U.S. v. Sells

• Decision Date: 01 March 2007
• Docket Number: No. 04-7072.,No. 04-7061.,04-7061.,04-7072.
• Citation: 477 F.3d 1226
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shelby Wayne SELLS; Anthony Wayne Sells, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

477 F.3d 1226

UNITED STATES of America, Plaintiff-Appellee, v. Shelby Wayne SELLS; Anthony Wayne Sells, Defendants-Appellants.

No. 04-7061.

No. 04-7072.

United States Court of Appeals, Tenth Circuit.

March 1, 2007.

Jill M. Wichlens, Assistant Federal Public Defender, Denver, CO (Raymond P. Moore, Federal Public Defender with her on the briefs), for Defendant-Appellant Shelby Wayne Sells.

Donn F. Baker, Tahlequah, OK, for Defendant-Appellant Anthony Wayne Sells.

Dennis Fries, Assistant United States Attorney, Muskogee, OK (Sheldon J. Sperling, United States Attorney, Jeffrey A. Gallant, Assistant United States Attorney, on the briefs), for the Plaintiff-Appellee.

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

LUCERO, Circuit Judge.

We have combined these separate appeals solely for the purpose of disposition. Between early 2002 and July 2003, Shelby Sells and his son Anthony Sells were engaged in a large-scale methamphetamine manufacturing and distribution operation on Shelby's property in rural Sequoyah County, Oklahoma. Both were convicted of drug and firearm offenses relating to their participation in this enterprise, and sentenced to substantial terms of imprisonment. Anthony¹ appeals both his convictions and sentence. Because we conclude that reversible error did not occur with respect to either, we AFFIRM. Shelby appeals only his sentence. The government concedes that the district court committed Booker error in sentencing Shelby, and that this error was not harmless. In addition, we conclude the district court's determination of the drug amount attributable to Shelby was insufficiently particularized. Thus, on the government's concession, with respect to Shelby Sells, we REVERSE and REMAND for resentencing.

I

Sixty-one year old Shelby Sells lived with his wife Maxine on a ten-acre property he owned in Sequoyah County, Oklahoma. In addition to Shelby's house, the property contained numerous small buildings, miscellaneous items relating to Shelby's junk business, and two other residences. One house, located near the rear of the property and more than two hundred yards behind Shelby's home, was occupied by Anthony. The other, approximately fifty yards away from Shelby's residence, was occupied by Shelby's grandson Christopher Sells.

Based on information obtained from confidential informants that Anthony was engaged in manufacturing methamphetamine, members of the Sequoyah County Sheriff's Department obtained a warrant to search Anthony's home on Shelby's property. In the early morning hours of July 12, 2002, members of the Sheriff's Department, federal agents from the Department of Alcohol, Tobacco, and Firearms ("ATF"), and other law enforcement personnel executed the search. After their attempts to knock and announce went unanswered, agents forcibly entered. They observed Anthony emptying a large jar of liquid into the kitchen sink.² During the ensuing search, agents found substantial evidence that Anthony was manufacturing and distributing methamphetamine, including: (1) a "bag lab" in Anthony's living room containing the precursor chemicals and equipment needed to manufacture methamphetamine; (2) glass canisters, scales, protective goggles, a respirator, and other equipment commonly used in the manufacturing and distribution of methamphetamine;³ (3) 38.3 grams of pseudoephedrine, the base ingredient used to make methamphetamine; (4) 28.3 grams of a methamphetamine mixture; and (5) precursor chemicals and cutting agents commonly used in the manufacture of methamphetamine. Also recovered from the home were two firearms, both within Anthony's reach when agents entered. One officer testified that while inside the residence he smelled a strong chemical odor associated with methamphetamine manufacturing.

Following the search, federal authorities continued their investigation, ultimately obtaining search warrants for each of the three residences on the property. On December 11, 2002, state and federal law enforcement officers executed those warrants. In Anthony's residence, agents initially did not find substantial and direct evidence that Anthony was continuing to manufacture and distribute methamphetamine.⁴ When they opened the lit wood-burning stove in his residence, however, authorities observed in the glow of the fire equipment used in the manufacturing process⁵ and burning U.S. currency. A sample of the stove's contents tested positive for pseudoephedrine and methamphetamine. Their search of Anthony's residence was cut short, however, because the air registered as unsafe soon after they opened the stove.

In Shelby's home, authorities found assorted ammunition, a set of precision digital scales (often used by narcotics dealers to weigh small quantities), a bucket of assorted glassware near a set of rubber gloves, small plastic bags, and a tobacco can containing $1500.00 in cash. When officers discovered the money, Shelby claimed that he did not where it came from and abandoned it.

Inside the third residence, where Christopher lived, agents found a two-liter plastic bottle containing a liquid that tested positive for methamphetamine, a small plastic bag of methamphetamine, and a sack containing empty blister packs. In addition to the drug paraphernalia, authorities recovered two shotguns and two phone bills addressed to Shelby.

Approximately six months later, federal authorities received information that, unrepentantly, Anthony was continuing to manufacture methamphetamine at an abandoned structure near the Sells' property and in his residence. They obtained a third search warrant for his residence, and planned to execute the warrant on the morning of July 18, 2003. Shortly before they were scheduled to proceed, Anthony received a call informing him that a search was imminent. Anthony instructed one of his guests, Robert Isaac, to hide a couple of bags and a black case in the woods behind the property. He then instructed another individual, William Keith Edwards, to pack up other items, load them into the jeep, and hide them in the woods. When Edwards finished his task, he returned to Anthony's home and began burning various pieces of evidence in three large barrels while Anthony washed glassware. Before Anthony left, he handed Edwards the glassware and asked him to dispose of it. All others left soon thereafter.⁶

At approximately 5 a.m. federal and state authorities executed the search warrant. The only person found near the residence was Marion Royal Daniels, found sitting outside Anthony's home in his vehicle. Inside, agents discovered assorted glassware in the sink, a digital scale on a coffee table in Anthony's den, and a BB gun. Outside, agents were able to extinguish the fire in one burning barrel in time to take inventory of its contents: a can of carburetor fluid with a hole punched in the bottom,⁷ and blister packs of pseudoephedrine. In the woods behind the Sells' property, authorities uncovered evidence of a "large methamphetamine laboratory,"⁸ 36.3 grams of pseudoephedrine, 66.3 grams of pure methamphetamine, and 7.5 grams of pure amphetamine.

On November 14, 2003, a grand jury issued an eight-count superceding indictment against Shelby, Anthony, and two other named individuals based on their participation in the alleged methamphetamine conspiracy.⁹ Anthony was charged with seven counts: Conspiracy to knowingly and intentionally possess with intent to distribute methamphetamine, and to knowingly and intentionally manufacture and distribute methamphetamine, both in violation of 21 U.S.C. § 846 ("Count One"); Attempt To Manufacture Methamphetamine on or about July 12, 2002, in violation of 21 U.S.C. §§ 846 and 841(a)(1) ("Count Two"); Possession of a Firearm During Commission of a Drug Trafficking Crime on or about July 12, 2002, in violation of 18 U.S.C. § 924(c)(1)(A)(i) ("Count Three"); Felon in Possession of a Firearm on or about July 12, 2002, in violation of 18 U.S.C. § 922(g)(1) ("Count Four"); Attempt To Manufacture Methamphetamine on or About July 18, 2003, in violation of 21 U.S.C. §§ 846 and 841(a)(1) ("Count Six"); Felon in Possession of a Firearm on or about July 18, 2003, in violation of 18 U.S.C. § 922(g)(1) ("Count Seven"); and Establishment of Manufacturing Operations, in violation of 21 U.S.C. § 856(a)(1) ("Count Eight"). Shelby was charged with only three counts: Count One (Conspiracy), Count Eight (Establishment of Manufacturing Operations), and Felon in Possession of Ammunition on December 11, 2002, in violation of 18 U.S.C. § 922(g)(1)("Count Five").

During a five-day trial, the government presented numerous witnesses who testified to the Sells' methamphetamine operations. Holly Brown, Anthony's former girlfriend, testified that she assisted Anthony with manufacturing two to four ounces of methamphetamine more than 200 times, that Shelby would obtain his methamphetamine from Anthony, and that approximately 20 to 25 people visited the Sells' property each day. She also established that the two firearms found during the July 12, 2002 search were owned by Anthony. George Hanna, a frequent visitor to the Sells' property, testified that he purchased a total of approximately five pounds¹⁰ of methamphetamine from Anthony and Shelby. Jamie Landherr, another individual who frequented the Sells, testified that she purchased one to two ounces of methamphetamine during each of her six to eight visits to the Sells' property, and that she personally observed Shelby obtain methamphetamine from Anthony for distribution. Mark Osburn testified that Anthony attempted to manufacture methamphetamine the evening prior to the July 12, 2002 search. He also corroborated other testimony regarding the Sells' illegal activities. Edwards testified that Anthony attempted to manufacture methamphetamine the night before the July 18, 2003 search, and described how he assisted Anthony in manufacturing approximately a pound of methamphetamine on several prior occasions. Multiple...