United States v. Helm
| Decision Date | 25 January 2023 |
| Docket Number | 21-2207,August Term 2022 |
| Parties | UNITED STATES, Appellee, v. Macenzie HELM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Daniel J. Hay, Sidley Austin LLP, Washington, DC (Michael A. Levy, Sidley Austin LLP, New York, NY, on the brief), for Defendant-Appellant.
Michael P. Drescher, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Nikolas P. Kerest, United States Attorney for the District of Vermont, Burlington, VT, for Appellee.
Before: Kearse, Park, and Pérez, Circuit Judges.
Defendant-Appellant Macenzie Helm appeals from the judgment of conviction entered by the United States District Court for the District of Vermont (Crawford, C.J. ) following his guilty plea to one count of conspiracy to distribute more than 50 kilograms (kg) of marijuana in violation of 21 U.S.C. §§ 841, 846. During a reverse-sting operation, Helm took possession of 10 kg of real and "sham" cocaine from an undercover agent and agreed to take possession of 40 kg more. After his arrest, Helm told law enforcement that he thought he was picking up marijuana or money, not cocaine. Helm later entered a plea agreement, in which he pleaded guilty to one count of conspiring to distribute marijuana. At sentencing, the government raised and the district court considered the 50 kg of cocaine as part of Helm's "relevant conduct" under Sentencing Guideline § 1B1.3(a)(1)(A). The district court sentenced Helm to 36 months’ imprisonment.
We conclude that (1) the plea agreement permitted the government to raise that quantity of cocaine at sentencing, (2) the government was not judicially estopped from doing so, and (3) the district court did not err by considering the 50 kg of cocaine as part of Helm's "relevant conduct" because Guideline § 1B1.3(a)(1)(A) does not require scienter as to drug type when a defendant is directly and personally involved in a drug transaction. We thus affirm the judgment of the district court.
In 2020, Macenzie Helm began to work for a Canadian drug-trafficking organization. His responsibilities included picking up money, marijuana, and cocaine, and on a typical trip, Helm transported around 100 pounds of marijuana, delivered it to an address in Flushing, New York, and received payment in the range of $8,000 to $10,000. He did this eight or nine times. Helm enlisted his mother and his brother to assist, and he communicated by text with the Canadian leader of the organization. Helm also made two trips to Pennsylvania to pick up bricks of cocaine, but both times before Helm collected the cocaine, the leader called off the deal due to money issues. After these trips, Helm informed the organization that he did not want to be sent on cocaine pickups.
In the spring of 2020, the DEA seized a large quantity of cocaine in South America that was destined for Canada. The DEA then devised a reverse-sting operation, which involved a controlled delivery of 50 kg of fake cocaine to the Canadian purchaser, which was the leader's drug-trafficking organization.2 An undercover DEA agent arranged a delivery of the 50 kg of cocaine to South Burlington, Vermont on September 21, 2020.
On or about September 19, 2020, the leader texted Helm asking whether he was interested in making some easy money. Helm accepted the job and recruited his mother to assist. Helm and his mother drove to Vermont, and Helm called the undercover agent to confirm the time and location of the transaction.
When Helm arrived, he exited the vehicle and met with the undercover agent, who was wearing a wire. The undercover agent then told Helm that the delivery was in two parts, and the agent would pass Helm 10 first and then 40. Helm agreed. Before giving Helm the initial 10, the undercover agent confirmed that Helm had room for all 50 pieces, to which Helm replied in the affirmative. The undercover agent then asked whether Helm would take the full 50 right away, and Helm agreed. The agent removed a duffle bag from his vehicle, which contained 10 kg of fake cocaine and a zip-lock bag with 530 grams of real cocaine. Helm took the bag and placed it in his rental van. Surveillance agents promptly arrested him, and a search of the van discovered $11,000. In post-arrest interrogations, Helm admitted his involvement but insisted that he was never informed of what he was picking up and assumed it was money or marijuana. On at least one of his trips to Pennsylvania, however, Helm knew that he was to pick up cocaine, because although those deals fell through for monetary reasons, he admitted that on the second trip he actually tested the cocaine and reported to the leader of the organization that it was of good quality.
Helm was charged with knowingly and willfully conspiring to distribute a controlled substance, and a grand jury returned an indictment charging him with conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(C). Helm pleaded not guilty.
Helm then entered into a plea agreement under which he pleaded guilty to one count of knowingly and willfully conspiring to distribute more than 50 kg of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(C). In exchange for his guilty plea, the government agreed:
Sealed App'x at SA-4 to -5.3 The plea agreement also stated that Helm "had [a] full opportunity to consult with his attorney ... concerning the applicability and impact of the Sentencing Guidelines (including, but not limited to, the relevant conduct provisions of Guideline Section 1B1.3)." Id. at SA-6.
Finally, the agreement stated that "[t]here shall be no limit on the information the United States may present to the Court and the Probation Office relevant to sentencing and the positions the United States may take regarding sentencing (except as specifically provided elsewhere in this agreement)." Id. at SA-2. The plea agreement contained no such exceptions.
On May 7, 2021, the district court held a change-of-plea hearing. The district court ensured that Helm understood the terms of the plea agreement and confirmed that there were no "further agreement[s] with the Government which [weren't] written down in the plea agreement or the exhibit." App'x at A-19 to -24. The court then inquired about the factual basis of Helm's guilty plea, and the government observed that "for purposes of the factual proffer to the Court for this change of plea," the government would accept that "the objective" of Helm's participation in the conspiracy was "the distribution of marijuana," not cocaine. Id. at A-36.
The government explicitly reserved arguments related to cocaine for sentencing. For example, after accepting "for purposes of the factual proffer" that Helm believed he was transporting marijuana, the government stated that it "might disagree with [Helm's counsel's] characterization" that Helm "had never dealt in cocaine" because "that's an issue for sentencing." Id. at A-36 to -37. And later, the government stated that "there may be disagreements at sentencing involving the scope of relevant conduct, whether cocaine should be included in relevant conduct." Id. at A-41.
The district court recognized that the relevance of cocaine was "something the Government doesn't take a position on today, [but it] may be something in the future." Id. at A-41. Right after this colloquy, Helm pleaded guilty to conspiracy to distribute more than 50 kg of marijuana.
The Presentence Investigation Report ("PSR") computed a Guidelines sentencing range of 51 to 63 months. In applying Guideline § 1B1.3(a)(1)(A), which includes a defendant's "relevant conduct," the PSR attributed 50 kg of cocaine to Helm.
Helm's sentencing memorandum objected to the PSR's inclusion of the 50 kg of cocaine as "relevant conduct." Helm claimed that he thought he was picking up marijuana and that he had previously informed the organization that he was not interested in transporting cocaine. Helm also never came into actual possession of 50 kg of cocaine, only the 530 grams of real cocaine.
The government replied that the cocaine was properly included because it was "reasonably foreseeable" that Helm's "role in the conspiracy would include the transportation of 50 kilograms of cocaine." Sealed App'x at SA-22. Within a day, the government realized its submission had confused Guideline § 1B1.3(a)(1)(A), about a defendant's own conduct, and Guideline § 1B1.3(a)(1)(B), about the reasonably foreseeable conduct of those with whom a defendant has jointly undertaken criminal activity. The government clarified that " U.S.S.G. § 1B1.3(a)(1)(A) does not call on the Court to consider foreseeability." Id. at SA-26. It argued that because Helm "personally and directly agreed to take all ’50 pieces,’ " "he should be held accountable for the 50 kilograms of cocaine [that] his conspirators sent him to collect, without considering the foreseeability of the drug type and quantity." Id. at SA-27.
At sentencing, the district court heard argument on the inclusion of cocaine as part of Helm's "relevant conduct." Helm reiterated that he thought he was dispatched to pick up marijuana, not cocaine. The government credited Helm's consistency "in stating that he did not understand he was picking up...
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