United States v. Tate

Decision Date18 May 2016
Docket NumberNo. 15–3227.,15–3227.
Citation822 F.3d 370
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Robert A. TATE, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

George A. Norwood, Attorney, Office of the United States Attorney, Benton, IL, for PlaintiffAppellee.

Neal A. Connors, Attorney, Neal Connors Law Firm, P.C., Belleville, IL, for DefendantAppellant.

Robert A. Tate, Oklahoma City, OK, pro se.

Before WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

In this appeal, we address two sentencing issues. First, defendant Robert A. Tate challenges the district court's findings on the extent of his relevant conduct. Those findings were based on credibility determinations to which we give great deference, and we find no error. Second, we must also decide whether a conviction under an Illinois law that prohibits attempted procurement of anhydrous ammonia with intent that it be used to manufacture methamphetamine qualifies as a “controlled substance offense” under the Sentencing Guidelines' career offender provision, U.S.S.G. § 4B1.1. Despite the conviction's significant link to methamphetamine manufacture, careful parsing of the relevant Guideline provisions shows that a conviction under this particular statute does not actually qualify. The district court will be free to consider the nature of the conviction when it exercises its sentencing discretion on remand, but it will need to do so without treating this defendant as a career offender under the Guidelines.

I. Relevant Conduct

A jury found appellant Tate guilty of conspiring to manufacture methamphetamine between February 2013 and June 2014 and guilty on a single count of distribution in March 2014 stemming from a controlled buy. Tate does not challenge his convictions on appeal.

In applying the U.S. Sentencing Guidelines, a district court must determine the defendant's criminal history and offense level. Tate's criminal history category was VI, regardless of any issue under the career offender Guideline. The district court found that Tate's relevant conduct made him responsible for 400 grams of methamphetamine, yielding an adjusted offense level of 28. The court also found that Tate qualified as a career offender under the Guidelines, which raised his adjusted offense level to 32. The district court's guideline calculations produced a range of 210 to 262 months. The court sentenced Tate to 210 months in prison on each count, to be served concurrently.

The Sentencing Guidelines instruct district courts to base the offense level on the defendant's “relevant conduct,” a calculation governed by § 1B1.3 of the Guidelines. In drug cases, the quantity of drugs for which the defendant is held responsible is “frequently the single most important determinant of the length of the defendant's sentence under the Guidelines.” United States v. Acosta, 85 F.3d 275, 281–82 (7th Cir.1996).

Tate's conviction for distribution of methamphetamine involved just 0.2 grams of methamphetamine, but at sentencing the district court held him responsible for an estimated 400 grams of methamphetamine. That quantity was based not on the single controlled buy but on the trial testimony of Tate's former girlfriend, Brandy Pierce, and a proffer statement by Denise Huston. Pierce testified that she had supplied Tate with precursor materials and allowed him to cook methamphetamine daily at her home over a period of several months. Huston reported that Tate had manufactured methamphetamine at her home at least twenty times during the preceding year.

At sentencing, Tate argued that Pierce and Huston were not sufficiently credible to support the 400–gram figure. Judge Gilbert rejected that argument. He acknowledged that the estimates were not exact but explained that in his experience, witnesses like Pierce and Huston could credibly testify as to whether someone was cooking methamphetamine “every day or every other day” and could reasonably estimate the drug quantities involved.

We review a district court's factual findings on drug quantity only for clear error, United States v. Austin, 806 F.3d 425, 430 (7th Cir.2015), citing United States v. Clark, 538 F.3d 803, 812 (7th Cir.2008), and we give substantial deference to the sentencing court's determinations of witness credibility. United States v. Blalock, 321 F.3d 686, 690 (7th Cir.2003) ; United States v. Johnson, 227 F.3d 807, 813 (7th Cir.2000). “Determining how much of a particular drug a defendant possessed, over a lengthy period of time, is not an exact science.” United States v. Sewell, 780 F.3d 839, 849 (7th Cir.2015). As we have often explained, drug traffickers rarely keep reliable business records, and district courts determining relevant conduct may make reasonable estimates. See Austin, 806 F.3d at 431 ; Sewell, 780 F.3d at 849.

Pierce testified that Tate cooked methamphetamine at least once a day from January 2013 until October 2013, producing at least two grams with each “cook.” The court's estimate of 360 grams was at the low end of the range her testimony could support. Tate argues primarily that Pierce could not be believed because of her prior convictions and her repeated attempts to minimize her own role in the conspiracy. Those circumstances are not unusual with witnesses who have been involved in drug-trafficking operations. They did not preclude the district court from finding that Pierce's testimony was reliable enough to support the estimate in the presentence report. See United States v. Rodgers, 245 F.3d 961, 968 (7th Cir.2001) (The “district judge was free to credit Dexter. That Dexter was a convicted felon who stood to gain from his testimony against Rodgers is by no means a remarkable circumstance.”). Pierce acknowledged participating in Tate's methamphetamine operation. While she denied helping cook the drug, she also testified that she bought precursor materials for Tate a “few times a week,” that she allowed Tate to cook methamphetamine at her home, that she drove him to various locations to sell the drug, and that she crushed pills for Tate to use in cooks. The district court did not err in relying on Pierce's testimony to hold Tate responsible for 360 grams of methamphetamine.

As for Denise Huston, Tate first argues that her proffer statement is inconsistent with her trial testimony. The second revised presentence report said that Huston saw Tate make methamphetamine at her house at least twenty times over the preceding year. At trial, however, Huston testified that Tate made methamphetamine at her house [a]t least ten different times.” The discrepancy, Tate argues, shows that Huston's recollections are vague and incredible. We disagree.

Discrepancies or inconsistent prior statements are of course relevant in assessing witness credibility, but they “do not, as a matter of law, render a witness's testimony incredible.” United States v. Hernandez, 544 F.3d 743, 747 (7th Cir.2008). Although Huston's story was not exact, determining drug quantities for sentencing purposes “is often difficult, and district courts may make reasonable though imprecise estimates based on information that has indicia of reliability.” United States v. Bozovich, 782 F.3d 814, 818 (7th Cir.2015). The district court found Huston and her estimates credible. In using the forty-gram figure, the court erred if at all on the low side. (Huston testified that Tate might use up to five boxes of pseudoephedrine pills per cook, which could yield ten grams per cook, or 100 to 200 grams total.) See United States v. Acosta, 534 F.3d 574, 584 (7th Cir.2008) (finding no clear error in use of method to estimate drug quantity that erred on the low side). We see no clear error in this finding.

Tate also argues there was no nexus between the methamphetamine he made at Huston's residence and the conspiracy to manufacture of which he was convicted. We disagree. The methamphetamine he manufactured in those cooks is of course “directly attributable to him.” Acosta, 534 F.3d at 585, quoting United States v. McLee, 436 F.3d 751, 765 (7th Cir.2006) ; see U.S.S.G. § 1B1.3(a)(1)(A). And it was not clear error for the district court to conclude that those drug quantities were part of the ongoing conspiracy to manufacture the drug. Huston testified that around the end of 2013 and beginning of 2014, within the charged time period of the conspiracy, Tate came to her home at least ten times to manufacture methamphetamine, that she would sometimes provide him with ingredients for his cook, and that Tate would sometimes pay her for allowing him to manufacture at her home. The district court's finding that those drugs were relevant conduct for purposes of the conspiracy was not clearly erroneous in light of this testimony. Accordingly, we see no basis for reversal on any of Tate's relevant conduct arguments.1

II. Career Offender Enhancement

Under the U.S. Sentencing Guidelines, an adult defendant is a career offender if he is convicted of a crime of violence or a controlled substance offense, and if he has at least two prior felony convictions for crimes of violence or controlled substance offenses. U.S.S.G. § 4B1.1(a). Tate was classified as a career offender based on two prior state court convictions: one for unlawful delivery of cocaine, and the other for attempted procurement of anhydrous ammonia with intent that it be used to manufacture methamphetamine. That finding raised his guideline range by about fifty percent. Tate argues on appeal as he did in the district court that the anhydrous ammonia conviction did not qualify as a “controlled substance offense.”

Tate's argument presents a question of law that we review de novo. United States v. Dyer, 464 F.3d 741, 743 (7th Cir.2006), citing United States v. Hankton, 432 F.3d 779, 795 (7th Cir.2005). Under the career offender provisions, a “controlled substance offense” is defined as “an offense under federal or state law, punishable by imprisonment for a...

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