U.S. v. Streeter

• Citation: 907 F.2d 781
• Decision Date: 29 June 1990
• Docket Number: Nos. 89-5217S,89-5247SD,s. 89-5217S
• Parties: UNITED STATES of America, Appellee, v. Ernest R. STREETER, Appellant. UNITED STATES of America, Appellee, v. Robert Jay COLLINS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 781

907 F.2d 781

3 Fed.Sent.R. 92

UNITED STATES of America, Appellee, v. Ernest R. STREETER, Appellant.

UNITED STATES of America, Appellee, v. Robert Jay COLLINS, Appellant.

Nos. 89-5217SD, 89-5247SD.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 13, 1989.

Decided June 29, 1990.

Robert L. Lewis, Rapid City, S.D., for appellant Streeter.

Glen H. Johnson, Rapid City, S.D., for appellant Collins.

Lonnie Bryan, Rapid City, S.D., for appellee.

Before LAY, Chief Judge, ARNOLD, Circuit Judge, and LARSON, ^* Senior District Judge.

ARNOLD, Circuit Judge.

These are the consolidated appeals of two defendants who pleaded guilty to drug charges stemming from a common eleven-count indictment. Defendant Streeter pleaded guilty to one count of distributing one gram of methamphetamine (MDA) in violation of 21 U.S.C. Sec. 841(a)(1). The District Court, departing upwards from the Sentencing Guidelines, imposed a sentence of eighty-four months' imprisonment and thirty-six months' supervised release. On appeal, Streeter argues that the District Court misapplied the Guidelines by basing its decision to depart on factors adequately considered in the Guidelines and by making several improper adjustments to his offense level. We vacate Streeter's sentence and remand to the District Court for resentencing. However, we affirm the Court's determination of defendant's total offense level.

Defendant Collins entered a conditional plea of guilty to one count of cultivating nineteen marijuana plants in violation of 21 U.S.C. Sec. 841(a)(1) and received a sentence of thirteen months' confinement followed by three years of supervised release. On appeal, Collins argues that the trial court erred in failing to suppress the marijuana plants as evidence. He also challenges the use of the Drug Quantity Table to fix his base offense level on the basis of the number of plants in his possession, regardless of their actual weight. We affirm the District Court's ruling on defendant's motion to suppress. We vacate defendant's sentence, however, and remand to the District Court for resentencing. The portion of the Drug Quantity Table used to determine defendant's offense level is invalid, as applied to the circumstances of this case.

I.

In the Spring of 1988, the Pennington County (South Dakota) Sheriff's Department hired Maggie Andrews to work as an informant in its ongoing investigation of drug activity around Rapid City. At the Department's direction, Ms. Andrews moved to Rapid City and shortly thereafter met Ernest Streeter. She began to make small purchases of drugs from him, and they eventually became sexually involved. At some point in their relationship, Streeter told Ms. Andrews that he and a friend were setting up a methamphetamine lab, and that if she could get them some chemicals she could share in the proceeds. She indicated that she was not interested, but she had a relative who would be. She arranged a meeting.

On July 20, 1988, Special Agent Duane Dahl of the South Dakota Division of Criminal Investigation, posing as Ms. Andrews's relative, met with Streeter. In a conversation that was recorded, Streeter told Dahl about a "chemist" who had recently moved to the area from Barstow, California. This chemist was equipped to start making methamphetamine and would do so if he could obtain some 200-proof alcohol. Dahl told Streeter that he would get the alcohol. Dahl added that he could obtain other chemicals necessary to produce methamphetamine if Streeter would either get his chemist to write down what he needed, or arrange a meeting between the chemist and Dahl. On August 2, 1988, Dahl delivered a gallon bottle of 190-proof grain alcohol to Streeter. At that meeting, Streeter indicated that he would deliver the alcohol to "Bob" the chemist, who lived in Custer, sometime later that day. In that conversation, Streeter also mentioned that Bob had about twenty marijuana plants growing in his house. A few hours later, law-enforcement officials observed Streeter park his car at a house two miles south of Custer on Highway 385.

Streeter met with Dahl again on the following day and told him that the chemist would be making a sample batch of methamphetamine soon. At that meeting Streeter gave Dahl back a now partially filled bottle of alcohol and a list of chemicals on the back of a paper plate. Streeter claimed Bob had made the list and needed the chemicals for future cooks. (The chemicals listed on the plate were a partial lot of ingredients needed to produce MDA.) That same day, Dahl determined through the Division of Motor Vehicles that Robert Collins, formerly of Barstow, California, had listed as his address a house on Highway 385 outside Custer. A record search conducted later that day determined that Collins had a prior felony and a prior misdemeanor conviction for possession of controlled substances.

On August 5, 1988, police officers and D.E.A. agents arrested Streeter and his girlfriend, Ms. Rector, pursuant to a warrant. In addition, police officers searched Ms. Rector's trailer home, where Streeter lived, and another trailer home in the Black Hills forest area.

That same day, a search warrant was served upon the Collins residence, and an arrest warrant was served upon Collins by four D.E.A. agents dressed in black fire-proof "ninja" outfits. One agent testified that they jumped out of a special van parked approximately twenty yards from Collins's front door. As they ran towards the door, the agent shouted, "Police, Search Warrant, Open the Door," repeatedly. When the agents reached the door, they identified themselves several times. The agent who testified heard shuffling behind the door, stepped aside, and shouted for the occupants to open the door. Hearing no further noise and fearing for his safety, he tried the door handle and then kicked in the door. Approximately twenty to thirty seconds passed after the agents left the van before they forced open the door. Once inside the house, the record is unclear whether the D.E.A. found evidence of methamphetamine production. They did, however, find nineteen cultivated marijuana plants in the attic. All together, these plants weighed 812.1 grams, and after processing (drying) yielded a total weight of 211.35 grams. The agents also found a semi-automatic rifle with a case and ammunition, a .25 caliber automatic pistol with a loaded magazine, but apparently no round chambered, and a .22 caliber rifle hanging on the living-room wall. The agents then arrested Collins.

On August 8, both defendants and Ms. Rector were charged in an eleven-count indictment. Streeter was charged with conspiracy to manufacture MDA and attempt to manufacture MDA, both in violation of 21 U.S.C. Sec. 841 and Sec. 846; distribution and possession with intent to distribute three and one-half grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1); possession with intent to distribute and distribution of three and one-half grams of methamphetamine which was thirteen per cent. pure, in violation of 21 U.S.C. Sec. 841(a)(1); possession with intent to distribute and distribution of one gram of methamphetamine which was twelve per cent. pure, in violation of 21 U.S.C. Sec. 841(a)(1); and possession with intent to distribute methamphetamine and conspiracy to distribute methamphetamine and cocaine, in violation of 21 U.S.C. Sec. 841 and Sec. 846. Streeter originally entered a plea of not guilty to all counts, but later withdrew this plea and pleaded guilty to the count of selling one gram of methamphetamine. Although the Guidelines would impose a sentence of eighteen to twenty-four months on a defendant with Streeter's offense characteristics, the Court imposed a sentence of eighty-four months' imprisonment and thirty-six months' supervised release, a term more than three times as long as the upper end of the Guideline range.

Collins was charged with conspiracy to manufacture MDA and attempt to manufacture MDA, in violation of 21 U.S.C. Secs. 841 and 846; use of a firearm in connection with a drug-trafficking offense, in violation of 18 U.S.C. Sec. 924; and cultivation of marijuana, in violation of 21 U.S.C. Sec. 841. He also originally entered a plea of not guilty, but later withdrew it, entering a conditional guilty plea to the count charging him with cultivation of marijuana. The other counts were dismissed. The Court, applying the Guidelines, sentenced Collins to thirteen months' confinement, to be followed by three years of supervised release.

II.

A.

We first turn to the issues raised by Streeter. He appeals his sentence on the ground that the District Court misapplied the Guidelines. Streeter's presentence report recommended a sentence of 135 to 168 months. That recommendation was based on a total offense level of thirty-two, and a criminal-history category of II. The government was not, however, able to prove the specific instances or specific amounts of drug transactions alleged in the memo which the probation officer had used to calculate his recommendation. Consequently, the Court found Streeter to have a base offense level of only twelve. The Court then found Streeter to be a leader in the distribution of drugs under Guidelines Sec. 3B1.1, and accordingly adjusted his base level up two levels. The Court also refused to grant Streeter a two-level reduction for acceptance of responsibility under Guidelines Sec. 3E1.1. Thus, defendant had a total offense level of fourteen, the normal range for which (with a criminal-history category of II) is eighteen to twenty-four months. The Court, however, departed from the Guidelines and imposed a term of eighty-four months' incarceration.

Streeter challenges the Court's decision to depart from the Guidelines. He argues that the factors the Court relied upon in making its decision to depart were adequately considered in the Guidelines, and therefore the Court had no discretion to depart under 18 U.S.C. Sec. 3553. Streeter also claims...