United States v. Joey Loesel
2013 U.S. App. LEXIS 17727
| 8th Cir. | 2013Background
- Loesel pled guilty to conspiracy to manufacture and distribute at least 50 grams of actual methamphetamine and 500 grams of a meth mixture, receiving a 180-month sentence.
- He appeals the § 2D1.1(b)(13)(C)(ii) substantial-risk enhancement, the attribution of his girlfriend’s pseudoephedrine purchases, and using proffer information to set the guideline range.
- From 2005–2011 Loesel and his girlfriend routinely obtained pseudoephedrine from pharmacies to supply meth cooks.
- A farm search uncovered three active meth labs, extensive equipment, corroding tanks, and thousands of grams of meth and meth mixtures at multiple locations.
- The district court relied on a proffer agreement allowing rebuttal of Loesel’s sentencing positions and used those proffer facts to determine drug quantity and apply the enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the enhancement for substantial risk of harm proper? | Loesel argues no substantial risk given rural location. | Loesel contends factors do not support the enhancement. | Enhancement affirmed; factors support substantial risk. |
| Should girlfriend’s pseudoephedrine purchases be attributed to Loesel? | Loesel claims not reasonably foreseeable to him. | Loesel contends purchases were private and not part of conspiracy. | Attribution upheld; purchases reasonably foreseeable and part of conspiracy. |
| Did the district court err in using the proffer to determine the guideline range under 1B1.8(a)? | Proffer statements cannot be used to set guideline range. | Exceptions allow rebuttal information to be used to determine sentencing facts. | No error; proffer used to rebut factual position, permissible. |
Key Cases Cited
- United States v. Pinnow, 469 F.3d 1153 (8th Cir. 2006) (factors for substantial risk of harm guidance)
- United States v. Voegtlin, 437 F.3d 741 (8th Cir. 2006) (attribution of co-conspirator purchases for sentencing)
- United States v. Perry, 640 F.3d 805 (8th Cir. 2011) (proffer agreement interpretation and use)
- United States v. Walker, 688 F.3d 416 (8th Cir. 2012) (drug-quantity factual review standard)
- United States v. Payton, 636 F.3d 1027 (8th Cir. 2011) (reasonableness of considering similar, regular, proximate conduct)