U.S. v. Cantrell
| Citation | 433 F.3d 1269 |
| Decision Date | 13 January 2006 |
| Docket Number | No. 03-30567.,No. 03-30563.,No. 03-30562.,No. 03-30565.,No. 04-30026.,No. 03-30568.,No. 04-30028.,03-30562.,03-30563.,03-30565.,03-30567.,03-30568.,04-30026.,04-30028. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Newton James CANTRELL, Sr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Angela Daniel Walker, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jack V. Coversup, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Theresa Ann Walker, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jeanine Lucille Renz, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. James Daniel Murphy, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Donna Shawl Cantrell, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Palmer A. Hoovestal, Helena, Montana, for defendant-appellant Newton J. Cantrell.
Daniel P. Buckley, Bozeman, Montana, for defendant-appellant Angela D. Walker.
Mark D. Meyer, Great Falls, Montana, for defendant-appellant Theresa A. Walker.
J. Mayo Ashley, Helena, Montana, for defendant-appellant Jack P. Coversup.
James B. Obie, Helena, Montana, for defendant-appellant Jeanine L. Renz.
Marcia K. Hurd, Assistant United States Attorney, Billings, Montana, for the plaintiff-appellee.
Appeals from the United States District Court for the District of Montana; Sam E. Haddon, District Judge, Presiding. D.C. No. CR-03-00027-SEH.
Before: PREGERSON, GRABER, and GOULD, Circuit Judges.
Newton Cantrell ("N.Cantrell"), Angela Walker ("A.Walker"), Theresa Walker ("T.Walker"), Jack Coversup ("Coversup"), and Jeanine Renz ("Renz") challenge the sentences they received as a result of their jury convictions for conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and other related charges. N. Cantrell argues that his sentence is unconstitutional in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the federal Sentencing Guidelines advisory. A. Walker, T. Walker, Coversup, and Renz assert that the district court misapplied the Guidelines in imposing their sentences. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and remand in part.
In 1997, law enforcement officials from the Federal Bureau of Investigation and local and tribal police departments launched a five-year investigation of N Cantrell, his wife, Donna Cantrell ("D.Cantrell"), their daughters, T. Walker and A. Walker, and various of their relatives and friends who were believed to be involved in a conspiracy to distribute methamphetamine and marijuana in and around the Fort Peck Indian Reservation and northeastern Montana. N. Cantrell, Coversup, T. Walker, Renz, Murphy, and A. Walker were eventually arrested and indicted for narcotics and firearms offenses, including a charge of "knowingly and unlawfully conspir[ing] to distribute 500 grams or more of . . . methamphetamine. . . in violation of Title 21 U.S.C. § 841(a)(1), all in violation of Title 21 U.S.C. § 846." They pled not guilty and proceeded to trial, where all the defendants, with the exception of Coversup, were convicted by a jury on the methamphetamine conspiracy charge. The jury acquitted Coversup of the methamphetamine conspiracy charge, but found him guilty of "possessi[on] with intent to distribute less than 50 grams of methamphetamine."
After trial the district court conducted sentencing proceedings for each defendant.
The district court held an evidentiary hearing for N. Cantrell and then attributed him with 15 kilograms or more of methamphetamine for a base offense level of 38. The district court also found that N. Cantrell was a leader in the drug conspiracy and applied a two-level enhancement under U.S.S.G. § 3B1.1(c). Based on this total offense level of 40, N. Cantrell received 330 months of imprisonment for his drug offenses and 60 months for his conviction on a firearm charge, for a total sentence of 390 months, followed by 5 years of supervised release.
A. Walker objected to the Presentence Report ("PSR") prepared by the probation office, which attributed to her 350 to 500 grams of methamphetamine, and calculated her base offense level as 30. A. Walker argued that the proper base offense level was 24, based on a drug quantity of between 40 and 50 grams of methamphetamine and that she was entitled to a § 3B1.2(b) two-level downward adjustment for her minor role in the offense. The government in turn offered testimony from Mario Morales ("Morales") to establish that the drug quantity attributable to A. Walker was at least 1.5 but less than 5 kilograms and that the proper base offense level was 34.
Morales testified that from about 1998 to 2002, he had acted as a drug trafficking middleman, selling narcotics on behalf of some drug suppliers to the Cantrells. He reported that the Cantrells had initially purchased a pound of methamphetamine and two pounds of marijuana every six weeks, but that by 2002 they had increased the quantity and frequency of their purchases to two pounds of methamphetamine and two pounds of marijuana every two weeks. The Cantrells paid Morales $500-$600 for his go-between services, and the suppliers gave him narcotics for his personal use.
Morales testified that A. Walker accompanied D. Cantrell on several occasions when D. Cantrell came to his residence in Wapato, Washington, to pick up drugs. He also testified that A. Walker was present when the purchase money was exchanged.
During his cross-examination of Morales, A. Walker's defense counsel questioned Morales about his substance abuse, and how drugs might have affected his memory. Over the government's objection, A. Walker's counsel was also allowed to impeach Morales with allegedly inconsistent statements Morales earlier had made to the police about the identity of individuals who had come to his house, and about whether he had received money from the drug suppliers for acting as the middleman between them and the Cantrells.
A. Walker's counsel then pressed Morales to give him an "accurate" answer as to the number of times A. Walker had come on a drug pick-up, and Morales responded that she had come five or six times, even while admitting that he might have previously told law enforcement it was "four, five, or six times."1 The government eventually objected to the repetitive questioning, and the district court sustained the objection, stating that it would make a determination about the number of trips made by A. Walker based on the testimony already in the record.
A. Walker's counsel returned to his earlier line of questioning, asking Morales about specific details of the trips made by A. Walker, such as the quantity of drugs purchased and whether A. Walker had arranged any of the purchases. The government objected on the ground that defense counsel was eliciting testimony cumulative of testimony already in the record, and the district court responded by telling defense counsel:
[W]e do need to stick to the issues here. This court is, I'm satisfied, able to make a determination about the credibility of this witness. And the essential issue before this court is the quantity of drugs to be attributed to this defendant. And insofar as this witness's testimony is concerned, it appears to the court that the essential issues are how many times did she come there to get drugs and what was the quantity of drugs obtained on each occasion. Beyond that, the other matters that have been asked about go to credibility, for all practical purposes.
When counsel protested that he needed to explore "[i]f there is an occasion that [Morales] cannot recall . . . or if there's an occasion that is iffy in [Morales's] mind," the district court asked Morales directly about the purpose of A. Walker's visits and the drug quantities obtained on the visits:
A. Walker's counsel continued to protest that he The district court agreed to allow counsel to inquire about the number of visits with the caveat that counsel limit his inquiry to that issue and not go "back into what is clear on this record."
Despite the district court's instruction, A. Walker's counsel questioned Morales about what had happened on each of A. Walker's visits to Morales's house rather than the number of visits A. Walker had made. The government objected, and the district court again explained to A. Walker's counsel that: (1) it was satisfied that it could make a determination as to Morales's credibility "on the basis of the record that's already been presented to court today, plus four other times that [Morales] ha[d] appeared before court under oath"; and (2) "[t]he only remaining issue about which there seems to be any dispute is whether she came on five occasions or six occasions."
Thereafter, A. Walker's counsel assured the court that he understood, but still did not alter his line of questioning. The government lodged its fourth objection and the district court told counsel that he would have to "move to another topic" unless he kept his "questions within the scope of the matter that the court ha[d] allowed [him] to address."...
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