United States v. John Whelan, Jr. ( 2010 )


Menu:
  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 10a0601n.06
    
                                               No. 08-5495                                    FILED
                                                                                          Sep 10, 2010
                              UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                   FOR THE SIXTH CIRCUIT
    
    
    UNITED STATES OF AMERICA,           )
                                        )                         ON APPEAL FROM THE
                Plaintiff-Appellee,     )                         UNITED STATES DISTRICT
                                        )                         COURT FOR THE EASTERN
    v.                                  )                         DISTRICT OF KENTUCKY
                                        )
    JOHN DOUGLAS WHELAN, JR.,           )
                                        )
                Defendant-Appellant.    )
    ____________________________________)
    
    
    BEFORE:        SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge.*
    
           Jonker, District Judge. John Douglas Whelan, Jr. appeals the sentence entered following
    
    his guilty plea to criminal charges involving distribution of OxyContin pills. Mr. Whelan contends
    
    the district court erred in determining the number of OxyContin pills attributable to him, and as a
    
    result erred in calculating his base offense level. Mr. Whelan further contends that the sentence the
    
    district court imposed was substantively unreasonable.
    
                                  Factual and Procedural Background
    
           In August of 2007, an informant told law enforcement officials that he had sold OxyContin
    
    tablets to Mr. Whelan on a regular basis for the past twelve to eighteen months. (R.27: Presentence
    
    Investigation Report (“PSR”) at ¶ 11.) The informant stated that he usually sold between three and
    
    four hundred OxyContin tablets to Mr. Whelan every two weeks. (Id.) The informant added that
    
           *
           The Honorable Robert J. Jonker, United States District Judge for the Western District of
    Michigan, sitting by designation.
    No. 08-5495
    United States v. Whelan                          2
    
    Mr. Whelan’s largest single purchase of OxyContin tablets from him was for 900 tablets. (Id.) The
    
    same informant later told law enforcement officials that since approximately July, 2006, he had sold
    
    Mr. Whelan an average of 200 to 300 OxyContin tablets per week at an average of $33.00 per tablet,
    
    and that over the course of their relationship, Mr. Whelan had paid the informant over $200,000 in
    
    cash. (Id. at ¶ 12.) Working with law enforcement, the informant contacted Mr. Whelan and
    
    arranged a sale of 1,000 OxyContin tablets. (Id. at ¶¶ 14-15.) When Mr. Whelan arrived to make
    
    the purchase, law enforcement officials arrested him and found $33,940 in cash in his possession.
    
    (Id. at ¶ 16.) Mr. Whelan admitted that he had come with cash to purchase 1,000 OxyContin tablets.
    
    (Id. at ¶ 17.) Mr. Whelan also admitted that he had in the past made five other purchases of
    
    OxyContin tablets, each time purchasing 500 80mg OxyContin tablets. (Id.)
    
           On September 13, 2007, a federal grand jury indicted Mr. Whelan on three criminal counts.
    
    (R. 10: Indictment.) Count One charged conspiracy to distribute a quantity of pills containing a
    
    detectable amount of oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Id.) Count 2
    
    charged attempt to possess with the intent to distribute a quantity of pills containing a detectable
    
    amount of oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Id.) Count 3 was a count
    
    for forfeiture under 21 U.S.C. § 853. Mr. Whelan pleaded guilty to all counts without a plea
    
    agreement, and judgment against him was entered on February 27, 2008. (R. 24: Judgment.)
    
           The PSR notes that Mr. Whelan’s own admissions indicate that he sought to purchase 1,000
    
    OxyContin tablets the day of his arrest and that he had previously purchased 2,500 OxyContin
    
    tablets. (R. 27: PSR, ¶ 18.) Based on those admissions alone, Mr. Whelan would be held
    
    accountable for 3,500 80mg OxyContin tablets, with a marijuana equivalency of 1,876 kilograms
    No. 08-5495
    United States v. Whelan                           3
    
    of marijuana. (Id.) The PSR points out further, though, that the informant’s statements indicated
    
    that Mr. Whelan had purchased OxyContin from the informant over an extended period of time and
    
    that Mr. Whelan had provided the informant with approximately $200,000 in cash during the
    
    conspiracy, at $33.00 per tablet. (Id.) Using the calculation it describes as most beneficial to
    
    Mr. Whelan, the PSR divides $200,000 by 33 and determines that Mr. Whelan in the past purchased
    
    approximately 6,060 80mg OxyContin tablets. (Id.) Adding the 1,000 tablets Mr. Whelan attempted
    
    to purchase on the day of his arrest to the 6,060, the PSR concludes that Mr. Whelan is accountable
    
    for 7,060 80mg OxyContin tablets, with a marijuana equivalency of 3,784.16 kilograms. (Id.)
    
           At sentencing, Mr. Whelan objected to the number of OxyContin tablets the PSR attributed
    
    to him in determining his base offense level. (R. 32: Transcript, at 4.) In particular, he objected to
    
    the PSR’s reliance on the statement by the informant that he had received over $200,000 over the
    
    past twelve to eighteen months from Mr. Whelan. (Id.) Mr. Whelan argued that only the 3,500
    
    tablets to which he had admitted should be considered in determining his base offense level. (Id. at
    
    14.) Mr. Whelan did not object to the formula the PSR applied to calculate the number of tablets.
    
    (Id. at 4.) Nor did Mr. Whelan object to any of the facts stated in the PSR. (Id. at 7–8, 10–11.)
    
           The district judge carefully considered Mr. Whelan’s objection to the number of OxyContin
    
    tablets attributed to him and the resulting base offense level. (Id. at 12–16.) The judge observed that
    
    in determining the applicable offense level, courts consider, among other things, “all acts and
    
    omissions that were part of the same course of conduct or common scheme or plan as the offense
    
    of conviction,” including “relevant conduct of additional drug quantities that are not charged in the
    
    indictment.” (Id. at 13 (citing U.S.S.G. § 1(B)1.3(a)).) The judge explained that “[b]ecause there
    No. 08-5495
    United States v. Whelan                           4
    
    was no seizure of actual drugs at issue, I may, in considering the appropriate base offense level,
    
    approximate the amount and the price of those drugs using similar transactions that have been
    
    conducted by the defendant.” (Id. (citing U.S.S.G. § 2(D)1.1, cmt. n. 12).) Weighing various factors,
    
    including without limitation that (1) Mr. Whelan had agreed to forfeit proceeds of drug trafficking
    
    activity for a total of $250,000; (2) the informant stated that he had received $200,000 or more over
    
    the course of the year; (3) the forfeiture count included $33,940 in cash found in Mr. Whelan’s
    
    possession on his trip to purchase 1,000 tablets; and (4) the informant stated that he charged $33 per
    
    pill, the judge found it reasonable to conclude that the approximate price per pill was $33. (Id. at
    
    14–15.) The judge found it likely that Mr. Whelan had purchased during the conspiracy at least
    
    6,060 pills, including the 2,500 tablets for which Mr. Whelan accepted responsibility. (Id. at 15.)
    
    Adding the 1,000 tablets Mr. Whelan intended to purchase the day of his arrest, the judge ruled that
    
    “[t]he quantity attributable to Mr. Whelan will be 7,060, 80 milligram oxycodone pills.” (Id. at 16.)
    
    The judge thus overruled Mr. Whelan’s objection. (Id.) Further, the judge explicitly accepted and
    
    adopted the findings in the PSR, including the guideline calculations. (Id. at 17.) After discussing
    
    the sentencing factors and giving the parties an opportunity to address the court, the judge imposed
    
    a sentence of 152 months on each of Counts I and II, to be served concurrently. (Id. at 19–37.) The
    
    sentence fell within the middle of the advisory Guidelines range, which stretched from 135 to 168
    
    months. (Id. at 21.)
    No. 08-5495
    United States v. Whelan                            5
    
                                                   Analysis
    
           1.      The district court did not clearly err in calculating Mr. Whelan’s base Guidelines
                   offense level.
    
           A clearly erroneous standard of review applies to the district court’s factual findings. United
    
    States v. McGee, 
    494 F.3d 551
    , 554 (6th Cir. 2007). “A factual finding is clearly erroneous ‘when
    
    the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
    
    has been committed.’” Id. (quoting Tran v. Gonzales, 
    447 F.3d 937
    , 943 (6th Cir. 2006)). Findings
    
    of facts crucial to the determination of a defendant’s base offense level must be made by a
    
    preponderance of the evidence. United States v. Walton, 
    908 F.2d 1289
    , 1301–02 (6th Cir. 1990).
    
    In making such factual findings, courts consider, among other things, “all acts . . . committed . . . by
    
    the defendant . . . during the commission of the offense of conviction [or] in preparation for that
    
    offense.” U.S.S.G. § 1B1.3(a)(1)(A)-(B). If no drugs have actually been seized in connection with
    
    a drug offense, the sentencing court must approximate the quantity of drugs attributable to the
    
    defendant. Id. at § 2D1.1 cmt. n.12; accord Walton, 908 F.2d at 1301–02. “[H]ere also a
    
    preponderance of the evidence must support the estimate.” Walton, 908 F.2d at 1301–02. A court
    
    “choosing between a number of plausible estimates of drug quantity, none of which is more likely
    
    than not the correct quantity, . . . must err on the side of caution.” Id. at 1302. “A court’s
    
    approximation of the amount of drugs involved in a particular case is not clearly erroneous if
    
    supported by competent evidence in the record.” United States v. Edward Lee Mahaffey, 
    53 F.3d 128
    , 132 (6th Cir. 1995) (quoting United States v. Brannon, 
    7 F.3d 516
    , 520 (6th Cir. 1993)
    
    (abrogated on other grounds by Pub. L. No. 106-310, §§ 3601-3673, 114 Stat. 1102, 1227-46
    
    (2000)).
    No. 08-5495
    United States v. Whelan                            6
    
            The Court sees no clear error in the district court’s approximation of the quantity of drugs
    
    attributable to Mr. Whelan. Mr. Whelan raised no objection to the facts set forth in the PSR, and the
    
    district court was entitled to accept those facts as true. FED . R. CRIM . P. 32(i)(3)(A); accord United
    
    States v. Carter, 
    355 F.3d 920
    , 925-26 (6th Cir. 2004). Competent evidence supports the district
    
    court’s finding that Mr. Whelan was responsible for 7,060 OxyContin tablets. Mr. Whelan pleaded
    
    guilty to a criminal forfeiture of $250,000 representing proceeds from the drug trafficking activities
    
    with which he was charged. (R. 24: Judgment.) The informant advised law enforcement that he had
    
    received over $200,000 in cash from Mr. Whelan. (R. 27: PSR, at ¶ 12.) The informant stated that
    
    on average, he sold Mr. Whelan OxyContin tablets for $33.00 each. (Id. at ¶ 12.) This price per pill
    
    is consistent with the amount of cash, over $33,000, Mr. Whelan had brought with him to pay for
    
    1,000 tablets. (See id. at ¶ 16.) Mr. Whelan did not present any evidence to contradict the
    
    informant’s statement that Mr. Whelan paid him over $200,000 over the course of more than a year,
    
    and no evidence to contradict the informant’s statement that Mr. Whelan typically paid him $33 per
    
    OxyContin tablet. Indeed, Mr. Whelan raised no objection to the facts in the PSR.
    
            In calculating the quantity of OxyContin attributable to Mr. Whelan, the district court actually
    
    erred on the side of caution and gave the defendant the benefit of the doubt. See Walton, 908 F.2d
    
    at 1301–02. Through his guilty plea, Mr. Whelan acknowledged $250,000 in proceeds related to the
    
    drug offenses with which he was charged. However, the Court did not use this number in calculating
    
    the quantity attributable to Mr. Whelan, but rather used the lower $200,000 figure the informant had
    
    provided. Similarly, the district court did not rely on the informant’s estimates of the number of
    
    OxyContin tablets Mr. Whelan had purchased from him over the course of the conspiracy to which
    No. 08-5495
    United States v. Whelan                            7
    
    Mr. Whelan pleaded guilty. At one point, the informant stated that Mr. Whelan had purchased 300
    
    to 400 OxyContin tablets from him every two weeks for over a year. Had the district court relied
    
    on that statement in making its calculations, it would have found, at a minimum, 7,800 OxyContin
    
    tablets (300 x 26) attributable to the defendant, plus an additional 1,000 tablets Mr. Whelan had
    
    intended to purchase the day of his arrest. At another point, the informant stated that Mr. Whelan
    
    had purchased approximately 200 to 300 OxyContin tablets per week for over a year. Had the
    
    district court relied on this statement, it would have attributed at least 10,400 OxyContin tablets (200
    
    x 52) to the defendant. Instead, the trial court opted for the more conservative and fully supported
    
    calculation.
    
           2.      The district court’s sentence of Mr. Whelan was reasonable.
    
           The Court reviews the district court’s sentencing decision for reasonableness. United States
    
    v. McGee, 
    494 F.3d 551
    , 554 (6th Cir. 2007). “The question of whether a sentence is reasonable is
    
    determined using the abuse-of-discretion standard of review.” United States v. Carter, 
    510 F.3d 593
    ,
    
    600 (6th Cir. 2007) (citing Gall v. United States, 
    552 U.S. 38
    , 46, 47 (2007)). “[D]istrict courts have
    
    considerable discretion in this area and thus deserve the benefit of the doubt when we review their
    
    sentences and the reasons given for them.” United States v. Vonner, 
    516 F.3d 382
    , 392 (6th Cir.
    
    2008) (en banc). “The fact that the appellate court might reasonably have concluded that a different
    
    sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at
    
    51.
    
           A review for reasonableness has both substantive and procedural components. Carter, 510
    
    F.3d at 600 (citing Gall, 552 U.S. at 49-51). Mr. Whelan does not challenge the procedural aspects
    No. 08-5495
    United States v. Whelan                          8
    
    of his sentence, but argues only that his sentence is substantively unreasonable. (Appellant’s Br. at
    
    14.)   The Court considers the totality of the circumstances in reviewing the substantive
    
    reasonableness of a sentence. Gall, 552 U.S. at 51. A rebuttable presumption of reasonableness
    
    applies to sentences properly calculated under the Guidelines. Vonner, 516 F.3d at 389-90; see also
    
    Rita v. United States, 
    551 U.S. 338
    , 347 (2007) (upholding presumption of reasonableness for
    
    within-guidelines sentences).
    
           Mr. Whelan’s claim that his sentence is substantively unreasonable fails. The sentence was
    
    within the properly calculated Guidelines range, entitling the sentence to a presumption of
    
    reasonableness. Vonner, 516 F.3d at 389-90. Mr. Whelan does not argue that the district court
    
    imposed the sentence arbitrarily, based the sentence on impermissible factors, failed to consider any
    
    pertinent factor under 18 U.S.C. § 3553(a), or gave an "unreasonable amount of weight to a pertinent
    
    factor." United States v. Lapsins, 
    570 F.3d 758
    , 772 (6th Cir. 2009) (listing situations in which a
    
    sentence is considered substantively unreasonable) (quotation omitted). Mr. Whelan argues simply
    
    that although the district court reviewed the appropriate sentencing factors under 18 U.S.C.
    
    § 3553(a), the district court should have weighed the factors differently and imposed a shorter
    
    sentence. (Appellant’s Br. at 14–15.) Mr. Whelan presents no reasons why the district court should
    
    have weighed the factors differently.       Mr. Whelan has not rebutted the presumption of
    
    reasonableness of the length of the sentence and has shown no abuse of discretion on the part of the
    
    district court. The sentence of the district court was reasonable.
    No. 08-5495
    United States v. Whelan                    9
    
                                           Conclusion
    
           For these reasons, we AFFIRM.