United States v. Vittek , 228 F. App'x 469 ( 2007 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE FIFTH CIRCUIT May 16, 2007
_____________________
No. 05-51630 Charles R. Fulbruge III
_____________________ Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
AMY MARIE VITTEK,
Defendant-Appellant
----------------------
Appeal from the
United States District Court
for the Western District of Texas
(W-04-CR-240-8)
----------------------
Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
In September 2005, Amy Vittek entered a plea of guilty,
without a written plea agreement, to possession with intent to
distribute methamphetamine (“meth”) within 1,000 feet of a
playground, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),
and 860(a). One month later, she was sentenced to a 168-month
term of imprisonment. Vittek appeals her sentence, contending
that (1) the quantity of drugs attributed to her was erroneous;
(2) her criminal history included an offense that should not have
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
been considered in the calculation; (3) her right to
confrontation was violated by the use of hearsay evidence at her
sentencing; (4) she played only a minor or minimal role in the
offense and her sentence should have been adjusted to reflect
this fact; and (5) application of the United States Sentencing
Guidelines (“U.S.S.G.”) § 2D1.1's six-level enhancement for
substantial risk of harm to the life of a minor was error. We
affirm.
I. Facts
A. The Underlying Offense
In September 2004, Vittek, her three year-old son, and her
son’s father were passengers in a car driven by Bradley Scott
Anderson. After noticing the car’s expired state inspection
sticker, a Temple County police officer activated his lights to
stop the car. Anderson did not stop, however, and a chase
ensued. During the chase, dispatch officers advised the pursuing
police officers that a witness had seen the driver throw a gun
and plastic bag out of the vehicle’s window. At the location
specified by the witness, officers retrieved a handgun and a
plastic bag containing a substance that appeared to be meth.
When Anderson eventually stopped, the police searched the
car. They found (1) inside Vittek’s purse, located at her feet,
a Marlboro 100 cigarette box containing a plastic bag of what
2
appeared to be meth; (2) in the driver’s door pocket, a magazine
containing three live 9-mm rounds; (3) on the floorboard, under
Vittek’s son’s feet, a plastic jug containing a liquid that
smelled like acetone or ammonia; and (4) a videotape on “how to
produce methamphetamine,” produced by Heath Guthrie, showing
Anderson with a handgun, Anderson smoking meth, and Guthrie and
Anderson discussing the best way to make meth.
Lab tests on the liquid and powdered substances seized by
the officers came back positive for meth. The plastic bag that
had been thrown from the vehicle contained 3.9 grams of meth.1
The bag found in Vittek’s purse contained about 2.9 grams. The
“combined field weight” was “6.8 grams which is an amount for
distribution.”2 Lab analysis on the 2.42 kilograms of liquid in
the jar determined that it contained one milligram of meth per
milliliter.
B. Relevant Conduct
In early 2004, a cooperating individual (“CI1”) informed
1
The factual basis states that this plastic bag “weighed
about 3.9 grams with packaging.”
2
The record contains conflicting reports of the quantities
of meth in the bags and jar. Each of the total amounts described
in the record, however, equals or exceeds five grams, the amount
charged in the indictment. In any event, Vittek does not dispute
that the underlying offense involved five grams or more of meth.
Rather, she challenges the district court’s reliance on the
relevant conduct to determine the drug quantity.
3
police officers that Anderson had cooked meth from January 2000
until September 2004. CI1 reported that Anderson used 1000 to
1200 120-mg-pseudoephedrine pills and 13 batteries at each cook.
On average, these 1000-pill cooks had yielded approximately one
ounce of meth. Based on CI1’s information, officers estimated
that, between January 2000 and September 2004, Anderson
participated in about 576 meth cooks that produced a total of 576
ounces of meth.3
CI1 stated that Vittek participated in the cooks by
contributing such items as “white gas, funnels, and filters for
the cooks,” and by “bust[ing] blister packs” for Anderson. Both
CI1 and a second CI (“CI2") said that Vittek was present at about
90% of the Anderson cooks. CI2 provided information regarding
Vittek’s involvement in manufacturing meth between April and
September 2004. CI2 stated that he attended at least 100 cooks
at which between 400 and 1,000 pills were used. CI2 also stated
that Vittek’s three-year-old son was present for several meth
cooks during that time and that “he’d never seen another three-
3
The 576 ounce approximation was determined as follows:
CI1 stated that Vittek and Anderson generally cooked meth three
times each week; that each of those cooks yielded about one ounce
of meth; and that this manufacturing rate continued from the
beginning of 2000 to the beginning of 2004. Sergeant Jeff Clark of
the City of Temple Police Department calculated the number of
ounces of meth produced each year based on an assumption of 48
weeks of meth cooking. That number, multiplied four times,
resulted in the 576-ounce estimate.
4
year-old that had quite the knowledge of methamphetamine cooking
that Dwight had.” Both CIs were meth users, were involved in its
manufacture, and have been convicted of criminal offenses.
C. Prior Proceedings
Vittek was charged in a two-count Fourth Superseding
Indictment filed on September 13, 2005. She was first charged,
in count SS1, for “[b]eginning in or about July, 2002,”
“unlawfully and willfully combin[ing], conspir[ing],
confederat[ing], and agree[ing], together and with each others,
to manufacture at least 500 grams of a mixture and substance
containing a detectable amount of methamphetamine,” in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and 846. Vittek was
next charged in count SS8, with “[on] or about September 28,
2004,
unlawfully, knowingly, and intentionally . . .
possess[ing] with intent to distribute methamphetamine,
a Schedule II Controlled Substance, the said possession
having occurred within one thousand (1,000) feet of the
real property comprising a playground, namely, Jones
Park, 1102 West Avenue H, Temple, Bell County, Texas,
in violation of Title 21, United States Code, Section
841(a)(1) and 841(b)(1)(C) and 860(a).
On September 29, 2005, Vittek pleaded guilty to count SS8 ——
possession with intent to distribute meth within 1,000 feet of a
playground, in violation of 21 U.S.C. §§ 841(a)(1),4 (b)(1)(C),5
4
21 U.S.C. § 841(a)(1) makes it “unlawful for any person
knowingly or intentionally . . . to manufacture, distribute, or
5
and 860(a).6
The Presentence Investigation Report (PSR) set Vittek’s
total offense level at 42.7 Using U.S.S.G. § 2D1.2(a)(2), the
PSR determined that Vittek’s base offense level —— for a drug
dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.”
5
21 U.S.C. § 841(b)(1)(C) states, in pertinent part, that,
“[e]xcept as otherwise provided in section 859, 860, or 861 of this
title, any person who violates subsection (a) of this section shall
be sentenced as follows: . . . (C) In the case of a controlled
substance in schedule I or II, . . . to a term of imprisonment of
not more than 20 years . . . .”
6
Section (a) of 21 U.S.C. § 860, “Distribution or
manufacturing in or near schools and colleges,” states in relevant
part:
“(a) Penalty
Any person who violates section 841(a)(1) . . . of
this title by distributing, possessing with intent to
distribute, or manufacturing a controlled substance in or
on, or within one thousand feet of, the real property
comprising a public or private elementary, vocational, or
secondary school or a public or private college, junior
college, or university, or a playground . . . is . . .
subject to (1) twice the maximum punishment authorized by
section 841(b) of this title; and (2) at least twice any
term of supervised release authorized by section 841(b)
of this title for a first offense. . . .”
7
Confusingly, the district court’s statement of reasons
indicates that Vittek’s total offense level was 41. We assume this
was a typographical error by the court reporter, as the district
court adopted the PSR without change and the PSR determined that
Vittek’s total offense level was 42. In any event, the sentencing
range for 41 and 42 are identical: 360 months to life. See
Sentencing Table in U.S. SENTENCING GUIDELINES MANUAL (2004).
6
quantity of 14.68 kilograms of meth —— was 37.8 To this base
offense level of 37, the PSR recommended a two-level increase
pursuant to subsection 2D1.1(b)(1), which states that “[i]f a
dangerous weapon (including a firearm) was possessed, increase by
2 levels.”9 The PSR also recommended a six-level increase,
pursuant to 2D1.1(b)(6)(C), which states that “[i]f the offense
(i) involved the manufacture of amphetamine or methamphetamine;
and (ii) created a substantial risk of harm to the life of a
minor or an incompetent, increase by 6 levels,”10 because the
offense involved the manufacture of methamphetamine and created a
substantial risk of harm to the life of Vittek’s child. After
being reduced by three levels for acceptance of responsibility,
pursuant to U.S.S.G. § 3E1.1(a) and (b), Vittek’s total offense
level was set at 42.
The PSR calculated Vittek’s criminal history points as two
8
Subsection 2D1.2(a)(2) sets the base offense level at: “1
plus the offense level from § 2D1.1 applicable to the total
quantity of controlled substances involved in the offense.”
Section (c) of Guideline 2D1.1 is a “Drug Quantity Table.”
Subsection (c)(2) of Guideline 2D1.1 indicates that a base offense
level of 36 is appropriate for “At least 5 KG but less than 15 KG
of Methamphetamine, or at least 500 G but less than 1.5 KG of
Methamphetamine (actual), or at least 500 G but less than 1.5 KG of
‘Ice’.” Using the 14.68 kilograms as the applicable drug quantity,
2D1.2(a)(2) indicated to add one level to 2D1.1(c)(2)’s
recommendation of 36; hence, the base offense level was 37.
9
U.S.S.G. § 2D1.1(b)(1).
10
U.S.S.G. § 2D1.1(b)(6)(C).
7
and her criminal history category as II. Based on a total
offense level of 42 and a criminal history category of II,
Vittek’s sentencing guidelines range was 360 months to life.
Vittek objected to the PSR, challenging the calculation of
her base offense level, the firearm enhancement,11 the six-level
enhancement for creating a substantial risk of harm to the life
of a minor, the drug quantity that was attributed to her, the
PSR’s failure to recommend a reduction for a minimal or minor
role, the criminal history calculation, and the PSR’s failure to
recommend a downward departure.
After hearing testimony from the government and argument
from counsel in November 2005, the district court sentenced
Vittek to 168 months’ imprisonment, five years’ supervised
release, a $2,000 fine, and a $100 special assessment. The
district court’s statement of reasons indicates that it adopted
the PSR “without change.” The court nevertheless imposed a
sentence below the advisory sentencing guideline system “to avoid
unwarranted sentencing disparities among defendants,” citing 18
U.S.C. § 3553(a)(6). Vittek timely filed a notice of appeal.
11
Vittek does not appeal the district court’s application
of the two-level firearm enhancement.
8
II. LAW AND ANALYSIS
A. Standard of Review
“Even after Booker, the district court's interpretation of
the Sentencing Guidelines is reviewed de novo and its fact
findings are reviewed for clear error.”12 After reviewing a
district court’s interpretation of the Guidelines, we “review the
sentence, whether imposed pursuant to the Guidelines or departing
from them, for unreasonableness.”13 When a sentence falls within
a properly calculated guidelines range, the sentence is
presumptively reasonable.14
“Booker contemplates that a sentencing judge will determine
facts relevant to sentencing, including relevant conduct.”15 In
reviewing sentencing decisions, we “take into account the
district court’s ‘wide discretion in the kind and source of
information [it] considers in imposing sentence.’”16 We are
12
United States v. Washington, 480 F.3d 309, 312 (5th Cir.
2007).
13
United States v. Medina-Argueta, 454 F.3d 479, 481 (5th
Cir. 2006).
14
Id.15
United States v. Alonzo, 435 F.3d 551, 553 (5th Cir.
2006).
16
United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996)
(quoting United States v. Garcia, 693 F.2d 412, 416 (5th Cir.
1982)) (alteration in original).
9
further mindful that, “[f]or sentencing purposes, the district
court may consider any relevant evidence ‘without regard to its
admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of
reliability to support its probable accuracy.’”17
B. Drug Quantity
Vittek challenges the drug quantity that was attributed to
her in calculating her base offense level. “When determining the
base offense level for drug distribution, a court may, of course,
consider relevant conduct of which the defendant has not been
charged, or convicted.”18 Vittek contends that the district
court nevertheless erred in considering the relevant conduct
here, arguing that (1) the quantity of drugs attributed to her
was not supported by reliable evidence, and (2) because the drug
amount attributed to her —— 14.68 kilograms —— was much greater
than the roughly 6 grams of meth involved in her substantive
offense, and therefore dramatically increased her base offense
level, the district court should have required the government to
prove the additional amount of drugs by a higher burden of proof
than a preponderance of the evidence. Both arguments fail.
17
Id. (citing U.S.S.G. § 6A1.3).
18
United States v. Young, 981 F.2d 180, 189 (5th Cir.
1992).
10
1. Reliability of the Evidence
Vittek contends that the PSR relied “almost exclusively on
the testimony of the CIs,” which was “inherently unreliable and
unbelievable.” Thus, she asserts, the quantity of drugs
attributed to her for the purpose of sentencing should have been
limited to the roughly six grams of meth that was recovered by
police on the date of the car chase, which Vittek argues is “the
only amount credibly tied to her.”
As a sentencing court’s determination regarding the
applicable quantity of drugs involved in a crime is a factual
finding, we review for clear error.19 A sentencing court “may
rely on the information presented in the presentence
investigation report so long as the information has some minimum
indicium of reliability.”20 The defendant has the burden of
proving that the sentencing court relied on unreliable
information in determining the relevant conduct.21
Here, the district court’s findings were based on the
testimony of Sergeant Jeff Clark, from the Temple Police
Department, who testified at the sentencing hearing about his
19
Id. at 185.
20
United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991)
(internal quotation marks omitted).
21
Id.; United States v. Betancourt, 422 F.3d 240, 248 (5th
Cir. 2005).
11
debriefings of two CIs involved in the Anderson meth-cooking
operation. According to Clark’s testimony, the CIs, who were
debriefed separately and approximately six months apart, provided
similar descriptions of the meth-cooking operation and Vittek’s
involvement in it. Moreover, Clark testified that he had
independently corroborated a “substantial amount” of the CIs’
information. Clark explained that, for example, officers found
evidence of meth cooks at the location where CI1 informed
officers the cooks had occurred. In light of the information
provided by the CIs —— uncontradicted by Vittek —— Vittek has not
met her burden of demonstrating that the district court
determined the quantity of drugs involved on the basis of
unreliable evidence.
2. Standard of Proof
Vittek concedes that, as a general matter, “[t]he sentencing
judge is entitled to find by a preponderance of the evidence all
the facts relevant to the determination of a Guideline sentencing
range and all facts relevant to the determination of a non-
Guidelines sentence.”22 She nevertheless contends that “a higher
burden [than the customary preponderance-of-the-evidence
standard] must be met when a sentence is dramatically” increased
22
United States v. Mares, 402 F.3d 511, 519 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005).
12
by the quantity of drugs involved in relevant conduct.23
Applying the preponderance-of-the-evidence standard in such a
case, Vittek contends, would allow the proverbial tail to wag the
dog.
Although Vittek is correct that we have previously suggested
that there may be circumstances when the relevant conduct has so
greatly increased the sentence that a higher standard of proof
must apply,24 this is not such a case. Indeed, we have rejected
the “tail wagging the dog” argument when the disparity between
the relevant sentences was even greater than the disparity
between the sentences at issue here.25
23
If Vittek had been sentenced based only on the
approximately six grams of meth, the advisory sentencing range
would have been 51 to 63 months’ imprisonment. See Sentencing
Table in U.S. SENTENCING GUIDELINES MANUAL (2004) (based on a criminal
history category II and a total offense level of 23). This range
represents less than half of Vittek’s 168-month sentence, and
slightly more than one-sixth of the minimum 360-month term of
imprisonment recommended by the PSR.
24
United States v. Mergerson, 4 F.3d 337, 344 (5th Cir.
1993) (stating that “[w]e believe that . . . there may be certain
cases where a sentencing fact is a ‘tail that wags the dog of the
substantive offense,’ and might arguably require a finding beyond
a reasonable doubt . . . .” but concluding that defendant’s
sentence did not present such a case) (internal citations
omitted)); see also United States v. Harper, 448 F.3d 732, 734 n.1
(5th Cir.) (collecting cases suggesting that higher burden might be
warranted in some circumstances), cert. denied, 127 S. Ct. 285(2006).
25
United States v. Carreon, 11 F.3d 1225, 1240 (5th Cir.
1994) (“The difference here —— between approximately six and almost
twenty years —— . . . does not constitute such a dramatic effect
13
C. Criminal History
Vittek contends that the sentencing court erred in adding a
one-level increase to her criminal history calculation because of
a 1993 conviction. She insists that the offense underlying that
conviction “occurred more than 10 years prior to the commencement
of the instant offense.” Citing U.S.S.G. § 4A1.2(e)(3)26 for
authority, she states that the offense giving rise to the 1993
conviction occurred in September 1993, and that she received a
six-month term of probation for that offense on February 18,
1994. The point is that her current offense of conviction, which
took place on September 28, 2004, occurred more than ten years
later.
In determining the proper criminal history under U.S.S.G. §
4A1.2(e)(2), a prior sentence “that was imposed within ten years
of the defendant’s commencement of the instant offense” may be
considered. The commentary to the guideline indicates that
“[t]he term ‘commencement of the instant offense’ includes any
that it would justify considering, much less imposing, the higher
burden of proof.”).
26
U.S.S.G. § 4A1.2(e)(3) states that “[a]ny prior sentence
not within the time periods specified above is not counted.”
U.S.S.G. § 4A1.2(e)(1), which deals with “[a]ny prior sentence of
imprisonment exceeding one year and one month,” is inapplicable;
U.S.S.G. § 4A1.2(e)(2) states, however, that “[a]ny other prior
sentence that was imposed within ten years of the defendant’s
commencement of the instant offense is counted.”
14
relevant conduct.”27 Here, the evidence demonstrated that
Vittek’s relevant conduct began in early 2000. As the earlier
sentence was imposed within ten years of Vittek’s involvement in
the meth-cooking operation, her 1993 conviction was properly
considered.
D. Right of Confrontation
“[I]t is more than well-established that, ‘a defendant’s
confrontation rights at a sentencing hearing are severely
restricted.’”28 Nevertheless, Vittek contends that “her
constitutional rights to confrontation were violated based on the
District Court’s use of unchallenged statements of two CIs in
calculating the amount of drugs.”
Vittek’s argument is precluded by our recent decision in
United States v. Beydoun. In Beydoun, the defendant–appellant
objected to the district court’s reliance for sentencing purposes
on testimony by a law enforcement officer regarding conversations
he had with the defendant’s co-conspirator and another
individual.29 As does Vittek, the defendant–appellant argued
27
Application Note 8 of the Commentary to Guideline 4A1.2
states that “[a]s used in §4A1.2(d)(2) and (e), the term
‘commencement of the instant offense’ includes any relevant
conduct.”
28
Young, 981 F.2d at 188 (quoting United States v.
Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990)).
29
469 F.3d 102, 108 (5th Cir. 2006).
15
that “because the Guidelines calculation of infringement amount
involves fact-bound determinations capable of increasing his
sentence, the court’s reliance on hearsay testimony violated his
right of confrontation under Crawford v. Washington.”30
Following pre-Crawford Fifth Circuit precedent, as well as our
unpublished opinions and the “majority of our sister circuits,”
we rejected the argument and “conclude[d] that there is no
Crawford violation when hearsay testimony is used at sentencing,
rather than at trial.”31 Accordingly, Vittek’s Confrontation
Clause rights were not violated.
E. Minor or Minimal Participant
Vittek contends that the sentencing court erred by not
reducing her offense level “based on her minor or minimal role in
the offense.” Specifically, she asserts that there is no
evidence showing that she “was involved in the actual process of
making” meth, and further, that “the statements made by the CIs
indicate that her alleged participation was minimal, or, at most,
minor.”
U.S.S.G. 3B1.2, “Mitigating Role,” instructs that a decrease
in offense level is appropriate if the defendant was either a
“minimal” or “minor” participant in the illegal activity.
30
Id.31
Id.16
Whether a defendant is a minimal or minor participant is a
“sophisticated factual determination” made by the sentencing
court; these findings are reviewed under the clearly erroneous
standard.32 The determination turns on the level of culpability,
which is itself “a determination requiring sensitivity to a
variety of factors.”33 The defendant has “the burden of proving,
by a preponderance of the evidence, her minor role in the
offense.”34 The mere fact that a defendant is “less culpable
than her codefendants” does not necessarily require a minor- or
minimal-participant downward adjustment; the defendant should be
“substantially less culpable.”35
The evidence at the sentencing hearing indicated that Vittek
participated in Anderson’s meth cooks by contributing supplies,
including pseudoephedrine pills, and that she was present at 90%
of the cooks. In light of this evidence, the district court did
not clearly err in determining that Vittek was not a minimal or
minor participant.
F. Enhancement for Substantial Risk of Harm to Minor
32
United States v. Gallegos, 868 F.2d 711, 713 (5th Cir.
1989).
33
Id.34
United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir.
1994).
35
Id.17
The PSR increased Vittek’s offense level by 6, pursuant to
U.S.S.G. § 2D1.1(b)(6)(C),36 based on a finding that her conduct
posed a substantial risk of harm to a minor. Vittek challenges
the six-level enhancement. First, she contends that (1)
Guideline 2D1.2's cross-reference to 2D1.1 is only to the drug
quantity table in 2D1.1(c) and not to the remaining parts of
2D1.1,37 and (2) there was no evidence that the liquid substance
found in the car posed a substantial risk of harm to her son.
Although we doubt the merits of both prongs of Vittek’s
attack on the six-level enhancement, we need not address either
of her contentions, as her 160-months sentence is well below the
guideline range that would have applied to her offense level
without the six-level enhancement. If Vittek’s total offense
level were 36 instead of 42, the sentencing range would be 210-
262 months.38 The sentence she actually received, a 168-month
36
Section 2D1.1(b)(6)(C) provided that “[i]f the offense
(i) involved the manufacture of amphetamine or methamphetamine; and
(ii) created a substantial risk of harm to the life of a minor or
an incompetent, increase by 6 levels.” In 2006, the U.S.S.G. was
amended to include additional special offense characteristics. As
a result, Section 2D1.1(b)(6)(C) in the 2004 Sentencing Guidelines
is now at Section 2D1.1(b)(8)(C).
37
Vittek’s base offense level was calculated at 37, which
the PSR found by adding “1 plus the offense level from § 2D1.1
applicable to the total quantity of controlled substances involved
in the offense.” U.S.S.G. § 2D1.1(a)(2).
38
See Sentencing Table in U.S. SENTENCING GUIDELINES MANUAL
(2004).
18
term of imprisonment, was therefore substantially less than the
210 months that would have applied under a total offense level of
36. Accordingly, even if we assume arguendo that the six-level
enhancement was incorrectly applied, Vittek’s sentence remains
entitled to a presumption of reasonableness.39
III. CONCLUSION
Vittek’s sentence, below the guidelines range, is
presumptively reasonable. As Vittek has offered no basis for our
finding her sentence to be unreasonable, we AFFIRM.
39
United States v. Medina-Argueta, 454 F.3d 479, 483 (5th
Cir. 2006) (“We hold that in situations such as this, in which the
district court miscalculates the guideline range yet imposes a
sentence that falls within a properly calculated guideline range,
the sentence enjoys a presumption of reasonableness.”).
19