U.S. v. Logan, s. 94-2372

• Citation: 54 F.3d 452
• Decision Date: 28 April 1995
• Docket Number: Nos. 94-2372,94-2374,s. 94-2372
• Parties: UNITED STATES of America, Appellee, v. Elizabeth LOGAN, also known as Honey, Appellant. UNITED STATES of America, Appellee, v. Louise Cain HOUSE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 452

54 F.3d 452

UNITED STATES of America, Appellee, v. Elizabeth LOGAN, also known as Honey, Appellant.

UNITED STATES of America, Appellee, v. Louise Cain HOUSE, Appellant.

Nos. 94-2372, 94-2374.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 14, 1995.

Decided April 28, 1995.

Robert J. Thomas, Jr., St. Louis, MO, argued, for appellant Logan.

N. Scott Rosenblum, St. Louis, MO, argued, for appellant House. (Case No. 93-2374 was not argued.)

Patricia McGarry, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.

Before MCMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

HEANEY, Senior Circuit Judge.

Louise Cain House appeals her sentence and Elizabeth Logan appeals her conviction and sentence for trafficking in heroin. We affirm House's sentence and Logan's conviction, but vacate the sentence imposed upon Logan and remand for resentencing.

I. Louise Cain House

Louise Cain House pleaded guilty to engaging in a continuing criminal enterprise to distribute heroin in violation of 21 U.S.C. Sec. 841. In exchange for her cooperation, the government dismissed seven other counts against her. House faced a statutory mandatory minimum of twenty years on this count. 21 U.S.C. Sec. 848. At sentencing the district court calculated House's range of imprisonment at 240 to 262 months, based on criminal history category III, offense level 35, and the applicable statutory mandatory minimum. The court sentenced House to 180 months (fifteen years), however, pursuant to the government's "substantial assistance" motion. 18 U.S.C. Sec. 3553(e); U.S.S.G. Sec. 5K1.1.

House's sole argument on appeal is that the district court erred as a matter of law in not granting a greater downward departure from the otherwise applicable sentencing range. House asks us to reconsider this circuit's caselaw holding that the extent of a district court's downward departure is not reviewable. See United States v. Womack, 985 F.2d 395, 401 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 276, 126 L.Ed.2d 227 (1993). We are bound by that precedent, however, id. at 399, and therefore affirm House's sentence.

II. Elizabeth Logan

A jury convicted Elizabeth "Honey" Logan of conspiracy to distribute and to possess with the intent to distribute heroin. 21 U.S.C. Secs. 841(a)(1), 846. The district court calculated her sentence based on an offense level of 36 and criminal history category I, resulting in an imprisonment range of 188 to 235 months. The court sentenced her to 235 months (nineteen years, seven months).

Logan raises three challenges to her conviction and sentence: (1) firearms taken from her residence were improperly admitted into evidence, (2) the quantity of heroin attributed to her for sentencing purposes was not supported by the evidence, and (3) there was insufficient evidence to support a four-level enhancement for being a leader or organizer of the conspiracy.

A. Admissibility of the Firearms

The district court admitted into evidence a rifle and a semiautomatic handgun. At trial the government presented evidence that the guns were found, loaded, in Logan's bedroom by police officers who were executing a search warrant. Several thousand dollars also were found in the bedroom, and Louise House testified that she paid Logan $39,500 for heroin in that bedroom. A law enforcement officer testifying as an expert witness stated that these types of weapons are often used by drug traffickers.

A district court possesses broad discretion in making evidentiary rulings, and those rulings will not be disturbed on appeal absent an abuse of discretion. United States v. Searing, 984 F.2d 960, 965 (8th Cir.1993). The court's discretion is particularly broad in the context of a conspiracy trial. Id. Logan concedes the relevance of the firearms but argues that the district court nonetheless should have ruled them inadmissible on the ground that their probative value was substantially outweighed by the risk of unfair prejudice. See Fed.R.Evid. 403. Logan claims that there was already ample evidence to show that she was engaged in heroin trafficking, such as the testimony of co-conspirators, the currency found at her house, and taped telephone conversations, so that the admission of the firearms to prove the conspiracy was "prejudicial." We disagree. The presence of the loaded firearms in the house where the drug transactions occurred is evidence that the weapons were used to facilitate the drug trafficking. See United States v. Watson, 953 F.2d 406, 409 (8th Cir.1992). The availability of the guns helps establish the conspiracy of which Logan was charged. The district court did not abuse its discretion in finding no undue prejudice in admitting the firearms into evidence.

B. Quantity of Heroin

Logan argues that the district court erred in calculating the amount of heroin attributable to her for purposes of determining her sentence under the sentencing guidelines. The court's drug quantity determination is a factual finding that we review under the clearly erroneous standard. United States v. Bieri, 21 F.3d 811, 817 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 208, 130 L.Ed.2d 138 (1994). When the amount of drugs seized does not reflect the scale of the offense, the district court may approximate the quantity based on similar transactions engaged in by the defendant. U.S.S.G. Sec. 2D1.1, comment. (n.12). We will reverse a drug quantity finding only if we are firmly convinced that a mistake has been made. United States v. Maxwell, 25 F.3d 1389, 1397 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994).

The government bears the burden of establishing the quantity of drugs attributable to a defendant for sentencing purposes. Id. If a defendant objects to factual allegations contained in the Presentence Investigation Report (PSR), a district court may not adopt the PSR's challenged facts until the defendant's objections have been heard and the government proves by a preponderance of the evidence that the facts stated in the PSR are accurate. See United States v. Greene, 41 F.3d 383, 386 (8th Cir.1994); Fed.R.Crim.P. 32(c)(1). Logan contends that the government failed to carry its burden of proof because the trial testimony relied upon by the PSR and the district court did not support the conclusion that Logan sold over one kilogram of heroin during the conspiracy. Logan further complains that she was unable to fully present her objections to the PSR at the sentencing hearing because the court refused to allow her to question Louise House, even though House was present in the courthouse at the time of the hearing. We agree that the government failed to establish that over one kilogram of heroin was attributable to Logan during this conspiracy.

The district court set Logan's base offense level at 32, representing at least one kilogram but less than three kilograms of heroin. See U.S.S.G. Sec. 2D1.1(c)(4). The court adopted the calculation set forth in the PSR which purported to reflect the trial testimony of witnesses, primarily Louise House. By combining some specific figures and extrapolating from House's testimony, the court found that House bought 50 grams of heroin from Logan twice a month for nine months (January through September 1992), for a subtotal of 900 grams, plus 148.7 grams that were seized from House on October 6, 1992. This amount--1048.7 grams--put Logan over the one kilogram threshold of level 32.

As an initial matter, we find that the district court clearly erred in adopting the PSR's conclusion that Logan provided House with heroin beginning in January 1992. See PSR, p 16. House herself testified that she began buying heroin from Logan in "early spring" of 1992. Tr. 542. Prior to that time House bought heroin from Logan's husband. Id. As the government failed to clarify what date or even what month House was referring to, we conclude that spring arrives no earlier than March in either St. Louis or Chicago. See The American Heritage Dictionary 1250 (New College Ed.1976). We therefore hold that Logan began to sell heroin to House no earlier than March 1992.

We find no clear error in the district court's finding that House's heroin purchases from Logan averaged 50 grams per purchase and that there were two purchases a month. The district court may approximate drug quantity based on similar transactions by a defendant, so long as the estimates have sufficient accuracy. U.S.S.G. Sec. 2D1.1, comment. (n.12); United States v. Brown, 19 F.3d 1246, 1248 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 100, 130 L.Ed.2d 49 (1994); United States v. Olderbak, 961 F.2d 756, 764 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 422, 121 L.Ed.2d 344 (1992). Both House and her daughter, Sue Cramer, testified to purchases of 50 grams, and House recalled one buy of 75 grams. Tr. 557, 586-87, 658. House's final purchase from...