U.S. v. O'Dell

• Decision Date: 27 February 2003
• Docket Number: No. 01-6195.,01-6195.
• Citation: 320 F.3d 674
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jackson C. O'DELL, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

320 F.3d 674

UNITED STATES of America, Plaintiff-Appellee, v. Jackson C. O'DELL, III, Defendant-Appellant.

No. 01-6195.

United States Court of Appeals, Sixth Circuit.

Argued January 29, 2003.

Decided and Filed February 27, 2003.

D. Gregory Weddle, Steve Hollingshead-Cook (briefed), Assistant United States Attorneys, Knoxville, TN, for Plaintiff-Appellee.

Herbert S. Moncier (argued and briefed), David S. Wigler (briefed), Law Offices of Herbert S. Moncier, Knoxville, TN, for Defendant-Appellant.

Jackson C. O'Dell, III, Madisonville, TN, pro se.

Before NELSON and CLAY, Circuit Judges; HAYNES, District Judge.^*

CLAY, J., delivered the opinion of the court, in which HAYNES, D. J., joined. DAVID A. NELSON, J. (p. 682), delivered a separate concurring opinion.

OPINION

CLAY, Circuit Judge.

Appellant Jackson C. O'Dell, III, appeals from an order sentencing him to a mandatory minimum sixty months imprisonment for possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and manufacture of marijuana, also in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). We AFFIRM.

BACKGROUND

On August 15, 1991, agents from the Drug Enforcement Administration, Internal Revenue Service Criminal Investigation Division, Tennessee Bureau of Investigation, and several other law enforcement agencies executed federal search warrants at O'Dell's properties in Monroe County, Tennessee. Entering the first property, O'Dell's farm, agents discovered a barn that housed a "sophisticated marijuana growing operation." (J.A. at 44.) The district court described "three growing rooms containing over 100 marijuana plants." (Id.) Agents actually seized 203 plants. The marijuana had a wholesale value of approximately $406,000. O'Dell does not dispute that the plants belonged to him.

Agents also discovered one large bag of harvested marijuana plants. In a nearby residential structure occupied by O'Dell's father, Jackson C. O'Dell, Jr., officers located marijuana seeds and firearms. Agents found O'Dell at the barn when they arrived. Searching his person revealed a pilot's license and information sheets related to the special light bulbs used to grow marijuana.

The law enforcement officers simultaneously executed the second warrant at O'Dell's residence. There, officers discovered various other items linking O'Dell to marijuana cultivation: High Times magazines, marijuana seeds, triple-beam balance scales, books describing how to cultivate marijuana, and receipts, pamphlets and sales brochures for marijuana seeds and growing equipment. Officers also found five firearms, including high-powered rifles, handguns, and shotguns. Finally, the government discovered flight maps to Central America and a ledger book that apparently documented several cocaine smuggling trips.

A one-count information was filed against O'Dell on July 30, 1993, after O'Dell agreed to waive indictment and plead guilty. That information charged O'Dell with manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). The information also cited the applicable penalty provision, 21 U.S.C. § 841(b)(1)(B).

On November 8, 1993, O'Dell agreed to plead guilty to the information pursuant to a plea agreement in which he agreed his offense was punishable under 21 U.S.C. § 841(b)(1)(B). The Probation Office then prepared a presentence report also stating that there was a minimum mandatory sentence of five to forty years pursuant to 21 U.S.C. § 841(b)(1)(B). The Presentence Report's offense conduct section noted that agents seized and videotaped 203 marijuana plants grown on O'Dell's property.

The government then made clear that it conditioned its acceptance of the plea agreement on the pleas of O'Dell's father and sons to various related state charges. See United States v. O'Dell (O'Dell III), 247 F.3d 655, 661-62 (6th Cir.2001). When O'Dell became concerned that his plea agreement could prevent his father and sons from obtaining a judicial diversion from state court, the government added a sentence to the plea agreement indicating that "nothing in this clause of the plea agreement is intended to prevent the defendant's father or the defendant's sons from applying for or obtaining a judicial diversion and their obtaining such diversion will not affect this plea agreement." Id. at 662. When O'Dell's father and sons refused to plead to the state charges, the government reported the breach to the district court and indicated that it was no longer bound to abide by the plea agreement although the government did not actually seek to withdraw its assent. Id. The court, however, declined to enforce the plea agreement and ordered the parties to proceed to trial. Id.

On December 6, 1994, the government charged O'Dell in a four-count indictment. Count one charged O'Dell with possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Like the earlier information, the indictment contained a reference to the applicable penalty provision, 21 U.S.C. § 841(b)(1)(B). In count two, O'Dell was charged with manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). This count also cited the penalty provision of 21 U.S.C. § 841(b)(1)(B). Counts three and four alleged O'Dell used property to manufacture marijuana, in violation of 21 U.S.C. § 856, and that O'Dell must forfeit the property pursuant to 21 U.S.C. §§ 841(a)(1) and 856.

On January 3, 1995, O'Dell was arraigned. O'Dell then filed dozens of motions raising numerous issues. O'Dell appealed the denial of some of the motions, and the government cross-appealed when some of the motions resulted in the district court dismissing portions of the indictment. See United States v. One Tract of Real Prop., 95 F.3d 422 (6th Cir.1996) (reversing dismissal of forfeiture count with prejudice); United States v. O'Dell (O'Dell I), Nos. 95-6414 and 95-6415, 1996 WL 515345 (6th Cir. Sept.10, 1996) (affirming district court's denial of O'Dell's motion to dismiss on double jeopardy grounds and reinstating forfeiture count) (unpublished); United States v. O'Dell (O'Dell II), Nos. 96-6737 and 97-5098 (6th Cir. Dec. 8, 1997) (unpublished order) (dismissing several of O'Dell's other appeals); O'Dell III, 154 F.3d 358 (reinstating counts dismissed under the Speedy Trial Act).

O'Dell's case went to trial on March 3, 1999. O'Dell waived his right to a jury trial and tried his case before the district judge. The district court took the matter under advisement.

On March 24, 1999, the Supreme Court decided Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Jones construed the federal carjacking statute, 18 U.S.C. § 2119, which has three subcategories with punishments that increase based on aggravating factors. The Court interpreted § 2119 as "establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proved beyond a reasonable doubt, and submitted to the jury for its verdict." Id. at 252, 119 S.Ct. 1215. In so holding, the Court explained that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 243 n. 6, 119 S.Ct. 1215.

The court ultimately found O'Dell guilty of counts one and two. The Probation Office prepared a second presentence report stating that, unless the so-called "safety valve" sentencing statute applied, O'Dell would receive a five-year mandatory minimum term of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B). O'Dell objected to the presentence report, arguing that § 841(b)(1)(B) did not apply because he qualified for the safety valve. On July 29, 1999, the court accepted O'Dell's position and applied the safety valve. O'Dell thus received an eighteen-month sentence. The government appealed. See United States v. O'Dell (O'Dell IV), 247 F.3d 655 (6th Cir.2001).

Before this Court, the government argued, inter alia, that the safety valve did not apply, making the statutory mandatory minimum inappropriate. The United States also claimed, alternatively, that O'Dell should have received twenty-four months. O'Dell argued that he met his burden of establishing that the safety valve applied.

On June 26, 2000, the Supreme Court filed its opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). During the pendency of the government's appeal in O'Dell IV, O'Dell filed requests to allow him to raise new arguments. On October 24, 2000, O'Dell sought to raise a Kyllo issue after the Supreme Court granted certiorari in United States v. Kyllo, 190 F.3d 1041 (9th Cir.1999), cert. granted 530 U.S. 1305, 121 S.Ct. 29, 147 L.Ed.2d 1052 (2000) (No. 99-8508). O'Dell again sought to raise a Kyllo issue following the Supreme Court's decision in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).

We issued our opinion in O'Dell IV on April 24, 2001. We held that application of the safety valve was improper and that the minimum mandatory provisions of 21 U.S.C. § 841(b)(1)(B) applied instead. O'Dell IV, 247 F.3d at 687. We reversed and remanded with the following instructions:

With respect to the government's appeal in Case No. 99-6153, we hold that the district court's finding that O'Dell successfully established his eligibility for the protection of the "safety valve" of 18 U.S.C. §§ 3553(f) and USSG §§ 5C1.2 was clearly erroneous. Thus, we VACATE the judgment of sentence entered by district court and REMAND for resentencing without application of the safety valve.

Id. On May 8, 2001, O'Dell filed a petition for rehearing, which we denied on June 12, 2001.

On remand, O'Dell filed a motion arguing that the mandatory minimum in § 841(b) still did not apply, now raising a Jones/Apprendi argument for...