U.S. v. Whitecotton

• Decision Date: 29 April 1998
• Docket Number: No. 97-30108,97-30108
• Parties: 98 Cal. Daily Op. Serv. 3187, 98 Daily Journal D.A.R. 4402 UNITED STATES of America, Plaintiff-Appellee, v. Daniel WHITECOTTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1194

142 F.3d 1194

98 Cal. Daily Op. Serv. 3187, 98 Daily Journal

D.A.R. 4402

UNITED STATES of America, Plaintiff-Appellee, v. Daniel WHITECOTTON, Defendant-Appellant.

No. 97-30108.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 2, 1997.

Decided April 29, 1998.

Michael Klinkhammer, Klinkhammer Law Offices, Missoula, MT, for defendant-appellant.

Lori A. Harper, Assistant United States Attorney, Great Falls, MT, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Paul G. Hatfield, District Judge, Presiding. D.C. No. CR-96-00017-PGH.

Before: REAVLEY, ^* BOOCHEVER, and KLEINFELD, Circuit Judges.

BOOCHEVER, Circuit Judge:

Daniel Whitecotton appeals from his conviction for conspiracy and possession with intent to distribute methamphetamine and cocaine, contending that the district court erred at sentencing. His claims of insufficient evidence and a variety of other trial errors are addressed in a separate memorandum disposition.

FACTS

Montana Narcotics Investigation Bureau Agent Ken Poteet was working on an unrelated case in Great Falls, Montana, when a confidential informant ("CI") named John Maddox told Agent Poteet he could introduce him to someone from whom he could buy drugs. On April 17, 1996, Agent Poteet drove with CI Maddox, who was wearing a recording device (a "wire"), to the house where Daniel Whitecotton was staying with a roommate named Mary Jo. Whitecotton, Agent Poteet and CI Maddox went into the kitchen, and began to discuss the purchase of cocaine. Agent Poteet told Whitecotton he wanted one gram of cocaine and one gram of methamphetamine. Whitecotton told Agent Poteet he could get him cocaine, but the methamphetamine supplier was at work. Whitecotton left to get the drugs, and Agent Poteet and CI Maddox also left.

When they returned, Whitecotton was there, with a small baggie he said contained one and one-half grams of methamphetamine. (The amount actually introduced as evidence was .73 grams.) Whitecotton told them no cocaine was available. Whitecotton told them it would be $130 for the drug and asked them if they wanted more. When Agent Poteet and CI Maddox said yes, Whitecotton said he could get them a half ounce for seven to nine hundred dollars.

Agent Poteet testified at trial that the next day, April 18, Whitecotton told him over the telephone that Agent Poteet would have to give Whitecotton $750 in advance. When Agent Poteet refused and hung up, Whitecotton called back to say that he could come over and bring the money. Agent Poteet and CI Maddox returned to Whitecotton's residence. They parked in the alleyway behind the house and Whitecotton came out to talk to them. Matthew Lineberry arrived and entered the house, and CI Maddox and Whitecotton went inside to talk to him. CI Maddox came back out and asked Agent Poteet for the drug money, assuring Agent Poteet that he had seen the drugs. CI Maddox took the money inside and emerged with 10.09 grams of methamphetamine.

Lineberry testified that within about a month after April 18 he sold larger amounts of methamphetamine and cocaine to Agent Poteet on four different occasions, totalling over 150 grams of methamphetamine and over 44 grams of cocaine. Although Whitecotton was not present at these later sales, Lineberry testified that he would not have sold drugs to Agent Poteet if his close friend Whitecotton had not introduced the two men. Agent Poteet also eventually seized substantial amounts of methamphetamine, cocaine, and marijuana from Lineberry's residence.

Whitecotton was charged in an indictment filed June 21, 1996, with one count of conspiring to distribute methamphetamine and cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of possession of methamphetamine and cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Agent Poteet and Lineberry (who had pled guilty) testified for the government at Whitecotton's two-day trial. A jury found Whitecotton guilty after deliberating for a little more than an hour. The district court sentenced him to 120 months imprisonment and eight years supervised release.

I. Amount of drugs

Whitecotton argues that he should have been sentenced only on the basis of the amount of drugs purchased by Agent Poteet on April 17 and 18, which was 10.82 grams of methamphetamine. If this quantity had been used, Whitecotton's guideline range would have been as low as 9 to 15 months. Instead, the prosecution's calculation included the total amount of drugs sold by Lineberry to Agent Poteet, adding the much larger amounts Lineberry testified that he sold to Agent Poteet on four occasions within a month after Whitecotton's introduction of Lineberry and Agent Poteet. The prosecution even added the methamphetamine, cocaine, and marijuana seized from Lineberry's residence, even though those drugs had never been part of any transaction with Agent Poteet, and marijuana was not even mentioned in the two counts of the indictment naming Whitecotton.

Because the district court used the prosecution's calculation of the drug amount in determining Whitecotton's sentence, Whitecotton received the mandatory minimum sentence of ten years. See 21 U.S.C. 841(b)(1)(A)(viii) (defendant convicted of violation involving 100 grams or more of methamphetamine must be sentenced to no less than ten years).

We review the factual findings of the district court at the sentencing phase for clear error, and the quantity of drugs involved must be supported by a preponderance of the evidence. United States v. Asagba, 77 F.3d 324, 325 (9th Cir.1996).

To establish the base offense level for conspiracy to possess drugs, the sentencing court must determine the quantity of drugs involved in the commission of the crime. The court derives the quantity of drugs by considering the defendant's "relevant conduct," which includes all acts committed by the defendant. U.S.S.G. § 1B1.3(a)(1)(A). In this case, Whitecotton directly possessed and caused the distribution of 10.82 grams of methamphetamine, the drugs he obtained for sale to Agent Poteet on two occasions in April 1996.

Relevant conduct under the Guidelines also includes the conduct of others that occurs as part of a "jointly undertaken criminal activity," as long as the conduct consists of "reasonably foreseeable acts and omissions of others in furtherance of [that] jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(B). When the amount of drugs is in issue, "the defendant is accountable for all quantities of contraband with which he was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook." U.S.S.G. § 1B1.3, comment. (n.2); see United States v. Newland, 116 F.3d 400, 403-04 (9th Cir.1997). When the defendant is convicted of conspiracy,

the scope of the criminal activity jointly undertaken by the defendant ... is not necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the same for every participant. In order to determine the defendant's accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake (i.e., the scope of the specific conduct and objectives embraced by the defendant's agreement). The conduct of others that was both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant is relevant conduct under this provision. The conduct of others that was not in furtherance of the criminal activity jointly undertaken by the defendant, or was not reasonably foreseeable in connection with that criminal activity, is not relevant conduct under this provision.

. . . . .

With respect to offenses involving contraband (including controlled substances), the defendant is accountable for all quantities of contraband with which he was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband U.S.S.G. § 1B1.3, comment. (n.2). "In other words, under the Sentencing Guidelines, each conspirator is to be judged on the basis of the quantity of drugs which he reasonably foresaw or which fell within 'the scope' of his particular agreement with the conspirators, rather than on the distribution made by the entire conspiracy." United States v. Gutierrez-Hernandez, 94 F.3d 582, 585 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997).

that were within the scope of the criminal activity that he jointly undertook.

The district court must make an express factual finding regarding the amount of drugs that the defendant reasonably foresaw as being part of the conspiracy, or that was within the scope of the agreement that the defendant entered. Id. at 585; see United States v. Petty, 992 F.2d 887, 890 (9th Cir.1993). "The law of this circuit is that under the statutory minimum provisions, the court must assess a defendant's individual level of responsibility for the amount of drugs involved in an offense by determining, in accord with the Guidelines, the amount that the defendant could reasonably foresee would be involved in the offense of which he was guilty." United States v. Nunez-Carreon, 47 F.3d 995, 998-99 (9th Cir.) cert. denied, 515 U.S. 1126, 115 S.Ct. 2287, 132 L.Ed.2d 289 (1995) (quotations omitted).

In this case, Whitecotton's counsel argued at the sentencing hearing that Whitecotton was merely introducing Poteet, who he thought was a casual user, to Lineberry, and had entered into no agreement beyond the April 18 transaction. (Lineberry testified that he did not supply Whitecotton with the drugs involved in the transaction of the day before, April 17.) The government argued...