U.S. v. Pratt

• Decision Date: 29 January 2009
• Docket Number: No. 08-2459.,08-2459.
• Citation: 553 F.3d 1165
• Parties: UNITED STATES of America, Appellee, v. Nickolas Scott PRATT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

553 F.3d 1165

UNITED STATES of America, Appellee, v. Nickolas Scott PRATT, Appellant.

No. 08-2459.

United States Court of Appeals, Eighth Circuit.

Submitted: December 9, 2008.

Filed: January 29, 2009.

Rees Conrad Douglas, Sioux City, IA, for appellant.

Kevin Craig Fletcher, AUSA, Sioux City, IA, for appellee.

Before WOLLMAN, BYE, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Nickolas Scott Pratt (Pratt) pled guilty on January 15, 2008, to one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine mixture within 1,000 feet of a protected location and to distribute a controlled substance to a person under the age of 21, following a previous felony drug conviction in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, 851, 859(a), and 860(a). The district court¹ sentenced Pratt to 240 months imprisonment and ten years supervised release. Pratt appeals, claiming the district court erred in enhancing Pratt's sentence under 21 U.S.C. § 851. We affirm.

I. BACKGROUND

On February 24, 2005, Pratt was indicted by a federal grand jury for conspiracy to distribute and possess methamphetamine following a previous felony drug conviction. The indictment alleged Pratt was involved in a conspiracy "[b]etween about June 4, 1998, and continuing through about February, 2003." On June 29, 2005, Pratt pled guilty pursuant to a plea agreement. Pratt later received permission from the district court to withdraw his guilty plea so Pratt could challenge any attempt by the government to seek an enhanced sentence. Pratt did not dispute his involvement in the conspiracy. Instead, Pratt argued the government could not prove Pratt committed any act in furtherance of the conspiracy after Pratt's previous state court felony drug conviction was finalized on April 22, 2002. Pratt resolved there was no "prior" felony drug conviction the government could rely on to seek an enhanced sentence.

On December 6, 2007, the government filed an information for an enhanced penalty due to Pratt's prior felony drug conviction. On January 15, 2008, Pratt again pled guilty to the one count indictment, but Pratt objected to the government's information for an enhanced penalty, contending he did not engage in overt acts in furtherance of the conspiracy after his prior felony drug conviction was finalized on April 22, 2002.

The district court held a contested sentencing hearing on April 15, 2008. In an effort to prove Pratt actively participated in the conspiracy after April 22, 2002, the government offered three exhibits consisting of (1) Pratt's previous plea agreement, (2) a certified copy of Pratt's prior felony drug conviction, and (3) a transcript of the hearing in which Pratt pled guilty to the one count indictment alleging Pratt was involved in the conspiracy through February 2003.

The government also presented the testimony of Lieutenant Randall Kramer (Lieutenant Kramer), an investigator with the O'Brien County, Iowa, Sheriff's Office who had been involved in investigations of narcotic crimes for 31 years, more intensely in the last fifteen years. Lieutenant Kramer also testified he was investigating Pratt's involvement in a conspiracy with "a number of different individuals in the Hartley, Spencer area." Lieutenant Kramer described the investigation as focused primarily on the use, distribution, and manufacture of methamphetamine within the conspiracy. Lieutenant Kramer listed the names of all the parties he knew were involved in the conspiracy, and explained, "[t]he basic objectives [of the conspiracy] were to obtain and then distribute illegal drugs and then share and use these illegal drugs with each other and persons outside the conspiracy." Lieutenant Kramer stated his testimony was based on personal knowledge, interviews he conducted with other investigators, and reports written by other investigators. When discussing Pratt's involvement in the conspiracy after April 22, 2002, Lieutenant Kramer explained he obtained most of his information from debriefings and interviews he held with Pratt and his co-conspirators. Lieutenant Kramer related the following:

1. Sarah Graves (Graves) informed Lieutenant Kramer she received methamphetamine from Pratt on three or four occasions from January 1, 2002, through May 2002. Graves was a juvenile during this time, and she used drugs with Pratt and his co-conspirators at the home of Doug Nielson (Nielson).

2. During the late summer of 2002, Jason Persons (Persons) told Lieutenant Kramer that Persons sold Pratt one-quarter ounce of methamphetamine for $200 every other day for one month, totaling at least fifteen sales.

3. Brandon Tyson (Tyson) was arrested with one-eighth of an ounce of methamphetamine on September 13, 2002. Tyson advised Lieutenant Kramer he received the methamphetamine from Pratt and it "was bad meth."

4. Jason Marlow (Marlow) apprized Lieutenant Kramer that Pratt had a source of methamphetamine in Hartley, Iowa, and from October 2002 until January 2003, Pratt traveled to Hartley to obtain methamphetamine. Marlow stated he was aware of two occasions during which Pratt traveled to Hartley and returned with one-eighth of an ounce of methamphetamine.

5. On September 13, 2003, Nielson was arrested in Kansas City, Missouri, after purchasing pseudoephedrine pills for the manufacture of methamphetamine. Officers searched Nielson's home and located a laboratory used to manufacture methamphetamine. Officers determined Pratt lived in the residence and distributed methamphetamine from the residence between August 2001 and January 2002.

6. Jay Christensen (Christensen) reported to Lieutenant Kramer that Christensen used methamphetamine with Pratt at Christensen's home in Hartley, Iowa, from November 2002 until December 2002. On one occasion Christensen gave Pratt $100 to purchase marijuana for Christensen, but Pratt never returned with the marijuana or the money.

7. Travis Rouse (Rouse), who was interviewed by law enforcement officers other than Lieutenant Kramer, briefed officers that on November 17, 2002, he was traveling with Pratt to Hartley, Iowa. When Rouse and Pratt arrived, they went to Nielson's home. Rouse gave Pratt $20 to purchase methamphetamine from Nielson. Pratt entered the home and returned with one-half to three-quarters of a gram of methamphetamine. Pratt and Rouse then used the methamphetamine and drove to Sanborn, Iowa. In Sanborn, the vehicle was stopped, and Rouse was arrested for not having a driver's license. Lieutenant Kramer learned of these events by reading the relevant police reports, and verifying Rouse's arrest with the court.

When Lieutenant Kramer, the government's only witness, finished testifying, Pratt's counsel called one defense witness, Martin J. Koch (Koch), Pratt's former probation officer. Koch testified that as a condition of Pratt's probation, Pratt occasionally had to complete urinalysis testing. Koch reported Pratt tested positive for (1) unspecified drugs in June or August of 2002; (2) marijuana and methamphetamine in September 2002; (3) marijuana when entering a residential treatment facility in December 2002; and (4) unspecified drugs in January of 2003.

On June 17, 2008, during Pratt's second sentencing hearing, the district court found, although most of Lieutenant Kramer's testimony was based on hearsay, the testimony had sufficient indicia of reliability to support its probable accuracy. The district court then found the government met its burden of proving beyond a reasonable doubt Pratt engaged in overt acts in furtherance of the conspiracy after the date of his previous felony drug conviction. As a result, the district court imposed an enhanced sentence as required under 21 U.S.C. § 851. Pratt now appeals.

II. DISCUSSION

A. Standard of Review

When the defendant files a timely objection to the prior conviction enhancement, "[w]e review the district court's factual findings on the issue [of whether the government has met its burden of proof for a § 851 sentence enhancement] for clear error."² United States v. Sanchez-Garcia, 461 F.3d 939, 947 (8th Cir.2006) (citation omitted).

B. Pratt's Sentencing Enhancement

Under 21 U.S.C. § 841(b)(1)(A), when a defendant is found to have committed one of the enumerated drug offenses after having been convicted of a previous felony drug offense, the defendant is subject to a mandatory minimum sentence of 20 years imprisonment. Before a defendant may be subject to such a sentence enhancement, the government must file an information making the defendant aware of its intent to use the prior conviction and seek an enhanced sentence. See 21 U.S.C. § 851(a)(1). If a defendant wishes to challenge the prior conviction, he is entitled to file a written response, at which time "[t]he [district] court shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment." 21 U.S.C. § 851(c)(1). At this hearing, the government "shall have the burden of proof beyond a reasonable doubt on any issue of fact." Id.

In the present case, the government notified Pratt of the government's intent to rely on Pratt's prior felony drug conviction for a sentence enhancement. Pratt filed a written opposition, and it became the government's burden to prove the existence of the prior conviction and other relevant issues of fact beyond a reasonable doubt. In United States v. Funchess, 422 F.3d 698, 703 (8th Cir.2005) (citation omitted), this court explained, a "previous conviction is considered `prior' for purposes of applying a sentencing enhancement ... where the defendant committed an act in furtherance of a conspiracy after the date a prior conviction was finalized." Thus, if Pratt committed an act in furtherance of the conspiracy after April 22, 2002, the date on which his previous felony drug conviction became final, Pratt's April 22, 2002 conviction will be considered a "prior" conviction...