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United States v. Durham

United States Court of Appeals, Eighth Circuit

September 6, 2016

United States of America Plaintiff- Appellee
Esther C. Durham Defendant-Appellant

          Submitted: April 12, 2016

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before GRUENDER and KELLY, Circuit Judges, and ERICKSEN, [1] District Judge.

          ERICKSEN, District Judge.

         Appellant Esther Durham, who pleaded guilty to a drug distribution conspiracy charge, appeals her sentence. Before sentencing, Durham's attorney filed objections to the Presentence Investigation Report ("PSI") and, in the same document, moved for a downward departure or variance. On appeal, Durham focuses on just one of her objections: her objection to the Probation Office's finding that she was not entitled to a downward adjustment as a minor or minimal participant in calculating her offense level. The Probation Office distributed a revised PSI with an addendum responding to Durham's filing, and the district court[2] announced that it would consider Durham's objections and motion at the sentencing hearing. At sentencing, after hearing argument from Durham's attorney, the district court found the applicable United States Sentencing Guidelines ("Guidelines") range for imprisonment to be 87 to 108 months and then, after further proceedings, imposed a sentence of 72 months' imprisonment.

         Durham appeals the sentence primarily on the ground that the district court did not explicitly rule on her objection relating to a mitigating role adjustment. That characterization of the sentencing proceedings, however, is incorrect. We recognize that it is a serious error to improperly calculate the applicable Guidelines range. Molina-Martinez v. United States, 136 S.Ct. 1338, 1345 (2016). But the district court did rule on Durham's role-adjustment objection, and we find no clear error in its calculation of Durham's Guidelines range based on the denial of a mitigating role adjustment. We affirm.


         On appeal, Durham raises two issues: First, whether the district court erred by failing to resolve the factual dispute about the applicability of a downward adjustment to her offense level for a mitigating (minor or minimal) role under Guidelines § 3B1.2, and second, whether the district court erred in calculating Durham's offense level. "We review de novo the district court's application of the Guidelines, and we review for clear error the district court's factual findings." United States v. Betts, 509 F.3d 441, 445 (8th Cir. 2007) (citing United States v. Ingram, 501 F.3d 963, 968 (8th Cir. 2007)).


         Durham and her codefendant in this action, Ryan Franks, were charged in Count I of a superseding indictment with conspiring to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. On May 21, 2015, Durham pleaded guilty, without a plea agreement, to this single count. Franks pleaded guilty on June 1 pursuant to a plea agreement filed that same day, in which the parties agreed that Franks should be held responsible "for at least 500 grams, but less than 1.5kg of methamphetamine (mixture)."

         The Probation Office was required to distribute its initial PSI regarding Durham to counsel by July 2. The PSI found, among other things, that in an interview, Durham admitted that for four to five months, drugs were sold out of the apartment she shared with Franks; that she picked up pound quantities of methamphetamine from a supplier; that she had occasionally delivered narcotics to customers even though they usually met with Franks; and that she assisted Franks in maintaining a ledger of drug sales. PSI ¶ 31. It concluded that a "'minimal participant' or 'minor participant' reduction is not applicable in this case" because Durham "was involved with different aspects of the criminal enterprise, " "was aware of the transactions completed by . . . Franks, " and "admitted to picking up quantities of methamphetamine from their supply source and conducting drug sale transactions with customers, as well as assisting in tracking their customers' drug debts." PSI ¶ 34. The initial PSI also found that Durham was accountable for a total of 19 pounds of methamphetamine mixture, resulting in a base offense level of 34. PSI ¶ 32. It recommended a two-level increase for firearm possession, PSI ¶ 33, and a three-level decrease for acceptance of responsibility, PSI ¶ 38, but no downward adjustment for role, PSI ¶ 43. These determinations resulted in an offense level of 33. Combining the offense level with a criminal history category of III, the initial PSI calculated the applicable Guidelines range to be 168 to 210 months' imprisonment.

         In a document titled "Objections to PSI [and] Motion for Downward Departure or Variance, " DCD 90, Durham filed objections to the initial PSI, consistent with the district court's amended order on sentencing schedule, DCD 85, which required any such objections to be filed by July 23. See also NECrimR 32.1(b). Durham raised numerous objections to the PSI. Most pertinent to this appeal, she objected to PSI ¶ 31 as follows:

Ms. Durham acknowledged that "she assisted Franks in keeping track of the drug debt in a 'black book.'" The probation officer has interpreted this in the most damning possible way. In fact, Ms. Durham did occasionally write information in Ryan Franks' black book but only occasionally and only under his direction. . . . Rather than supporting the inference, see ¶ 34, that Ms. Durham is not a minimal or minor participant, her obedience and subordination to Ryan Franks strongly supports a role adjustment for Ms. Durham.

DCD 90 ¶ 9 (emphasis added). Without specifically referencing PSI ¶ 34 again, Durham asked the district court to find "that she [was] in fact eligible for a downward role adjustment." DCD 90 ¶ 21. Durham also objected to the amount of drugs for which she was responsible and to the application of the two-level increase for firearm possession. Referring to Franks' plea agreement, Durham further asserted that her base offense level should be lower than Franks' and that "an appropriate offense level would be 25." She also argued that a downward variance or departure from the recommended Guidelines range was warranted because of policy considerations relating to how her relatively minor role in the drug distribution prohibited her from being eligible for a substantial-assistance departure.[3]

         Consistent with the scheduling order, the Probation Office distributed a revised PSI by August 6, with an addendum explaining its position regarding Durham's objections ("PSI Addendum"). Responding to the objection to PSI ¶ 34, the PSI Addendum stated:

Regarding the issue of a role adjustment, the defendant admitted in her post-Miranda statement to being involved in various phases of drug distribution, including bookkeeping, picking up shipments from the supplier, as well as meeting with customers. The defendant's participation was not simply limited to a single task within the conspiracy. Additionally, she acknowledged that drugs were being sold out of the apartment she shared with her codefendant. While her codefendant appears to have conducted most of the sales, the defendant had knowledge and/or understanding of the scope and structure of the conspiracy, specifically ...

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