U.S. v. Carpenter

• Citation: 422 F.3d 738
• Decision Date: 06 September 2005
• Docket Number: No. 03-1982.,03-1982.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Duane Carl CARPENTER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

422 F.3d 738

UNITED STATES of America, Plaintiff-Appellee, v. Duane Carl CARPENTER, Defendant-Appellant.

No. 03-1982.

United States Court of Appeals, Eighth Circuit.

Submitted: April 29, 2005.

Filed: September 6, 2005.

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Chip J. Lowe, Urbandale, Iowa, for appellant.

Shannon Olson, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before MURPHY, HEANEY, and SMITH, Circuit Judges.

MURPHY, Circuit Judge.

This case is back before us after the Supreme Court granted Duane Carpenter's petition for certiorari, vacated our earlier judgment in his case, and remanded for further proceedings in light of United States v. Booker. ___ U.S. ___, 125 S.Ct. 1037, 160 L.Ed.2d 1032 (2005). We previously affirmed all but one of Carpenter's convictions and his sentence, as well as the convictions of coconspirators Bart Underwood and Gayle Steele. See United States v. Underwood, 364 F.3d 956 (8th Cir.2004). We affirmed Carpenter's convictions for conspiring to manufacture methamphetamine, for endangering human life during the manufacture of methamphetamine, for manufacturing methamphetamine within 1000 feet of a school, for felon in possession of a firearm, for possession of a firearm in furtherance of a drug trafficking crime, and for possession of an unregistered short barreled shotgun.

Additional briefing was ordered following the mandate of the Supreme Court so that the parties could address the impact of Booker on Carpenter's case. After studying those briefs and reconsidering Carpenter's case, we conclude that he is not entitled to relief because he did not raise a Sixth Amendment objection to his sentence in the district court¹ and he has not shown plain error in the sentence imposed. See United States v. Pirani, 406 F.3d 543. We therefore affirm his convictions and sentence with the exception of his conviction for manufacturing methamphetamine. Since that conviction is barred by the double jeopardy clause, it is reversed.

I.

Duane Carpenter, Bart Underwood, and Gayle Steele manufactured methamphetamine at Carpenter's residence in Council Bluffs, Iowa. By August 2001, there were at least two to three one ounce methamphetamine cooks at Carpenter's house each week. The cooks continued until Carpenter was apprehended by law enforcement in late November 2001. Carpenter exchanged methamphetamine for precursor materials and equipment to use in the cooks. He directed most of the cooks at the residence and possessed two firearms, one that he carried while supervising the cooks and a sawed off shotgun that he kept in the house to protect his methamphetamine operation.

Steele and Underwood frequented the house and regularly participated in the cooks by peeling lithium batteries, popping pseudoephedrine pills from blister packages and crushing them, and "bubbling" the methamphetamine during the final stages of production. They also obtained chemicals and supplies for Carpenter's cooks and for their own. With the assistance of Underwood, Steele occasionally conducted her own cooks using Carpenter's equipment and then shared her batch with Carpenter.

On November 27, 2001 law enforcement agents searched Carpenter's residence pursuant to a warrant and uncovered the active methamphetamine lab on the second floor. They also discovered methamphetamine production byproducts, precursor chemicals, and equipment used to manufacture methamphetamine scattered throughout the house. This included pseudoephedrine, sulfuric acid, starter fluid, waste sludge materials containing anhydrous ammonia, and lithium. A single kerosene heater with an open heating element sat in the second floor foyer as the sole source of heat for the entire house; it was plugged into an extension cord running from the house next door. Because chemical fumes pervaded the house, the police ran a safety assessment and identified several potential hazards. There were apparent dangers at the site presented by exposure to chemicals, the mixing of dangerous chemicals such as hydrogen chloride gas and flammable fuel vapors, numerous potential sources of open flames, and three large dogs running loose in the house.

Six people were apprehended in the house during the search. Steele and Underwood were in a second floor bedroom, where waste from methamphetamine cooks was found on a TV tray near the bed, including jars with residue, used coffee filters, and salt. Christy O'Neal and Twyla Pike were found in another second floor room, and Franklin Freese was in the attic. After a second sweep of the house, the police discovered Carpenter in the attic with a loaded, unregistered short barrel shotgun.

A grand jury indicted Carpenter for conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. § 846, for manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and for felon in possession, possession of a firearm in furtherance of a drug trafficking crime, and possession of a short barreled shotgun, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1), 924(c)(1)(A), and 26 U.S.C. § 5861(d). A superceding indictment later added charges against Carpenter for manufacturing drugs within 1000 feet of a school, and for endangering human life, in violation of 21 U.S.C. §§ 860 and 858.

Carpenter filed several pretrial motions, including motions to suppress the evidence found in the November search and for a Franks hearing. His motions were denied after a hearing.² The district court found that he had not made a substantial preliminary showing that the warrant affidavit contained false statements made knowingly or intentionally or with reckless disregard for the truth. The court also concluded that the warrant affidavit sufficiently showed probable cause because it was based on information from a reliable informant and his tip was corroborated.

A jury returned a guilty verdict on October 8 against Carpenter, Steele, and Underwood for conspiracy to manufacture methamphetamine, and it found each responsible for 500 grams or more of a mixture or substance containing methamphetamine. The jury also convicted Carpenter of manufacturing methamphetamine, felon in possession of a firearm, possession of a firearm in furtherance of a drug trafficking crime, possession of an unregistered short barreled shotgun, endangering human life during the manufacture of methamphetamine, and manufacturing methamphetamine within 1000 feet of a school. The district court denied Carpenter's motion for a new trial or a judgment of acquittal, and he was sentenced in a separate proceeding.

Carpenter was sentenced to life imprisonment for his convictions of conspiracy, manufacturing, felon in possession, and manufacturing within 1000 feet of a school; concurrent sentences of ten years for possession of a short barreled shotgun and endangering human life; and a consecutive term of ten years for possession of a firearm in furtherance of a drug trafficking crime. He received enhancements for his role as a leader in the conspiracy and for endangering human life, and he was categorized as a career offender. He unsuccessfully sought a downward departure for overstatement of his criminal history. On his appeal, Carpenter challenges the denial of his suppression motion, the sufficiency of the evidence, and the constitutionality of the endangerment statute. He also raises a double jeopardy issue based on his convictions for manufacturing, manufacturing within 1000 feet of a school, and endangering human life. As to his sentence, he appeals the district court's findings relating to the sentencing enhancements for his role in the conspiracy and the amount of drugs produced by the conspirators. He maintains that the district court erred by designating him as a career offender, arguing that his prior conviction does not constitute a violent felony. He also argues that he is entitled to resentencing because his sentence was based on facts never found by a jury and because the district court was acting under a mandatory guideline regime.

II.

A.

Carpenter claims that his Fourth Amendment rights were violated by a search under an invalid warrant. He contends that the district court erred by not suppressing the evidence from the November search because no probable cause existed for the search warrant since it was based on information from an unreliable informant and a law enforcement official who misrepresented the underlying facts in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The denial of a motion to suppress is reviewed de novo with the underlying factual determinations reviewed for clear error. United States v. Coleman, 349 F.3d 1077, 1083 (8th Cir.2003).

A search warrant is valid under the Fourth Amendment if it establishes probable cause. Probable cause exists, if under the totality of the circumstances, a showing of facts can be made "`sufficient to create a fair probability that evidence of a crime will be found in the place to be searched.'" United States v. Gabrio, 295 F.3d 880, 883 (8th Cir.2002) (citing United States v. Wells, 223 F.3d 835, 838 (8th Cir.2000)). Information from an informant may be sufficient to establish probable cause "if the tip `is corroborated by independent evidence.'" Id. at 883 (citing United States v. Williams, 10 F.3d 590, 593 (8th Cir.1993)).

Carpenter asserts that the search warrant did not support probable cause because the affiant had relied on a confidential informant who was not credible and on the fruits of a previous search later invalidated by a state court. He argues that the informant was unreliable because he offered information only to decrease his own culpability. We have recognized that informants are often motivated "in the hopes of obtaining leniency with respect to their own situation [but] that does not necessarily mean they are unreliable." Id. at 884. Here, officers could assess the informant's credibility because the information was provided in person. Se...