U.S. v. Grover, 06-CR-40-LRR.
| Citation | 486 F.Supp.2d 868 |
| Decision Date | 01 February 2007 |
| Docket Number | No. 06-CR-40-LRR.,06-CR-40-LRR. |
| Parties | UNITED STATES of America, Plaintiff, v. Travis GROVER, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Charles J. Williams, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
Christopher A. Clausen, Boliver Law Firm, Marshalltown, IA, Rick Lee Sole, Glasson, Sole, McManus & Pearson, PC, Cedar Rapids, IA, for Defendant.
SENTENCING MEMORANDUM
A jury found Defendant Travis Grover guilty of distributing of heroin, in violation of 21 U.S.C. § 841(a)(1). He now appears before the court for sentencing.
On April 6, 2006, the grand jury charged Defendant and Shaun Williams in a one-count Indictment. The Indictment charged that, on or about October 13, 2004, Defendant and Williams knowingly and intentionally distributed and aided and abetted the distribution of a mixture or substance containing a detectable amount of heroin, a Schedule I controlled substance, to Stan Butterbaugh, resulting in the death of Butterbaugh from the use of the heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
On May 11, 2006, Williams appeared before a United States magistrate judge and pled guilty to the offense. On May 26, 2006, the undersigned accepted Williams's guilty plea. The court later sentenced Williams to 240 months of imprisonment.1
On May 30 and 31, 2006, Defendant was tried before a jury. On June 1, 2006, the jury found Defendant guilty of distributing heroin or aiding and abetting the distribution of heroin, as charged in the Indictment. Verdict (docket no. 61) at 1. In response to a special interrogatory, however, the jury stated that it was unable to unanimously find, beyond a reasonable doubt, that Butterbaugh died as a result of Defendant's heroin distribution. Id. at 2.
On October 26, 2006, the United States Probation Office ("USPO") prepared a Presentence Investigation Report ("PSIR"). On October 30, 2006, the USPO revised the PSIR. On November 7, 2006, the government and Defendant filed their respective sentencing memoranda. In their sentencing memoranda, the parties addressed whether the court should depart upward pursuant to USSG § 4A1.3 (Inadequacy of Criminal History Category) and USSG § 5K2.1 (Death).
On December 19, 2006, the court gave the government and Defendant notice that it was considering departing upward pursuant to USSG § 5K2.21 (Dismissed and Uncharged Conduct). See Notice (docket no. 91) at 1. On December 20, 2006, the government filed a supplemental sentencing memorandum, in which it discussed the propriety of such a departure.
On December 22, 2006 and February 1, 2007, the court held a sentencing hearing ("Hearing"). Defendant was personally present and represented by his attorney, Christopher A. Clausen. Assistant United States Attorney Charles J. Williams represented the government. At the Hearing, the court pronounced sentence in a manner consistent with the instant Sentencing Memorandum.
Based on the evidence presented at Defendant's trial, the court finds the government has proven the following facts by a preponderance of the evidence:2
During 2003 and 2004, Defendant was a middleman in the heroin trade in Cedar Rapids.3 Defendant helped other persons secure heroin, in exchange for a "free high," that is, a portion of the heroin sold. For example, Defendant twice obtained heroin for Butterbaugh, Jeremy Carstens and Ryan Polanski in 2003 or 2004. On both occasions, the three heroin users paid Defendant for heroin, which he promptly obtained. Defendant then used some of the heroin.
In October of 2004, Polly Greene and Shane Peterson, two long-time paramours and intravenous heroin users, were using heroin at least once a week with Butterbaugh. On October 13, 2004, at about 10:00 or 11:00 a.m., Butterbaugh went to the apartment Greene and Peterson shared in Cedar Rapids. The three addicts decided to buy heroin to use together. After unsuccessfully attempting to buy heroin from other drug dealers, Butterbaugh called Defendant. Defendant told Butterbaugh that Defendant could get them heroin later in the afternoon.
Around 3:00 or 4:00 p.m., Butterbaugh, Peterson and Greene went to Defendant's apartment for the heroin. Greene, who was pregnant, brought her minor daughter with her. In the apartment, Butterbaugh gave Defendant $100. Defendant made some phone calls and then met someone outside in an adjacent parking lot. About five minutes later, Defendant returned to the apartment with some heroin. Butterbaugh, Peterson, Greene, Defendant and Defendant's girlfriend used some of the heroin intravenously. Between 4:30 and 5:30 p.m., Butterbaugh, Peterson, Greene and her daughter left Defendant's apartment,
Later that evening, Butterbaugh called Defendant and asked for more heroin. Butterbaugh and Peterson drove back to Defendant's apartment. Greene and her daughter stayed home.
Around 5:30 or 6:00 p.m., Butterbaugh, Peterson and Defendant met Williams at Williams's apartment in Cedar Rapids.4 Butterbaugh, Peterson and Defendant asked Williams if he could get them some heroin. Williams explained that he had already called his source, a man known as "Black." Williams left the apartment and bought one-half gram of heroin from Black for $50.
When Williams returned to his apartment, Butterbaugh, Peterson and Defendant were waiting in the living room. Williams took Defendant into the kitchen and gave Defendant one-quarter gram of the heroin. The two then went into the living room. Defendant gave Butterbaugh the one-quarter gram of heroin, and Butterbaugh gave Defendant an unknown amount of cash. Defendant gave $20 of the cash to Williams.
As Defendant, Butterbaugh and Peterson left Williams's apartment, Williams told them to "be careful" because the heroin was "pretty good stuff."
When Butterbaugh and Peterson returned to Peterson's and Greene's apartment, they had heroin. Butterbaugh, Peterson and Greene got high in Peterson's bedroom, while Greene's daughter stayed in the living room. Butterbaugh and Peterson also drank beer; Butterbaugh and Peterson had been drinking beer since about noon.
Soon thereafter, Butterbaugh lay himself down on the floor. Peterson and Greene periodically attempted to arouse Butterbaugh without success. About an hour and a half after he fell unconscious, Butterbaugh began to have difficulty breathing. Greene called 9-1-1.
When emergency personnel arrived, they unsuccessfully tried to revive Butterbaugh. They transported Butterbaugh to St. Luke's Hospital, where he was pronounced dead.
Dr. Ruth Macke, a pathologist, performed an autopsy on Butterbaugh, at the request of the Linn County Medical Examiner, Dr. Donald Linder. Relying, in part, on Dr. Macke's autopsy report, Dr. Linder concluded that the cause of Butterbaugh's death was respiratory arrest due to heroin usage. Dr. Linder noted that a contributing factor in Butterbaugh's death was an enlarged heart.
In sum, the court finds that the government has met its burden to prove, by a preponderance of the evidence, that Defendant sold Butterbaugh heroin and that such heroin resulted in his death. Defendant twice sold heroin to Butterbaugh, and such heroin directly and proximately caused Butterbaugh's death.
Where appropriate, the court makes additional factual findings in later portions of the instant Sentencing Memorandum.
The Sentencing Guidelines are no longer mandatory. United States v. Haack, 403 F.3d 997, 1002 (8th Cir.) (discussing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)), cert. denied, ____ U.S. ____, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). They are advisory. Id...
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