U S v. Keeling

• Decision Date: 15 December 2000
• Docket Number: No. 99-6209,99-6209
• Citation: 235 F.3d 533
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DON ALAN KEELING, also known as D. A. Keeling, Defendant - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 533

235 F.3d 533 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DON ALAN KEELING, also known as D. A. Keeling, Defendant - Appellant.

No. 99-6209

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 15, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. (D.C. No. CR-98-99-M)

Richard D. Biggs (and Marcia G. Shein, with him on the briefs), Shein & Biggs, Atlanta, Georgia, for Plaintiff - Appellee.

M. Jay Farber, Assistant United States Attorney (and Patrick M. Ryan, United States Attorney and Daniel G. Webber, Jr., United States Attorney, on the briefs), Oklahoma City, Oklahoma, for Defendant - Appellant.

Before SEYMOUR, Chief Judge, KELLY, and HENRY, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant, Don Alan Keeling, appeals his sentence for possession with intent to distribute approximately 150 pounds of marijuana ("Count 6"), 21 U.S.C 841(a)(1), and use of a communication facility to facilitate a conspiracy to possess with intent to distribute marijuana ("Counts 8-21 and 23-31"), 21 U.S.C. 843(b). In a jury trial, Mr. Keeling was acquitted of five other possession with intent to distribute counts, alleging various quantities, and a conspiracy count, 21 U.S.C. 846. He was sentenced to 121 months as to Count 6 and 48 months for each of Counts 8-21 and 23-31, to be served concurrently, and a fine of $5000 with a special assessment of $2400. Moreover, in accord with the jury's verdict, Mr. Keeling is required to forfeit $240,000. The district court also imposed a supervised release term of five years on Count 6 and one year on Counts 8-21 and 23-31, to be served concurrently.

On appeal, Mr. Keeling argues that he is entitled to re-sentencing on the grounds that the district court (1) improperly imposed a five year term of supervised release, based on its erroneous conclusion that 21 U.S.C. 841(b)(1)(C) was inapplicable to his ultimate punishment; (2) improperly calculated relevant conduct in fashioning his sentence by including (i) a quantity (2,494) of marijuana plants that were outside the scope of his involvement in the underlying crimes, and (ii) drug amounts from acquitted counts, using an improper standard; and (3) improperly adjusted his sentence upward for obstruction of justice, U.S.S.G. 3C1.1, given that his actions did not impede the government's access to forfeitable assets. Additionally, Mr. Keeling (4) challenges the forfeiture amount on the grounds that the amount should have been calculated according to his profit rather than the purchase price, and (5) contends that in light of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), his sentence must be vacated and the case remanded for a sentence on Count 6 of not more than 60 months.

1. Supervised Release

The government advises that in light of United States v. Santos, 195 F.3d 549, 552-53 (10th Cir. 1999) (holding that mandatory sentencing provisions of 841(b) are to be calculated solely with respect to the drug quantities involved in the offense of conviction), the statutory minimum term of supervised release for Mr. Keeling for Count 6 is three years. Thus, the parties agree that Mr. Keeling's sentence is incorrect in this regard, and a limited remand must be made.

2. Calculation of Base Offense Level

a. Inclusion of 2,494 Plants in Relevant Conduct Calculation

Mr. Keeling argues that the district court impermissibly included 2,494 plants from a crop grown by a third party ("Mr. Hodges") as relevant conduct in determining his sentence. Mr. Keeling contends that the district court relied on incredible evidence, namely, Mr. Hodges' testimony, to determine that this crop was grown with Mr. Keeling in mind, and was intended for his receipt. Mr. Keeling argues that the district court relied improperly on the representation of Special Agent Creson to evaluate Mr. Hodges' credibility. Moreover, Mr. Keeling claims that Mr. Hodges' testimony was fraught with inconsistency. Thus, Mr. Keeling argues that the quantity of marijuana in question is not attributable to him for purposes of relevant conduct.

"We review questions of law regarding application of the Sentencing Guidelines de novo. . . . [and] findings of fact under the clearly erroneous standard, mindful of our obligation to give 'due regard' to the district judge's determinations of the credibility of witnesses." United States v. Wiseman, 172 F.3d 1196, 1217-18 (10th Cir.) (citation omitted), cert. denied, 120 S. Ct. 211 (1999). Moreover, "[w]e will not disturb a sentencing court's factual findings unless they are 'without factual support in the record, or if after reviewing all the evidence we are left with the definite and firm conviction that a mistake has been made.'" United States v. Moore, 130 F.3d 1414, 1416 (10th Cir. 1997) (citation omitted). The government must prove, by a preponderance of the evidence, the amount of drugs attributable for purposes of the Sentencing Guidelines. See id. Under present law, a sentencing court may consider drug quantities from uncharged or acquitted conduct. In order to constitute relevant conduct under U.S.S.G. 1B1.3(a)(2), the court must find (1) the offense in question included conduct set forth by 1B1.3(a)(1)(A) and (B); (2) the offense must be groupable with the offense of conviction; and (3) the offense must be "'part of the same course of conduct or common scheme or plan.'" United States v. Taylor, 97 F.3d 1360, 1363 (10th Cir. 1996) (quoting U.S.S.G. 1B1.3(a)(2)). In the instant case, these factors are all satisfied. The trial court explicitly found that the 2,494 plants were grown by Mr. Hodges to be received by Mr. Keeling. See Aplt. App. at 151-152. The court made this determination on the strength of the testimony at trial and the statements by Special Agent Creson. While Mr. Keeling challenges the credibility of Mr. Hodges, who testified that the crop was for Mr. Keeling, we must defer to the district court's findings. See Wiseman, 172 F.3d at 1218. Despite the fact that Mr. Keeling was acquitted of conspiracy, the trial court is empowered to determine, as it did, by a preponderance of the evidence, that the marijuana from the 1997 crop was reasonably foreseeable by Mr. Keeling and "part of the conspiratorial objectives in furtherance of the conspiracy." Aplt. App. at 150; see also, Moore 130 F.3d at 1416 (noting that acquitted conduct may be evaluated as relevant conduct for sentencing purposes). Thus, Mr. Keeling's claim fails.

b. Inclusion of Drug Quantities from Dismissed Counts

We likewise reject Mr. Keeling's claim that the trial court was not entitled to consider drug quantities from acquitted counts on the ground that the jury evaluated the amount of drugs involved under both a reasonable doubt and preponderance standard for purposes of determining forfeiture. A review of the record shows that the trial court was correct in finding that the jury was properly instructed only to consider drug quantities from convicted counts for purposes of forfeiture. See Aplt. App. 152-153. Additionally, the government's contention that it is for the sentencing court, not the jury, to determine relevant conduct remains true after Apprendi, provided that an enhanced penalty based upon additional relevant conduct quantity does not exceed the range authorized by the count of conviction. See United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000) United States v. Meshack, 225 F.3d 556, 576 (5th Cir. 2000); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 600, ___ L.Ed.2d ___ (2000).

3. Obstruction of Justice Enhancement

Mr. Keeling next argues that the trial court erroneously assessed a two-level increase for obstruction of justice, U.S.S.G. 3C1.1, because he executed various quitclaim deeds and mortgaged a property, all of which were designated as substitute assets for purposes of forfeiture. He claims that his actions were not calculated to circumvent the government's potential collection of forfeiture. Moreover, Mr. Keeling notes that his actions could not have had this effect, given that the government's interest in the property would be superior to subsequent purchasers because of the previously filed notice of lis pendens.

Mr. Keeling argues that he undertook these actions to raise funds to pay the forfeiture that he anticipated would result from his conviction. The district court, noting the closeness of the question, ultimately did not find Mr. Keeling's arguments persuasive. The timing of the conveyances, the fact that the transactions involved Mr. Keeling's girlfriend and father, and Mr. Keeling's incomplete explanation as to how simple quitclaims would raise the anticipated forfeiture amount, persuaded the district court to find obstruction of justice. While reasonable minds could differ on the import of these facts, given the deferential standard of review, we conclude that the district court did not clearly err. See United States v. Hankins, 127 F.3d 932, 934 (10th Cir. 1997). As to Mr. Keeling's remaining argument, we reiterate our holding in Hankins that factual impossibility is no defense to 3C1.1. See id.

4. Forfeiture

Mr. Keeling argues that he should only be responsible in forfeiture for the amount of the profits rather than the gross proceeds of his narcotics enterprise. He contends that the majority of the gross proceeds went to his supplier. Because Mr. Keeling did not properly preserve this issue for review, we evaluate his claim according to a plain error standard of review. Under any standard of review, however, Mr. Keeling's claim is utterly without merit. As the Fourth Circuit noted after surveying the legislative history and policies undergirding 21 U.S.C. 853:

Were we to read proceeds in 853 to mean only profits, . . . we would create perverse incentives for criminals to employ complicated accounting measures to shelter the profits of their illegal enterprises. The...