131 F.3d 1392 (10th Cir. 1997), 96-6377, United States v. Smith

Docket Nº:96-6377 to 96-6379.
Citation:131 F.3d 1392
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Melvin SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Paul Eugene CHILTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael James SNIDER, Defendant-Appellant.
Case Date:December 15, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1392

131 F.3d 1392 (10th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Melvin SMITH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Paul Eugene CHILTON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael James SNIDER, Defendant-Appellant.

Nos. 96-6377 to 96-6379.

United States Court of Appeals, Tenth Circuit

December 15, 1997

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[Copyrighted Material Omitted]

Page 1394

Don J. Gutteridge, Jr., Oklahoma City, OK, for Defendant-Appellant James Melvin Smith in No. 96-6377.

Teresa Brown, Assistant Federal Public Defender (June E. Tyhurst, Assistant Federal Public Defender, with her on the brief), Oklahoma City, OK, for Defendant-Appellant Paul Eugene Chilton in No. 96-6378.

Donald A. Herring, Oklahoma City, OK, for Defendant-Appellant Michael James Snider in No. 96-6379.

Kerry Kelly, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, and Frank Michael Ringer, Assistant United States Attorney, with him on the brief), Oklahoma City, OK, for Plaintiff-Appellee the United States of America.

Before PORFILIO, BRORBY, and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendants-Appellants Michael Snider, Paul Chilton, and James Smith were tried jointly and convicted of various offenses arising from an unlawful methamphetamine operation. Messrs. Snider and Chilton were convicted of conspiring to manufacture methamphetamine, 21 U.S.C. § 846, causing the manufacture of methamphetamine, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and manufacturing methamphetamine, 21 U.S.C. § 841(a)(1). In addition, Mr. Snider was convicted of possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1), and of being a felon in possession of a firearm which had travelled in interstate commerce, 18 U.S.C. § 922(g)(1). Mr. Chilton was also convicted of distribution of methamphetamine, 21 U.S.C. § 841(a)(1). Mr. Smith

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was convicted only of distribution of methamphetamine, 21 U.S.C. § 841(a)(1). Mr. Snider was sentenced to 360 months in prison; Mr. Chilton was sentenced to 297 months in prison; and Mr. Smith was sentenced to 262 months in prison, each with a five-year supervised release.

Each defendant appeals his conviction or sentence or both. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), and we affirm.

Background

In January, 1996, a California narcotics detective contacted the Oklahoma City Police Department to pass on information that Michael Snider, under the alias Monty Snider, was running a methamphetamine operation in Oklahoma City. The California informant who had provided the information spoke directly to an Oklahoma officer. He told the officer that Mr. Snider was living in the home of Mr. Chilton, who was assisting him, and he gave a detailed description of Mr. Chilton's house and its surroundings, as well as directions to it. Because of a separate undercover operation, however, the California officers refused to allow Oklahoma City police to use the informant's knowledge to apply for a search warrant.

A felony arrest warrant and two misdemeanor warrants for Mr. Snider were outstanding in California. The Oklahoma officer verified the validity of the warrants and obtained a photograph of Mr. Snider. He spoke with Mr. Snider's probation officer in California to verify that Mr. Snider was in violation of his probation, which was the basis for the felony warrant. With another officer he drove past Mr. Chilton's house several times in an effort to see Mr. Snider. On the north side of the house was a detached two-car garage; a stockade fence ran between the house and garage. During a drive-by on February 26, 1996, the officers saw Mr. Snider standing at the open door of the detached garage. Because of the layout of the house and garage, and because they did not know how many people were present in each building, the officers called federal marshals to assist in executing the California felony arrest warrant. One of the deputy marshals independently verified the warrant's validity.

As the officers approached the house to serve the warrant, they split into two groups to cover both the house and garage. An Oklahoma officer led one group to the garage to locate Snider and to conduct a protective sweep. He began to circle the garage. On the south side he saw a door with six to eight glass panes painted black. One of the panes was missing and the area was covered with cardboard. The officer pushed aside the cardboard, announced his presence, and asked if anyone was there. He looked through the opening and saw no one, but did see glassware, chemical containers, tubing, and other equipment which he believed to be an illegal methamphetamine laboratory. The officer did not enter, but continued around the garage. His entire sweep lasted approximately thirty to forty seconds.

Meanwhile, the other group went to the house and announced themselves. Snider admitted them; he was arrested and brought outside. A number of other individuals were detained during the arrest, among them co-defendants James Smith and Paul Chilton. The officer who conducted the protective sweep obtained a search warrant based on what he saw in the garage. Execution of the warrant later that day revealed a full-scale laboratory for manufacturing methamphetamine, along with precursor chemicals. All of the equipment contained methamphetamine or methamphetamine residue. A semi-automatic weapon was found in the garage near the lab equipment. A rifle and loaded shotgun were in the living room. Several semi-automatic weapons, ammunition, and drug paraphernalia were found elsewhere in the house.

All three defendants moved to suppress the results of the search on the ground that when the officer pushed aside the cardboard and looked into the laboratory he conducted an illegal and warrantless search, tainting the warrant based on it. The district court denied the motion, finding that the officer's action was justified as a legitimate protective sweep for the officers' safety, and as an effort to locate Mr. Snider.

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On appeal Mr. Snider and Mr. Chilton challenge that ruling. In addition, Mr. Chilton challenges the sufficiency of the evidence for his convictions, as well as a four-level upward adjustment he received at sentencing for his role as a leader. Mr. Smith raises two sentencing challenges: whether the district court properly refused to decrease his offense level based on his claim of minor...

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