USA. v. Seesing, s. 98-30233

• Citation: 234 F.3d 456
• Decision Date: 29 January 2001
• Docket Number: Nos. 98-30233,98-36189,s. 98-30233
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRIDO SEESING, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 456

234 F.3d 456 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRIDO SEESING, Defendant-Appellant.

Nos. 98-30233, 98-36189

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted September 11, 2000

Filed December 8, 2000

Amended Per Order of January 29, 2001

[Copyrighted Material Omitted] Bryan Norcross, Lincoln, Montana, for the defendant appellant.

C. Ed Laws, Assistant United States Attorney, Billings, Montana, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana Jack D. Shanstrom, District Judge, Presiding. D.C. Nos.CR-97-00073-1-JDS CV-98-00175-JDS

Before: Mary M. Schroeder, Robert R. Beezer, and Michael Daly Hawkins, Circuit Judges.

HAWKINS, Circuit Judge:

United States prisoner Frido Seesing ("Seesing") appeals: (1) the district court's sentencing calculations; (2) the validity of his guilty plea as to violation of 18 U.S.C.S 924(c)(1) (use of a firearm during and in relation to a drug trafficking offense); and (3) the district court's recharacterization of a pro se letter seeking to withdraw his pleas of guilty to the entirety of the six count indictment as a motion for relief from the sentence and conviction under 28 U.S.C. 2255. We reverse, vacate the sentence, and remand.

Facts and Procedural History

Seesing pleaded guilty to six counts based on his participation in a narcotics conspiracy. On June 5, 1998, the district court held a sentencing hearing at which the prosecution made an offer of proof and the court engaged in a plea colloquy with Seesing. At the conclusion of the hearing, Seesing was sentenced to 181 months imprisonment and five years supervised release.

In a handwritten letter to the court, dated June 15, 1998, Seesing stated that he was "withdrawing [his ] plea of guilty to all counts . . . ." The letter denies the court's jurisdiction over Seesing, maintaining that he has "no part in your constitutions, court, rules, states, contracts, covenants . . . ." Instead, Seesing acknowledges "only obligations to my creator, Yahweh . . . ."

The letter is stamped indicating that it was filed by the district court clerk on July 20, 1998. On that same date, the district court filed an order recharacterizing the letter as a motion for relief from the sentence and conviction under 28 U.S.C. 2255. In the same order, the court denied the motion. Seesing later filed a motion requesting that the court reconsider its re characterization of the letter. The court denied this motion on August 11, 1998.

Standards of Review

The district court's interpretation of the Sentencing Guidelines is reviewed de novo. See United States v. Smith, 175 F.3d 1147, 1148 (9th Cir. 1999). Grouping of offenses under the Guidelines is also reviewed de novo. See United States v. Boos, 127 F.3d 1207, 1209 (9th Cir. 1997). The district court's factual findings in the sentencing phase are reviewed for clear error, while application of the Guidelines to the facts is reviewed for abuse of discretion. See United States v. Frega, 179 F.3d 793, 811 n.22 (9th Cir. 1999). The adequacy of a Rule 11 plea hearing is reviewed de novo, see United States v. Alber, 56 F.3d 1106, 1109 (9th Cir. 1995), as is whether the plea colloquy satisfied Rule 11's requirements. See United States v. Longoria, 113 F.3d 975, 976 (9th Cir. 1997). Finally, we review de novo the denial of an 28 U.S.C. 2255 motion. See United States v. Benboe , 157 F.3d 1181, 1183 (9th Cir. 1998).

Analysis

I. Sentencing Calculation Pursuant to Sentencing Guidelines 2D1.1(a)(3)

United States v. Petty, 992 F.2d 887, 890 (9th Cir. 1993), establishes the standard to determine the quantity of narcotics to be attributed to an individual member of a conspiracy for sentencing purposes:

Under the Guidelines each conspirator, for sentencing purposes, is to be judged not on the distribution made by the entire conspiracy, but on the basis of the quantity of drugs which he reasonably foresaw or which fell within `the scope' of his particular agreement with the conspirators.

See also United States v. Ladum, 141 F.3d 1328, 1346 (9th Cir. 1998) (applying Petty); United States v. Diaz-Rosas, 13 F.3d 1305 (9th Cir. 1994) (a defendant need not have person-ally possessed the narcotics so long as the narcotics possessed or sold were foreseeable to him); U.S. Sentencing Guidelines Manual 1B1.3(a)(1)(B) (2000) (in the case of a conspiracy, base offense level shall be determined on the basis of "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity").

The district court found that Seesing was convicted of distributing at least three but less than ten kilograms of methamphetamine. The Presentence Investigation Report ("PIR"), the sole source of facts before the district court at sentencing, stated that the actual amount was 4.049 kilograms. Seesing argues that, contrary to Petty, no factual findings were made by the court to support this determination.

The PIR based its amount determination on two facts-$70,000 in Comcheck transfers made among the coconspirators and a purchase price of $8,500 per pound of methamphetamine. According to the PIR, the $70,000 in Comcheck transfers relate to the amount of money received by co-defendant John Girsch ("Girsch") in over sixty transactions between November 1994 and early 1997, fourteen involving Seesing and twenty-four involving two other coconspirators. Girsch sent the methamphetamine to the coconspirators via Federal Express. The co-conspirators, including Seesing, then sent payments to Girsch via Federal Express or Comcheck.

"In most cases, the government bears the burden of proving factors enhancing a sentence by a preponderance of the evidence." United States v. Romero-Rendon, 220 F.3d 1159, 1160 (9th Cir. 2000). Under a preponderance of the evidence standard in sentencing determinations, "the relevant facts must be shown to be more likely true than not." United States v. Lawrence, 189 F.3d 838, 844 (9th Cir. 1999); see also United States v. Mezas de Jesus, 217 F.3d 638, 643 (9th Cir. 2000) ("[T]he preponderance of the evidence standard is a meaningful one that requires the judge to be convinced by a preponderance of the evidence that the fact in question exists.") (internal quotations omitted).

The preponderance of the evidence standard was not met here because the district court failed to find that Seesing reasonably foresaw all the transactions that comprised the $70,000 figure upon which the amount of methamphetamine attributed to Seesing was based. The relevant facts were not "shown" to be more likely true than not. The district court made no reference to the PIR, including whether it was convinced by the PIR's findings. Accordingly, this portion of Seesing's sentence is vacated and the matter is remanded to the district court for a determination on the amount of methamphetamine reasonably foreseeable to Seesing.¹

II. Sentencing Enhancement Under Sentencing Guideline 2K2.1(b)(4)

The district court properly divided Seesing's offenses into three Groups. Group I contained: Count 1 (conspiracy to manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense methamphetamine, a violation of 21 U.S.C. 841(a)(1) and 846 and 18 U.S.C. 2); Count 3 (use of a communication facility in causing, aiding, or facilitating the distribution with intent to distribute methamphetamine, a violation of 18 U.S.C. 834(b)); and Count 4 (laundering of monetary instruments, a violation of 18 U.S.C. 2 and 1956(a)(1)(A)(1)). Group II contained Count 5 (possession of an unregistered firearm, a violation of 26 U.S.C. 5841 and 5861(d)) and Count 6 (possession of a (homemade) silencer not identified by a serial number, a violation of 26 U.S.C. 5861(i)). Count 2 (use or possession of a firearm during or in relation to a drug trafficking offense, a violation of 18 U.S.C. 924(c)(1)), was treated separately because Sentencing Guideline 2K2.4 provides that a mandatory five year sentence runs consecutive to any other sentence for a violation of 18 U.S.C. 924(c)(1).

Sentencing Guidelines 2K2.1(b)(4) provides that the base offense level should be increased two levels if a firearm used in the offense "was stolen, or had an altered or obliterated serial number . . . ." Seesing contends that the district court erred in applying the two-level adjustment to both Groups I and II because his silencer was homemade and thus never had a serial number that could be altered or obliterated. Because Seesing failed to object to the enhancement in the district court, we review for plain error. United States v. Randall, 162 F.3d 557, 561 (9th Cir. 1998).

While we understand the district court's desire to respect the underlying purpose of Guidelines 2K2.1(b)(4), discouraging the use of untraceable weaponry, and agree that this purpose is frustrated by the use of homemade silencers without serial numbers, the plain language of the Guideline is clear. The government does not argue that Seesing's silencer had any serial number, much less one that was altered or obliterated. Thus, applying the Guideline was plain error. See United States v. Bakhtiari, 913 F.2d 1053, 1063 (2d Cir. 1990). While we are concerned about this apparent loophole in the Guidelines, "repair" is the job of the Sentencing Commission, not this court. At resentencing, the two-level enhancement found at Guidelines 2K2.1(b)(4) should not be applied to Group I or Group II.²

III. Voluntariness of Plea as to 18 U.S.C. 924(c)(1)

A. Federal Rule of Criminal Procedure 11(c)(1)

Rule 11(c)(1) provides, in pertinent part:

(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

(1) the nature of the charge to which the plea is offered . . . .

"Rule 11 places the...