United States v. Robert Symonds ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-3075
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Robert William Symonds, *
* [PUBLISHED]
Appellant. *
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Submitted: March 12, 2001
Filed: August 15, 2001
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Before HANSEN and HEANEY, Circuit Judges, and TUNHEIM,1 District Judge.
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HANSEN, Circuit Judge.
Robert William Symonds appeals the sentence imposed by the district court2
following his guilty plea to one count of knowingly and intentionally manufacturing and
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, sitting by designation.
2
The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa.
attempting to manufacture five grams or more of actual methamphetamine, in violation
of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(vii). We affirm.
I.
Symonds began using methamphetamine in late 1997. In the summer of 1998,
Symonds began obtaining methamphetamine from Ronald Titlbach. Symonds
eventually allowed Titlbach and others to manufacture methamphetamine in Symonds'
garage in exchange for giving him small user quantities of methamphetamine. Symonds
was present on a couple of these occasions when methamphetamine was manufactured.
On another four or five occasions, Symonds learned after the fact that
methamphetamine had been made in his garage, and he found user quantities that had
been left for him. At some point in time, Symonds told Titlbach to stop using his
garage to manufacture methamphetamine. Titlbach did not stop using his garage, and
Symonds continued to receive methamphetamine from Titlbach. Symonds also
obtained small quantities of methamphetamine from other individuals in exchange for
making automotive repairs. Symonds was indicted on November 19, 1999, and
pleaded guilty to the offense charged in the indictment on June 1, 2000. He was
sentenced to 78 months of imprisonment. Symonds appeals the district court's drug
quantity determination and assessment of criminal history points.
II.
Because we are convinced that the government is incorrect in its assertion that
Symonds' challenge to drug quantity is unreviewable, we proceed to review the merits
of this issue. We review the district court's drug quantity determination for clear error.
United States v. Lawrence, 915 F.2d 402, 406 (8th Cir. 1990). Symonds asserts that
because he was a methamphetamine addict, relying on his statements concerning drug
quantity was in error. Additionally, he challenges the inclusion of drug quantities for
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those times when methamphetamine was manufactured in his garage without his prior
knowledge or after he asked Titlbach to stop.
The district court's drug quantity determination was based on Symonds' own
admissions. The district court relied on the drug quantity ranges which Symonds
stipulated to prior to sentencing. The district court used the most conservative
interpretation of Symonds' estimation, as requested by defense counsel at the
sentencing hearing. Symonds presented to the district court no other evidence that his
estimates were unreliable, except for the fact that he was a methamphetamine addict.
The district court's reliance on Symonds' own estimates was not clearly erroneous, and
its conclusion that Symonds' drug quantity estimates were credible is virtually
unreviewable on appeal. See United States v. Causor-Serrato, 234 F.3d 384, 390 (8th
Cir. 2000) ("[A] district court's assessment of witness credibility is quintessentially a
judgment call and virtually unassailable on appeal."), cert. denied, 121 S. Ct. 2229(2001).
We are not persuaded by Symonds' assertion that the district court should not
have included the quantities of methamphetamine that were produced without his
advance knowledge or after he told Titlbach to stop using his garage. Although
Symonds did not personally assist in the manufacturing of the methamphetamine and
did not know the particular times when it was made, Symonds can still be held
responsible for the quantities produced which were reasonably foreseeable to him. See
United States v. Delpit, 94 F.3d 1134, 1156 (8th Cir. 1996). In determining reasonable
foreseeability, the court considers "to what extent a defendant benefitted from his co-
conspirator's activities." United States v. Flores, 73 F.3d 826, 833 (8th Cir.) (quoting
United States v. Rice, 49 F.3d 378, 382 (8th Cir. 1995)), cert. denied, 518 U.S. 1027(1996). Symonds benefitted from Titlbach's activities by accepting the user quantities
of methamphetamine that were left for him after Titlbach used Symonds' garage
specifically for the purpose of manufacturing methamphetamine. Symonds continued
to accept methamphetamine from Titlbach even after asking Titlbach to stop using his
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garage. Symonds' acceptance of the methamphetamine does not support his contention
that he withdrew from the conspiracy. The district court did not clearly err in including
the "no prior knowledge" drug quantities.
Symonds also challenges the district court's assessment of his criminal history
because the district court assigned him two criminal history points for each of three
theft convictions. Symonds asserts that he should have received a total of only two
criminal history points for all three theft convictions. We review the district court's
determination of whether the government has proven that a defendant's prior crimes are
related or not under the clearly erroneous standard. United States v. Bartolotta, 153
F.3d 875, 879 (8th Cir. 1998), cert. denied, 525 U.S. 1093 (1999). "[P]rior sentences
are considered related if they resulted from offenses that (1) occurred on the same
occasion, (2) were part of a single common scheme or plan, or (3) were consolidated
for trial or sentencing." Id. Here, Symonds' offenses consisted of three separate arrests
for the theft of three different vehicles over a period of six years. These offenses did
not occur on the same occasion, they were not a part of a common scheme, and they
were not consolidated. The only connection among the offenses is that Symonds was
given probation and a suspended sentence for the 1984 and the 1985 theft offenses and
then at the time of sentencing for the 1990 theft conviction, he was also found in
contempt of court on his 1984 and 1985 convictions. He was given a 90-day sentence
for each offense, all to run concurrently. The fact that he received the two contempt
sentences and the 1990 theft sentence at the same time does not mean that the three
separate offenses were related. The district court did not clearly err in assessing
Symonds two criminal history points for each of the three offenses.
III.
For the foregoing reasons, we affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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