U.S. v. Marshall, 03-3133.

• Decision Date: 13 June 2005
• Docket Number: No. 03-3133.,03-3133.
• Citation: 411 F.3d 891
• Parties: UNITED STATES of America, Appellee, v. Daniel John MARSHALL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

411 F.3d 891

UNITED STATES of America, Appellee, v. Daniel John MARSHALL, Appellant.

No. 03-3133.

United States Court of Appeals, Eighth Circuit.

Submitted: March 10, 2004.

Filed: June 13, 2005.

Counsel who presented argument on behalf of the appellant was Scott C. Peterson of Cedar Rapids, IA.

Counsel who presented argument on behalf of the appellee was Matthew J. Cole, AUSA, of Cedar Rapids, IA. Appearing on appellee's brief was Teresa K. Baumann, Special AUSA, Cedar Rapids, IA.

Before MURPHY, HEANEY, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Daniel John Marshall pleaded guilty to manufacturing and attempting to manufacture five grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district court¹ concluded that Marshall was not entitled to a reduction under the safety-valve provision and denied his motion for downward departure. Marshall sought a downward departure based on his extraordinary post-offense rehabilitation. The court sentenced him to seventy months' imprisonment under the United States Sentencing Guidelines. Marshall appeals, arguing that the district court erred in finding that he had manufactured methamphetamine on four occasions and that he was untruthful during his safety-valve interview. Subsequent to oral argument, we directed the parties to provide supplemental briefing on the issues raised by the recent changes in federal sentencing caused by the Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm.

I. Background

On January 30, 2002, probation officers searched Amy al-Munasif's residence at 1811 Fourth Avenue Southeast, Cedar Rapids, Iowa, where Marshall lived. The search uncovered methamphetamine, methamphetamine-manufacturing equipment, and ingredients used to manufacture the drug.

Cedar Rapids Police Officer Anthony Robinson interviewed Marshall.² During the interview, Marshall admitted that he periodically stayed at al-Munasif's residence, and that all the methamphetamine-manufacturing materials and equipment found in the residence, garage, and vehicle belonged to him. Marshall provided law enforcement officers with a typewritten recipe for manufacturing methamphetamine. He also stated that he obtained the manufacturing materials from co-ops and from local discount stores including Wal-Mart and K-Mart. Marshall informed the officers that they would uncover about 700 pseudoephedrine pills during their search. He stated he possessed the pills in preparation for a "cook" that day.³

The district court found that Marshall had admitted to Officer Robinson during his January 30 interview that he performed four prior methamphetamine "cooks." Marshall admitted to manufacturing methamphetamine for the first time about one month prior — which would have been near the end of December — and had "cooked" one time per week since then. Marshall admitted that he had used about 300 pseudoephedrine pills during each "cook." According to Marshall, he produced about seven grams of methamphetamine at three of the "cooks" and had produced ten grams at one of the "cooks." Marshall further explained that after his last "cook," which had occurred two days prior to the interview, the finished product had been stolen from his vehicle.

In January 2003, Marshall entered into a plea agreement with the government. However, because Marshall would not stipulate to four "cooks," the parties reserved the right to dispute drug quantity at sentencing. Marshall also sought to qualify for a safety-valve reduction pursuant to U.S.S.G. § 5C1.2. In order to meet § 5C1.2 requirements, Marshall was again interviewed by Officer Robinson on June 20, 2003. At that interview, Marshall stated that he had manufactured methamphetamine on only two occasions, instead of his previous statement of four. He also stated that he had used 300 pseudoephedrine pills during the first "cook" and only 250 during the second "cook."

At the sentencing hearing, Marshall claimed that he had "cooked" for the first time only two weeks prior to the January 30 interview, and not a month earlier as he had previously testified. Marshall also stated that methamphetamine was stolen from his vehicle after his first cook, which occurred on January 12 or 13, 2002. Officer Robinson, testifying for the government, stated that Marshall initially told him that he had manufactured methamphetamine on four occasions, but at Marshall's safety-valve interview, he admitted to manufacturing only twice.

In rebuttal, Marshall testified on his own behalf. The court reminded Marshall's counsel that "if [Marshall] takes the stand and [the court] finds he testified untruthfully, he could not only lose his acceptance of responsibility, but have obstruction of justice." After hearing the court's caution, Marshall testified. He stated that he was under the influence of methamphetamine at the time of the first interview. Consequently, the narcotic diminished his mental capacity and affected his ability to correctly recall facts and respond to questions. Based upon this alleged diminished capacity, Marshall urged the court to find that his first statement — in which he admitted to four prior "cooks" — was inaccurate. On cross-examination, Marshall conceded that it was possible that he may have stated that he had "cooked" methamphetamine four times, but contended adamantly he had only "cooked" twice. Marshall argued that unlike his first interview, he was not under the influence of methamphetamine at his safety-valve interview and was able to provide accurate and truthful information. Marshall admitted to only two prior "cooks" during his safety-valve interview.

The district court rejected Marshall's arguments. The court credited Marshall's first interview and discounted his subsequent safety-valve interview. According to the court, "[b]y the time he got to his safety valve interview, he was trying to minimize his criminal conduct by saying he only cooked two times. I don't find that credible, I do not find he's entitled to the safety valve." The court also denied Marshall's motion for downward departure based on extraordinary post-offense rehabilitation. The district court sentenced Marshall to seventy months' imprisonment and forty-eight months' supervised release.

On appeal, Marshall challenges the district court's findings that he manufactured methamphetamine on four occasions. He also challenges the court's finding that he was not truthful during his safety-valve interview, and, thus, not eligible for a two-level reduction under U.S.S.G. § 5C1.2.

II. Discussion

A. Drug-Quantity Determination

We review the district court's drug-quantity determination for clear error. United States v. Symonds, 260 F.3d 934, 936 (8th Cir.2001). Because of this deferential standard of review, we will only reverse when the entire record definitely and firmly illustrates that the lower court made a mistake. United States v. Quintana, 340 F.3d 700, 702 (8th Cir.2003) (internal quotations omitted); United States v. Causor-Serrato, 234 F.3d 384, 389 (8th Cir.2000). A court may consider any evidence in its sentencing determination that has sufficient indicia of reliability to support its probable accuracy. United States v. Exson, 328 F.3d 456, 461 (8th Cir.2003) (citations omitted). The government bears the burden of proving drug quantity by a preponderance of the evidence. United States v. Houston, 338 F.3d 876, 878 (8th Cir.2003). Marshall contends that because the record does not support a finding that he was untruthful about the number of times he "cooked" methamphetamine, the district court's drug-quantity determination was in error. We disagree.

In this case, the district court's drug-quantity determination was established through Marshall's preliminary admissions to Officer Robinson. The district court's findings on this issue are essentially a matter of credibility. "It is well established that in sentencing matters a district court's assessment of witness credibility is quintessentially a judgment call and virtually unassailable on appeal." Quintana, 340 F.3d at 702 (internal quotations omitted). The district court's reliance on Officer Robinson's testimony was not clearly erroneous.

At the sentencing hearing, Officer Robinson testified for the government that Marshall stated to him that he had performed four prior "cooks." The government also presented Officer Robinson's contemporaneous notes as corroboration of his testimony that Marshall had stated that he had performed four prior "cooks." Marshall's counsel vigorously cross-examined the reliability of Officer Robinson's notes and contended the officer may have been mistaken. The court also heard testimony from Marshall. Marshall conceded that he may have stated he had made four cooks but attributed the statement to confusion resulting from his methamphetamine use. Marshall urged the court to rely instead on his safety-valve interview in which he stipulated to only two prior "cooks." The court credited Officer Robinson's testimony and found that Marshall had manufactured methamphetamine on four prior occasions. The district court's judgment was not clearly erroneous.

B. Safety-Valve Departure

Next, Marshall argues that the district court erred in refusing to reduce his sentence under the safety-valve provision of U.S.S.G. § 5C1.2. A defendant has the burden of demonstrating that he is entitled to a more lenient sentence, and our review of the district court's conclusion that Marshall did not discharge that burden is for clear error. United States v. Surratt, 172 F.3d 559, 566 (8th Cir.1999).

In order to qualify for safety-valve reduction, a drug defendant must satisfy five requirements. In relevant part, the five requirements are as follows:

(1) the defendant does not have more than 1 criminal history point, as determined...