United States v. Niles
708 F. App'x 496
10th Cir.2017Background
- In November 2014 law enforcement observed and intercepted communications showing repeated methamphetamine transactions between John Wesley Niles and Richard Schutt; on Nov. 29, 2014 officers seized 13.92g from Niles, to which he pleaded guilty for possession with intent to distribute.
- A PSR reconstructed distribution activity from July 2013 through Nov. 29, 2014 and initially calculated relevant conduct at 130.5g, later revising to a conservative minimum of 63g.
- Niles objected, arguing relevant conduct should be limited to the 14g seized (and he alternatively conceded inclusion of a 4.5g July 2013 transaction), contending other November 2014 amounts were for personal use.
- The district court held a hearing, heard intercepted calls/texts and testimony about ‘‘fronting’’ practices, and found relevant conduct "somewhere between 56 and 60 grams," producing a Guidelines base offense level of 24.
- The court sentenced Niles to 24 months; on appeal Niles challenged (1) inclusion of the July 2013 4.5g, (2) the finding that November 2014 purchases were for distribution (not personal use), and (3) any inclusion of personal-use quantities. The Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Niles) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the July 2013 4.5g may be excluded from relevant conduct | 4.5g is temporally remote (16 months) and lacks nexus to Nov. 29 offense; should be excluded | Gov’t relied on parties’ record and argued inclusion was proper; invites review of other conduct | Waived/invited error: Niles had repeatedly told district court 18.5g (14g + 4.5g) was the proper figure, so he may not now challenge inclusion of the 4.5g |
| Whether November 2–27, 2014 transactions may be counted as relevant conduct (distribution vs. personal use) | Intercepted communications show purchases of unknown quantities for unknown purposes; insufficient to prove distributive intent by preponderance | Intercepts, repeated requests for "usual" amount, “double the usual,” fronting practice, and frequency support inference of repeated ~7g purchases and distributive intent | Affirmed: record supports finding of at least six ~7g transactions (37.5–41.5g) with distributive intent; meets same-course-of-conduct/common-scheme criteria |
| Whether sentencing court erred by relying on estimates of drug quantity not seized | Estimates must have factual support and reliability; Niles argues estimates here are speculative | Gov’t relied on communications, testimony about fronting, and pattern evidence as adequate factual basis | No clear error: court’s estimate fell within reasonable inferences and had record support; trial court's finding deference applies |
| Whether personal-use quantities were improperly included in relevant conduct | Any personal-use amounts should not count toward possession-with-intent-to-distribute relevant conduct | Gov’t argued relevant conduct findings were limited to distributive quantities; court’s lower figure suggests exclusion of pure personal-use amounts | Court did not clearly include personal-use amounts; record does not show error, so issue not decided on the merits |
Key Cases Cited
- United States v. Hamilton, 587 F.3d 1199 (10th Cir.) (same-course-of-conduct factors: similarity, regularity, temporal proximity)
- Gall v. United States, 552 U.S. 38 (reasonableness review standard for sentence)
- United States v. Dalton, 409 F.3d 1247 (10th Cir.) (drug-quantity findings reviewed for clear error; estimations permitted with factual support)
- United States v. Richards, 27 F.3d 465 (3d Cir.) (estimating drug quantities not license for guesswork)
- United States v. Ruiz-Castro, 92 F.3d 1519 (10th Cir.) (estimates allowed if supported and reliable)
- United States v. Fortier, 180 F.3d 1217 (10th Cir.) (government bears preponderance burden on relevant-conduct quantities)
- United States v. Garcia, 994 F.2d 1499 (10th Cir.) (same)
- United States v. Roederer, 11 F.3d 973 (10th Cir.) (describing criteria for same-course-of-conduct)
- United States v. Gallegos, 784 F.3d 1356 (10th Cir.) (fronting suggests redistribution)
- United States v. Small, 423 F.3d 1164 (10th Cir.) (same)
- United States v. Wood, 57 F.3d 913 (10th Cir.) (personal-use quantities included as relevant conduct for manufacturing conviction)
- United States v. Asch, 207 F.3d 1238 (10th Cir.) (personal-use methamphetamine treated as relevant conduct in conspiracy cases)
- United States v. Dunbar, 718 F.3d 1268 (10th Cir.) (invited-error doctrine bars appealing an invited ruling)
- United States v. Teague, 443 F.3d 1310 (10th Cir.) (same)
- United States v. Guest, 978 F.2d 577 (10th Cir.) (appellate court will not reverse when record does not show district court included personal-use amounts)