United States v. Michael Welp

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2398
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa
Michael Welp, *
* [UNPUBLISHED]
Appellant. *
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Submitted: September 30, 2005
Filed: October 25, 2005
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Before BYE, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Michael Welp appeals from a final judgment entered in the District Court1 for
the Northern District of Iowa upon a jury verdict finding him guilty of distribution
and possession of pseudoephedrine, knowing or having reasonable cause to believe
it would be used to manufacture methamphetamine, in violation of 21 U.S.C.
§ 841(c)(2). The district court sentenced Welp to 235 months imprisonment and 3
years supervised release. For reversal, Welp argues that the district court erred in
sentencing him based in part on judge-found facts and in its application of the
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
Sentencing Guidelines. For the reasons discussed below, we affirm the judgment of
the district court.
The district court sentenced Welp based in part on facts it found by a
preponderance of the evidence and applying the Guidelines in a mandatory fashion,
which was error under United States v. Booker, 125 S. Ct. 738 (2005). However,
Welp concedes that he did not preserve the error in the district court. Accordingly,
we review only for plain error. See United States v. Pirani, 406 F.3d 543, 549-50 (8th
Cir. 2005) (en banc), petition for cert. filed, (U.S. July 27, 2005) (No. 05-5547).
Welp cannot meet his burden to establish plain error because, even though he was
sentenced at the bottom of the applicable sentencing range, he cannot show a
reasonable probability that he would have received a more favorable sentence if the
district court had treated the Guidelines as advisory, rather than mandatory. See id.
at 551-53 (sentence at bottom of range, without more, is insufficient to demonstrate
reasonable probability that court would have imposed a lesser sentence absent Booker
error).
We further hold that the district court did not clearly err in finding that the
quantity of pseudoephedrine involved in the offense was at least 1 kilogram for
purposes of Welp’s offense conduct under the Guidelines. See United States v.
Gramling, 417 F.3d 891, 896 (8th Cir. 2005) (clear error standard of review); United
States v. Ziesman, 409 F.3d 941, 955 (8th Cir. 2005) (in determining drug quantity,
district court may consider all drugs that were part of same course of conduct).
Moreover, there is ample evidence in the record supporting the district court’s finding
that Welp sold the pseudoephedrine with the knowledge or reasonable cause to
believe that it would be used to manufacture methamphetamine. Therefore, we also
hold that the district court did not clearly err in finding, for purposes of the
obstruction-of-justice enhancement under U.S.S.G. § 3C1.1, that Welp intentionally
testified falsely under oath when he denied having the knowledge or belief that the
pseudoephedrine he sold would be used to manufacture methamphetamine. See
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United States v. Galaviz-Luna, 416 F.3d 796, 800 (8th Cir. 2005) (clear error standard
of review); Ziesman, 409 F.3d at 956 (“A district court applying the obstruction-of-
justice enhancement for perjury must review the evidence and make an independent
finding, by a preponderance of the evidence, that the defendant gave false testimony
concerning a material matter with the willful intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty memory.”) (internal quotation marks
omitted).
Finally, the district court recognized its authority to depart. We therefore hold
that the denial of Welp’s motion for a downward departure under U.S.S.G. § 5K2.13
is unreviewable. See United States v. Gonzales-Ramirez, 350 F.3d 731, 734 (8th Cir.
2003) (denial of § 5K2.13 motion held unreviewable where district court
acknowledged authority to depart but denied motion based on defendant’s failure to
substantiate his claim of diminished capacity).
Accordingly, we affirm. We also deny the pending pro se motions.
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