United States v. Mitchell Atterberry
2015 U.S. App. LEXIS 427
| 8th Cir. | 2015Background
- Mitchell Atterberry pleaded guilty to methamphetamine conspiracy and possession offenses and received a total 240-month sentence (drug counts plus concurrent escape-related counts not contested on appeal).
- Over ~two years law enforcement seized >54 grams of methamphetamine and >$20,000; the government converted cash into an estimated additional quantity (total estimate offered: 23.5 kg based on proffered purchase pattern).
- Atterberry gave uncounseled post-arrest statements to a DEA agent admitting he and co-defendant Tami Zeugin bought a quarter- to half-pound twice weekly for two years; Zeugin gave similar estimates.
- The PSR initially used 54 grams; after the government’s objection it was revised to 23.5 kilograms, raising the base offense level from 26 to 38.
- At sentencing the district court credited the agent’s testimony and the corroboration between Atterberry’s and Zeugin’s statements, adopted the PSR quantity estimate, but imposed a below-Guidelines sentence of 240 months.
- Atterberry appealed, arguing the district court made insufficient Rule 32(i)(3)(B) findings and plainly erred in attributing 15+ kilograms (he also argued statements were unreliable or should be excluded like plea negotiations).
Issues
| Issue | Atterberry's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether district court failed to make explicit Rule 32(i)(3)(B) findings on drug quantity | Court misstated quantity (said ~15 grams) and didn’t identify method; remand required for specific findings | The 15-gram statement was a misstatement; record shows court chose between 54 g and 23.5 kg and adopted 23.5 kg methodology from PSR | No plain error; misstatement was clerical and record shows court adopted 23.5 kg estimate |
| Whether district court clearly erred in attributing 15+ kilograms based on defendants’ proffer statements | Statements unreliable/exaggerated, inconsistent with seized quantity; should not be used (or excluded like plea negotiation evidence) | Statements were corroborated and credible; Rule 410 does not bar these uncounseled proffers; district court may weigh estimates and impose a variance | No clear error; district court credited credibility and corroboration and permissibly used proffer statements; sentence not an abuse of discretion |
| Appropriate standard of review for PSR factual drug-quantity findings | (Implicit) lower than plain error because issue preserved? | Drug-quantity findings are factual and reviewed for clear error when preserved; plain-error applies if not raised | Review applied: plain-error for procedural failing to object at sentencing; clear-error for factual findings; appellate outcome affirmed |
| Whether sentencing variance was reasonable given uncertainties in quantity estimates | Court should have imposed lower sentence consistent with seized amounts | Court expressly considered estimates and imposed a below-Guidelines sentence for that reason | Variance was reasonable; court did not abuse discretion |
Key Cases Cited
- United States v. Villareal-Amarillas, 454 F.3d 925 (clarifies plain-error standard when sentencing objections are not raised)
- United States v. Olano, 507 U.S. 725 (establishes elements of plain-error review)
- United States v. Walker, 688 F.3d 416 (drug-quantity factual findings reviewed for clear error under preponderance standard)
- United States v. Miller, 511 F.3d 821 (supports clear-error standard for sentencing factfinding)
- United States v. Lincoln, 413 F.3d 716 (credibility determinations at sentencing are for the district court)
- United States v. Drapeau, 644 F.3d 646 (court may correct or explain apparent misstatements when record shows intent)