U.S. v. Whirlwind Soldier

• Decision Date: 24 August 2007
• Docket Number: No. 06-3977.,06-3977.
• Citation: 499 F.3d 862
• Parties: UNITED STATES of America, Appellee, v. Travis WHIRLWIND SOLDIER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

499 F.3d 862

UNITED STATES of America, Appellee, v. Travis WHIRLWIND SOLDIER, Appellant.

No. 06-3977.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2007.

Filed: August 24, 2007.

Rehearing Denied September 28, 2007.

Terry L. Pechota, argued, Rapid City, SD, for appellant.

Jay P. Miller, Assistant U.S. Attorney, argued, Pierre, SD, for appellee.

Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Travis Whirlwind Soldier was found guilty, following a jury trial, of one count of conspiracy to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846. The district court¹ sentenced Whirlwind Soldier to 188 months imprisonment and 3 years supervised release. Whirlwind Soldier now appeals his conviction and sentence. We affirm both the conviction and the sentence.

I.

We review the facts in the light most favorable to the verdict, drawing all reasonable inferences from the evidence that supports the jury's verdict. United States v. Cannon, 475 F.3d 1013, 1016 (8th Cir. 2007).

Following completion of law school at the University of South Dakota, Whirlwind Soldier worked as a public defender for the Rosebud Sioux Tribal Court. According to multiple witnesses, Whirlwind Soldier frequently bought, sold, traded, delivered, and shared methamphetamine and other drugs, in some cases using his position as public defender to persuade others to cooperate with him.

Kaylee Folkers observed her sister trade cocaine to Whirlwind Soldier for methamphetamine and saw her sister's boyfriend trade one ounce of marijuana to Whirlwind Soldier for methamphetamine. Also, Folkers attended a party at which Whirlwind Soldier possessed cocaine.

Joe Buck Colombe testified to numerous interactions with Whirlwind Soldier that involved drug use or distribution. Colombe smoked methamphetamine with Whirlwind Soldier about 20 times, using drugs provided by Whirlwind Soldier. Colombe also observed Whirlwind Soldier give methamphetamine to Chris Night Pipe and Richard Neiss, trade one-half to one ounce of marijuana to Lonnie Erickson in return for one-half gram of methamphetamine, and exchange one-half ounce of marijuana to Melanie Antoine for one-quarter to one-half gram of methamphetamine, which Colombe then smoked with Whirlwind Soldier. Colombe also testified to an occasion where he provided money to Whirlwind Soldier to buy methamphetamine from a third party because that person did not trust Colombe. After Whirlwind Soldier used Colombe's money to buy the drugs, the two smoked the methamphetamine together.

Michael White Buffalo Chief testified that after his arrest on domestic violence charges Whirlwind Soldier offered to get him out of jail in return for White Buffalo Chief's assistance in making deliveries. White Buffalo Chief agreed to make the deliveries in return for Whirlwind Soldier's assistance with his charges. Approximately 30 minutes after White Buffalo Chief was released from custody, Whirlwind Soldier called him back to the courthouse where Whirlwind Soldier gave him a bag containing a blue container with something solid in the container. At Whirlwind Soldier's direction, White Buffalo Chief delivered the package to Clinton Haukaas. Whirlwind Soldier later directed White Buffalo Chief to make a second delivery, this time to Natasha Bordeaux, of three bags of methamphetamine. The third delivery White Buffalo Chief made for Whirlwind Soldier involved a round container which White Buffalo Chief delivered to Colombe. Additionally, White Buffalo Chief delivered one package from Bordeaux to Whirlwind Soldier. White Buffalo Chief believed that the package, which was a brown paper bag wrapped in tape and labeled with Whirlwind Soldier's name, contained "8-balls"² of methamphetamine due to the feel of the package and White Buffalo Chief's knowledge of Bordeaux packaging methamphetamine in that manner.

Melanie Antoine testified that, at Whirlwind Soldier's request, she gave him a gram of methamphetamine for his help in obtaining the dismissal of charges pending against her in the Tribal Court. She then entered into a personal relationship with Whirlwind Soldier. Beginning in the spring of 2004, Antoine began trading methamphetamine to Whirlwind Soldier for marijuana. On approximately ten occasions, she traded one gram of methamphetamine for one ounce of marijuana. On approximately 20 other occasions, Antoine sold methamphetamine to Whirlwind Soldier, totaling approximately one ounce of methamphetamine. She also purchased small amounts of methamphetamine from Whirlwind Soldier approximately 20 times. In addition to these transactions, Antoine and Whirlwind Soldier, because of their personal relationship, frequently gave methamphetamine to each other. Antoine testified that she gave Whirlwind Soldier a total of an ounce of methamphetamine and that Whirlwind Soldier gave her a total of an eighth of an ounce of methamphetamine. Antoine testified to seeing Whirlwind Soldier sell methamphetamine to Shawn Shaw and Fay Reifel four to five times and to Shawn Burnette three to four times. Antoine also testified about one occasion where Whirlwind Soldier told her that he, Colombe, and Joe Benge had "chipped in" to purchase methamphetamine from Antoine. Whirlwind Soldier gave Antoine $1,000 for an ounce of methamphetamine, and Whirlwind Soldier told Antoine that he intended to give Colombe and Benge each an eighth of an ounce. Antoine also testified that after selling methamphetamine to Whirlwind Soldier, Whirlwind Soldier sometimes "rebagg[ed]" the drug into smaller amounts which she testified is a common practice of drug dealers, however she did not know if Whirlwind Soldier resold those amounts or used them himself.

Lonnie Erickson, Melanie Antoine's father, testified that he traded methamphetamine to Whirlwind Soldier in return for marijuana on approximately ten occasions.

Michael Wright testified that he bought methamphetamine from Whirlwind Soldier four or five times, for a total of an ounce, and that in the fall of 2003, he saw Whirlwind Soldier trade 10 ounces of cocaine to John Krempkes for 14 to 15 ounces of methamphetamine.

Wilson Denoyer testified that he purchased one-half gram of methamphetamine from Whirlwind Soldier in July 2004 and another one-half gram of methamphetamine from Whirlwind Soldier in November 2004. He also arranged for Whirlwind Soldier to buy methamphetamine from his nephew, Brandon Denoyer. Jamey Farmer testified that her aunt arranged for her to buy methamphetamine from Whirlwind Soldier. Farmer gave the money to her aunt who, in turn, procured the methamphetamine from Whirlwind Soldier and gave it to Farmer. Richard Neiss bought three and a half grams of methamphetamine from Whirlwind Soldier over five transactions from August 2005 until October 2005. On eight separate occasions, Whirlwind Soldier fronted one-fourth of an ounce of methamphetamine to Neiss. Neiss used some of these drugs but resold most of it.

At sentencing, the district court adopted the government's findings of the amount of drugs involved in the conspiracy. The drug quantity was calculated by taking the amounts referenced in the Presentence Report (PSR) and deducting the amounts that were not testified to at trial. This amounted to 1,215 kilograms of converted marijuana, giving Whirlwind Soldier a base offense level of 32. The court increased the offense level by two levels because Whirlwind Soldier used his position as a Tribal Public Defender "to accommodate those users of drugs, co-conspirators who attempted to involve themselves in the drug conspiracy of which the jury found the defendant guilty." The court also applied an additional two-level enhancement for obstruction of justice, finding that Whirlwind Soldier perjured himself by testifying at trial that he did not have access to police or prosecutorial files, that he was only a user of drugs and was not a seller, that he was not a member of a drug conspiracy, and that all of the government's witnesses were lying about his involvement. The court denied Whirlwind Soldier's request for a mitigating-role reduction. Thus, with a criminal history category of I and a total offense level of 36, the Guidelines sentencing range was 188 to 235 months. After considering the other factors in 18 U.S.C. § 3553(a) and recognizing that the Guidelines were only advisory, the district court sentenced Whirlwind Soldier to 188 months imprisonment.

On appeal, Whirlwind Soldier challenges his conviction, arguing that there was insufficient evidence to convict him of a conspiracy, a variance between the indictment and the evidence presented at trial, and a constructive amendment of the indictment. He also challenges his sentence, contending that the district court erred in the drug quantity determination, in imposing the two-level obstruction of justice enhancement in denying the four-level minimal participant reduction, and in failing to properly apply the section 3553 factors or make an adequate appellate record of the court's application of those factors.

II.

When considering Whirlwind Soldier's claim of insufficient evidence, we review de novo, "viewing evidence in the light most favorable to the government, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict." United States v. Hamilton, 332 F.3d 1144, 1148 (8th Cir.2003) (quoting United States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003), cert. denied, 540 U.S. 899, 124 S.Ct. 251, 157 L.Ed.2d 179 (2003)). We will reverse the conviction only where no reasonable jury could have found the accused guilty of the crime charged in the indictment. United States v. Sanders, 341 F.3d 809, 815 (8th Cir.2003).

To establish a conspiracy, the government must prove: (1) the existence of an agreement among two or more people to achieve an illegal purpose, (2) the defendant's knowledge of the...