U.S. v. Sells

• Decision Date: 15 September 2008
• Docket Number: No. 07-7047.,07-7047.
• Citation: 541 F.3d 1227
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shelby Wayne SELLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

541 F.3d 1227

UNITED STATES of America, Plaintiff-Appellee, v. Shelby Wayne SELLS, Defendant-Appellant.

No. 07-7047.

United States Court of Appeals, Tenth Circuit.

September 15, 2008.

Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the brief), Denver, Colorado, for Defendant-Appellant.

Ryan M. Roberts, Assistant United States Attorney (Sheldon J. Sperling, United States Attorney, with him on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee.

Before MURPHY, McKAY, and BALDOCK, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

A jury convicted Shelby Sells of conspiring to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. § 846; knowingly maintaining a place for the manufacture, distribution, or use of methamphetamine, in violation of 21 U.S.C. § 856(a)(1); and being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). United States v. Sells, 477 F.3d 1226, 1233-34 (10th Cir.2007) ("Sells I"). The district court sentenced Sells to concurrent terms of 240 months on the drug and drug-house convictions and a consecutive term of 120 months on the ammunition conviction, resulting in a total sentence of 360 months' imprisonment. Id. at 1234; see also U.S.S.G. § 5G1.2(d) (providing that if the bottom of the United States Sentencing Guidelines (the "Guidelines") range is above the statutory maximum on any particular count of conviction, the district court shall run the sentences of separate counts consecutively to the extent necessary to achieve a sentence within the advisory Guidelines range). In arriving at that sentence, the district court attributed to Sells, for purposes of calculating his sentencing range under the Guidelines, all methamphetamine produced by the conspiracy. Sells I, 477 F.3d at 1242. This court reversed and remanded the matter to the district court to resentence Sells after first making "particularized findings as to (1) the scope of the criminal activity [Sells] agreed to undertake regarding the conspiracy, and (2) the total amount of drugs involved that were foreseeable to him." Id.; see also U.S.S.G. § 1B1.3(a)(1)(B). On remand, the district court again attributed to Sells all methamphetamine manufactured by the conspiracy, concluding Sells agreed to participate in the entirety of the conspiracy and all drugs associated with the conspiracy were foreseeable by him. Accordingly, the district court reimposed a total term of imprisonment of 360 months. Sells appeals, contending his sentence is both procedurally and substantively unreasonable. Exercising jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, this court affirms the sentence imposed by the district court.

II. Background

We will not repeat the facts underlying Sells's convictions, as they are detailed in our previous opinion. Sells I, 477 F.3d at 1231-34. For purposes of the present appeal, it is sufficient to note a jury found Sells guilty of, inter alia, conspiring with his son Anthony, to manufacture, possess, and distribute methamphetamine and maintaining, together with Anthony, a drug house to further those purposes. Id. at 1234. In a sentencing proceeding that occurred prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court sentenced Sells to a 360-month term of imprisonment. Sells I, 477 F.3d at 1234. The district court calculated a Guideline range of thirty years to life, based primarily on the entire amount of methamphetamine involved in the conspiracy. Id. at 1234, 1242. Operating under the then-mandatory Guidelines, the court sentenced Sells to thirty years' imprisonment. Id. at 1234.

Sells appealed, arguing (1) the district court should not have attributed the entire amount of drugs to him because it made neither a finding about the scope of the criminal activity he personally agreed to undertake nor a finding as to the amount of drugs reasonably foreseeable to him; and (2) constitutional Booker error occurred because the district court used judge-found facts to sentence him under the then-mandatory Guidelines. Id. at 1242. This court agreed with both contentions, accepting the government's concession that prejudicial Booker error occurred and determining the district court failed to make particularized findings as to the scope of the particular criminal activity Sells agreed to undertake or as to the amount of drugs reasonably foreseeable to him. Id.; see also U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, we reversed and remanded for resentencing. Sells I, 477 F.3d at 1242.

Upon remand, Sells filed a series of motions arguing, inter alia, that (1) he should only be held responsible under § 1B1.3(a)(1)(B) for those amounts of methamphetamine he personally sold; and (2) the district court should vary downward from the Guidelines sentencing range. As to the question of his responsibility for drug quantities other than those he actually handled, Sells simply argued that because there was no evidence he ever participated in the manufacturing of methamphetamine, he should not be held responsible for the drugs manufactured by Anthony. As to the issue of a variance, defense counsel discussed the factors in 18 U.S.C. § 3553(a), placing particular emphasis on Sells's age. He argued a sentence of eleven years was appropriate for a man of Sells's advanced age and that such a sentence would sufficiently protect the public and deter others from committing the same offense. Defense counsel also asserted Sells's prior convictions, which calculated out at a criminal history category of VI under the Guidelines, involved relatively small amounts of drugs.

The probation officer prepared an addendum to the presentence report ("PSR"), responding to Sells's drug-quantity assertions. The probation officer asserted the PSR correctly calculated Sells's offense level by including all amounts manufactured by the conspiracy:

[Sells] and [Anthony] were involved in a jointly undertaken criminal endeavor involving the manufacture and distribution of methamphetamine. . . . [A] search warrant was executed at the "Sells' [s] property" and from [Sells's] home [ ] officers recovered items consistent with manufacture of methamphetamine. . . . [Sells] introduced George Hanna to [Anthony] and at the time told Hanna that if he was unavailable, that Hanna could purchase methamphetamine from [Anthony]. Holly Brown, a former girlfriend of [Anthony], testified that she had observed [Anthony] cook methamphetamine on the Sells' [s] property approximately two-hundred times. She further testified that every time [Anthony] manufactured drugs [Sells] would come and collect an amount for distribution. William Keith Edwards testified that [Sells] was often present or nearby when the manufacturing was taking place. [Sells's] and [Anthony's] homes were located on common property, near to one another. [Sells] was aware that methamphetamine was being distributed from the property and[,] based on testimony of Holly Brown, that there were between twenty to twenty-five persons per day visiting [Anthony's] residence. It is unreasonable to believe that [Sells] was not aware and was not involved with the amount of methamphetamine being distributed from Anthony's residence. . . . It is reasonable to believe that he knew or should have known the specifics regarding the total amounts of manufacturing and the volume of distribution within the scope of the overall conspiracy.

In its responsive sentencing memorandum, the government likewise argued that without regard to whether Sells himself engaged in the manufacture of methamphetamine, the manufacturing by Anthony was integral to the conspiracy which Sells joined and was reasonably foreseeable by Sells. In particular, the government noted Sells and Anthony did not have a simple buyer-seller relationship, but instead (1) jointly maintained a place for the manufacture and distribution of methamphetamine, a property owned by Sells; (2) almost every time Anthony manufactured methamphetamine, Sells obtained a portion of the amount manufactured; and (3) Anthony and Sells jointly served customers, demonstrating concerted activity. Because the conspiracy between Sells and Anthony was a joint undertaking to both manufacture and distribute methamphetamine, the government asserted attribution of all drugs to Sells was proper under § 1B1.3(a)(1)(B).

At the sentencing hearing, the district court noted it had "reviewed the opinion by the circuit court and [was] now prepared to resentence [Sells], taking into consideration the advisory guideline sentencing range set forth in the presentence report." In addition, the court stated it had reviewed the following: "There's [defense counsel's] objections, there's his sentencing memorandum, there's his motion for downward departure, and there's his supplemental motion for downward departure. [The prosecutor] filed a response to [defense counsel's] motion and objections. There's also a second addendum to the presentence report." After resolving several preliminary matters, the district court took up this court's directive to make particularized findings regarding (1) the scope of the criminal activity Sells agreed to undertake, and (2) the amount of drugs that was reasonably foreseeable to him.

The district court began by inviting Sells's counsel to address the issue. Defense counsel merely reiterated the position taken in Sells's written submissions, i.e., because there was no evidence Sells participated in the manufacture of methamphetamine, he should only be held responsible for the amounts he personally distributed. In so doing, Sells relied on a portion of Sells I addressing Anthony's claim that his conspiracy conviction was not supported by sufficient evidence. In rejecting Anthony's claim, this court held as follows: "[A] reasonable jury could conclude based on [the evidence...