U.S. v. Alexander, s. 94-2520

• Decision Date: 17 April 1995
• Docket Number: Nos. 94-2520,94-2540 and 94-2646,s. 94-2520
• Citation: 53 F.3d 888
• Parties: UNITED STATES of America, Appellee, v. Robert L. ALEXANDER, Jr., also known as Junior Alexander, Appellant. UNITED STATES of America, Appellee, v. Robert J. O'BRIEN, also known as Grady O'Brien, Appellant. UNITED STATES of America, Appellee, v. Bernard N. KVAMME, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 888

53 F.3d 888

UNITED STATES of America, Appellee, v. Robert L. ALEXANDER, Jr., also known as Junior Alexander, Appellant.

UNITED STATES of America, Appellee, v. Robert J. O'BRIEN, also known as Grady O'Brien, Appellant.

UNITED STATES of America, Appellee, v. Bernard N. KVAMME, Jr., Appellant.

Nos. 94-2520, 94-2540 and 94-2646.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 13, 1994.

Decided April 17, 1995.

Mark V. Meierhenry, Sioux Falls, SD, argued for appellant.

Richard H. Johnson, Sioux Falls, SD, argued for appellant O'Brien.

Barry Voss, Minneapolis, MN, argued for appellant Kvamme.

Dennis Ray Holmes, Pierre, SD (Karen E. Schreier, Sioux Falls, SD, on the brief), for appellee.

Before McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and SHAW, ^* District Judge.

JOHN R. GIBSON, Senior Circuit Judge.

Robert L. Alexander, Jr., Robert J. O'Brien, and Bernard N. Kvamme, Jr., having pleaded guilty on drug charges, appeal their sentences. The three were indicted in a twenty-four count indictment. Alexander pleaded guilty to one count of conspiracy to violate 21 U.S.C. Sec. 841(a)(1) and Sec. 846 (1988) and one count of possessing 100 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (1988). He was sentenced to 324 months in prison, with supervised release of five years. O'Brien pleaded guilty to two counts charging possession of five and twelve pounds of marijuana, respectively, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. O'Brien received sentences of 60 months on each count, to be served consecutively, and supervised release of three years. Kvamme pleaded guilty to two counts, charging possession of 100 and 300 pounds of marijuana, respectively, with intent to distribute. 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. He was sentenced to a term of 60 months imprisonment and five years supervised release. All three argue that the district court ¹ erred in applying the Sentencing Guidelines. We affirm all three sentences.

The evidence at the sentencing hearing revealed that Alexander operated a drug distribution business in the South Dakota-Minnesota area, supplying mostly marijuana. Alexander dealt in both home-grown South Dakota marijuana and marijuana that he would bring up north from Arizona or Arkansas. When picking up marijuana from Arizona or Arkansas, Alexander would ordinarily drive down with hired helpers in two vehicles. Alexander would obtain the marijuana, then have the helper drive the drugs up north in one car, while Alexander came home in the other car. Kvamme and O'Brien were two of these helpers. After bringing the marijuana back home, Alexander then distributed it to middlemen drug dealers. O'Brien helped with these transactions, making deliveries and collecting payments. We will discuss the facts in further detail as needed in the legal analysis.

I.

Alexander first asserts that the district court erred in enhancing his sentencing level for obstruction of justice, USSG Sec. 3C1.1 (Nov. 1994), ² and for possession of a firearm, USSG Sec. 2D1.1(b)(1). ³ He argues that the court erred in finding the facts warranted these enhancements. We review such findings under the clearly erroneous standard. United States v. Cotton, 22 F.3d 182, 185 (8th Cir.1994) (USSG Sec. 2D1.1(b)(1)); United States v. Armstrong, 992 F.2d 171, 174 (8th Cir.1993) (USSG Sec. 3C1.1). Alexander also argues that section 3C1.1 is not applicable by its terms to the situation in this case; we review this legal question de novo. See United States v. West, 942 F.2d 528, 530 (8th Cir.1991).

The court based its obstruction of justice ruling on acts of Alexander and Kvamme in giving money to James Aldrich. Aldrich had gone on one of the trips to Arizona to pick up 300 pounds of marijuana in December 1991 with Alexander and Kvamme. His compensation was forgiveness of a $2,500 drug debt. Also, after the arrest of one of Alexander's confederates in February of 1992, Aldrich attended a meeting of several people in the drug ring, including Kvamme and Alexander. After the meeting, Alexander entrusted Aldrich with $25,000 cash to take to Yankton, South Dakota for safekeeping. Shortly after this, police searched Aldrich's home and found drugs there. After the search, Aldrich called Kvamme and asked him for money to "take off" to "avoid prosecution." Kvamme and Aldrich met twice. The first time Kvamme frisked Aldrich to make sure he wasn't wearing a wire. Kvamme advised Aldrich not to run away, but Aldrich refused his advice. Kvamme ultimately gave Aldrich $1,000, and Aldrich fled the jurisdiction, taking Alexander's truck without permission. While a fugitive, Aldrich ran out of money, so he met Alexander and Kvamme in Sterling, Colorado. Alexander got his truck back and gave Aldrich $300 more.

Based on these facts, the court found Alexander had helped Aldrich to flee and imposed a two level increase on Alexander's offense level. Aldrich was at that point enmeshed in legal difficulties. He was obviously in a position where he was likely to benefit from cooperation with the police. Aldrich had knowledge of Alexander's crimes, and for Alexander to finance Aldrich's flight, at the very least, supports an inference that Alexander meant to prevent Aldrich from telling police what he knew. The court's finding of obstruction of justice is not clearly erroneous.

Alexander makes a closely related legal argument that financing a witness' flight is not the type of activity covered by section 3C1.1. While fleeing from arrest oneself may not be "obstruction of justice" under section 3C1.1, compare United States v. Alpert, 28 F.3d 1104 (11th Cir.1994) (en banc) and United States v. Mondello, 927 F.2d 1463, 1467 n. 4 (9th Cir.1991), the acts in this case qualify as obstructing justice under section 3C1.1 not because Alexander helped Aldrich to flee justice, but because he attempted to put Aldrich out of the government's reach as a witness. This is analogous to asking a witness not to cooperate, which does come within section 3C1.1. See United States v. Garcia, 13 F.3d 1464, 1471 (11th Cir.1994), cert. denied, --- U.S. ----, 114 S.Ct. 2723, 129 L.Ed.2d 847 (1994). We hold Alexander's acts fall within section 3C1.1.

Alexander also contends that the court erred in finding an adequate connection between guns found at Alexander's house and the drug conspiracy. Application note 3 to USSG Sec. 2D1.1 states:

The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.

Police found two shotguns in Alexander's bedroom, one on each side of the bed. There were shells for the guns in the room, and a false bottom "stash can" containing methamphetamine and eight $100 bills. Alexander had carried on his drug business in that bedroom.

Alexander argues that the guns could have been used for hunting or could have belonged to his girlfriend who also lived in the house. Given the proximity of the guns to drugs, the location of the guns where they could be reached (rather than being stored in a closet), and the transaction of drug business at the house, the district court could find it was not "clearly improbable" that the guns were connected with Alexander's drug business. See Cotton, 22 F.3d at 185 (proximity of antique gun to drugs sufficient to tie it to criminal activity, despite fact that it was in defendant's daughter's room); United States v. Lucht, 18 F.3d 541, 555 (8th Cir.) (proximity of handguns and one automatic weapon to drugs sufficient to warrant section 2D1.1(b)(1) increase), cert. denied, --- U.S. ----, 115 S.Ct. 363, 130 L.Ed.2d 316 (1994); United States v. Rowley, 975 F.2d 1357, 1363-64 (8th Cir.1992) (proximity of automatic weapons to drug, both "quickly accessible" in bedroom, warranted increase).

Alexander next argues that the court erred in calculating the amount of drugs attributable to him. The court found a total of 1,379.02 kilograms of marijuana to be attributable to Alexander (including small amounts of other drugs that were converted to equivalent weights of marijuana under the Guidelines). Of that amount, 907.2 kilograms, or 2,000 pounds of marijuana, was established by the testimony of Robert Loeschke. Loeschke testified that he bought marijuana from Alexander for resale. Between January 1988 and January 1990, Loeschke said, he obtained between 2,000 and 4,000 pounds of marijuana from Alexander. The court accepted Loeschke's testimony, choosing the low end of his estimate.

Alexander argues that Loeschke contradicts his own estimate of 2,000 pounds by his testimony that in the relevant time period he "probably [made] 300 to 500 thousand" dollars. Loeschke stated that he made between $300 and $800 a pound profit. Alexander's attorney asked: "Well, would I be fair in assuming that a 400 dollar per pound profit would be a fair average?", to which Loeschke said, "Yeah." These numbers, Alexander argues, indicate that Loeschke would have sold far less than 2,000 pounds to make a $300,000-500,000 profit. This testimony is too vague to lead to the conclusion Alexander draws from it. At most, it injects questions for the district court to resolve in its fact findings.

Alexander argues that the district court was not justified in finding Alexander responsible for two ounces of "crystal" based on Loeschke's testimony that he received such drugs from Alexander. The district court counted this "crystal" as methamphetamine rather than amphetamine, which is weighted less under the guidelines. Alexander says that the "crystal" could have been amphetamine. We do not in fact see in the record any...