U.S. v. Kay, No. 91-4060

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore MOORE, TACHA, and BRORBY; TACHA
Citation961 F.2d 1505
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Miles G. KAY, Defendant-Appellant.
Docket NumberNo. 91-4060
Decision Date17 April 1992

Page 1505

961 F.2d 1505
UNITED STATES of America, Plaintiff-Appellee,
v.
Miles G. KAY, Defendant-Appellant.
No. 91-4060.
United States Court of Appeals,
Tenth Circuit.
April 17, 1992.

David J. Richman and Joseph S. Berman, Coghill & Goodspeed, P.C., Denver, Colo., for defendant-appellant.

David J. Jordan, U.S. Atty., and Wayne T. Dance, Asst. U.S. Atty., for plaintiff-appellee.

Before MOORE, TACHA, and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

Defendant-appellant Miles Kay appeals from a sentence of five years' detention, five years' supervised release, and a $1,500 fine. The district court imposed this sentence after Kay pled guilty to a conspiracy to manufacture 100 grams or more of methamphetamine in violation of 21 U.S.C. § 846. On appeal, Kay contends that the district court erred by failing to sentence him under state rather than federal law, by denying him an evidentiary hearing on a disputed fact issue at sentencing, and by failing to make specific findings regarding the accuracy of information in the presentence report. He also argues that he was denied effective assistance of counsel because his counsel failed to properly object to information connecting Kay to certain firearms. We affirm. 1

Page 1506

BACKGROUND

In March of 1990, Miles Kay, along with his wife Deidre Kay and their three-year-old son, began residing with George Gines and Mary Tarlip at 4444 South Honeywood Lane in Salt Lake City, Utah. Following a lengthy investigation and surveillance by state and local police, a warrant was issued to the Salt Lake County sheriff to search the Honeywood residence. On July 6, 1990, police executed the search warrant and confiscated 1,345 grams of powder methamphetamine, 4,623 grams of liquid containing methamphetamine, equipment and paraphernalia related to the manufacture of methamphetamine, three handguns, and one assault rifle. All those present at the time of the search--Gines, Tarlip, Deidre Kay, and Frank Fior--were arrested. Defendant was not present at the time of the search.

On October 3, 1990, a federal grand jury returned a multiple count superseding indictment against defendant. Kay was arrested on October 10, 1990 as a result of the indictment. On January 7, 1991, Kay pled guilty to Count I of the superseding indictment, which charged him with involvement in a conspiracy to manufacture 100 grams or more of methamphetamine. The remaining counts were dismissed with prejudice. Prior to sentencing, Kay filed a motion with the district court requesting that he be sentenced pursuant to the Utah Criminal Code rather than the United States Sentencing Guidelines (U.S.S.G.). The district court denied the motion.

On March 29, 1991, the district court sentenced Kay. In arriving at the sentence, the district court determined that a base offense level of 34 was appropriate under U.S.S.G. § 2D1.1(a). The district court then found that a two-point upward adjustment was appropriate under § 2D1.1(b)(1) for possession of a firearm and that a two-point downward adjustment was appropriate under § 3E1.1(a) for acceptance of responsibility. Thus, the district court calculated that the resulting offense level was 34. In response to the government's motion for sentence departure based on Kay's substantial assistance in the prosecution of another person who has committed an offense, U.S.S.G. § 5K1.1, the court sentenced Kay to five years' detention with five years' supervised release.

DISCUSSION

Kay first contends that the district court sentence pursuant to federal rather than state law violated his rights guaranteed by the Due Process Clauses of the Fifth and Fourteenth Amendments. Kay bases his contention on the fact that his arrest, the search of his home, and the subsequent investigation were carried out by local law enforcement officials and that only later was his case referred to federal authorities. In United States v. Andersen, 940 F.2d 593 (10th Cir.1991), we made it clear that--regardless of what authorities perform the arrest, search or investigation--"[t]he ultimate decision whether to...

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14 practice notes
  • U.S. v. West, No. 06-4284.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 10, 2008
    ...in the PSR. See Chee, 514 F.3d at 1115; United States v. Overholt, 307 F.3d 1231, 1251-52 (10th Cir.2002); United States v. Kay, 961 F.2d 1505, 1507 (10th On appeal, West can still argue that these convictions, as a matter of law, fail to qualify him as an armed career criminal. See United ......
  • Anderson v. U.S., No. 96-C-1070-S.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • April 2, 1999
    ...the effectiveness of counsel in federal criminal trial is by collateral attack under 28 U.S.C. Section 2255.'" United States v. Kay, 961 F.2d 1505, 1508 (10th Cir.1992) (quoting Beaulieu v. United States, 930 F.2d 805, 806 (10th Cir.1991)). This is because "ineffective claims frequently req......
  • United States v. Quijada, No. 04-2201 (Fed. 10th Cir. 8/31/2005), No. 04-2201.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 31, 2005
    ...(holding that only facts which are contested at sentencing must be established by a preponderance of the evidence); United States v. Kay, 961 F.2d 1505, 1507 (10th Cir. 1992) (stating Rule 32 contemplates a defendant raise any factual inaccuracy in the presentence report with the district c......
  • U.S. v. Pea-Hermosillo, No. 06-8075.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 15, 2008
    ...to the PSR's historical facts, Pena-Hermosillo has waived any opportunity to challenge those facts on remand. Cf. United States v. Kay, 961 F.2d 1505, 1507 (10th Cir.1992) (holding that defendant's failure to object, before the district court, to the PSR's factual inaccuracies waives that i......
  • Request a trial to view additional results
14 cases
  • U.S. v. West, No. 06-4284.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 10, 2008
    ...in the PSR. See Chee, 514 F.3d at 1115; United States v. Overholt, 307 F.3d 1231, 1251-52 (10th Cir.2002); United States v. Kay, 961 F.2d 1505, 1507 (10th On appeal, West can still argue that these convictions, as a matter of law, fail to qualify him as an armed career criminal. See United ......
  • Anderson v. U.S., No. 96-C-1070-S.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • April 2, 1999
    ...the effectiveness of counsel in federal criminal trial is by collateral attack under 28 U.S.C. Section 2255.'" United States v. Kay, 961 F.2d 1505, 1508 (10th Cir.1992) (quoting Beaulieu v. United States, 930 F.2d 805, 806 (10th Cir.1991)). This is because "ineffective claims frequently req......
  • United States v. Quijada, No. 04-2201 (Fed. 10th Cir. 8/31/2005), No. 04-2201.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 31, 2005
    ...(holding that only facts which are contested at sentencing must be established by a preponderance of the evidence); United States v. Kay, 961 F.2d 1505, 1507 (10th Cir. 1992) (stating Rule 32 contemplates a defendant raise any factual inaccuracy in the presentence report with the district c......
  • U.S. v. Pea-Hermosillo, No. 06-8075.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 15, 2008
    ...to the PSR's historical facts, Pena-Hermosillo has waived any opportunity to challenge those facts on remand. Cf. United States v. Kay, 961 F.2d 1505, 1507 (10th Cir.1992) (holding that defendant's failure to object, before the district court, to the PSR's factual inaccuracies waives that i......
  • Request a trial to view additional results

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