614 F.3d 852 (8th Cir. 2010), 09-2618, United States v. Malloy

Docket Nº:09-2618, 09-2619.
Citation:614 F.3d 852
Opinion Judge:SHEPHERD, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Shain MALLOY, Appellant. United States of America, Appellee, v. Michael James Kluge, Appellant.
Attorney:John Jay Rausch, argued, Waterloo, IA, for appellant Shain Malloy. Leslie E. Stokke, argued, Rapids, IA, for appellant Michael Kluge. John H. Lammers, AUSA, argued, Sioux City, IA, for appellee.
Judge Panel:Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.
Case Date:August 06, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 852

614 F.3d 852 (8th Cir. 2010)

UNITED STATES of America, Appellee,

v.

Shain MALLOY, Appellant.

United States of America, Appellee,

v.

Michael James Kluge, Appellant.

Nos. 09-2618, 09-2619.

United States Court of Appeals, Eighth Circuit.

August 6, 2010

Submitted: April 16, 2010.

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[Copyrighted Material Omitted]

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John Jay Rausch, argued, Waterloo, IA, for appellant Shain Malloy.

Leslie E. Stokke, argued, Rapids, IA, for appellant Michael Kluge.

John H. Lammers, AUSA, argued, Sioux City, IA, for appellee.

Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Shain Malloy pled guilty to, and Michael Kluge was convicted of, conspiring to manufacture 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), 846, and 851. The district court 1 sentenced Malloy to 188

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months imprisonment and Kluge to 360 months imprisonment. Malloy appeals his sentence, and Kluge appeals both his conviction and sentence. We affirm.

I.

Malloy and Kluge were each involved in a methamphetamine-manufacturing conspiracy in and around Sioux City, Iowa, which resulted in the indictment of 23 individuals. Malloy and Kluge were part of a network of individuals who provided raw materials, in the form of pseudoephedrine pills, to the conspiracy's leader, Tony Grenier, in exchange for money and finished methamphetamine.

In January 2009, Malloy pled guilty to one count of conspiring to manufacture 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), 846, and 851. Malloy's Presentence Investigation Report (PSR) identified three prior Iowa convictions-a 1995 conviction for extortion, a 1995 conviction for burglary, and a 2004 conviction for interference with official acts causing bodily injury-any two of which would qualify Malloy as a career offender under the Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual, § 4B1.1 (Nov.2009). This increased Malloy's offense level to 32, see id. § 4B1.1(b), which was reduced 3 levels due to his acceptance of responsibility, see id. § 3E1.1(a)-(b). The PSR also found that Malloy had 26 criminal history points. Malloy objected to the career offender enhancement, arguing that his extortion and interference with official acts convictions did not qualify as predicate offenses under § 4B1.1. The district court found that both convictions qualified Malloy for the career offender enhancement.2 With an offense level of 29 and a criminal history Category VI, Malloy's advisory Guidelines sentencing range was 151-188 months imprisonment, and the district court sentenced Malloy at the top of that range, 188 months imprisonment.

Kluge proceeded to trial in February 2009. The government's first witness was John Howard, a special agent with the Drug Enforcement Administration (DEA) Tri-State Drug Task Force in Sioux City, Iowa. Special Agent Howard had investigated the conspiracy and testified about Kluge's frequent purchases of pseudoephedrine pills from pharmacies in Sioux City, based on those pharmacies' pill logs. According to Special Agent Howard, based on his training and experience, none of the pseudoephedrine pills purchased by Kluge were for his legitimate use.

Grenier testified about the process he used in making methamphetamine and about the network of individuals, including Kluge, who brought him pseudoephedrine pills in exchange for money and finished methamphetamine. According to Grenier, all of the individuals who brought him pseudoephedrine pills knew that the pills were being used to manufacture methamphetamine. Seven other coconspirators also testified about their roles in the conspiracy and about Kluge's role in obtaining pseudoephedrine for Grenier. According to the coconspirators' and Grenier's testimony, Kluge gave pseudoephedrine pills directly to Grenier and also funneled pills to Grenier through other coconspirators.

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Kluge chose not to present evidence in his defense.

The jury convicted Kluge of conspiring to manufacture 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), 846, and 851. Following trial, Kluge's attorney filed timely motions for judgment of acquittal and for a new trial, which the district court denied without prejudice on procedural grounds.3 Shortly thereafter, the district court granted Kluge's pro se motion to dismiss his attorney and represent himself. Kluge then filed a motion for judgment of acquittal and motion for new trial, which the district court denied. Kluge's PSR identified two prior Iowa convictions that qualified Kluge for an enhanced sentence under § 4B1.1-a 1998 conviction for burglary and a 2002 conviction for eluding. This raised Kluge's offense level to 37, which, coupled with a criminal history Category VI, resulted in an advisory Guidelines sentencing range of 360 months to life imprisonment.

Kluge represented himself at his sentencing hearing. He first withdrew his previous objection to the drug quantity attributed to him in the PSR. Kluge also made a number of sentencing arguments, including that: (1) his prior convictions did not qualify him for the career offender enhancement, see USSG § 4B1.1; (2) he should not receive the obstruction of justice enhancement sought by the government,4 see id. § 3C1.1; (3) he was entitled to a reduction in his sentence for his role in the offense, see id. § 3B1.2; and (4) the court should vary from the Guidelines sentencing range. The district court found that Kluge's burglary and eluding convictions were both crimes of violence under § 4B1.1, subjecting him to the career offender enhancement. Because Kluge's sentence would be determined under the career offender guidelines, the district court declined to rule on (1) the obstruction of justice enhancement and (2) the role in the offense reduction. The court also declined to vary from the Guidelines, sentencing Kluge to 360 months imprisonment.

II.

A.

Malloy appeals his sentence, arguing that his convictions for extortion and interference with official acts causing bodily injury do not qualify as crimes of violence for purposes of the career offender enhancement.5 Malloy also argues that the district court erred by failing to determine what his Guidelines sentencing range would have been, had the career offender enhancement not applied. We review de novo the question of whether a prior offense is a crime of violence under § 4B1.1. See United States v. Aleman, 548 F.3d 1158, 1168 (8th Cir.2008), cert. denied, __ U.S. __, 129 S.Ct. 2756, 174 L.Ed.2d 263 (2009).

The Sentencing Guidelines provide for enhanced sentences for certain recidivists. This is embodied in § 4B1.1, which states that a defendant is a " career offender" if:

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(1) the defendant was at least eighteen years old at the time [he] committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

USSG § 4B1.1(a). A " crime of violence" is defined as " any felony offense that either ‘ (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.’ " Aleman, 548 F.3d at 1168 ( quoting USSG § 4B1.2(a)).

In determining whether an offense constitutes a crime of violence, " we focus on the generic elements of the offense and not on the specific facts underlying [the] conviction." United States v. Gordon, 557 F.3d 623, 625 (8th Cir.2009) ( citing Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). Malloy was convicted under Iowa's extortion statute, Iowa Code § 711.4, which criminalizes any of the following actions if they are done " with the purpose of obtaining for oneself or another anything of value, tangible or intangible, including labor or services" :

1. Threaten[ing] to inflict physical injury on some person, or to commit any public offense.

2. Threaten[ing] to accuse another of a public offense.

3. Threaten[ing] to expose any person to hatred, contempt, or ridicule.

4. Threaten[ing] to harm the credit or business or professional reputation of any person.

5. Threaten[ing] to take or withhold action as a public officer or employee, or to cause some public official or employee to take or withhold action.

6. Threaten[ing] to testify or provide information or to withhold testimony or information with respect to another's legal claim or defense.

7. Threaten[ing] to wrongfully injure the property of another.

Iowa Code § 711.4. Because section 711.4 sets forth distinct offenses with different elements, it is necessary to look beyond the statutory definition. Under this " modified categorical approach," our examination " is limited to ... the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The trial information and criminal judgment establish that Malloy was convicted under subsection 7, for " [t]hreaten[ing] to wrongfully injure the property of another." Iowa Code § 711.4(7). It is a question of first impression whether this crime qualifies as a crime of violence under § 4B1.1. In...

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