U.S. v. Behler, 95-3810

• Decision Date: 08 April 1996
• Docket Number: No. 95-3810,95-3810
• Citation: 100 F.3d 632
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John D. BEHLER, Defendant-Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 632

100 F.3d 632

UNITED STATES of America, Plaintiff-Appellee, v. John D. BEHLER, Defendant-Appellant.

No. 95-3810

United States Court of Appeals Eighth Circuit

Submitted: April 8, 1996

Decided: November 18, 1996

Appeal from the United States District Court for the District of Nebraska.

Robert William Kortus, Omaha, Nebraska, argued (John D. Behler, Lincoln, Nebraska, on the brief), for appellant.

Bruce Wellesley Gillan, Lincoln, Nebraska, aruged (Thomas J. Monaghan, U.S. Attorney, on the brief), for appellee.

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

John D. Behler appeals his sentence after remand following his conviction of four counts of federal drug trafficking crimes. In his first appeal, we affirmed Behler's convictions but remanded for resentencing on three counts. See United States v. Behler, 14 F.3d 1264, 1273 (8th Cir.), cert. denied, ____ U.S. _______, 115 S. Ct. 419 (1994). On remand, the district court held a resentencing hearing and imposed a new sentence on those counts. Behler appeals, contending that the district court improperly restricted the scope of the resentencing hearing, erred in its determination of the type of methamphetamine involved in the conspiracy and distribution scheme, and failed to fully apply the proper Sentencing Guidelines. Behler also contends that we should reverse his conviction for violating 18 U.S.C. Section(s) 924(c) (1988) (the firearms count), in light of the Supreme Court's recent decision in Bailey v. United States, _____ U.S. _____, 116 S. Ct. 501 (1995). We affirm in part and remand in part.

I.

From March 1, 1984, through May 16, 1989, John Behler was involved in a drug trafficking scheme. During that time, he made several trips to Colorado to purchase methamphetamine. Each time, he returned to Nebraska with one to two ounces of methamphetamine, which he distributed to various customers. Behler was tried by a jury and convicted of the following federal drug trafficking crimes: (I) conspiracy to distribute methamphetamine in violation of 21 U.S.C. Section(s) 846, extending from March 1, 1984, through May 16, 1989; (II) using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. Section(s) 924(c); (III) use of a telephone in furtherance of a drug felony in violation of 21 U.S.C. Section(s) 843(b); and (IV) distribution of methamphetamine in violation of 21 U.S.C. Section(s) 841(a)(1). Behler, 14 F.3d at 1267. At Behler's original sentencing, the district court grouped counts I, III, and IV together, imposing a 168-month concurrent sentence for each. The court also imposed a 60-month consecutive sentence for count II, the firearm charge.

In Behler's first appeal, we affirmed his convictions, his sentence on count II, and several sentencing determinations made by the district court. We vacated the sentences for counts I and IV and remanded them for resentencing, concluding that the sentence on these counts was harsher under the 1992 Guidelines in effect at the time of sentencing than it would be under the 1987 version of the Guidelines in effect at the time of the offense. Behler, 14 F.3d at 1271. The 1992 Guidelines provided alternate methods of determining a base offense level for a given quantity of methamphetamine -- using either the weight of the substance or mixture containing the methamphetamine or the actual weight of only the methamphetamine itself, whichever results in the greatest offense level. Id. at 1271. By contrast, the 1987 version of the Guidelines provided only one manner of calculating quantity, and this method would have produced a lesser base offense for Behler. Id. Thus, we remanded for resentencing of these counts under the 1987 Guidelines. We also vacated the sentence for count III and remanded it for resentencing, concluding that the 168-month term of imprisonment, which resulted from grouping the closely related counts, exceeded the statutory maximum term of imprisonment for that offense. Id. at 1273 n.6. We affirmed the district court's use of the preponderance of the evidence standard of proof to determine the drug quantity involved in the conspiracy. Id. at 1272. We affirmed the district court's reliability determinations relating to witnesses whose testimony the district court relied on in determining the amount of methamphetamine involved in the drug conspiracy. Id. at 1273. We also affirmed the district court's imposition of a three-level enhancement for Behler's role in the offense and a two-level enhancement for obstructing justice. Id. Finally, we found no error in the district court's ex parte discussion with the probation officer during sentencing or the procedure of sealing the probation officer's recommendation. Id.

On remand, the district court determined that our opinion precluded it from revisiting the quantity determination (399 grams), the role in the offense determination, the obstruction of justice enhancement, and the issues involving the ex parte discussion with the probation officer and sealing of the probation officer's recommendation. The district court held resentencing hearings to allow both sides to present evidence concerning the type of methamphetamine involved in the conspiracy and distribution scheme and found by a preponderance of the evidence that the entire amount consisted of dextro-methamphetamine (d-methamphetamine). The district court rejected Behler's challenge to the five-year term of supervised release. Applying the 1987 Sentencing Guidelines, the district court imposed a sentence of 108 months to run concurrently on counts I and IV, and a concurrent term of 48 months on count III. Behler appeals.

II.

Behler's arguments on appeal challenge the district court's interpretation of our prior opinion and application of the Sentencing Guidelines on resentencing. When reviewing a sentence, we review the district court's factual findings for clear error and "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. Section(s) 3742(e); United States v. McKinney, 88 F.3d 551, 556 (1996).

A.

Behler asserts that because we "vacated" his sentence on counts I and IV, he should have been allowed a fresh opportunity to present any evidence and argument on the enhancements or the quantity of methamphetamine attributed to him. "Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing." United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992). On remand, however, "all issues decided by the appellate court become the law of the case," United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995), and the sentencing court is bound to proceed within the scope of "any limitations imposed on its function at resentencing by the appellate court." Cornelius, 968 F.2d at 705.

In our prior opinion, we vacated Behler's sentence on counts I and IV because we determined that it was harsher under the 1992 Guidelines in effect at the time of sentencing, which the district court used to determine Behler's sentence, than it would have been under the 1987 Guidelines in effect at the time of the offenses. See United States v. Bell, 991 F.2d 1445, 1452 (8th Cir. 1993) (holding that an ex post facto violation occurs "if the defendant is sentenced under the Guidelines in effect at the time of sentencing when those Guidelines produce a sentence harsher than one permitted under the Guidelines in effect at the time that crime is committed.") Thus, we instructed, "we remand those counts for resentencing consistent with United States v. Bell and this opinion." Behler, 14 F.3d at 1273. In the opinion, we found no error in and specifically affirmed the district court's quantity determination and the enhancements imposed for role in the offense and obstruction of justice. Id. at 1272-73.

Before resentencing Behler, the district court issued an order detailing the scope of the resentencing hearing. The court concluded that resentencing under the 1987 Guidelines should proceed as follows:

(1) using the determination of the amount of methamphetamine involved in the conspiracy, as found at the time of the original sentencing, (2) imposing a three-level enhancement for the defendant's role in the offense, (3) imposing a two-level enhancement for obstruction of justice, and (4) leaving undisturbed the conclusion that the matters of the discussion in chambers during the sentencing hearing and the sealing of the recommendation of the probation officer were without error. Other than that, there are no limitations imposed by the circuit court's opinion and I am at liberty and the parties are at liberty to proceed with the resentencing as if no sentencing had taken place on Counts I, III, and IV.

(Appellant's Addend. at 4.) We conclude that the district court properly interpreted our opinion and properly limited the scope of resentencing in this case in accordance with our instructions.

B.

At resentencing, the district court held an evidentiary hearing requiring the government to prove what type of methamphetamine should be attributed to Behler. Both the government and Behler presented expert testimony. The government tested only about 4.5 grams (the amount seized) of the total 399 grams attributed to Behler. This 4.5 gram amount, Behler concedes, tested to be d-methamphetamine. The district court found that it was more probable than not that the entire amount was d-methamphetamine. Behler challenges the district court's finding, asserting that, except for the amount seized at the time of Behler's arrest, the drugs were not d-methamphetamine but a mixture of dextro-levo-methamphetamine (d,l-methamphetamine).

Under the Sentencing Guidelines, d-methamphetamine is sentenced more harshly than l-methamphetamine, and "the...