U.S. v. Townley

• Decision Date: 10 January 2007
• Docket Number: No. 05-8066.,05-8066.
• Citation: 472 F.3d 1267
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney Joe TOWNLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

472 F.3d 1267

UNITED STATES of America, Plaintiff-Appellee, v. Rodney Joe TOWNLEY, Defendant-Appellant.

No. 05-8066.

United States Court of Appeals, Tenth Circuit.

January 10, 2007.

COPYRIGHT MATERIAL OMITTED

Ronald G. Pretty, Cheyenne, WY, for Defendant-Appellant.

Kenneth R. Marken, Special Assistant United States Attorney, (Matthew H. Mead, United States Attorney, and David A. Kubichek, Assistant United States Attorney, with him on the brief), District of Wyoming, Casper, WY, for Plaintiff-Appellee.

Before KELLY, McKAY, and O'BRIEN, Circuit Judges.

McKAY, Circuit Judge.

Appellant Rodney Joe Townley appeals his conviction for conspiracy to possess with intent to distribute more than 500 grams of methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846; two counts of possession with intent to distribute less than 50 grams of methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C); and possession with intent to distribute less than 50 grams of cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C). Appellant argues that: (1) the admission of hearsay statements violated his Sixth Amendment confrontation right under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); (2) the erroneous enhancement of his sentence was unreasonable in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and (3) the calculation of his criminal history violated Booker and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

I. BACKGROUND

On July 20, 2004, Appellant was arrested at the Days Inn in Casper, Wyoming following a report by a motel employee of suspicious activity in Appellant's room. At the time of his arrest, Appellant was found in possession of 13.05 grams of methamphetamine, 12.59 grams of cocaine, drug distribution materials including plastic bags and a digital scale, drug paraphernalia, a safe, wire transfer receipts, and $4,394 in cash. Eva Carvajal, Appellant's one-time girlfriend, was present in the motel room, and police encountered and detained two individuals, Robert Anthoney Ritchie and Rhonda Sprayberry, as they were leaving Appellant's room. Police found drugs on Mr. Ritchie and drug paraphernalia on Ms. Sprayberry.

As a result of this arrest, Appellant was charged in state court with felony possession of cocaine and methamphetamine and possession with intent to distribute both substances. After posting a $3,000 bond, Appellant was released. Appellant failed to appear at a preliminary hearing, and a bench warrant was issued for his arrest.

Following his run-in with the police outside the Days Inn motel room, Mr. Ritchie agreed to act as a confidential informant for the Wyoming Division of Criminal Investigation ("DCI") and, in that capacity, placed two recorded telephone calls to Appellant in an effort to locate him. Those efforts proved successful, and DCI agents located Appellant at the Best Value Inn in Gillette, Wyoming. While surveilling the motel, DCI agents witnessed Appellant leave a motel room to meet with Douglas Goodsell, an associate of Appellant, to conduct a drug transaction. When agents attempted to arrest Appellant, he fled on foot but was captured after a brief pursuit.¹ The agents then returned to the motel, where they detained Harold Virden and Mary Virden as the two were leaving the same motel room and heading toward a vehicle registered to Rick Johnson, in whose name the motel room also was registered. The agents found drug paraphernalia on Mr. Virden, and they discovered a scale in Mrs. Virden's handbag that appeared to have—and was later confirmed to have—methamphetamine residue on it.

After securing a search warrant, DCI agents searched the motel room. On a nightstand police found 29.86 grams of methamphetamine contained inside a Budweiser stash can, 1.42 grams of methamphetamine contained in a plastic bag, loose methamphetamine, a glass vial containing methamphetamine residue, used plastic bags containing methamphetamine residue, a ledger, and a Social Security card and a Sheridan Community Federal Credit Union card bearing Appellant's name. Two syringes, one filled with .23 grams of liquid methamphetamine and the other empty, were found wrapped in a washcloth and tucked inside a leather jacket pocket. DCI agents also located a small quantity of marijuana inside the motel room refrigerator. DCI agents located Appellant's vehicle in the motel parking lot, and a search of that vehicle revealed a Western Union wire transfer receipt and a piece of paper containing various phone and/or social security numbers. Present in the motel room when the search was initiated were Mr. Johnson, Amy Engdahl, Ms. Engdahl's three children, and the Virdens' one child.

Appellant was charged with the four-count federal indictment outlined above. His co-defendants on the conspiracy charge included Misty Jean Kosta, Christine Dawn Herden, Mr. Goodsell, and Mr. Johnson, all of whom pleaded guilty and, with the exception of Ms. Herden, appeared as witnesses for the government against Appellant. On March 29, 2005, the district court conducted a James hearing to determine the extent of these witnesses' testimony. After hearing testimony from DCI Agent and chief investigator Tina Trimble, the district court ruled from the bench that the government had established by a preponderance of the evidence that a conspiracy existed between Appellant, the various co-defendants, and various unindicted individuals including Tom Dishion, Rod Townley, Jr., and Ms. Carvajal.

On March 3, 2005, the government filed an information in accordance with 21 U.S.C. § 851 alleging that, because Appellant had previously been convicted of a felony drug offense, he would be subject to a mandatory term of twenty years' imprisonment if convicted of the conspiracy count. The § 851 information later was dismissed when a government-subpoenaed witness failed timely to appear during the sentencing phase.

At sentencing, Appellant objected to various inclusions in the pre-sentence report ("PSR"). The PSR placed Appellant in Criminal History Category VI, which the trial court lowered to Category IV of its own discretion. In addition, the trial court declined to add the leader/organizer enhancement, although it did adopt a two-level enhancement for use of a dangerous weapon during the commission of a drug crime. As a result, the district court sentenced Appellant to 240 months' imprisonment on the conspiracy charge and 120 months' imprisonment on each of the three possession with intent to distribute charges, to run concurrently.

II. CONFRONTATION CLAUSE

The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant "the right . . . to be confronted with the witnesses against him." U.S. Const. art. VI. Although a district court's evidentiary rulings are reviewed for abuse of discretion, whether admission of such evidence violates the Confrontation Clause is reviewed de novo. United States v. Summers, 414 F.3d 1287, 1298 (10th Cir. 2005). That review is conducted according to the rule promulgated by the Supreme Court in Crawford, 541 U.S. 36, 124 S.Ct. 1354, and defined further in Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

In Crawford, the Supreme Court held that the admission at trial of testimonial hearsay would violate the Confrontation Clause unless the declarant testified or where unavailable, was previously subject to cross-examination by the defendant regarding the objectionable statements. 541 U.S. at 68, 124 S.Ct. 1354. The Supreme Court, however, opted not to provide a precise definition of "testimonial," id. ("We leave for another day any effort to spell out a comprehensive definition of `testimonial.'"), concluding only, "at a minimum," that it would comprise prior testimony and statements made during police interrogation, id. In Davis, the Supreme Court restricted its clarification of the definition of "testimonial" hearsay to the police interrogation context. 126 S.Ct. at 2273. "Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation— as either testimonial or nontestimonial," the Supreme Court held that statements "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" are nontestimonial. Id.

Despite the expressly limited nature of the definition provided in Davis, it nevertheless lends credence to this court's interpretation of "testimonial" posited in United States v. Summers, 414 F.3d 1287. See United States v. Wade, No. 05-4160, ___ Fed.Appx. ___, ___, 2006 WL 3059929, at *4 (10th Cir. Oct.30, 2006) (unpublished) ("The Court did not precisely define testimonial in Crawford, but it indicated in Davis v. Washington that a statement is testimonial if `the circumstances objectively indicate . . . that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.'" (emphasis added)). In Summers, we held that "a statement is testimonial if a reasonable person in the position of the declarant would objectively foresee that his statement might be used in the investigation or prosecution of a crime." 414 F.3d at 1302. This holding comports with those of our sister circuits, see United States v. Hinton, 423 F.3d 355, 360 (3d Cir.2005) ("[S]tatements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial are testimonial."); United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004) ("The proper inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant's position would...