United States v. John Starks, Sr. , 815 F.3d 438 ( 2016 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 15-1574
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    John Starks, Sr.
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Northern District of Iowa - Dubuque
    ____________
    Submitted: February 29, 2016
    Filed: March 8, 2016
    ____________
    Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
    ____________
    GRUENDER, Circuit Judge.
    John Starks, Sr., pleaded guilty to conspiracy to manufacture methamphetamine
    near a school, in violation of 21 U.S.C. §§ 846, 860(a). At sentencing, the district
    court1 imposed a three-level role enhancement pursuant to § 3B1.1(b) of the
    1
    The Honorable Linda R. Reade, Chief Judge, United States District Court for
    the Northern District of Iowa.
    Sentencing Guidelines because Starks was a manager or supervisor of criminal
    activity that involved at least five participants. The court sentenced Starks to 192
    months’ imprisonment. Starks now appeals his sentence. We affirm.
    John Starks, Sr., (“Starks”) resided with his wife, Patricia Starks, in an
    apartment located across the street from an elementary school. On February 19, 2014,
    Starks and Casey Duhme attempted to manufacture methamphetamine in the
    bathroom of the Starks’ apartment. Duhme provided two boxes of pseudoephedrine,
    one of which came from Elly Kohl, the mother of his child. Starks provided lye and
    pseudoephedrine that he had acquired from his son, John Starks, Jr., and from Tyler
    Cue, his son’s friend who suffers from autism. Although Patricia Starks remained in
    the apartment while Starks and Duhme attempted to manufacture drugs, she did not
    take part in the attempt to make methamphetamine that evening.
    At some point during the drug-manufacturing process, a fire broke out inside
    the Starks’ apartment. The fire burned Starks’s hands and singed Duhme’s hair.
    Starks, Duhme, and Patricia Starks fled in Starks’s car. An officer conducting a
    routine patrol of the area noticed smoke coming from the Starks’ apartment and
    evacuated the building’s residents. Shortly afterward, the building’s roof collapsed.
    One tenant went to the hospital for smoke inhalation. During a later search of the
    Starks’ apartment, police found a mason jar containing camping fuel and
    methamphetamine beside Starks’s bed.
    As a result of these events, Starks pleaded guilty to one count of conspiracy to
    manufacture methamphetamine near a school, in violation of 21 U.S.C.
    §§ 846, 860(a). Starks’s final presentence investigation report recommended a three-
    level role enhancement pursuant to USSG § 3B1.1(b) because Starks had a
    supervisory role in criminal activity that included at least five participants. The list
    of participants in the presentence investigation report included Tyler Cue. Starks
    objected to the enhancement and to the inclusion of Cue. In light of Cue’s autism,
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    Starks contended that “there ha[d] been no showing that [Cue] was aware of the
    criminal object of the conspiracy and knowingly offered his assistance.” The
    Government agreed that Cue might not qualify as a participant because of his autism
    but nonetheless contended that the three-level role enhancement applied. In its
    sentencing memorandum, the Government identified the five participants as Starks,
    Starks, Jr., Patricia Starks, Duhme, and Kohl. Starkes argued at his sentencing
    hearing that Kohl did not participate in the criminal activity and therefore was not
    part of the conspiracy. Starks raised no challenge to any other named participant.
    At Starks’s sentencing hearing, Duhme testified about Kohl’s role in the
    methamphetamine-manufacturing scheme. Duhme explained that Kohl supplied him
    with pseudoephedrine and that Kohl “knew what to get” because she previously had
    distributed methamphetamine. Duhme also testified that Kohl assisted him in cutting
    off his singed hair after the fire in order to conceal from police his involvement in the
    drug-manufacturing activity. After considering this testimony, the court determined
    that five individuals—Starks, Starks, Jr., Patricia Starkes, Duhme, and Kohl—had
    participated in the criminal activity. The court thus applied the three-level role
    enhancement when calculating Starks’s advisory sentencing guidelines range of 135
    to 168 months. The court granted the Government’s motion for upward variance and
    ultimately imposed a sentence of 192 months’ imprisonment.
    On appeal, Starks contends that the district court committed a procedural error
    by applying the role enhancement under USSG § 3B1.1(b). He does not challenge
    the district court’s finding that he acted as a manager or supervisor. Instead, he
    argues only that the court incorrectly determined that the criminal activity included
    at least five participants. To support this argument, Starks renews his contention that
    Kohl was not a participant. In addition, he now contends that Patricia Starks was not
    a participant. We review for clear error the district court’s finding regarding the
    number of participants involved in criminal activity under USSG § 3B1.1. United
    States v. Matlock, 
    109 F.3d 1313
    , 1317 (8th Cir. 1997). The determination must be
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    supported by a preponderance of the evidence. United States v. Vasquez-Rubio, 
    296 F.3d 726
    , 729 (8th Cir. 2002). We disturb the court’s finding only if “the decision is
    unsupported by substantial evidence, [the decision] is based on an erroneous view of
    the applicable law, or [if] in light of the entire record, we are left with a firm and
    definite conviction that a mistake has been made.” United States v. Walker, 
    688 F.3d 416
    , 421 (8th Cir. 2012) (quoting United States v. Miller, 
    511 F.3d 821
    , 823 (8th Cir.
    2008)).
    We begin by addressing Starks’s argument that the court clearly erred by
    including Kohl as a participant. Starks contends that Kohl was not a participant
    because the Government failed to prove that Kohl knew of the conspiracy and
    intentionally joined it. This argument misses the mark because it relies on an
    improper test for participant status.
    A “participant” under USSG § 3B1.1 is “a person who is criminally responsible
    for the commission of the offense.” USSG § 3B1.1, cmt. n.1. The term “offense”
    encompasses not only the elements and acts cited in the count of conviction, but also
    all relevant conduct constituting the “contours of the underlying scheme itself.”
    United States v. Rosnow, 
    9 F.3d 728
    , 730 (8th Cir. 1993) (quoting United States v.
    Caballero, 
    936 F.2d 1292
    , 1298-99 (D.C. Cir. 1991)). Such relevant conduct
    includes all acts and omissions designed to further the jointly undertaken criminal
    activity, regardless of whether those acts occurred during commission of the offense
    of conviction, in preparation for that offense, or in the course of attempting to avoid
    detection or responsibility. USSG § 3B1.1, intro. cmt. (defining “offense” to include
    the list of activities set forth in USSG § 1B1.3(a)). An individual does not need to be
    guilty as a principal in the charged offense in order to be “criminally responsible” for
    that offense. United States v. Hall, 
    101 F.3d 1174
    , 1178 (7th Cir. 1996). Instead, the
    individual only needs to give “knowing aid in some part of the criminal enterprise.”
    
    Id. (citing United
    States v. Braun, 
    60 F.3d 451
    , 453 (8th Cir. 1995)). In addition, an
    individual need not be indicted or tried in order to be a participant under § 3B1.1.
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    United States v. Brockman, 
    183 F.3d 891
    , 899 (8th Cir. 1999). Finally, individuals
    may be participants even if they do not benefit from commission of the offense.
    
    Braun, 60 F.3d at 453
    .
    Here, the evidence supports the district court’s conclusion that Kohl was
    criminally responsible because she knowingly aided Starks and Duhme’s criminal
    enterprise. Duhme testified that Kohl supplied him with boxes of pseudoephedrine
    on two occasions and that one of these boxes was used to manufacture drugs on the
    night of the fire. This supplier relationship supported the court’s finding that Kohl
    qualified as a participant. See United States v. Garcia, 
    703 F.3d 471
    , 475-76 (8th Cir.
    2013) (noting that an ongoing supplier relationship may establish status as a
    participant under § 3B1.1). Circumstantial evidence showed that Kohl understood
    that her purchases would be used to manufacture methamphetamine. Duhme testified
    that Kohl had a history of dealing methamphetamine and that she knew what to
    purchase for Duhme as a result of her “past.” This testimony belies any claims of
    ignorance as to the purpose of her purchases. See United States v. Davidson, 
    195 F.3d 402
    , 408 (8th Cir. 1999) (noting that prior possession of methamphetamine is
    relevant to prove knowledge in conspiracy cases); see also United States v. Brown,
    
    461 F.3d 1062
    , 1069 (8th Cir. 2006) (noting that pseudoephedrine has limited legal
    uses and that, absent a cold, headache, or sinus problems, “there are remarkably few
    things you can do with pseudoephedrine except make illegal narcotics” (quoting
    United States v. Bewig, 
    354 F.3d 731
    , 736 (8th Cir. 2003))). Finally, Duhme testified
    that Kohl helped him cut his singed hair in an attempt to conceal from police his
    involvement in the methamphetamine-manufacturing attempt. This act, which was
    calculated to help Duhme avoid detection, is an example of relevant conduct that
    qualifies an individual as a participant under § 3B1.1. See USSG § 1B1.3(a)(1)
    (explaining that acts calculated to avoid detection are relevant conduct in which
    participants under § 3B1.1 may engage). In light of this testimony, we see no clear
    error in the district court’s determination that Kohl was a participant who knowingly
    provided aid to the criminal enterprise.
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    Starks also argues that his wife, Patricia, was not a participant under USSG
    § 3B1.1 but merely an unwitting third party used to commit the offense. See United
    States v. Mentzos, 
    462 F.3d 830
    , 842 (8th Cir. 2006) (explaining that an individual
    who is unwittingly involved in a conspiracy does not qualify as a participant under
    § 3B1.1). Although Starks objected to the role enhancement at the time of
    sentencing, he did not raise the issue of whether Patricia qualified as a participant.
    Thus, we review the issue only for plain error. See United States v. Johnson, 
    688 F.3d 444
    , 447 (8th Cir. 2012). For us to find plain error, Starks would have “to show
    that (1) there was an error that was not affirmatively waived, (2) the error was plain,
    meaning clear and obvious, (3) the error affects his substantial rights, and (4) the error
    seriously affects the fairness, integrity or public reputation of judicial proceedings.”
    
    Id. (quoting United
    States v. Ali, 
    616 F.3d 745
    , 752 (8th Cir. 2010)).
    We reject Starks’s argument that it was clear and obvious at the time of
    sentencing that Patricia was not a “participant” within the meaning of USSG § 3B1.1.
    According to the presentence investigation report, Patricia purchased
    pseudoephedrine pills for her husband on two prior occasions. Starks did not object
    to this statement, nor did he object to the inclusion of these pills in the drug quantity
    for which he was responsible. See United States v. Hunter, 
    505 F.3d 829
    , 831 (8th
    Cir. 2007) (noting that the district court may accept facts set forth in a presentence
    investigation report as true when the defendant has not objected to them). Patricia’s
    act of supplying psuedoephedrine supports the court’s decision to count her as a
    participant. See 
    Garcia, 703 F.3d at 475-76
    . Starks also acknowledged that his wife
    had been a methamphetamine user, and the evidence showed that Patricia allowed her
    husband to manufacture methamphetamine inside their shared apartment. This
    conduct likewise is consistent with participant status. See United States v. Capps,
    
    952 F.2d 1026
    , 1028 (8th Cir. 1991) (finding that an individual was a participant in
    a drug-dealing operation in part because he was present in the same home when the
    defendant committed the criminal activity); cf. United States v. Kocher, 
    948 F.2d 483
    ,
    485 (8th Cir. 1991) (holding that an individual was part of a conspiracy to
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    manufacture when he provided a location in which drugs were manufactured).
    Furthermore, the presence of a mason jar containing methamphetamine and camping
    fuel in Starks’s bedroom suggests that Starks had manufactured drugs in the
    apartment on at least one other occasion. Finally, Patricia fled with Starks and
    Duhme after the attempt to manufacture methamphetamine went awry, and she did
    not alert authorities about the fire. Such acts and omissions aimed at avoiding
    responsibility are examples of conduct supporting the determination that an
    individual was a participant under § 3B1.1. See USSG § 1B1.3(a)(1). In the face of
    such evidence, Starks has not met his burden to show that it was clear and obvious
    that Patricia was merely an unwitting third party rather than a participant. We thus
    see no plain error in the court’s finding that Patricia was a participant within the
    meaning of § 3B1.1.
    Based on this evidence, we find no clear or plain error in the district court’s
    conclusion that Kohl and Patricia Starks were participants in the criminal activity.
    Accordingly, we affirm the imposition of the three-level role enhancement.2
    ______________________________
    2
    Starks raised no challenge to the substantive reasonableness of his sentence.
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