United States v. Behler

• Decision Date: 23 April 1999
• Docket Number: No. 98-2993,98-2993
• Citation: 187 F.3d 772
• Parties: (8th Cir. 1999) UNITED STATES OF AMERICA, APPELLEE, v. JOHN D. BEHLER, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 772

187 F.3d 772 (8th Cir. 1999)

UNITED STATES OF AMERICA, APPELLEE, v. JOHN D. BEHLER, APPELLANT.

No. 98-2993

U.S. Court of Appeals, Eighth Circuit

Submitted: April 23, 1999

Filed: August 04, 1999

Rehearing and Rehearing En Banc

Denied Oct. 18, 1999.^*

Appeal from the United States District Court for the District of Nebraska. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Beam and Hansen, Circuit Judges, and Moody, ¹ District Judge.

Hansen, Circuit Judge.

This is Behler's third appeal of the sentence imposed upon him following his 1992 convictions on several drug trafficking charges. As a result of the most recent remand, the district court² imposed a two-level sentencing enhancement after finding that Behler possessed a firearm during the commission of his drug crimes. See U.S. Sentencing Guidelines Manual 2D1.1(b)(1) (Oct. 1987). Behler argues that the district court erred by applying this enhancement, by not reopening all sentencing issues, and by ordering special conditions of supervised release. We affirm.

I.

The facts underlying Behler's drug trafficking convictions are fully set forth in our prior opinions. See United States v. Behler, 14 F.3d 1264, 1266-68 (8th Cir.) (Behler I), cert. denied, 513 U.S. 960 (1994); see also United States v. Behler, 100 F.3d 632, 634-35 (8th Cir. 1996) (Behler II), cert. denied, 118 S. Ct. 153 (1997). We summarize only those facts necessary to the present appeal. Behler was involved in substantial drug trafficking, typically acquiring methamphetamine in Colorado and selling it to people in Nebraska and Iowa. At trial, Linda Wiegert, one of Behler's former live-in girlfriends, testified that from 1984 to 1987, "Behler made numerous trips to Colorado to purchase methamphetamine," and that "he always kept a.44 magnum handgun with him at home and on the trips." Behler I, 14 F.3d at 1266. A subsequent live-in girlfriend, Nora Houston, similarly testified that during 1987 and later, Behler made many trips to Colorado to purchase methamphetamine and always carried a handgun with him. Id. Both witnesses testified that he then would deliver the drugs to a regular group of customers. Id. at 1270.

In May 1989, while monitoring his telephone calls, law enforcement officials learned that Behler planned to engage in a methamphetamine transaction at his residence. Law enforcement officers maintained surveillance of Behler's residence and following the methamphetamine sale, they arrested Behler and searched the residence.

Officers found, among other things, a loaded.44 magnum handgun and a small amount of methamphetamine. Id. at 1266-67. A federal indictment charged Behler with conspiracy to distribute methamphetamine (count I), use of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. 924(c) (count II), use of a telephone in furtherance of a drug felony (count III), and distribution of methamphetamine (count IV). A federal jury found Behler guilty on all four counts. Id. at 1267.

In Behler's first appeal, we affirmed his convictions but remanded for resentencing on three of the four counts due to an ex post facto violation in the district court's application of the United States Sentencing Guidelines. See Behler I, 14 F.3d at 1271-73. In his second appeal, we reversed the 18 U.S.C. 924(c) conviction of count II in light of Bailey v. United States, 516 U.S. 137 (1995). We provided, however, that if the government chose not to retry the section 924(c) count, then we would "provisionally vacate the sentence on the drug counts (I and IV) so that the district court may consider whether Behler's sentence on the drug counts should be enhanced under USSG 2D1.1(b)(1) (Oct. 1987)," on the ground that he possessed a firearm during the commission of a criminal drug offense. Behler II, 100 F.3d at 640.

On remand, the government chose to dismiss the section 924(c) firearms charge and instead sought to add a two-level sentencing enhancement pursuant to USSG 2D1.1(b)(1). This adjustment applies if a defendant possessed a firearm during the commission of a drug offense. The district court ordered the preparation of a new presentence investigation report and scheduled a resentencing hearing to address the issue. At the resentencing hearing, Behler argued that the vacation of his section 924(c) conviction required the district court to reopen all sentencing issues, and he specifically challenged the previously imposed enhancements for his role in the offense and obstruction of Justice. The district court concluded that the only issue before it was the propriety of the section 2D1.1(b)(1) enhancement, which the court found applied in this case because Behler possessed a firearm during his drug offenses. In an abundance of caution, however, the district court alternatively found that the originally imposed enhancements still were appropriate. Behler appeals.

II.

A.

Behler argues that the vacation of his section 924(c) conviction unbundled his entire sentencing package and reopened the judgment for de novo consideration by the resentencing court. See Gardiner v. United States, 114 F.3d 734, 736 (8th Cir.), cert. denied, 118 S. Ct. 318 (1997). Behler wanted to challenge the sentencing enhancements for his role in the offense and obstruction of Justice, as well as the firearms enhancement of USSG 2D1.1(b)(1). He contends that the district court erred by limiting the scope of the resentencing hearing to one issue. We disagree.

On remand for resentencing, a district court can hear any relevant evidence that it could have heard at the first hearing, but "all issues decided by the appellate court become the law of the case." Behler II, 100 F.3d at 635 (internal quotations omitted). Additionally, the resentencing court may not disregard the scope of any limitations imposed by the appellate court. Id.

The law of this case precluded the district court from reopening issues of Behler's role in the offense or obstruction of Justice. In Behler's first appeal, we affirmed Behler's convictions and specifically affirmed the district court's findings concerning Behler's role in the offense and his obstruction of Justice. See Behler I, 14 F.3d at 1273. At that point, those findings became the law of the case absent any subsequent disturbance. In his second appeal we vacated Behler's section 924(c) conviction and the consecutive five-year sentence required by statute. Vacating that mandatory minimum sentence, however, did not disturb any of the prior findings concerning Behler's role in the offense or his obstruction of Justice, which remain the law of the case. Because the mandatory minimum sentence on the section 924(c) count was unaffected by such enhancements, its vacation merely provided an opportunity to consider a previously unavailable firearm enhancement to the sentence on the drug counts. The district court had no basis for revisiting issues previously decided both by it and by us regarding Behler's role in the offense or obstruction of Justice.

Additionally, our prior opinion limited the scope of the remand. We expressly stated that we were provisionally vacating the drug convictions for one purpose: "so that the district court may consider whether Behler's sentence on the drug counts should be enhanced under USSG 2D1.1(b)(1) (Oct. 1987)." Behler II, 100 F.3d at 640. The district court correctly interpreted our prior opinion and properly limited the scope of Behler's resentencing by considering only whether the drug counts should be enhanced due to Behler's possession of a firearm. In light of the law of the case and the limited language of our prior opinion, we decline to consider Behler's arguments relating to the propriety of enhancements based on his role in the offense or obstruction of Justice.

B.

Behler argues that the district court erred in assessing a two-level sentencing enhancement pursuant to USSG 2D1.1(b)(1). Basically, Behler contends that the government's witnesses were not credible and that the government failed to prove a nexus between his possession of a firearm and his drug activities. The district court's assessment of credibility, however, is virtually unreviewable, see United States v. Phelps, 168 F.3d 1048, 1057 (8th Cir. 1999), and we review for clear error the district court's finding that a weapon was sufficiently connected to the offense for purposes of USSG 2D1.1(b)(1). See United States v. Belitz, 141 F.3d 815, 817 (8th Cir. 1998).

Section 2D1.1(b)(1) mandates a two-level increase to a defendant's base offense level if the defendant possessed a firearm or other dangerous weapon during the commission of the offense. Sentencing courts are required to apply this adjustment if a weapon was present, "unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet." USSG 2D1.1(b)(1), comment. (n. 3) (Oct. 1987). Thus, we will sustain an enhancement pursuant to this specific offense characteristic if the government shows first "that the weapon was present and second, that it was not clearly improbable that the weapon had a nexus with the criminal activity." Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1999) (internal quotations omitted).

Behler does not challenge the presence of a firearm, but he contends that it was only used for hunting purposes as his witnesses testified at the resentencing hearing. Although the district court credited the testimony of Behler's witnesses, their testimony is inapposite because they admitted they were not involved in Behler's drug dealing activities. Their testimony thus has no direct bearing on whether Behler carried a firearm in connection with his drug offenses. The government presented F.B.I. testimony of statements made by Behler's ex-wife, Joannie Behler Moore. She began living with Behler sometime before their...