U.S. v. Hopkins, 00-40024-06-SAC.
| Decision Date | 14 December 2005 |
| Docket Number | No. 00-40024-06-SAC.,00-40024-06-SAC. |
| Citation | 408 F.Supp.2d 1123 |
| Parties | UNITED STATES of America, Plaintiff, v. Charles William HOPKINS, Defendants. |
| Court | U.S. District Court — District of Kansas |
Annette B. Gurney, Office of United States Attorney, Wichita, KS, Anthony W. Mattivi, Office of United States Attorney, Topeka, KS, for Plaintiff.
The case comes before the court on the Tenth Circuit's remand to resentence the defendant. The appellate panel concluded that the sentencing court had employed an improper methodology in determining drug quantity under the guidelines and that the court's drug quantity determination was not supported by the evidence of record. On remand, the sentencing court set dates for the filing of sentencing memoranda and conducted an evidentiary hearing. The parties filed supplemental sentencing memoranda after the hearing. The issues on resentencing are now ripe for ruling.
On April 16, 2002, the jury found the defendant guilty of the conspiracy count charged in count one and not guilty of counts ten and eleven that charged the defendant with using a communication facility on January 26 and 27, 2000, to commit a drug conspiracy offense. The jury further found that the government had not proved beyond a reasonable doubt that the defendant had conspired to manufacture or distribute at least 50 grams of a mixture or substance containing a detectable amount of methamphetamine. For sentencing purposes, the jury's verdict means the defendant faces no mandatory minimum sentence and may not be sentenced to more than twenty years imprisonment.
No modifications have been made to the Presentence Report ("PSR") used in the first sentencing. It recommends a base offense level of 38 for the amount of drugs with a two-point enhancement for possession of a firearm and a two-point enhancement for obstruction of justice for a total offense level of 42. The sentencing guideline range for an offense level of 42 and a criminal history category of one is 360 months to life. By reason of the jury's verdict, the defendant's guideline range is the statutory maximum of not more than twenty years.
In arriving at the base offense level of the 38, the PSR recommends the following relevant conduct finding:
Charles W. Hopkins was providing Shane Wright with chemicals, glassware, and other chemistry related items for Shane Wright's use to produce methamphetamine. In exchange, the defendant was receiving methamphetamine from Wright for personal use and resale. It is not clear from statements of codefendants in this case when the defendant began providing the chemicals and glassware to Wright. However, statements and testimony provided by others do indicate the defendant was receiving methamphetamine from Wright since at least 1999. The defendant contributed to the furtherance of Wright's methamphetamine manufacturing operation by providing chemicals and glassware for the operation, and by destroying evidence from Wright's property in January 2000, in attempt to conceal the operation. Due to this, the defendant is responsible for at least the quantity of methamphetamine produced by Shane Wright from January 2000, until the raids and subsequent arrests of the defendant and codefendants in this case in March 2000. In a two-month period, Shane Wright produced approximately 16 pounds (7.25 kilograms) of actual methamphetamine.
(PSR at ¶ 82) (underlining added). Thus, the PSR holds the defendant accountable only for the methamphetamine manufactured between the months of January and March of 2000 and estimates this amount from the manufacturing levels prior to January of 2000. As the Tenth Circuit observed, the PSR "concluded that Hopkins was not responsible for any of the drugs produced by the conspiracy prior to the January 2000 concealment of the evidence." (Dk. 1957, pp. 7-8).
The addendum to the PSR shows the government's only objection was to the lack of an obstruction of justice enhancement, and the probation officer subsequently modified the PSR to include this enhancement. The defendant, however, filed a number of objections and requested a downward departure. The government opposed both the objections and the downward departure request and called for a sentence of twenty years.
Just before the first sentencing hearing, the district court filed a memorandum and order of some length that addressed all of the unresolved matters identified in the PSR addendum. (Dk. 1668). At the hearing, the parties were given the opportunity to present their arguments and evidence. The court then imposed a sentence of 121 months of imprisonment with supervised release of three years.
The defendant appealed arguing the court improperly enhanced his sentence for possession of a dangerous weapon and obstruction of justice and erred in calculating the amount of drugs in excess of the jury's verdict based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The government cross-appealed arguing a misapplication of the Guidelines in determining the amount of drugs attributable to the defendant. (Dk. 1957, pp. 1-2).
The Tenth Circuit found the sentencing court had erred and remanded for resentencing. The panel mentioned without deciding the defendant's claim on appeal that the government had submitted insufficient evidence to support the sentencing enhancement. The panel, however, directed the sentencing court on remand to consider the defendant's claim. The panel devoted their attention to whether the sentencing court used a proper methodology in determining drug quantity and whether substantial evidence of record supported that determination. In so doing, the panel analyzed the following portion of the district court's written order:
Based on the credible and reliable evidence presented at trial, as well as the jury's verdict on the charges against this defendant, the court finds that the government has carried its burden of proving that the defendant Charles Hopkins should be held accountable for 21 grams of a methamphetamine mixture and 28.35 grams of actual methamphetamine or 325 kilograms of marijuana for an offense level of 26. The court bases this finding on the evidence from trial that the defendant Hopkins received relatively small amounts of a methamphetamine mixture, probably an eight-ball, in exchange for chemicals, glassware or equipment on at least six occasions. In addition, the court believes the defendant should be held accountable for one ounce of actual methamphetamine produced from a methamphetamine cook after January 27, 2000. The court bases this finding on the defendant's proportional involvement on January 27, 2000, in removing firearms and burying three pieces of PVC pipe taken from the Wright's residence.
Like the jury in this case, the court is not convinced that it was within the scope of the defendant's particular agreement with co-conspirators to produce the large quantities of methamphetamine that Shane Wright was actually manufacturing. The evidence at trial does not persuade the court that Charles Hopkins was closely involved with the Wright's manufacturing activities or that Wright ever consulted, depended upon, or worked closely with Charles Hopkins in manufacturing or distributing methamphetamine. The court believes the extent of Charles Hopkins' agreement was simply to tender whatever chemicals and equipment he stole from Eagle Picher to Shane Wright in the hope of receiving methamphetamine. As far as Charles Hopkins' actions on January 27 and 28, the court believes that the defendant's principal motive was to protect his brother but that he understood his actions would assure he remained in the good favor of Shane Wright's ongoing conspiracy to manufacture methamphetamine. The more credible evidence at trial establishes that Hopkins' efforts that night and next day were quite limited at best and that after his arrest Shane Wright did not continue manufacturing methamphetamine at the same or similar levels as before his arrest. Combining Hopkins' limited role and Wright's curtailed manufacturing, the court concludes the defendant should be held accountable for one ounce of actual methamphetamine, that is, the court's proportionate estimate of the defendant's efforts at preserving the conspiracy to manufacture methamphetamine.
In the court's judgment, it seems both unreasonable and unfair in light of the evidence at trial and the jury's verdict to hold the defendant accountable for the large sums of methamphetamine manufactured by Shane Wright's extensive manufacturing conspiracy. By calculating and estimating relevant conduct as it has, the court has attempted to preserve at least the spirit of the jury's verdict with respect to the amount of methamphetamine mixture and to hold the defendant accountable for his conduct on January 27 and 28, 2000, with respect to the estimated amount of actual methamphetamine. The court would point out that the jury was not specifically asked nor provided with the necessary sentencing information to make the latter determination. Though different from the relevant conduct calculations advanced in the PSR or advocated by the parties, the court's relevant conduct determination here meets the objectives of the sentencing guidelines and generally addresses the concerns being argued by the parties.
The Tenth Circuit concluded that in these findings, the sentencing court had "employed an improper methodology in determining drug quantity and, further, that the drug quantity determination in this case is not supported by the record." (Dk. 1957, p. 6), United States v. Hopkins, 128 Fed.Appx. 51, *53 (10th Cir. Apr. 11, 2005)....
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