U.S. v. Ingham

• Decision Date: 06 February 2007
• Docket Number: No. 05-50698.,05-50698.
• Citation: 486 F.3d 1068
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis Evan INGHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.3d 1068

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Evan INGHAM, Defendant-Appellant.

No. 05-50698.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2006.

Filed February 6, 2007.

Amended May 22, 2007.

Steven L. Barth, San Diego, CA, for defendant-appellant Dennis Evan Ingham.

Sherri Walker Hobson and Stephen Tokarz (argued), Assistant United States Attorneys, San Diego, CA, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Southern District of California; Larry A. Burns, District Judge, Presiding. D.C. No. CR-04-03237-LAB.

Before HARRY PREGERSON, RONALD M. GOULD, and RICHARD R. CLIFTON, Circuit Judges.

ORDER AMENDING OPINION AND AMENDED OPINION

GOULD, Circuit Judge.

ORDER

The opinion filed on February 7, 2007 and published at 476 F.3d 706 (9th Cir.2007), is AMENDED as follows.

The first full paragraph on page 712 currently states:

Our cases have consistently upheld a four-point enhancement for those whose role, like Ingham's, was that of organizing or leading a drug distribution conspiracy. For example, in United States v. Varela, we affirmed a four-point enhancement where defendant located drug suppliers, negotiated and transacted a series of drug deals, and delivered drugs to undercover officer. 993 F.2d 686, 691 (9th Cir.1993). Similarly, in United States v. Roberts, we held that it was not clear error to impose a four-point enhancement where defendant negotiated sale of chemicals for production of methamphetamine with an undercover agent and gave an order to co-conspirator to make delivery. 5 F.3d 365, 371 (9th Cir.1993). And again in United States v. Ponce, we upheld a four-point enhancement where defendant oversaw procurement and distribution of large quantities of cocaine. 51 F.3d 820, 827 (9th Cir.1995). See also Salcido-Corrales, 249 F.3d at 1154-55 (upholding two-point organizer/leader enhancement in conspiracy involving fewer than five participants where defendant "coordinated the distribution of drugs that he received from out-of-state sources[,] DP . . . initiated drug deals with the undercover officer[,] negotiated the terms of the deals and set their locations and times").

In the current second sentence, after "For example," the remainder of the sentence—"in United States v. Varela, we affirmed a four-point enhancement where defendant located drug suppliers, negotiated and transacted a series of drug deals, and delivered drugs to undercover officer. 993 F.2d 686, 691 (9th Cir.1993)."—is deleted. "Similarly," from the current third sentence is also deleted and now replaces "And again" in the current fourth sentence. The paragraph as amended shall now read as follows:

Our cases have consistently upheld a four-point enhancement for those whose role, like Ingham's, was that of organizing or leading a drug distribution conspiracy. For example, in United States v. Roberts, we held that it was not clear error to impose a four-point enhancement where defendant negotiated sale of chemicals for production of methamphetamine with an undercover agent and gave an order to co-conspirator to make delivery. 5 F.3d 365, 371 (9th Cir.1993). Similarly, in United States v. Ponce, we upheld a four-point enhancement where defendant oversaw procurement and distribution of large quantities of cocaine. 51 F.3d 820, 827 (9th Cir.1995). See also Salcido-Corrales, 249 F.3d at 1154-55 (upholding two-point organizer/leader enhancement in conspiracy involving fewer than five participants where defendant "coordinated the distribution of drugs that he received from out-of-state sources[,] . . . initiated drug deals with the undercover officer[,] negotiated the terms of the deals and set their locations and times").

No further petitions for rehearing or rehearing en banc will be accepted.

IT IS SO ORDERED.

OPINION

Dennis Evans Ingham entered a plea of guilty on one count of conspiracy to distribute marijuana under 21 U.S.C. §§ 841 and 848. In light of a four-point increase in the offense level for Ingham's aggravating role as organizer/leader under section 3B1.1(a) of the United States Sentencing Guidelines ("the Guidelines"), the district court imposed a 100-month sentence, which was three months more than the top of the calculated guideline range due to Ingham's extensive criminal history. Ingham argues that the district court did not reconcile his objection under Federal Rule of Criminal Procedure 32(i)(3) that only a two-point increase in the offense level was proper because the district court did not explicitly address the question of whether Ingham exercised control over his fellow co-conspirators. Ingham also argues that the Presentence Report ("PSR") that recommended the four-point enhancement in the offense level included unreliable hearsay. Ingham argues additionally that, under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the facts underpinning the organizer/leader role must be admitted by the defendant or proved by a jury beyond a reasonable doubt. Finally, Ingham contends that the district court's application of the advisory Guidelines under Booker was contrary to the Ex Post Facto and Due Process Clauses of the United States Constitution. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

I

On December 21, 2004, an indictment was filed against Ingham, alleging two felony counts for conspiracy to import and distribute marijuana in excess of 100 kilograms. On April 28, 2005, Ingham waived the indictment and was charged on a superseding information with a single count of conspiracy to distribute forty-six kilograms or more of marijuana in violation of 21 U.S.C. §§ 841 and 848. That same day, Ingham entered into a plea agreement acknowledging that he was subject to a maximum statutory sentence of 120 months, a $500,000 fine, and at least four years of supervised release. Under the plea agreement, Ingham also admitted the factual basis of a narcotics smuggling conspiracy that began in February 2004 and ended on June 23, 2004, and that "he acted as a leader and manager of this importation conspiracy."

On June 27, 2005, a PSR was filed that made the following undisputed factual findings regarding the conspiracy: In August 2003, a special agent with United States Immigration and Customs Enforcement ("ICE") learned that Ingham may have been leading an organization involved in smuggling large quantities of narcotics into the United States by boat. As of February 24, 2004, federal customs agents intercepted phone conversations indicating Ingham's desire to coordinate a maritime smuggling operation covering Mexico, Panama and Iraq. On March 9, 2004, a cooperating source ("CS") approached Ingham in Canada to discuss a more immediate plan to smuggle drugs from Canada into the United States, the proceeds of which Ingham contemplated using to finance the larger maritime venture involving Mexico, Panama and Iraq. In initiating the more immediate plan, Ingham contacted a pilot, who was an undercover officer, with an offer to pay up to $50,000 to fly loads of marijuana into the United States where Ingham would arrange for transport to California. On June 1, 2004, Ingham gave the CS $65,000 to start a front corporation to further the maritime smuggling venture. Ingham also directed the CS and Ingham's former wife, Kay Samuelson, to exchange a total of $13,000 for small denominations to be used in aid of the smuggling operation. On June 20, 2004, federal agents observed Samuelson visit three separate banks where she exchanged $3,000 for $100 bills.

Also on June 20, 2004, Ingham, Ritch and the undercover officer discussed routes and time schedules for transporting the narcotics within Orange County, California. On June 23, 2004, three other co-conspirators and the CS gathered at an airstrip in Kalso, British Columbia, a location selected by Ingham, where the co-conspirators would meet the pilot/undercover officer who in turn would undertake the first trip to the United States. Before the plane's arrival, however, the Royal Canadian Mounted Police, who were conducting surveillance of the airstrip in concert with U.S. border patrol agents, interdicted the operation and arrested the co-conspirators, seizing a total of 99.45 kilograms of marijuana and nearly 19,000 ecstasy pills.

A fourth co-conspirator, Daniel Hall, was also arrested on June 23, 2004 in Seattle, Washington while under surveillance by ICE agents. According to Hall, Ingham had previously provided him with a cell phone, $900 and airplane tickets from California to Seattle. At the Seattle airport, Hall met an unknown man with a vehicle that, without Hall's knowledge, had been equipped with a tracking device. Hall drove the vehicle to meet three other individuals who led him to a Seattle neighborhood to pick up several bags. When ICE agents triggered the kill switch on the vehicle, Hall was arrested with a total of forty-six kilograms of marijuana. In a post-arrest statement, Hall stated that Ingham had provided him with funds and instructions to drive the narcotics shipment to California. Later that day, after the transaction with Hall, the three individuals traveled to the Canadian border where their car was searched and $160,000 was discovered behind the glove box.

On January 28, 2005, Ingham was arrested in Laguna Beach, California on charges arising out of the marijuana smuggling conspiracy.

The district court conducted two sentencing hearings on August 1 and 8, 2005. At the August 8 hearing, the district court addressed the main issue of whether Ingham should receive a two-point (supervisor) enhancement under U.S.S.G. § 3B1.1(c) or a four-point (organizer/leader) enhancement under U.S.S.G. § 3B1.1(a) for his role in the conspiracy.¹ In the...