United States v. Richard Woodard

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2529
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Richard Woodard, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: February 10, 2004
Filed: February 17, 2004
___________
Before MELLOY, FAGG, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
The Government charged Richard Woodard of conspiring with Tristan Carter
and others to distribute more than five hundred grams of methamphetamine between
January 30, 2002 and August 16, 2002. A jury convicted Woodard and specifically
found he was responsible for more than five hundred grams of methamphetamine.
The district court* sentenced Woodard to ninety-seven months in prison and five
*
The Honorable Thomas J. Shanahan, United States District Judge for the
District of Nebraska.
years of supervised release. Woodard appeals his conviction and sentence. We
affirm.
Woodard first contends the evidence was insufficient to support his conviction.
We must uphold Woodard’s conspiracy conviction if the evidence showed an
agreement between Woodard and another person to distribute methamphetamine,
Woodard’s knowledge of the agreement, and Woodard’s intentional participation in
the agreement. See United States v. Hester, 140 F.3d 753, 760 (8th Cir. 1998); United
States v. Cuervo, 2004 WL 99021, at *10 (8th Cir. Jan. 22, 2004). Viewing the
evidence in the light most favorable to the verdict, see Cuervo, 2004 WL 99021, at
*3, we conclude a reasonable jury could find beyond a reasonable doubt that
Woodard conspired to distribute methamphetamine with Tristan Carter. The evidence
showed Woodard purchased one-eighth to ounce quantities of methamphetamine
from Carter two or three times a week from January to August 2002. Carter testified
he delivered the methamphetamine to Woodard’s home, and before he left, Woodard
often gave some of it to Jessica Strickland or Patricia Kuehn to smoke to check its
effectiveness. Strickland and Kuehn testified they received methamphetamine from
Woodard to smoke at their place of work or his apartment. Carter also knew
Woodard was redistributing to others. Carter testified Woodard would write him
checks for part of the drugs, stating others were not there yet with their part of the
money. The cancelled checks supported Carter’s testimony. Further, Carter testified
that Woodard asked him about delivering to others Woodard had lined up to buy
methamphetamine, and Carter told him he would only sell to him, not the others.
Likewise, Strickland testified Woodard was receiving money from another
unidentified person to purchase methamphetamine from Carter. In addition, the
evidence showed Woodard provided $7300 to bail Carter out of jail after his arrest.
Granting the verdict the benefit of all reasonable inferences, we conclude the totality
of the evidence against Woodard was sufficient to support the jury’s verdict. See id.
at *10. Woodard contends the government witnesses were not credible, but it was the
-2-
jury’s prerogative to believe them despite testimony about Carter’s conviction and
agreements not to prosecute Strickland and Kuehn.
Woodard next contends his attorney should have requested a jury instruction
stating that a buyer/seller relationship alone is insufficient to establish a conspiracy.
Woodard argues his attorney’s failure amounted to ineffective assistance of counsel.
Generally, we do not consider ineffective assistance of counsel claims on direct
appeal unless the district court developed a record on the ineffectiveness issue or a
plain miscarriage of justice would otherwise result. United States v. Zimmer, 299
F.3d 710, 722 (8th Cir. 2002). In this case, however, a buyer/seller instruction was
inappropriate because there was evidence of multiple drug transactions as opposed
to a single, isolated sale. United States v. Jefferson, 215 F.3d 820, 823 (8th Cir.
2000). Thus, the failure of Woodard’s attorney to request a buyer/seller instruction
did not violate Woodard’s right to the effective assistance of counsel, and the district
court’s failure to give the instruction sua sponte did not amount to plain error.
Last, Woodard argues the district court should have decreased his offense level
for his mitigating role in the offense under U.S.S.G. § 3B1.2 (providing four-level
decrease for defendants who are minimal participants, two-level decrease for minor
participants, and three-level decrease for defendants who fall between). According
to Woodard, the district court committed plain error in finding he was not a minor
participant in the conspiracy. Woodard had the burden to prove the applicability of
a reduction for minor or minimal participation. United States v. O’Dell, 204 F.3d
829, 837 (8th Cir. 2000). A minor participant is any participant “who is less culpable
than most other participants, but whose role could not be described as minimal.”
U.S.S.G. § 3B1.2 n.5. A defendant’s role in the offense is measured by the relevant
conduct for which the defendant is responsible. United States v. Thurmon, 278 F.3d
790, 792 (8th Cir. 2002). Here, the district court did not hold Woodard responsible
for the entire amount of methamphetamine distributed by the conspiracy (over 130
pounds). Instead, the district court held Woodard responsible for only the
-3-
methamphetamine he bought, over five hundred grams. Thus, it would have been
inappropriate for the district court to compare Woodard’s role versus Carter’s role in
distributing the 130 pounds of methamphetamine. Id. at 792-93. Instead, the district
court appropriately considered Woodard’s role in distributing the five hundred grams
of methamphetamine. See id. In so doing, the district court observed Woodard’s
residence was the focal point for distribution of the five hundred grams of
methamphetamine, and Woodard was “right in the center” of its distribution. Thus,
the district court did not commit clear error in denying Woodard a mitigating role
reduction. See id.We thus affirm Woodard’s conviction and sentence.
______________________________
-4-