United States v. Damato
2012 U.S. App. LEXIS 3547
| 10th Cir. | 2012Background
- Damato was sentenced to 96 months for conspiracy to distribute marijuana based on a drug-quantity calculation that included a 1990 transaction.
- The 1990 transaction involved an attempted purchase of 1200 pounds of marijuana by McPherson and Livingston and occurred more than thirteen years before the December 2003 conspiracy charged at the offense of conviction.
- The charged conspiracy began around December 2003 and continued to about March 2006, involving co-conspirators McPherson, Livingston, Bower, Starr, and Limtiaco.
- The PSR attributed 782 kilograms to Damato (later adjusted to 1515.8 kilograms for sentencing), with most weights derived from conspirator statements and law-enforcement records.
- The district court adopted a total offense level including a four-level leadership enhancement and rejected Damato’s objections to relevant-conduct evidence, leading to a below-Guidelines sentence that Damato challenged on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1990 transaction may be counted as relevant conduct under the same course of conduct prong. | Damato: the 1990 conduct is too temporally distant to be part of the same course of conduct. | Damato: the government bears the burden to prove relevance under the same course of conduct. | No; 1990 conduct does not qualify under same course of conduct. |
| Whether the 1990 transaction can qualify as relevant conduct under the common scheme or plan prong. | Damato contends the 1990 act is not part of a common scheme with the 2003–2006 conspiracy. | Damato acknowledges potential relevance but argues it fails the same-course requirement; seeks alternative basis. | Yes; the 1990 transaction qualifies under common scheme or plan. |
| Whether the four-level leader/organizer enhancement was properly applied to Damato. | Damato argues insufficient evidence to show leadership/organization. | Government shows Damato directed operations, coordinated sources, and had significant control. | The district court did not clearly err; Damato was properly treated as a leader or organizer. |
Key Cases Cited
- United States v. Svacina, 137 F.3d 1179 (10th Cir. 1998) (same course of conduct vs. common scheme or plan factors; sliding-scale analysis)
- United States v. Roederer, 11 F.3d 973 (10th Cir. 1993) (timing, regularity, and similarity considered for same course of conduct)
- United States v. Hill, 79 F.3d 1477 (6th Cir. 1996) (sliding-scale application of proximity, regularity, and similarity)
- United States v. Caldwell, 585 F.3d 1347 (10th Cir. 2009) (high similarity with remote timing can justify common scheme analysis)
- United States v. Culverhouse, 507 F.3d 888 (5th Cir. 2007) (example of evaluating regularity and proximity in relevant conduct)