United States v. Dallman ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30349
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00171-WFN
KENNETH ROY DALLMAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior Judge, Presiding
Submitted April 7, 2006*
Withdrawn From Submission August 29, 2006
Resubmitted April 15, 2008
Seattle, Washington
Filed May 19, 2008
Before: William C. Canby, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)
5747
UNITED STATES v. DALLMAN 5749
COUNSEL
Gordon R. Stoa, Spokane, Washington, for the defendant-
appellant.
Joseph H. Harrington, Assistant United States Attorney, Spo-
kane, Washington, for the plaintiff-appellee.
5750 UNITED STATES v. DALLMAN
OPINION
GOULD, Circuit Judge:
Kenneth Dallman appeals the 33-month sentence he
received following his convictions for possession and impor-
tation of marijuana and conspiracy to possess marijuana. Dall-
man and two other individuals were arrested by United States
Border Patrol agents after the agents observed the men carry-
ing six large duffle bags along an abandoned logging road just
south of the U.S.-Canada border. The bags contained about
142 pounds of marijuana. Dallman contends that his sentence
is unreasonable because the district court erroneously found
that he was accountable for the aggregate quantity of mari-
juana that the three men carried into the United States and
denied his request for a downward departure based on aber-
rant behavior.1 We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
I
Early in the morning on August 16, 2004, two U.S. Border
Patrol agents patrolled an abandoned logging road that crosses
the U.S.-Canada border near Danville, Washington. At
approximately 4:15 a.m., while the agents walked northward
along the road, they noticed Dallman, Michael Thistlewaite,
and John Souza carrying large bundles and walking south-
ward. After seeing or hearing the agents, Thistlewaite ducked
under a tree on one side of the road, and Dallman and Souza
ran to the opposite side of the road and took cover in the
brush.
The agents arrested Thistlewaite after observing that he was
tangled in two large duffle bags that were tied together so that
1
We address Dallman’s appeal of his convictions in a separately-filed
and unpublished memorandum disposition, and address only his sentenc-
ing issues in this Opinion.
UNITED STATES v. DALLMAN 5751
they could be carried with one bag hanging in front and one
in back. The agents then approached Dallman and Souza who
were lying in the brush with two pairs of duffle bags, both of
which were tied together in the same manner as the bags
found with Thistlewaite.
After arresting Dallman and Souza, the agents searched one
of the duffle bags and found twenty-five individually-
packaged one-pound bags of marijuana. A subsequent search
of the other five duffle bags revealed that they each contained
twenty-five similarly-packaged bags of marijuana. Together,
the six duffle bags contained approximately 142.69 pounds of
marijuana.
An agent at the scene of the arrest looked at the soles of the
suspects’ boots and noticed that they had a different sole pat-
tern than the pattern on the agents’ standard-issue Danner
boots. Agents Harbert and Smith then backtracked the three
sets of boot prints of the suspects from the location of their
arrest to the U.S.-Canada border, across a barbed wire fence,
and 30 yards into Canada.
A jury convicted Dallman of possession with intent to dis-
tribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2; conspiracy to possess with intent to distribute
marijuana in violation of 21 U.S.C. § 846; and importation of
marijuana in violation of 21 U.S.C. §§ 952, 960(b)(3), and 18
U.S.C. § 2.2At Dallman’s sentencing hearing, the district court first
determined that Dallman and the other men acted as co-
conspirators to transport marijuana into the United States.
Accordingly, Dallman was accountable for the entire 142.69
2
Thistlewaite pled guilty to conspiracy to possess with intent to distrib-
ute marijuana and importation of marijuana and received a 30-month sen-
tence. Souza pled guilty to conspiracy with intent to distribute marijuana
and received a 41-month sentence.
5752 UNITED STATES v. DALLMAN
pounds of marijuana that the three men collectively carried
across the border, rather than for merely the fifty pounds of
marijuana that he personally carried. The district court then
reduced Dallman’s base offense level by two levels due to his
minor role in the offenses, denied Dallman’s motion for a
two-level adjustment for acceptance of responsibility, and
denied his motion for a downward departure based on aber-
rant behavior. These decisions resulted in a Sentencing
Guidelines range of 33 to 41 months.
The district court next noted that, although the Guidelines
are advisory, “unless there’s some very unusual situation
involved in a case, a sentence that’s within the advisory
guidelines . . . is probably going to be considered to be rea-
sonable.” The district court also considered the sentences
imposed on Dallman’s co-conspirators and noted the need to
deter conduct similar to that for which Dallman was con-
victed. It then imposed a 33-month term of imprisonment.
This appeal followed.
II
In reviewing a sentence, we first determine whether the dis-
trict court correctly calculated the Guidelines range. The
Supreme Court has made clear that “district courts must treat
the Guidelines as the ‘starting point and the initial bench-
mark[.]’ ” Kimbrough v. United States, ___ U.S. ___, 128
S. Ct. 558, 574 (2007); see also Gall v. United States, ___
U.S. ___, 128 S. Ct. 586, 596 (2007); United States v. Can-
trell, 433 F.3d 1269, 1279 (9th Cir. 2006). To make this
assessment, we review the district court’s interpretation of the
Guidelines de novo and review the district court’s application
of the Guidelines to the facts of the case for abuse of discre-
tion. Cantrell, 433 F.3d at 1279. We review factual findings,
including a determination of the quantity of drugs involved in
an offense, for clear error. United States v. Asagba, 77 F.3d
324, 325 (9th Cir. 1996). If the district court correctly calcu-
UNITED STATES v. DALLMAN 5753
lated the Guidelines range, we then review the sentence for
reasonableness. Cantrell, 433 F.3d at 1280.
III
[1] Dallman contends that the district court erred in calcu-
lating the Guidelines range because the court incorrectly
found that he was accountable for the aggregate amount of
marijuana carried by all three men. The base offense level
under the Guidelines for a defendant convicted of drug traf-
ficking depends on the quantity of drugs involved in the
offense. U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(a)(3)
(2005). For a defendant convicted of a jointly undertaken drug
offense, this quantity may include “all reasonably foreseeable
quantities of [drugs] that were within the scope of the criminal
activity that he jointly undertook.” U.S.S.G. § 1B1.3 cmt. n.2;
see United States v. Becerra, 992 F.2d 960, 966 (9th Cir.
1993). The scope of the jointly undertaken criminal activity
“may depend on whether, in the particular circumstances, the
nature of the offense is more appropriately viewed as one
jointly undertaken criminal activity or as a number of separate
criminal activities.” See U.S.S.G. § 1B1.3 cmt. n.2(c)(8).
[2] The district court did not err in viewing the conspiracy
in which Dallman, Souza, and Thistlewaite participated as a
joint undertaking rather than as several separate criminal
activities and, as a result, basing its calculation of Dallman’s
Guidelines range on the aggregate amount of marijuana that
the three men carried. Dallman and the others coordinated
their importation effort, likely aided each other in crossing a
barbed wire fence at the border, and together sought to hide
from Border Patrol agents. See U.S.S.G. § 1B1.3 cmt.
n.2(c)(8). United States v. Palafox-Mazon, 198 F.3d 1182,
1187 (9th Cir. 2000) is not to the contrary. There, we affirmed
the district court’s finding that defendants who were led
across the U.S.-Mexico border carrying backpacks of mari-
juana were accountable at sentencing for only the amount of
marijuana each man carried because the record did not show
5754 UNITED STATES v. DALLMAN
that the defendants “intended to, would have, or did in any
way coordinate their importation efforts for their mutual assis-
tance and protection or aid and abet each other’s actions.” Id.(internal quotations and alterations omitted). By contrast, the
cooperative and coordinated conduct of Dallman, Souza, and
Thistlewaite rendered Dallman responsible, for sentencing
purposes, for the contraband carried by all.
IV
[3] Dallman next asserts that the district court erred when
it denied his motion for a downward departure based on aber-
rant behavior. Before United States v. Booker, 543 U.S. 220(2005), we held that, absent an allegation of legal error, a dis-
trict court’s discretionary denial of a downward departure
request was unreviewable. See United States v. Morales, 898
F.2d 99, 102 & n.2 (9th Cir. 1990). We based this determina-
tion on our conclusion that in enacting 18 U.S.C. § 3742(a),
“Congress did not intend to allow for appellate review of dis-
cretionary refusals to depart downward from the guidelines.”
Id. at 102; see also United States v. Ruiz, 536 U.S. 622, 627
(2002) (recognizing that 18 U.S.C. § 3742(a)(1) “does not
authorize a defendant to appeal a sentence where the ground
for appeal consists of a claim that the district court abused its
discretion in refusing to depart”).
[4] After Booker, the departure Guidelines are still opera-
tive, and an accurate guideline range calculation may still
properly require consideration and correct application of the
departure Guidelines. Because Booker left intact 18 U.S.C.
§ 3742(a) and did not overrule Ruiz, the district court’s denial
of Dallman’s motion for a downward departure based on
aberrant behavior remains unreviewable. See United States v.
Cooper, 437 F.3d 324, 333 (3d Cir. 2006) (holding that a dis-
trict court’s decision not to grant a defendant’s motion for
downward departure is still unreviewable after Booker);
United States v. Winingear, 422 F.3d 1241, 1245-46 (11th
Cir. 2005) (same); United States v. Puckett, 422 F.3d 340, 345
UNITED STATES v. DALLMAN 5755
(6th Cir. 2005) (same); United States v. Frokjer, 415 F.3d
865, 874-75 (8th Cir. 2005) (same); United States v. Sierra-
Castillo, 405 F.3d 932, 936 (10th Cir. 2005) (same).
V
[5] This is not, however, the end of our review. Rather,
Booker requires that we review the overall reasonableness of
Dallman’s sentence and directs that our review be guided by
the sentencing factors set forth in 18 U.S.C. § 3553(a).3 543
U.S. at 261; see also Gall, 128 S. Ct. at, 594, 596-97 & n.6.
To comply with Booker’s mandate, a district court need not
discuss each factor listed in § 3553(a), but must “set forth
enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Rita v. United
States, 551 U.S. ___, 127 S. Ct. 2456, 2468 (2007); see also
United States v. Knows His Gun, 438 F.3d 913, 918 (9th Cir.
2006). “The district court may not presume that the Guide-
lines range is reasonable. Nor should the Guidelines factor be
given more or less weight than any other[;] . . . they are one
factor among the § 3553(a) factors that are to be taken into
account in arriving at an appropriate sentence.” United States
v. Carty, 2008 WL 763770 at *4 (9th Cir. 2008) (en banc)
(citations omitted).
Here, the district court, by its language, clearly presumed
that a sentence within the Guidelines range of 33 to 41
months was reasonable. Dallman did not object to this pre-
3
These factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the
sentence imposed; (3) the kinds of sentences available; (4) the kinds of
sentences and the sentencing range established by the Sentencing Guide-
lines; (5) pertinent policy statements issued by the Sentencing Commis-
sion; (6) the need to avoid unwarranted sentencing disparities among
defendants who have similar criminal records and have been found guilty
of similar conduct; and (7) the need to provide restitution to victims. 18
U.S.C. § 3553(a).
5756 UNITED STATES v. DALLMAN
sumption, and thus to warrant relief the district court’s action
must constitute plain error. United States v. Ameline, 409 F.3d
1073, 1078 (9th Cir. 2005) (en banc). “Plain error is ‘(1)
error, (2) that is plain, and (3) that affects substantial rights.’ ”
Id. (quoting United States v. Cotton, 535 U.S. 625, 631
(2002)). If these three conditions are met, we may then exer-
cise our discretion to grant relief if the error “seriously affects
the fairness, integrity, or public reputation of judicial proceed-
ings.” Id. (quoting Cotton, 535 U.S. at 631); see also United
States v. Olano, 507 U.S. 725, 732 (1993).
[6] In light of our precedent in Carty, the district court
plainly erred by presuming that a sentence within the Guide-
lines range is reasonable. See Ameline, 409 F.3d at 1078 (not-
ing that “[a]n error is plain if it is contrary to the law at the
time of appeal” (internal quotation marks and citation omit-
ted)). Dallman did not, however, show a reasonable probabil-
ity that he would have received a different sentence if the
district court had not concluded that a sentence within the
Guidelines range is presumptively reasonable. See id.; see
also Olano, 507 U.S. at 734 (“It is the defendant rather than
the Government who bears the burden of persuasion with
respect to prejudice.”). Because Dallman did not satisfy the
third prong of the plain error test, we conclude that the district
court’s apparent presumption that a sentence within the
Guidelines range was reasonable does not warrant relief under
the circumstances of this case.4
[7] In sentencing Dallman, the district court correctly cal-
culated the Guidelines range of 33 to 41 months and recog-
nized that the Guidelines were advisory. The court then
weighed several of the § 3553(a) factors, observing that
because the offense required planning, Dallman’s behavior
4
Because we conclude that the third prong of the plain error test is not
satisfied, we do not reach the fourth prong — whether the error “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
Olano, 507 U.S. at 736 (internal quotation marks and citations omitted).
UNITED STATES v. DALLMAN 5757
was not aberrant; noting that the offense conduct was serious;
and stating that it was considering the need to avoid unwar-
ranted disparities between Dallman’s sentence and the sen-
tences imposed on Thistlewaite and Souza.5 We conclude that
the district court did not commit an error that caused substan-
tial prejudice to Dallman’s rights in concluding that the 33-
month sentence was warranted.
AFFIRMED.
5
Although we do not have jurisdiction to review the district court’s
denial of Dallman’s motion for a downward departure, the district court’s
determination that Dallman’s offense conduct was not aberrant behavior
and did not merit a downward departure could be encompassed within the
district court’s assessment of Dallman’s “history and characteristics” as
set forth in 18 U.S.C. § 3553(a)(1). Booker’s mandate that we review a
sentence for reasonableness permits us to consider the district court’s deci-
sion not to impose a lesser sentence on Dallman due to his alleged aber-
rant behavior, among other relevant factors. See United States v. Chavez-
Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006) (holding that a defendant’s
challenge to the reasonableness of his sentence “necessarily requires that
we take into account the defendant’s asserted grounds for departure when
reviewing the sentence for reasonableness”); see also United States v.
Vaughn, 433 F.3d 917, 924 (7th Cir. 2006) (same).