U.S. v. Dean

• Decision Date: 31 July 2009
• Docket Number: No. 08-3287.,08-3287.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffery DEAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

574 F.3d 836

UNITED STATES of America, Plaintiff-Appellee, v. Jeffery DEAN, Defendant-Appellant.

No. 08-3287.

United States Court of Appeals, Seventh Circuit.

Argued May 27, 2009.

Decided July 31, 2009.

As Amended August 5, 2009.

Matthew P. Brookman, Attorney (argued), Office of the United States Attorney, Evansville, IN, for Plaintiff-Appellee.

Vilija Bilaisis, Attorney (argued), Sniegowski & Bilaisis, PLC, Ludington, MI, for Defendant-Appellant.

Before CUDAHY, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

After an extensive investigation of a large drug distribution organization, the Government charged Jeffery Dean and several other individuals with conspiring to distribute and to possess with intent to distribute methamphetamine. A jury found Mr. Dean guilty of the conspiracy, and the district court sentenced him to 156 months' imprisonment. Mr. Dean now appeals. He claims that the evidence presented at trial was insufficient to support the jury's verdict, resulting in a fatal variance between the crime charged and the offense proved at trial. He also challenges the court's determination of his base offense level and its application of a two-level enhancement for obstruction of justice. For the reasons set forth below, we affirm Mr. Dean's conviction, vacate his sentence and remand his case for resentencing in accordance with this opinion.

I BACKGROUND

A. The Facts Presented at Trial and Mr. Dean's Conviction

In 2007, a grand jury returned a multi-count indictment against Mr. Dean and several other individuals who allegedly had participated in a drug distribution organization. In Count I of the indictment, Mr. Dean was charged with conspiring to possess with intent to distribute and conspiring to distribute methamphetamine. Mr. Dean pleaded not guilty to the charged conspiracy.

At trial, the Government presented evidence of the organization and operation of a large conspiracy engaged in distributing methamphetamine and other drugs in several states. Special Agent Arnold Fitzgerald, who was involved in the investigation, testified that the leader of the conspiracy's Indiana operations was a man named Francisco Ortuno-Vasquez. Ortuno-Vasquez received large quantities of methamphetamine and other drugs on a weekly basis; he would then deliver the drugs to distributors in Indiana and Kentucky. One distributor, Josefina Reballor, was in frequent contact with Ortuno-Vasquez and regularly received pound quantities of methamphetamine from him. R.78 at 154. Reballor lived with her brother-in-law, Aaron Unger, who delivered drugs and collected money on Reballor's behalf. Agent Fitzgerald testified that another indicted coconspirator, Todd Sipe, admitted to being present on two or three occasions when Unger met Mr. Dean to exchange either methamphetamine or money. According to Agent Fitzgerald, Sipe also admitted that he had received methamphetamine from Mr. Dean. R.78 at 193-94, 197-98.

Agent Fitzgerald further testified that, during a search of Unger and Reballor's residence, law enforcement officers found an index card in Unger's room; the card listed the name "Speedy," two dates and several numbers. Agent Fitzgerald explained that the index card was a ledger used to record a drug debt. According to the ledger, Speedy had received twelve ounces of methamphetamine and owed Unger $29,850; on September 1, 2006, Speedy made a payment of $13,000, reducing the amount owed to $16,850. During the same search of Unger and Reballor's residence, investigators found and seized a phone belonging to Unger. Mr. Dean's phone number was stored in the phone's memory under the name "Speedy."

Next, the Government called Unger, who testified about Mr. Dean's involvement in the conspiracy. Unger acknowledged that he and Reballor lived in the residence where the ledger and phone were found. He stated that Reballor paid him a thousand dollars a week to deliver drugs and to collect money on her behalf. Unger identified Mr. Dean as one of Reballor's customers and indicated that he knew Mr. Dean by the name "Speedy." Unger further testified that, beginning in the summer of 2006 and ending in November 2006,¹ he would deliver about twelve ounces of methamphetamine per week to Mr. Dean at one of two locations. He stated that he would "front" the drugs to Mr. Dean; in other words, he explained, he would deliver a quantity of drugs to Mr. Dean, and Mr. Dean would pay him for those drugs at a later date. Unger identified the index card found at his residence as a record of Mr. Dean's $29,850 drug debt and his partial payment of that debt on September 1. Unger also identified the phone seized by law enforcement officers as his own; he also verified that Mr. Dean's phone number was stored in the phone's memory under the name "Speedy." In addition, he stated that text messages sent from Mr. Dean's number and stored in his phone's memory were references to methamphetamine transactions with Mr. Dean.² In response to the Government's estimation that he had delivered thirteen or fourteen pounds of methamphetamine to Mr. Dean, Unger replied "probably." R.78 at 248.

Corporal Brad Jones testified about a conversation he had with Mr. Dean on November 24, 2006. He stated that, during that conversation, he had asked Mr. Dean whether he was involved in the distribution of illegal drugs. Mr. Dean responded that, at one time, he had been involved with a large Mexican drug organization. He also admitted that he owed more than $80,000 to that organization. On one occasion, Mr. Dean stated, a dealer carrying ten pounds of methamphetamine had come to his residence; he had received one pound of methamphetamine from the dealer. Mr. Dean also told Corporal Jones that, in the weeks preceding their meeting, he had obtained and sold an ounce of methamphetamine.

After the Government rested its case, Mr. Dean testified in his own defense. Although he could not remember the details of the November 24 conversation with Corporal Jones, and, therefore, could not directly refute Corporal Jones' testimony, Mr. Dean did state that he never distributed methamphetamine. He further testified that he was highly tolerant of the drug and used over three grams of methamphetamine per day. He stated that, in August or September 2006, he began purchasing one-ounce quantities of methamphetamine from Unger;³ he denied having received one-pound quantities of methamphetamine.

Crystal Robins, Mr. Dean's girlfriend, corroborated Mr. Dean's testimony: She stated that Mr. Dean was addicted to methamphetamine and that his addiction was severe. Robins asserted that Mr. Dean used, but did not sell, methamphetamine. She admitted, however, that Mr. Dean could have kept his drug dealing a secret from her. Robins also testified that, prior to 2004, she had received methamphetamine from Mr. Dean.

At the conclusion of the evidence, the parties rested their cases, and Mr. Dean renewed his motion for a directed verdict. The court instructed the jury that, to find Mr. Dean guilty of the crime charged, it must conclude beyond a reasonable doubt that "a conspiracy existed to possess with the intent to distribute and to distribute methamphetamine," and that Mr. Dean "knowingly became a member of the conspiracy with an intention to further it." R.43 at 20. The court further instructed the jury that, when determining whether a conspiracy existed, it could consider, among other things, "whether the parties had a standardized way of doing business over time" and "whether the sales were on credit or consignment." Id. at 25. After deliberation, the jury returned a guilty verdict against Mr. Dean. In a special finding, the jury found that the weight of the methamphetamine was less than 500 grams.

B. Sentencing Proceedings

At the sentencing hearing, Mr. Dean objected to the computation of his base offense level in the presentence report ("PSR"). According to the PSR, Mr. Dean was fully aware that the conspiracy involved the distribution of more than 150 kilograms of methamphetamine, an amount that corresponds to a base offense level of 38. Mr. Dean noted that the jury found him responsible for no more than 500 grams of methamphetamine, and he urged the court to apply a lower base offense level. The court overruled the objection and allowed the offense level to stand at 38, concluding that "38 is a reliable estimate of the amount of methamphetamine that was being dealt by the members of the conspiracy, including Unger and Sipe." R.77 at 38. The court then indicated that it later would apply a downward adjustment "to take into account the fact that it was probably not all foreseeable to Mr. Dean, and in any event, his involvement was less and the jury has concluded that it was less ... by attributing to him the 500 grams amount." Id.

Mr. Dean also objected to the PSR's recommendation that a two-level obstruction of justice enhancement be applied. The court applied the enhancement, concluding that Mr. Dean unequivocally obstructed justice when he stated, under oath, that he had never sold methamphetamine. Id. at 28. After applying the two-level obstruction enhancement, the court applied a two-level reduction based on its conclusion that Mr. Dean was a minor participant in the conspiracy, resulting in an adjusted offense level of 38. Id. at 67.

Next, the court acknowledged that Mr. Dean's base offense level "[took] into account the full scope of ... the amount [of drugs] involved in the conspiracy." Id. at 68. It further recognized that the jury found Mr. Dean responsible for less than 500 grams of methamphetamine. In consideration of the jury's finding, the court applied a four-level reduction, thereby "split[ting] the difference" between the base offense level for all the drugs in the conspiracy and the highest offense level that it believed to be supported by the jury's verdict. Id. at 68-69.⁴ The court then applied a one-level reduction in recognition of the fact that Mr. Dean's...