U.S. v. Kendrick, 04-3256.

• Decision Date: 08 September 2005
• Docket Number: No. 04-3256.,04-3256.
• Citation: 423 F.3d 803
• Parties: UNITED STATES of America, Appellee, v. Timothy Martin KENDRICK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

423 F.3d 803

UNITED STATES of America, Appellee, v. Timothy Martin KENDRICK, Appellant.

No. 04-3256.

United States Court of Appeals, Eighth Circuit.

Submitted: March 4, 2005.

Filed: September 8, 2005.

COPYRIGHT MATERIAL OMITTED

Counsel who presented argument on behalf of the appellant was Charles H. Nadler of Cedar Rapids, Iowa.

Counsel who presented argument on behalf of the appellee was Stephanie M. Rose, Assistant U.S. Attorney, of Cedar Rapids, Iowa.

Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

A jury convicted Timothy Martin Kendrick of three counts of distributing and one count of conspiring to distribute methamphetamine. He appeals the district court's¹ refusal to include a jury instruction on entrapment. He also challenges his sentence, arguing that the district court erred in finding he was a career offender and abused its discretion in denying him a reduction for acceptance of responsibility. We affirm his conviction and sentence.

I. BACKGROUND

Around March 2001, Kendrick moved from Alabama to Waterloo, Iowa. Within months of his arrival in Waterloo, Kendrick resumed the abuse of illegal drugs. As his habit became more regular, Kendrick testified that he began to make purchases of marijuana and methamphetamine from a drug dealer known as "Jen," to whom he was introduced by a mutual acquaintance. Unbeknownst to Kendrick, Jen was a confidential informant working with local law enforcement.

On July 9, 2001, Jen introduced Kendrick to Kenneth Harms. Over the course of the next month, Kendrick made approximately five or six purchases of methamphetamine from Harms. The two also developed a personal relationship, which included confiding in one another about their drug habits and assisting each other in obtaining more drugs. For example, Kendrick confided in Harms that he was an intravenous drug user and that he would sell a portion of each methamphetamine purchase to people living in his trailer court. In addition, Harms helped Kendrick sell his Firebird to Bobby Reyes, Harms's methamphetamine supplier, for approximately $700 and one-half ounce of methamphetamine.

Jen also introduced Kendrick to William Herkelman, an undercover officer with the Black Hawk County Sheriff's Department. Between this initial introduction and July 19, 2001, Kendrick sold Jen and Herkelman small quantities of methamphetamine. On July 19, 2001, Herkelman executed a controlled buy of methamphetamine from Kendrick. Kendrick sold Herkelman 6.75 grams of methamphetamine for $450. Jen was not involved in arranging the July 19 controlled buy and did not accompany Herkelman to Kendrick's residence for the controlled buy.

On July 24, 2001, Herkelman contacted Kendrick about the possibility of obtaining more methamphetamine. Over the course of three secretly recorded telephone conversations, the two discussed various issues involved in the business of selling methamphetamine, such as price and quantity. Three days later, Herkelman arrived at Kendrick's place of employment at the Triple J Mart to consummate another controlled buy. Kendrick told Herkelman that his supplier would arrive shortly and was driving a brown, four-door car. While Herkelman waited in his car, Kendrick's supplier, who was identified by law enforcement as Harms, arrived in a brown Ford car. After Harms left, Kendrick approached Herkelman in the parking lot and sold him 6.69 grams of methamphetamine for $525. The two then discussed the sale of another ounce of methamphetamine. Again, Jen was not involved in arranging the July 27 controlled buy and did not accompany Herkelman to the Triple J Mart for the controlled buy.

On July 30, 2001, Herkelman and Kendrick met in the parking lot of another convenience store. Kendrick sold Herkelman 12.7 grams of methamphetamine for $950. After the transaction was completed, law enforcement surreptitiously followed Kendrick to Harms's residence in Cedar Falls, Iowa. Kendrick left Harms's residence approximately seven minutes after he arrived.

Kendrick was indicted on October 25, 2002 for one count of conspiring to distribute methamphetamine, in violation of 21 U.S.C. §§ 841 and 846, and three counts of distributing methamphetamine after having been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851. In the same indictment, Harms was charged with one count of conspiring to distribute methamphetamine, seven counts of distributing methamphetamine and one count of being a drug user in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3). Harms subsequently entered a guilty plea and agreed to cooperate. Kendrick, however, entered a plea of not guilty and proceeded to trial.

At trial, Kendrick admitted that he was a drug user but denied that he was a drug dealer. According to Kendrick, his foray into the business of selling methamphetamine began when Reyes insisted on paying for his Firebird partly with methamphetamine. Unsure of how to dispose of the methamphetamine, Kendrick testified that he asked Jen for help in "getting rid of the rest" of the drugs. Jen apparently encouraged Kendrick to sell some of the methamphetamine to Herkelman, although Kendrick admitted that he was neither coerced, threatened nor forced into selling the methamphetamine. He further testified that he did not sell methamphetamine to anyone but Jen and Herkelman and that he did not share the drugs with anyone. Finally, Kendrick testified that he was able to discuss prices with Herkelman because he had dealt with drugs in the past, although he later contradicted this testimony.

Prior to trial, Kendrick requested an entrapment instruction. After hearing evidence of the alleged entrapment, the district court denied Kendrick's request for the jury instruction and held that Kendrick had failed to produce any evidence that, prior to contact with Jen, he "did not have any intent or disposition to commit the crimes charged and was induced or persuaded by Jen, the confidential informant, to commit the crimes." Kendrick then filed an Objection to Jury Instructions and Motion for Entrapment Instruction which the district court denied after hearing arguments. After a jury found him guilty on all four counts, Kendrick renewed his objection to the omission of an entrapment instruction in a Motion for New Trial and Renewed Rule 29 Motion. The district court denied the motion because Kendrick "failed to present any evidence he was induced or coerced by Jen to sell the methamphetamine."

Kendrick was sentenced on September 2, 2004. The district court found that he had two prior convictions for crimes of violence for the California offense of first degree burglary, in violation of Cal.Penal Code § 459, and the Oregon offense of felony fleeing or attempting to elude a police officer, in violation of O.R.S. § 811.540. Accordingly, Kendrick was sentenced under the career offender provision of the U.S. Sentencing Guidelines Manual § 4B1.1. Based on an offense level of 34, a criminal history category of VI and a resulting guidelines range of 262 to 327 months, the district court sentenced Kendrick to 262 months' imprisonment. The district court then imposed an alternative sentence of 262 months' imprisonment based on its discretion after considering the factors set forth in 18 U.S.C. § 3553(a).

On appeal, Kendrick argues that the district court abused its discretion by failing to include an entrapment instruction. Kendrick also challenges his classification as a career offender, arguing that the district court erroneously held that the Oregon offense of felony fleeing is a crime of violence as defined by U.S.S.G. § 4B1.2. He also argues that the district court violated the Sixth Amendment when it found that his prior conviction for felony fleeing constituted a crime of violence. Finally, Kendrick argues that the district court clearly erred by failing to grant a two-level acceptance-of-responsibility reduction.

II. DISCUSSION

A. Entrapment

"Entrapment exists `where the evidence establishes that the government agent originated the criminal design, the agent implanted in the mind of an innocent person the disposition to commit the offense, and the defendant then committed the criminal act at the urging of the government agent.'" United States v. Williams, 109 F.3d 502, 508 (8th Cir.1997) (quoting United States v. Hulett, 22 F.3d 779, 781 (8th Cir.1994)). As an affirmative defense, entrapment is a question of fact generally left to the jury. United States v. Coleman, 284 F.3d 892, 894 (8th Cir.2002). A defendant alleging entrapment, however, is not entitled to an entrapment instruction unless "sufficient evidence exists from which a reasonable jury could find entrapment." United States v. Neal, 990 F.2d 355, 357 (8th Cir.1993). This requires a defendant to show "that the government agents implanted the criminal design in [his] mind[ ] and induced [him] to commit the offense." United States v. Cannon, 88 F.3d 1495, 1504 (8th Cir.1996). If a defendant can produce sufficient evidence of inducement, then the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. United States v. Berg, 178 F.3d 976, 980 (8th Cir.1999); see also United States v. Eldeeb, 20 F.3d 841, 843 (8th Cir.1994) ("It is clear that when entrapment is an issue, the government must prove the absence of entrapment beyond a reasonable doubt."). "If the defendant exhibits any predisposition to engage in the criminal conduct, the district court need not instruct the jury on entrapment." Id. We review the district court's decision to deny an entrapment instruction for an abuse of discretion. Williams, 109 F.3d at 508.

The evidence presented at trial strongly indicates both that the Government did not induce Kendrick's criminal activity and that Kendrick had a predisposition to engage in drug distribution activities. Kendrick admitted that the...