United States v. Becknell , 191 F. App'x 771 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
August 14, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 05-5199
v. (D.C. No. 05-CR -084-001-JHP)
(N.D. Okla.)
TONY M AURICE BECKNELL, JR.,
a/k/a “Smoke”,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **
Defendant-Appellant Tony M aurice Becknell, Jr. pleaded guilty to
possession with intent to distribute at least 50 grams of crack cocaine (count 1)
and possession with intent to distribute approximately 27 kilograms of marijuana
(count 2). 21 U.S.C.§ 841(a)(1), (b)(1)(A )(iii), (b)(1)(D ). The district court,
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
recognizing that the U nited States Sentencing Guidelines (“U .S.S.G.”) are
advisory in nature, sentenced M r. Becknell to 189 months imprisonment on count
one of the indictment and 60 months on count two, with the terms of
imprisonment to run concurrently. In calculating the advisory sentence under the
Guidelines, the district court arrived at a total offense level of 35 and a criminal
history category of I, w ith a guideline range of 168-210 months. Aplt. A pp. 129.
In so doing, the district court considered M r. Becknell’s objections to the amount
of drugs attributed to him and to a two-level enhancement for possession of a
firearm during the commission of the drug offenses. Our jurisdiction arises under
28 U.S.C. §§ 1291, and 18 U.S.C. § 3742(a), and we affirm.
On appeal, M r. Becknell argues that his base offense level was improperly
determined by attributing to him drug quantities that were not supported by
reliable evidence. Aplt. Br. at 3. M r. Becknell claims that the 565.30 grams of
crack cocaine discovered in a trash can outside his home by Alcohol, Tobacco and
Firearms (“ATF”) agents should not have been imputed to him. He argues that
the crack cocaine located outside was different, insofar as it appeared “recently
cooked and moist.” Aplt. Br. at 4. According to M r. Becknell’s argument then,
because there was no drug manufacturing evidence found in that residence, it is
error to attribute the “recently cooked” crack to him.
W e review a sentencing court’s determination regarding the quantity of
drugs attributable to a defendant under a clearly erroneous standard of review.
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United States v. Lauder, 409 F.3d 1254, 1267 (10th Cir. 2005). W e will not
reverse a district court’s factual findings on drug quantities unless the record fails
to supply adequate factual support or we are left with “the definite and firm
conviction that a mistake has been made.” United States v. Dalton, 409 F.3d
1247, 1251 (10th Cir. 2005).
Under U.S.S.G. § 1B1.3(a), the sentencing court is entitled to consider all
relevant conduct that the defendant has undertaken in order to arrive at the proper
sentence. In cases involving controlled substances, the defendant is held
accountable for all quantities of contraband with which he was directly involved
and, in a situation involving a jointly undertaken criminal activity, he is held
accountable for all reasonably foreseeable quantities of contraband that were
w ithin the scope of the criminal activity jointly undertaken. See U.S.S.G.
§ 1B1.3, cmt. n.2. It is the government’s burden to prove the amount of drugs
attributable to each defendant by a preponderance of the evidence. United States
v. M orales, 108 F.3d 1213, 1226 (10th Cir. 1997).
In this case, the district court did not err in attributing the 565.30 grams of
crack cocaine found in the trash can to M r. Becknell for sentencing purposes.
First, copious amounts of marijuana and crack cocaine w ere discovered inside M r.
Becknell’s apartment. Second, two confidential informants admitted that they
personally saw a kilogram of cocaine at M r. Becknell’s residence the night
proceeding the search. Third, M r. Becknell admitted to eating at Arby’s
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restaurant earlier on the day of the search, and the 565.30 grams of crack cocaine
was discovered in a discarded bag from Arby’s restaurant. As such, we conclude
that M r. Becknell’s argument is without merit.
A FFIR ME D.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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