracy is properly held
accountable for all reasonably foreseeable acts and
omissions of any co-conspirator taken in furtherance of
the conspiracy. Thus, in a drug conspiracy, the district
court may consider amounts from drug transactions in
which the defendant was not directly involved, provided
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that those other dealings were part of the same course of
conduct or scheme. Before a quantity of drugs may be
attributed to a particular defendant, the sentencing
court is required to find by a preponderance of the
evidence that the transaction or activity involving those
drugs was in furtherance of the conspiracy and either
known to that defendant or reasonably foreseeable to
him.”
Id. at 1211-12 (quoting United States v. Brown, 148 F.3d 1003, 1008
(8th Cir. 1998), cert. denied, 525 U.S. 1169 (1999)). In cases
“where there is no seizure or where the amount seized does not
reflect the scale of the offense,” the district court may
“approximate the quantity of drugs.” Atkins, 250 F.3d at 1212. In
making its drug quantity determination, the district court can
consider “any evidence . . . as long as it has ‘sufficient indicia
of reliability to support its probable accuracy.’” United States
v. Behler, 14 F.3d 1264, 1273 (8th Cir. 1994) (quoting USSG
§ 6A1.3). At sentencing, the government is saddled with the burden
of proving by a preponderance of the evidence the amount of drugs
attributable to the defendant. Atkins, 250 F.3d at 1211.
We conclude that the district court did not err in calculating
the amount of methamphetamine attributable to Lowell for sentencing
purposes. At sentencing, the district court carefully assessed the
credibility of the government’s witnesses. In crediting the
testimony of these witnesses, the district court noted that before
crediting such testimony “one must be very skeptical.” The
district court’s comments concerning Jennings’ testimony offers
further proof of the district court’s careful assessment of the
credibility of the government’s witnesses:
[Jennings] has something to lose if he lies or if the
Government finds out about it. Then he loses his plea
agreement, presumably can be prosecuted, but I think your
point is well taken. You have to be very careful about
listening to these snitches because so much of what they
testify about is difficult to corroborate. They can pick
numbers out of the air.
The district court’s wise reluctance to put too much stock in the
testimony of the government’s witnesses (all coconspirators) and
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the absence of evidence concerning a seizure of any methamphetamine
understandably led the district court to make a “fairly
conservative” approximation of the amount of methamphetamine
attributable to Lowell. Indeed, in making its drug quantity
determination, the district court did not consider any
methamphetamine transactions in which Lowell was not directly
involved; rather, the district court’s drug quantity determination
focused exclusively on methamphetamine transactions in which Lowell
received methamphetamine directly. Thus, there is no doubt that
Lowell’s dealings with Jennings and Post were “‘in furtherance of
the conspiracy and . . . known to’” Lowell. Id. at 1212 (quoting
Brown, 148 F.3d at 1008). Moreover, the testimony of each of the
government’s witnesses was sufficiently detailed and was consistent
with the other testimony presented. In short, we cannot conclude
that the district court erred in crediting the testimony of the
government’s witnesses because the testimony had “‘sufficient
indicia of reliability to support its probable accuracy.’” Behler,
14 F.3d at 1273 (quoting USSG § 6A1.3). Accordingly, we cannot
take issue with the district court’s finding that Lowell was
accountable for 2,066 grams of methamphetamine.
III
For the reasons stated herein, the judgment of the district
court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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