Conviction for distributing meth ingredients upheld

U.S. v. Buonocore, -- F.3d --, 2005 WL 1666069 (10th Cir. 2005) - affirmance of conviction & sentence for distributing ephedrine and pseudoephedrine for meth manufacture. District court rejected plea based on refusal to admit knowledge the ephedrine was going to be used to make meth. Mr. Buonocore did not argue in the district court that he was willing to admit he had reasonable cause to believe that the products he sold would be used to manufacture meth and the district court did not plainly err in characterizing his plea as an Alford or nolo plea. District court had discretion to refuse to accept plea based on failure to admit guilt. A district court's general policy against Alford or nolo pleas is OK. District court correctly denied "innocent merchant" jury instruction--it did not correctly state the law.
There was no constitutional Booker error because defendant's counsel admitted at sentencing that defendant unlawfully distributed the ephedrine and pseudoephedrine quantities found by the district court. The non-constitutional error in treating the GLs as mandatory did not meet the fourth prong of plain error review. Interesting Seymour concurrence in which she concludes that "other than the fact of a prior conviction, a defendant's (and surely a defense counsel's) admission of facts outside the guilty plea context or outside the context of a formal stipulation cannot function as a waiver of his Sixth Amendment rights and does not permit an increase in the relevant statutory maximum sentence within the meaning of Booker." Defendant did not know about his rights to a jury trial and proof beyond a reasonable doubt re: facts that increased the statutory maximum sentence attributable to his conduct and did not intend a general waiver of constitutional rights. She also concludes, however, that the plain error standard was unmet.

TX Offense of Possession of More than 50 Pounds of MJ not a "Drug Trafficking Offense" under USSG 2L1.2

US v. Herrera-Roldan, 2005 WL 1635366, 10th Cir.(N.M.), Jul 13, 2005: Government loses appeal of sentence in reentry case. Mr. Herrera had a prior Texas conviction for possession of more than 50 pounds, but less than 2000 pounds. The government sought to have Mr. Herrera's base offense level under USSG 2L1.2 increased 12 levels based on this conviction, arguing it was actually a drug trafficking offense. Mr. Herrera argued that it was a simply an 8-level aggravated felony. The district court agreed with Mr. Herrera, and on appeal, so did the Tenth Circuit. The COA rejected the government's argument that the required intent to distribute could be inferred from the quantity required for conviction under the Texas statute, even though the statute itself requires no such intent. The Tenth Circuit, however, stated that the focus in the guidelines is not on the defendant's conduct, but on what the state law prohibits. Thus, the COA would not draw inferences about Mr. Herrera's intent to distribute from the underlying conduct. The COA also rejected the government's argument that the Texas statutory scheme allowed a court to infer intent to distribute. On the contrary, the COA noted that possession of 50-2000 pounds of marijuana is a second-degree felony, but delivery of that amount of marijuana is punished more severely as a first-degree felony. "[W]e are left with the conclusion, based solely on the fact of conviction and the terms of the Texas statute, that Mr. Herrera's prior conviction was not a 'drug trafficking offense' under U.S.S.G. 2L1.2(b)(1)(B)."

Individualized Allen Charge Too Coercive; New Trial Granted

US v. Zabriskie, 2005 WL 1649210, 10th Cir.(Utah), Jul 14, 2005: The COA concludes that there was sufficient evidence to support the convictions of a criminal defense attorney and his son for harboring and concealing a fugitive, in violation of 18 USC 1071, where there was evidence one of them procured false identification for the fugitive, communicated with and financially assisted the fugitive's daughter on his behalf while providing her with a false address in France to throw law enforcement officers off the fugitive's trail, disposed of property that could have assisted law enforcement in identifying the fugitive, and received and stored stolen property for the fugitive. However, the Zabriskies get a new trial because the trial judge gave a single juror a modified Allen instruction during an ex parte colloquy with him while deliberations were proceeding. That was just too coercive.

Sentencing Plain Error Recognized Where Guidelines Improperly Calculated

US v. Johnson, 2005 WL 1649224, 10th Cir.(Kan.), Jul 14, 2005: The COA remands for resentencing, finding that the defendant had demonstrated plain error. Defendant was convicted of various drug conspiracy charges. The COA found two errors: an incorrect calculation of the guidelines and enhancement based on judicially found facts. When calculating his guidelines sentencing range, two criminal history points were included based on the probation officer's mistaken belief that Mr. Johnson was on parole when he began participating in the conspiracy. Actually, his parole had ended a year earlier. Thus, there was error in calculating the guidelines and Mr. Johnson should have been in a lower criminal history category. Additionally, there was Booker error because Mr. Johnson had received an enhancement for use of a firearm. The enhancement was not found by a jury nor admitted by the defendant, and resulted in a sentence that exceeded the sentence authorized by the jury verdict alone. The third prong of plain error review was satisfied because the COA affirmed that an incorrect application of the guidelines is a fundamental error affecting substantial rights. The fourth prong was satisfied because the government asked for life imprisonment and instead sentenced the defendant to the bottom of the applicable guideline range, 360 months. Although the sentencing court's statements indicated "rough satisfaction" with the sentence, remand was appropriate because the substantial increase in the defendant's sentencing range as a result of the error and the doctrine of applying fourth prong analysis less rigidly in the case of constitutional error weighed in recognizing the error.

Trial Error Arguments Rejected in Drug Conspiracy Case

U.S. v. Stiger, -- F.3d --, 2005 WL 1538837 (10th Cir. 6/30/05) - Defendant was convicted on numerous drug conspiracy counts. Apparent defect in verdict forms, which only required a finding as to objects of the conspiracy rather than as to guilt of the overarching conspiracy, was harmless error. Apprendi requires the jury only to set the maximum sentence for the entire conspiracy, not for each co-conspirator, because the sentencing judge's findings do not increase an individual defendant's exposure beyond the statutory maximum justified by the verdict. District court abused its discretion by failing to hold an evidentiary hearing concerning conflict-of-interest claims involving opposing counsel who spoke with defendant several times about the case. District court must determine whether attorney-client relationship existed between defendant and the other lawyer and if so, whether the representation affected the right to a fair trial. Denial of severance was not reversible error because the showing of prejudice was inadequate. While summary charts showing the organizational structure of the conspiracy may have been wrongly admitted, they did not substantially influence the trial outcome. The Speedy Trial Act does not apply to an information regarding intent to use prior felony convictions to enhance the sentence.

Enhancements for Virtual Minor Victim OK

U.S. v. Graham, -- F.3d --, 2005 WL 1541089 (10th Cir. 7/1/05) - COA affirms sentence for interstate travel to engage in a sex act with a child under 16 years of age. Investigation involved a sting operation with an undercover officer posing as mom of two minor daughters. Cross reference to USSG § 2A3.2(c) and 4-level enhancement for victim under 12 years of age were properly applied even though officer posed as mom of two persons under age 16, rather than as a child, and the victim was only a virtual one. District court did not clearly err in finding defendant intended to engage in a sex act with a 7-year-old child. District court factfinding to support three enhancements was constitutional Booker error, but not plain error, because there was no reasonable probability a jury would not have found that Mr. Graham intended to engage in a sex act with a 7-year-old and there was no reasonable probability that the district court would have reasonably imposed a sentence outside the guideline sentencing range under a post-Booker advisory regime.

252-month Sentence Affirmed in Meth Case

U.S. v. Glover, -- F.3d --, 2005 WL 1541083 (10th Cir. 7/1/05) - appeal of 252-month sentence in OK meth conspiracy case. Defendant gets no help from Booker because he admitted in his plea agreement to facts underlying enhancements. Application of mandatory, rather than advisory, guidelines was harmless non-constitutional error because court exercised discretion to impose sentence near the top of the applicable guidelines range and remarked that the sentence was justified by Mr. Glover's criminal history and the threat he poses to the community.

Inevitable Discovery Doctrine Saves Search

U.S. v. Cunningham, -- F.3d --, 2005 WL 1541074 (10th Cir. 7/1/05) - defendant appealed the denial of his suppression motion, contending his consent to search was coerced because he couldn't resist pressure from his police detective mom, who was in turn pressured by officers to convince him to consent. COA decides not to decide that because the inevitable discovery doctrine solves everything. If mom hadn't appeared on the scene, officers would have obtained a search warrant and the incriminating evidence would have been found.