United States v. Berry
2013 U.S. App. LEXIS 13075
| 10th Cir. | 2013Background
- Norman Berry, a commercial truck driver, was stopped at a New Mexico port of entry; officers found eight UPS-stamped boxes in his unsealed trailer that contained 33 bundles of marijuana.
- Berry gave inconsistent travel and bill-of-lading statements, claimed the UPS boxes were his personal household items, and fled before trial; he was later arrested after being a fugitive.
- Gross weight of the seized drug packages measured 175.25 kg; DEA agents testified about sampling and that gross weight typically includes packaging/masking material.
- Berry was indicted for possession with intent to distribute 100 kg or more of marijuana; jury convicted and district court applied a two-level USSG §3B1.3 enhancement for use of a special skill (commercial truck driving), sentencing him to 97 months.
- On appeal Berry challenged (1) the permissive-inference jury instruction on knowledge, (2) sufficiency of evidence that net marijuana weight met the 100 kg threshold, and (3) application of the special-skill guideline enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Permissive-inference jury instruction on knowledge | Government: jury may infer knowledge from Berry’s sole possession of the vehicle, with cautionary language | Berry: instruction impermissibly permits conviction based on isolated fact and risks shifting burden | Instruction proper: factual context (unsealed trailer, distinctive boxes, Berry’s statements, flight) justified permissive inference; instructions as a whole preserved burden of proof |
| Sufficiency of evidence on 100 kg threshold | Government: gross weight 175.25 kg; jury could find packaging <43% so net ≥100 kg | Berry: gross weight included unknown packaging/masking agents; no net-weight analysis or policy proving reduction | Evidence sufficient: jury reasonably found, based on sample and testimony, no masking agent and packaging not >43%, so net weight ≥100 kg |
| Special-skill enhancement (USSG §3B1.3) — whether truck driving is a "special skill" | Government: Berry’s CDL training, years of experience, and expert testimony show specialized skill that facilitated concealment/transport | Berry: CDL is obtainable via modest testing; commercial driving is not analogous to listed professions requiring substantial education/training/licensing | Enhancement affirmed: court treats special-skill inquiry case-by-case; Berry’s training/experience and facilitation of the offense supported the two-level increase |
| Harmless-error alternative | N/A | N/A | Even if instruction were flawed, error would be harmless given overwhelming evidence of knowledge (e.g., Berry’s claimed ownership of the boxes) |
Key Cases Cited
- Cnty. Court of Ulster Cnty., N.Y. v. Allen, 442 U.S. 140 (permissive-inference standard)
- United States v. Gwathney, 465 F.3d 1133 (10th Cir. 2006) (permissive inference upheld given case facts)
- United States v. Cota-Meza, 367 F.3d 1218 (10th Cir. 2004) (permissive inference and cautionary instruction analysis)
- United States v. Lewis, 41 F.3d 1209 (7th Cir. 1994) (commercial truck driving can be a special skill)
- United States v. Mendoza, 78 F.3d 460 (9th Cir. 1996) (same)