618 F.3d 577 (6th Cir. 2010), 08-5707, United States v. Wettstain

Docket Nº:08-5707, 08-5708.
Citation:618 F.3d 577
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert WETTSTAIN (No. 08-5707) and John Edward Stewart (No. 08-5708), Defendants-Appellants.
Attorney:Shawn P. Hooks, Holzfaster, Cecil, McKnight & Mues, Dayton, Ohio, Michael R. Mazzoli, Cox & Mazzoli PLLC, Louisville, Kentucky, for Appellants. Monica Wheatley, Assistant United States Attorney, Louisville, Kentucky, for Appellee. Shawn P. Hooks, Holzfaster, Cecil, McKnight & Mues, Dayton, Ohio, ...
Judge Panel:Before: MARTIN and GRIFFIN, Circuit Judges; DUGGAN, District Judge. [*]
Case Date:August 30, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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618 F.3d 577 (6th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert WETTSTAIN (No. 08-5707) and John Edward Stewart (No. 08-5708), Defendants-Appellants.

Nos. 08-5707, 08-5708.

United States Court of Appeals, Sixth Circuit.

August 30, 2010

Argued: June 10, 2010.

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ARGUED:

Shawn P. Hooks, Holzfaster, Cecil, McKnight & Mues, Dayton, Ohio, Michael R. Mazzoli, Cox & Mazzoli PLLC, Louisville, Kentucky, for Appellants.

Monica Wheatley, Assistant United States Attorney, Louisville, Kentucky, for Appellee.

ON BRIEF:

Shawn P. Hooks, Holzfaster, Cecil, McKnight & Mues, Dayton, Ohio, Michael R. Mazzoli, Cox & Mazzoli PLLC, Louisville, Kentucky, for Appellants.

Monica Wheatley, Terry M. Cushing, Assistant United States Attorneys, Louisville, Kentucky, for Appellee.

Before: MARTIN and GRIFFIN, Circuit Judges; DUGGAN, District Judge. [*]

OPINION

GRIFFIN, Circuit Judge.

Defendants Robert Wettstain and John Edward Stewart appeal their convictions and sentences following a three-day jury trial. For the reasons explained below, we affirm Stewart's and Wettstain's convictions and their mandatory minimum life sentences imposed on Count I. We reverse and remand for resentencing Wettstain's

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life sentences on Counts III and IV and Stewart's life sentences on Counts II and IV.

I.

On May 8, 2007, a federal grand jury returned a five-count indictment against John Edward Stewart, Robert Wettstain, Jerry Richardson, and Wesley Higdon for their involvement in a large-scale methamphetamine drug distribution ring in Daviess County, Kentucky. Three months before Higdon's trial date, he plead guilty to Counts I, II, and IV of the indictment and agreed to cooperate with the government. Four days before his trial, Jerry Richardson plead guilty to Counts I and III of the indictment and also agreed to cooperate with the government.

On December 17, 2007, the district court convened Stewart's and Wettstain's trial. Higdon was the government's star witness, offering extensive testimony regarding Stewart's and Wettstain's drug operation. Richardson testified about Wettstain's copious methamphetamine dealing. The government also provided five non-cooperating witnesses: Jennifer Brey (Wettstain's former girlfriend and wife); Carl Daugherty (one of Stewart's methamphetamine dealers); Misty Roberts (Jerry Richardson's fiancée); James C. Stewart (Jerry Richardson's cousin); and T.G. Gossett (a close friend of Jerry Richardson). Each witness provided testimony regarding Stewart's and Wettstain's methamphetamine drug ring, which involved " fronting" large amounts of methamphetamine to dealers like Daugherty, Higdon, and Richardson for distribution in Daviess County. The dealers would then pay Stewart or Wettstain for the " fronted" methamphetamine with the proceeds they received from drug sales.

On December 20, 2007, the jury returned guilty verdicts against: (1) Stewart and Wettstain on Count I, conspiracy to possess with the intent to distribute 500 grams or more of a mixture containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) Stewart and Wettstain on Count IV, aiding and abetting each other in the possession with the intent to distribute an unspecified amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; (3) Stewart on Count II for aiding and abetting Higdon of possession with the intent to distribute fifty grams or more of a mixture containing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (4) Wettstain on Count III for aiding and abetting Richardson of possession with the intent to distribute an unspecified amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Stewart's presentence report (" PSR" ) assessed his base offense level at 32, U.S.S.G. § 2D1.1(c)(4) (2007), " Offenses Involving Drugs-Unlawful ... Trafficking[,]" and calculated his criminal history as a category VI based on 19 criminal history points, yielding an advisory Guidelines range of 210-262 months of imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Table) (2007).

Wettstain's PSR also assessed his base offense level at 32, U.S.S.G. § 2D1.1(c)(4) (2007), " Offenses Involving Drugs-Unlawful ... Trafficking [,]" and calculated his criminal history as a category VI based on 22 criminal history points, also yielding an advisory Guidelines range of 210-262 months of imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Table) (2007). However, Wettstain's PSR recommended applying U.S.S.G. § 4B1.1 (2007), the Career Offender enhancement, because he was at least 18 years of age at the time he committed the present offenses and he had at least two previous felony convictions for a

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controlled substance offense or a crime of violence. § 4B1.1(a). Based on § 4B1.1, Wettstain's total offense level was 37 and his criminal history category remained at VI, see § 4B1.1(b), yielding an advisory Guidelines range of 360 months to life imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Table) (2007).

The government objected to these sentencing recommendations because it had timely filed notices of intent to rely on Stewart's and Wettstain's previous felony drug convictions to enhance their minimum sentences to life imprisonment on Count I. See 21 U.S.C. § 841(b)(1)(A)(viii); 21 U.S.C. § 851 (2007). In response to the government's objections, the PSRs were revised to recommend mandatory minimum life sentences for Stewart and Wettstain on all counts of conviction. Defense counsel did not object.

On May 15, 2008, Stewart and Wettstain were sentenced. The district court adopted the revised PSR recommendations and sentenced Stewart to concurrent life sentences on Counts I, II, and IV and Wettstain to concurrent life sentences on Counts I, III, and IV.

Defendants timely appeal their convictions and sentences.

II.

We begin our analysis, as we must, with the sufficiency of the evidence. " [A]n appellate court's reversal for insufficiency of the evidence is in effect a determination that the government's case against the defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than submitting the case to the jury." Lockhart v. Nelson, 488 U.S. 33, 39, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). Because the Double Jeopardy Clause affords a defendant who obtains a judgment of acquittal absolute immunity from further prosecution for the same crime, the Supreme Court has stated that " it ought to do the same for the defendant who obtains an appellate determination that the district court should have entered a judgment of acquittal." Id.

Accordingly, defendants bear a heavy burden when asserting insufficiency of the evidence arguments. United States v. Spearman, 186 F.3d 743, 746 (6th Cir.1999). " Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt." Id. (citation and internal quotation marks omitted). Furthermore, we have held consistently that " ‘ [t]he uncorroborated testimony of an accomplice alone may support a conviction.’ " United States v. King, 288 Fed.Appx. 253, 256 (6th Cir.2008) (unpublished) (quoting United States v. Clark, 18 F.3d 1337, 1343 (6th Cir.1994)).

We review de novo the district court's denial of a motion for judgment of acquittal pursuant to Fed.R.Crim.P. 291 and assess the evidence " in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Campbell, 549 F.3d 364, 374 (6th Cir.2008). " We will reverse a judgment based on a finding of insufficient evidence only if the judgment is not supported by substantial and competent evidence upon the record as a whole." Id. Further, we have a duty to make all reasonable inferences in support of the jury's verdict. Id. In accordance with these principles,

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we turn to Wettstain's and Stewart's sufficiency-of-the-evidence arguments.

Count I

Wettstain and Stewart argue that the evidence adduced at trial was insufficient to establish the existence of a conspiracy to possess with the intent to distribute 500 grams or more of a mixture containing methamphetamine between February 2004 and February 2007.2 To demonstrate a conspiracy under 21 U.S.C. §§ 841(a)(1) and 846, the government must prove, beyond a reasonable doubt: " (1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy." United States v. Gibbs, 182 F.3d 408, 420 (6th Cir.1999) (citation and internal quotation marks omitted).

Wettstain argues that the government failed to prove the element of agreement. We disagree. Higdon, a co-conspirator and cooperating witness, testified that beginning in December 2006, Stewart " fronted" large amounts of methamphetamine to Wettstain and Higdon. The two men would sell it to others and pay Stewart with the profits. Higdon also reported that Stewart provided a " discount" on " bulk purchases of methamphetamine" -" [a]nything under six ounces, I was paying [$]2000 an ounce .... and then [$] 1900 an ounce for six ounces or more[,] and then [$]18[00] at ten [ounces]." Higdon stated that he and Wettstain would travel to Stewart's home " every couple of weeks or every week .... [t]o receive methamphetamine[ ]."

Higdon testified that, on January 11, 2007, he witnessed Wettstain receive a phone call from Stewart...

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