U.S. v. Canania

Decision Date14 July 2008
Docket NumberNo. 07-1078.,No. 07-1329.,07-1078.,07-1329.
Citation532 F.3d 764
PartiesUNITED STATES of America, Appellee, v. Annette Marie CANANIA, Appellant. United States of America, Appellee, v. Gerald Robinson, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Peter M. Cohen, argued, St. Louis, MO, for appellant Canania.

Stephen Robert Welby, St. Louis, MO, for appellant Robinson.

Antoinette Decker, argued, St. Louis, MO, for appellee.

Before MELLOY, BRIGHT, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Annette Marie Canania and Gerald Robinson were convicted of one count of conspiracy to possess pseudoephedrine knowing it would be used to manufacture methamphetamine and two counts of possession of pseudoephedrine knowing it would be used to manufacture methamphetamine, pursuant to 21 U.S.C. § 841(c)(2). The district court1 sentenced Canania and Robinson to 240 and 220 months imprisonment, respectively. From their sentences, they appeal. Their cases are now consolidated on appeal. We affirm.

I.

In December of 2003, officers with the St. Louis County Multi-Jurisdictional Drug Task Force obtained consent to search the residence of Julie Friend. Therein, the officers found methamphetamine and numerous items related to the use and manufacture of methamphetamine. Friend became an informant for the officers and provided them information about the involvement of Canania and Robinson in the sale and manufacture of methamphetamine. Friend was a "shopper" for Canania. A "shopper" is a person who obtains precursors, such as: cold tablets from which pseudoephedrine could be derived; lithium batteries; fish tank hoses; windshield washer solvent; and Heet.2 Wearing a hidden recording device, Friend delivered some pseudoephedrine pills to Canania. Law enforcement officers observed Friend enter Canania and Robinson's residence at 2230 Hood Street, St. Louis, Missouri, with the pills and exit without the pills. Based upon this investigation, the officers sought and obtained a search warrant for the Hood Street home.

When officers executed the search warrant, they seized: cold tablets; lithium batteries; fire extinguishers; an oxygen tank from which the valves had been removed (which can be used to manufacture anhydrous ammonia); 1.5 grams of methamphetamine; sandwich bags; glass jars snorting tubes; a bottle of pure ephedrine; a smoking pipe; coffee filters (hidden in the air ducts); cotton swabs; paint thinner; windshield wiper fluid; .22 caliber ammunition; and a .22 caliber pistol. The pistol was seized from the bedroom shared by Canania and Robinson. At the time of the seizure, Robinson was asleep on the same bed where the pistol was found. During the search, the officers also noticed that there was fire damage throughout the basement.

Despite the fact that many of the above listed items were seized from the kitchen counters and from on top of the bed in their bedroom, Canania and Robinson denied any knowledge of the items seized from their home. They suggested that previous tenants must have left the items. Likewise, they denied any involvement in causing the fire damage in the basement of the home.

Approximately two months later, on February 17, 2004, law enforcement officers observed Ronald Hartge purchase two boxes of cold medicine under suspicious circumstances. They followed Hartge from the store, and he agreed to cooperate with them when he realized they were following him. Hartge consented to a search of his vehicle and his residence, and he admitted that he previously had attempted to manufacture methamphetamine but was not successful. As part of his agreement to cooperate with law enforcement, Hartge identified residences which he knew to have a connection to the sale or manufacture of methamphetamine. While doing so, he pointed out the home of Canania and Robinson as a place methamphetamine was manufactured or sold. Hartge agreed to be wired with a hidden recording device and went to the home of Canania and Robinson. While at the home and while being recorded, Hartge agreed to bring Canania and Robinson cold pills to be used to manufacture methamphetamine. Hartge later returned to the residence and delivered the requested cold pills to Canania and Robinson. Hartge also purchased methamphetamine from Canania and Robinson. Officers then obtained and executed a second search warrant for the Hood Street home of Canania and Robinson. During the execution of the search warrant, the officers found and seized methamphetamine, cold pills, and other substances used to manufacture methamphetamine. Canania and Robinson denied any knowledge of these items, just as they had following the first search.

In January of 2006, Canania and Robinson were indicted for methamphetamine — related offenses, and warrants were issued for their arrest. When officers attempted to serve the arrest warrants, they discovered that Canania and Robinson no longer lived at the Hood Street residence. In February of 2006, law enforcement officers with the St. Louis County Multi-Jurisdictional Drug Task Force learned that Heather Thompson, a confidential informant for another law enforcement agency, knew Robinson and could deliver cold pills to him for use in the manufacture of methamphetamine. By then, Robinson was again living at 2230 Hood Street. However, he was sharing the residence with a man named Lee Westfall, not Canania. On February 13, 2006, Thompson made a controlled delivery of cold tablets to the 2230 Hood Street residence while wearing a hidden recording device. Just prior to Thompson's entry into the residence, Robinson was observed entering the residence with a briefcase. When Thompson entered the residence, Westfall indicated to Thompson that Robinson was inside the house, but Thompson did not see Robinson. Westfall gave Thompson a gram of methamphetamine in exchange for 10 boxes containing 48 cold tablets in each box.

Immediately thereafter, a third search warrant was obtained and executed on the home. Once again, methamphetamine, cold pills and other paraphernalia were seized from the residence. Specifically, officers seized: a notepad containing a crude formula for "ice," which is the base form of methamphetamine; an unloaded shotgun found beside the bed; a digital scale inside a wallet, along with coffee filters and one of Robinson's business cards; powder residue on the scale; the ten boxes of cold tablets taken to the residence by Thompson just prior to the execution of the search warrant; other cold tablets; empty cold pill boxes; a jar of blue pill binder; Heet; a bottle of lye; 0.99 grams of methamphetamine packaged for sale in three plastic bags which were located inside Robinson's briefcase; iodine; camp fuel; an acid generator; and a fire extinguisher. Additionally, the officers noted red stains in the basement believed to be caused from the production of iodine crystals, which are necessary to the manufacture of methamphetamine.

Following their arrests, Canania and Robinson were indicted and tried for one count of conspiracy to possess pseudoephedrine knowing it would be used to manufacture methamphetamine, three counts of possession of pseudoephedrine knowing it would be used to manufacture methamphetamine, and one count of possession of a firearm in furtherance of a drug-trafficking offense. At trial, the testimony of Friend, Hartge, and Westfall, as well as the evidence obtained during the three searches was introduced. The jury convicted Canania and Robinson of one count of conspiracy to possess pseudoephedrine knowing it would be used to manufacture methamphetamine and two counts of possession of pseudoephedrine knowing it would be used to manufacture methamphetamine. The jury acquitted the pair of the firearms charge and of the third count of possession of pseudoephedrine knowing it would be used to manufacture methamphetamine.

Friend, Hartge, and Westfall, who had charges pending, were sentenced after the trial of Canania and Robinson, but prior to the sentencing hearing of Canania and Robinson. On September 27, 2006, Hartge was sentenced to four years probation. On November 15, 2006, Westfall was sentenced to 80 months in prison. On November 16, 2006, Friend was sentenced to four years probation.

On December 14, 2006, the district court conducted the sentencing hearing of Canania and Robinson. With regard to the Guideline range adopted by the district court, Canania objected to the two-level firearm enhancement, the three-level role in offense enhancement and the denial of the two-level reduction for acceptance of responsibility. Her objections were overruled. Canania's Guideline range was 262 to 327 months with a maximum statutory term of 60 years (720 months). Canania was sentenced to 240 months imprisonment and three years of supervised release. The district court sentenced Canania below the Guideline range, noting that it wanted to avoid disparity between Canania and Robinson's sentences, as well as giving consideration to Canania's history of being a victim of abuse and her long history of drug addiction.

The district court conducted Robinson's sentencing hearing on the same date and calculated Robinson's Guidelines range to be 188 to 235 months imprisonment. Robinson objected to the quantity of methamphetamine attributed to him and the two-level enhancement for firearm possession. His objections were also overruled. Robinson then sought a downward variance from the Guidelines range arguing that: he and Canania manufactured the methamphetamine to feed their own addictions and they made very little money; he was an otherwise law-abiding citizen who worked hard as a carpenter; he was 59 years old; he had arthritis; and, due to his age and arthritis, he would be particularly vulnerable to abuse in prison. The court declined to sentence Robinson below the Guideline range and imposed a sentence of 220 months in prison and two years supervised release. From their...

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