United States v. Timothy Kendrick

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3256
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Timothy Martin Kendrick, *
*
Appellant. *
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Submitted: March 4, 2005
Filed: September 8, 2005
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Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
A jury convicted Timothy Martin Kendrick of three counts of distributing and
one count of conspiring to distribute methamphetamine. He appeals the district
court’s1 refusal to include a jury instruction on entrapment. He also challenges his
sentence, arguing that the district court erred in finding he was a career offender and
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
abused its discretion in denying him a reduction for acceptance of responsibility. We
affirm his conviction and sentence.
I. BACKGROUND
Around March 2001, Kendrick moved from Alabama to Waterloo, Iowa.
Within months of his arrival in Waterloo, Kendrick resumed the abuse of illegal
drugs. As his habit became more regular, Kendrick testified that he began to make
purchases of marijuana and methamphetamine from a drug dealer known as “Jen,” to
whom he was introduced by a mutual acquaintance. Unbeknownst to Kendrick, Jen
was a confidential informant working with local law enforcement.
On July 9, 2001, Jen introduced Kendrick to Kenneth Harms. Over the course
of the next month, Kendrick made approximately five or six purchases of
methamphetamine from Harms. The two also developed a personal relationship,
which included confiding in one another about their drug habits and assisting each
other in obtaining more drugs. For example, Kendrick confided in Harms that he was
an intravenous drug user and that he would sell a portion of each methamphetamine
purchase to people living in his trailer court. In addition, Harms helped Kendrick sell
his Firebird to Bobby Reyes, Harms’s methamphetamine supplier, for approximately
$700 and one-half ounce of methamphetamine.
Jen also introduced Kendrick to William Herkelman, an undercover officer
with the Black Hawk County Sheriff’s Department. Between this initial introduction
and July 19, 2001, Kendrick sold Jen and Herkelman small quantities of
methamphetamine. On July 19, 2001, Herkelman executed a controlled buy of
methamphetamine from Kendrick. Kendrick sold Herkelman 6.75 grams of
methamphetamine for $450. Jen was not involved in arranging the July 19 controlled
buy and did not accompany Herkelman to Kendrick’s residence for the controlled
buy.
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On July 24, 2001, Herkelman contacted Kendrick about the possibility of
obtaining more methamphetamine. Over the course of three secretly recorded
telephone conversations, the two discussed various issues involved in the business
of selling methamphetamine, such as price and quantity. Three days later, Herkelman
arrived at Kendrick’s place of employment at the Triple J Mart to consummate
another controlled buy. Kendrick told Herkelman that his supplier would arrive
shortly and was driving a brown, four-door car. While Herkelman waited in his car,
Kendrick’s supplier, who was identified by law enforcement as Harms, arrived in a
brown Ford car. After Harms left, Kendrick approached Herkelman in the parking
lot and sold him 6.69 grams of methamphetamine for $525. The two then discussed
the sale of another ounce of methamphetamine. Again, Jen was not involved in
arranging the July 27 controlled buy and did not accompany Herkelman to the Triple
J Mart for the controlled buy.
On July 30, 2001, Herkelman and Kendrick met in the parking lot of another
convenience store. Kendrick sold Herkelman 12.7 grams of methamphetamine for
$950. After the transaction was completed, law enforcement surreptitiously followed
Kendrick to Harms’s residence in Cedar Falls, Iowa. Kendrick left Harms’s residence
approximately seven minutes after he arrived.
Kendrick was indicted on October 25, 2002 for one count of conspiring to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841 and 846, and three
counts of distributing methamphetamine after having been convicted of a felony drug
offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851. In the same
indictment, Harms was charged with one count of conspiring to distribute
methamphetamine, seven counts of distributing methamphetamine and one count of
being a drug user in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3).
Harms subsequently entered a guilty plea and agreed to cooperate. Kendrick,
however, entered a plea of not guilty and proceeded to trial.
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At trial, Kendrick admitted that he was a drug user but denied that he was a
drug dealer. According to Kendrick, his foray into the business of selling
methamphetamine began when Reyes insisted on paying for his Firebird partly with
methamphetamine. Unsure of how to dispose of the methamphetamine, Kendrick
testified that he asked Jen for help in “getting rid of the rest” of the drugs. Jen
apparently encouraged Kendrick to sell some of the methamphetamine to Herkelman,
although Kendrick admitted that he was neither coerced, threatened nor forced into
selling the methamphetamine. He further testified that he did not sell
methamphetamine to anyone but Jen and Herkelman and that he did not share the
drugs with anyone. Finally, Kendrick testified that he was able to discuss prices with
Herkelman because he had dealt with drugs in the past, although he later contradicted
this testimony.
Prior to trial, Kendrick requested an entrapment instruction. After hearing
evidence of the alleged entrapment, the district court denied Kendrick’s request for
the jury instruction and held that Kendrick had failed to produce any evidence that,
prior to contact with Jen, he “did not have any intent or disposition to commit the
crimes charged and was induced or persuaded by Jen, the confidential informant, to
commit the crimes.” Kendrick then filed an Objection to Jury Instructions and
Motion for Entrapment Instruction, which the district court denied after hearing
arguments. After a jury found him guilty on all four counts, Kendrick renewed his
objection to the omission of an entrapment instruction in a Motion for New Trial and
Renewed Rule 29 Motion. The district court denied the motion because Kendrick
“failed to present any evidence he was induced or coerced by Jen to sell the
methamphetamine.”
Kendrick was sentenced on September 2, 2004. The district court found that
he had two prior convictions for crimes of violence for the California offense of first
degree burglary, in violation of Cal. Penal Code § 459, and the Oregon offense of
felony fleeing or attempting to elude a police officer, in violation of O.R.S. §
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811.540. Accordingly, Kendrick was sentenced under the career offender provision
of the U.S. Sentencing Guidelines Manual § 4B1.1. Based on an offense level of 34,
a criminal history category of VI and a resulting guidelines range of 262 to 327
months, the district court sentenced Kendrick to 262 months’ imprisonment. The
district court then imposed an alternative sentence of 262 months’ imprisonment
based on its discretion after considering the factors set forth in 18 U.S.C. § 3553(a).
On appeal, Kendrick argues that the district court abused its discretion by
failing to include an entrapment instruction. Kendrick also challenges his
classification as a career offender, arguing that the district court erroneously held that
the Oregon offense of felony fleeing is a crime of violence as defined by U.S.S.G. §
4B1.2. He also argues that the district court violated the Sixth Amendment when it
found that his prior conviction for felony fleeing constituted a crime of violence.
Finally, Kendrick argues that the district court clearly erred by failing to grant a two-
level acceptance-of-responsibility reduction.
II. DISCUSSION
A. Entrapment
“Entrapment exists ‘where the evidence establishes that the government agent
originated the criminal design, the agent implanted in the mind of an innocent person
the disposition to commit the offense, and the defendant then committed the criminal
act at the urging of the government agent.’” United States v. Williams, 109 F.3d 502,
508 (8th Cir. 1997) (quoting United States v. Hulett, 22 F.3d 779, 781 (8th Cir.
1994)). As an affirmative defense, entrapment is a question of fact generally left to
the jury. United States v. Coleman, 284 F.3d 892, 894 (8th Cir. 2002). A defendant
alleging entrapment, however, is not entitled to an entrapment instruction unless
“sufficient evidence exists from which a reasonable jury could find entrapment.”
United States v. Neal, 990 F.2d 355, 357 (8th Cir. 1993). This requires a defendant
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to show “that the government agents implanted the criminal design in [his] mind[]
and induced [him] to commit the offense.” United States v. Cannon, 88 F.3d 1495,
1504 (8th Cir. 1996). If a defendant can produce sufficient evidence of inducement,
then the burden shifts to the prosecution to prove beyond a reasonable doubt that the
defendant was predisposed to commit the crime. United States v. Berg, 178 F.3d 976,
980 (8th Cir. 1999); see also United States v. Eldeeb, 20 F.3d 841, 843 (8th Cir.
1994) (“It is clear that when entrapment is an issue, the government must prove the
absence of entrapment beyond a reasonable doubt.”). “If the defendant exhibits any
predisposition to engage in the criminal conduct, the district court need not instruct
the jury on entrapment.” Id. We review the district court’s decision to deny an
entrapment instruction for an abuse of discretion. Williams, 109 F.3d at 508.
The evidence presented at trial strongly indicates both that the Government did
not induce Kendrick’s criminal activity and that Kendrick had a predisposition to
engage in drug distribution activities. Kendrick admitted that the confidential
informant did not coerce, threaten or otherwise force him to sell methamphetamine.
Further, Jen neither tempted Kendrick with the promise of financial reward nor
attempted to engage him in a personal relationship. Indeed, it was Kendrick who
initially sought the confidential informant’s assistance in selling some of the
methamphetamine he had received from Reyes. At most, the confidential informant
facilitated Kendrick’s criminal plan by introducing him to Herkelman, an apparent
customer. See United States v. Jensen, 69 F.3d 906, 909-10 (8th Cir. 1995) (noting
an entrapment instruction is not warranted where the Government merely facilitated
the defendant’s crime). Otherwise, the confidential informant was not involved in
any of the three controlled buys that resulted in Kendrick’s convictions.
The evidence at trial showed that, even before Jen introduced him to
Herkelman, Kendrick admitted to Harms that he was selling small quantities of
methamphetamine to people in his trailer court. See United States v. Haire, 103 F.3d
697, 699 (8th Cir. 1996) (“Prior distribution of illegal drugs, even as a gift,
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constitutes predisposition.”). Further, it was Kendrick’s idea, not Jen’s, to distribute
the methamphetamine he had obtained from Reyes. After he had sold the
methamphetamine he had obtained from the sale of his Firebird, Kendrick continued
to sell methamphetamine obtained from Harms. Kendrick’s assertion that he was
merely a drug user2 and not a drug dealer is belied by his familiarity with the business
of selling methamphetamine. See Jensen, 69 F.3d at 911(denying entrapment as a
matter of law where the defendant made previous sales and gave advice on drug
transactions). The district court properly concluded that Jen’s involvement merely
afforded Kendrick the opportunity to commit an offense for which he was
predisposed. Jacobson v. United States, 503 U.S. 540, 550 (1992) (“Had the agents
in this case simply offered petitioner the opportunity to [commit the crime], and
petitioner . . . had promptly availed himself of this criminal opportunity, it is unlikely
that his entrapment defense would have warranted a jury instruction.”). For these
reasons, the district court did not abuse its discretion in denying Kendrick a jury
instruction on entrapment.
B. Crime of Violence
“A defendant is a career offender if . . . the instant offense of conviction is a
felony that is either a crime of violence or a controlled substance offense [and] the
defendant has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a) (2003). The first predicate crime
of violence relied upon by the district court, first degree burglary in violation of Cal.
Penal Code § 459, is not in dispute. However, Kendrick challenges the district
court’s categorization of the Oregon offense of felony fleeing as a crime of violence.
2
Kendrick admitted at trial that he had sustained a prior controlled substance
conviction only three years before selling drugs to Herkelman. While not enough by
itself to establish predisposition, it is probative of Kendrick’s intent to sell drugs. See
United States v. Brooks, 215 F.3d 842, 846-47 (8th Cir. 2000).
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A prior conviction may qualify as a crime of violence if it is an “offense under
federal or state law, punishable by imprisonment for a term exceeding one year, that
. . . involves conduct that presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2. The determination of whether an offense is a crime of
violence requires a “categorical approach” that limits the court’s inquiry to such
sources as “the charging document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record of this
information.” Shepard v. United States, 125 S. Ct. 1254, 1263 (2005); Taylor v.
United States, 495 U.S. 575, 602 (1990). We review de novo the district court’s
holding that felony fleeing is a crime of violence. United States v. Griffith, 301 F.3d
880, 884 (8th Cir. 2002); see also United States v. Sumlin, 147 F.3d 763, 765 (8th Cir.
1998) (“We review the question of whether a prior offense constitutes a violent felony
de novo.”).
A person commits the crime of fleeing or attempting to elude a police officer
if, while operating a motor vehicle, he knowingly flees or attempts to elude an
identifiable police officer after the officer has just given a visual or audible signal to
stop. O.R.S. § 811.540. The conduct associated with the commission of felony
fleeing calls to mind the risks associated with escape and automobile theft. In United
States v. Nation, 243 F.3d 467 (8th Cir. 2001), we recognized that every escape, even
the most peaceable escape, “‘is a powder keg, which may or may not explode into
violence and result in physical injury to someone at any given time, but which always
has the serious potential to do so.’” Id. at 472 (quoting United States v. Gosling, 39
F.3d 1140, 1142 (10th Cir. 1994)). This is because “an escapee is likely to possess
a ‘variety of super-charged emotions, and in evading those trying to recapture him,
may feel threatened by police officers, ordinary citizens, or even fellow escapees.’”
Id. (quoting Gosling, 39 F.3d at 1142). There is little doubt that felony fleeing
involves, at the very least, the same risks of physical injury to another as a walk-away
escape.
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In reality, the dangerous circumstances surrounding a person’s attempt to flee
from law enforcement are compounded by the person’s operation of a motor vehicle.
The desperate situation that a person fleeing from law enforcement may find himself
in is, in many ways, reminiscent of the serious potential risk of injury surrounding an
automobile theft. As a person is in flight from custody, his vehicle has the potential
to become a deadly or dangerous weapon. United States v. Sun Bear, 307 F.3d 747,
753 (8th Cir. 2002). Further, “[u]nder the stress and urgency which will naturally
attend his situation, [a person fleeing from law enforcement] will likely drive
recklessly and turn any pursuit into a high-speed chase with the potential for serious
harm to police or innocent bystanders.” Id. Considering the combined risks
associated with felony fleeing, we conclude that the district court properly held that
O.R.S. § 811.540 is a crime of violence as defined by § 4B1.2. See United States v.
Rosas, 410 F.3d 332, 334 (7th Cir. 2005) (per curiam) (“[T]he Wisconsin statute at
issue, fleeing a police officer is categorically a crime of violence.”); United States v.
Martin, 378 F.3d 578, 582 (6th Cir. 2004) (holding that third-degree fleeing or
eluding is a crime of violence because of the risk of injury to pedestrians, other
drivers and pursuing officers created by a person fleeing in an automobile); see also
United States v. Albritton, 135 Fed. Appx. 239, 243 (11th Cir. 2005) (unpublished per
curiam) (affirming district court’s holding that aggravated fleeing and eluding is a
crime of violence).
Kendrick also argues that the district court violated the Sixth Amendment when
it found facts necessary to categorize felony fleeing as a crime of violence. As an
initial matter, Kendrick admitted at trial to prior convictions for first degree burglary
and felony fleeing. United States v. Booker, 125 S. Ct. 738, 756 (2005) (“Any fact
(other than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a reasonable doubt.”
(emphasis added)). Regardless, we have consistently rejected the applicability of
Booker to the fact of a prior conviction, see, e.g., United States v. Paz, 411 F.3d 906,
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909 (8th Cir. 2005), and to the legal determination of whether a prior conviction may
be categorized as a crime of violence, see, e.g., United States v. Johnson, 411 F.3d
928, 931-32 (8th Cir. 2005). Indeed, in both Booker and Shepard, the Supreme Court
reaffirmed the authority of the sentencing court to take notice of a defendant’s
criminal history and, as a matter of law, determine whether any prior conviction is
properly categorized as a crime of violence. See United States v. Marcussen, 403
F.3d 982, 984 (8th Cir. 2005). Accordingly, the district court properly held that
Kendrick’s prior conviction for felony fleeing constitutes a crime of violence.
C. Acceptance of Responsibility
A defendant who clearly demonstrates acceptance of responsibility for his
offense may be entitled to a two-level reduction in his offense level. U.S.S.G. §
3E1.1(a). However, a reduction is not appropriate if the Government goes through
the burden of proving its case at trial, unless the defendant was merely ascertaining
the viability of an issue unrelated to his guilt, such as a constitutional challenge to a
statute. U.S.S.G. § 3E1.1, cmt. n.2. A defendant asserting an entrapment defense is
not entitled to a reduction under § 3E1.1 because such a defense “clearly shows that
he did not accept responsibility for the crime of conviction.” United States v. Chevre,
146 F.3d 622, 625 (8th Cir. 1998). Therefore, the district court did not abuse its
discretion by denying Kendrick a two-level reduction for his belated acceptance of
responsibility. See United States v. Water, 413 F.3d 812, 819 (8th Cir. 2005).3
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At the time of his appeal, Kendrick did not have the benefit of the Supreme
Court’s opinion in Booker nor did he ask for supplemental briefing after Booker. We
now know that the district court’s reliance on mandatory guidelines was error.
However, in Kendrick’s case, the application of mandatory guidelines was harmless
in light of the district court’s alternative discretionary sentence based on the factors
of § 3553(a). United States v. Bassett, 406 F.3d 526, 527 (8th Cir. 2005) (per
curiam).
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III. CONCLUSION
For the foregoing reasons, we affirm Kendrick’s conviction and sentence.
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