United States of America, Appellee, v. Ann Victoria Ellefson, Appellant.
No. 04-1293
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: October 19, 2004 Filed: August 23, 2005
Appeal from the United States District Court for the Northern District of Iowa.
Before COLLOTON, LAY, and GRUENDER, Circuit Judges.
Ann Victoria Ellefson was convicted of distributing and aiding and abetting the distribution of 2,887 pseudoephedrine pills knowing, or having a reasonable cause to believe, the pseudoephedrine would be used to manufacture methamphetamine, in violation of
I. BACKGROUND
Ellefson‘s convictions arose from her involvement with the drug-related activities of her then boyfriend, Ryan Buchheim. The case against Ellefson centered around a September, 2002, transfer of 2,887 pseudoephedrine pills from Ellefson and Buchheim to undercover police officer Josh Lupkes and confidential informant Flint Hillman in exchange for two tanks purportedly containing anhydrous ammonia.
Lupkes and Hillman met Buchheim and Ellefson outside of her residence in Cedar Rapids, Iowa. With Ellefson present, Hillman helped Buchheim move the purported anhydrous ammonia tanks from his car into Buchheim‘s van. Hillman, Buchheim and Ellefson then went into her apartment, leaving Lupkes in Hillman‘s car. Inside her apartment, Ellefson quizzed Hillman about how well he knew Lupkes. Ellefson asked Hillman: “Why are you afraid to bring him up?“; “How long have you known him?“; “Does he know what you‘re coming here for?“; “Then it doesn‘t really matter, does it?” Hillman told Ellefson that Lupkes was “where I got all my crank from” and that Lupkes knew why Hillman was in her apartment.
While Hillman was in Ellefson‘s apartment, Buchheim spoke on the telephone with his pseudoephedrine supplier to set up a delivery of pseudoephedrine. As soon as Buchheim hung up the phone, Ellefson asked him “Do you know when?” and “Who? When? Where?” Buchheim replied, “At my place, about half an hour and a case. It‘s like 8,640 pills.” Ellefson then asked to use Buchheim‘s van to run an errand. Buchheim noted that the purported anhydrous ammonia tanks were in the back and stated, “See, unless you want to take them and drop them off at [his storage garage] . . . .” Ellefson responded, “You want me to?” and Buchheim replied, “Actually, I kinda want to go with you, if you go.” Ellefson replied, “Okay,” but Buchheim ultimately decided to drive because Ellefson might “take a wrong turn or something.”
Still inside Ellefson‘s apartment, Ellefson and Buchheim agreed to meet Hillman later that day at Buchheim‘s apartment to deliver the pseudoephedrine. Buchheim kept his pseudoephedrine in a garage he rented for storage. Aware of the reason for their trip, Ellefson rode with Buchheim to the garage in which Buchheim kept a safe containing cocaine, pseudoephedrine, a triple-beam scale, numerous glass pipes and other items related to the production of methamphetamine, such as starter fluid, rubber tubing and empty tanks for storing anhydrous ammonia. Buchheim placed the anhydrous ammonia tanks in the garage and retrieved pseudoephedrine and cocaine to give to Hillman.
After retrieving the pseudoephedrine, Ellefson and Buchheim met Hillman at Buchheim‘s apartment. Upon arrival, both Ellefson and Buchheim described two surveillance vehicles that followed them from the garage. Ellefson stated that one of the vehicles following them was a blue or black Dodge. Before leaving Buchheim‘s apartment, Hillman received 2,887 pseudoephedrine tablets (60mg each) and some cocaine.
On December 2, 2002, Police executed an arrest warrant on Buchheim at Ellefson‘s residence. When Buchheim was arrested, he informed officers that he lived at Ellefson‘s apartment. Police allowed Ellefson to leave while they secured the apartment and applied for a search warrant. Before leaving, Ellefson removed $3,500 of drug proceeds from Buchheim‘s duffle bag and tried to hide the money in the waistband of her jeans. An officer stopped Ellefson and removed the money from her waistband. The officer asked Ellefson whether there was anything else in the bag he needed to know about. Ellefson replied, “Drugs.”
While executing the search warrant, police found a large vacuum-sealed bag of cocaine, smaller amounts of cocaine, methamphetamine and marijuana in Buchheim‘s duffle bag. Police also found numerous drug-related materials scattered and readily accessible throughout Ellefson‘s apartment, including a small scale, an electronic scale, a box of small sandwich bags, a partially burnt marijuana cigarette, rolling papers, several marijuana “bongs,” torches and glass pipes used to ingest methamphetamine, and methamphetamine.
An investigating officer testified that Buchheim told police that his source delivered large amounts of pseudoephedrine to Ellefson‘s apartment and that Ellefson was present when he repackaged the pills. Buchheim testified that he packed the drugs found in his duffle bag for a recent weekend stay at a hotel, where he and Ellefson consumed drugs from the bag. Buchheim testified that he sometimes stayed at Ellefson‘s apartment and that she knew he was selling pseudoephedrine, marijuana, cocaine and methamphetamine from her apartment.
II. DISCUSSION
A. Sufficiency of the Evidence
Ellefson argues that there was insufficient evidence to convict her of aiding and abetting the distribution of pseudoephedrine with intent to manufacture methamphetamine (Count 1) and aiding and abetting possession with intent to distribute cocaine (Count 2).2 Ellefson contends that, at most, the evidence demonstrated that she knew of Buchheim‘s activities but did not participate in those activities as required to sustain an aiding and abetting conviction. We disagree.
When reviewing the sufficiency of evidence to support a jury verdict, this Court “views the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury‘s verdict.” United States v. Espino, 317 F.3d 788, 791 (8th Cir. 2003). This standard of review is very strict, and a jury verdict will not be overturned lightly. United States v. Crossland, 301 F.3d 907, 913 (8th Cir. 2002). We may reverse a jury‘s verdict only if “no reasonable jury could have found the accused guilty beyond a reasonable doubt.” United States v. Collins, 340 F.3d 672, 678 (8th Cir. 2003). A jury verdict may be based on circumstantial as well as direct evidence, and “[t]he evidence need not exclude every reasonable hypothesis except guilt.” United States v. Williford, 309 F.3d 507, 509 (8th Cir. 2002) (quoting United States v. Erdman, 953 F.3d 387, 389 (8th Cir. 1992)) (internal quotations omitted).
There are three elements for aiding and abetting distribution of controlled substances: “(1) the defendant associated herself with the unlawful venture; (2) the
Viewed in the light most favorable to the verdict, there was sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that Ellefson aided and abetted both the distribution of pseudoephedrine and possession with intent to distribute cocaine. That Ellefson associated herself with Buchheim‘s unlawful activities is undeniable, and the prosecution presented ample evidence that Ellefson both participated in those activities and sought by her actions to make them succeed.
With regard to the distribution of pseudoephedrine, the jury heard testimony that Ellefson allowed Buchheim to receive and package large amounts of pseudoephedrine in her apartment. The jury also learned that Ellefson believed the tanks contained anhydrous ammonia to be used in the manufacture of methamphetamine and that she not only allowed the tanks to be exchanged outside of her apartment but also that she invited Hillman into her apartment to discuss when and where they would complete the transaction. See Rojas, 356 F.3d at 879 (holding that there was sufficient evidence for aiding and abetting where the jury could reasonably conclude that the defendant “knew that drugs were being sold and that he intentionally provided his apartment as a location for their sale“).
Moreover, the jury heard a recording on which Ellefson grilled Hillman about the extent of the knowledge of the undercover officer in his car and testimony that she described the vehicles that she understood to be police surveillance following her when she accompanied Buchheim to retrieve the pseudoephedrine. This evidence demonstrated that she understood the illegal nature of the activity and sought to protect the operation. In addition, the jury learned that Ellefson offered to transfer the purported anhydrous ammonia tanks to Buchheim‘s storage locker, which provided further evidence of her willingness to participate. Based on this evidence, a reasonable jury could have found that Ellefson wished to bring about this transfer of pseudoephedrine and acted to make it succeed.
The jury also could have reasonably found that she aided and abetted possession with intent to distribute the large amount of cocaine that she knew was stored in her bedroom. The police search of Ellefson‘s apartment produced substantial evidence from which a jury could have reasonably inferred Ellefson‘s intent to participate in Buchheim‘s illegal drug distribution. This evidence included large quantities of assorted controlled substances and drug paraphernalia, including a vacuum-sealed bag containing 260.5 grams of cocaine, two scales for weighing controlled substances and a large amount of money stored with controlled substances. See United States v. Brett, 872 F.2d 1365, 1370 (8th Cir. 1989) (holding that intent to distribute “may be inferred solely from the possession of large quantities of drugs“); United States v. LaGuardia, 774 F.2d 317, 319 (8th Cir. 1985) (“The presence of equipment to weigh and measure cocaine may be viewed as evidence of intent to distribute.“); United States v. Johnson, 977 F.2d 457, 458 (8th Cir. 1992) (“[I]ntent to distribute ‘may be inferred from circumstantial evidence such as a large sum of cash, and a quantity of a controlled substance.‘“) (quoting United States v. Knox, 888 F.2d 585, 588 (8th Cir. 1989)).
Ellefson also argues that because Buchheim had already been arrested when he asked her to remove the money from his duffle bag before police could seize it, she
Viewing the evidence in the light most favorable to the government, we hold that there was sufficient evidence for a reasonable jury to find Ellefson guilty beyond a reasonable doubt of aiding and abetting the distribution of pseudoephedrine and aiding and abetting possession with intent to distribute cocaine. Therefore, we affirm her convictions on Count 1 and Count 2.
B. Sentencing
Ellefson also appeals her sentence on two grounds: first, that the district court‘s failure to apply the “mitigating-role cap” of
The district court determined Ellefson‘s sentence for her convictions on Counts 1 and 2 utilizing
Applying
Because Count 1 and Count 2 were closely related counts, the grouping rules of
First, Ellefson contends that Amendment 640 to the sentencing guidelines, which enacted the mitigating-role cap for offenses involving actual controlled substances but not for offenses involving methamphetamine precursors, amounts to a denial of substantive due process and equal protection of the law under the
It is unclear whether amendments to the sentencing guidelines are subject to a substantive due process challenge. See United States v. Fortney, 357 F.3d 818, 821 (8th Cir. 2004). Assuming without deciding that they are, Ellefson fails to meet her burden of proof under either due process or equal protection.
Ellefson argues that Amendment 640 lacked a rational basis because the Sentencing Commission did not find that offenses involving precursor chemicals are more harmful than offenses involving the final product. Courts, however, do not require the Sentencing Commission to provide reasons for its actions. See United States v. Anton, 380 F.3d 333, 336 (8th Cir. 2004) (“Although
Second, in supplemental briefs Ellefson challenges the district court‘s mandatory application of the sentencing guidelines under United States v. Booker. Because Ellefson failed to argue Apprendi or Blakely error or that the guidelines were unconstitutional before the district court, we review for plain error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc).
We evaluate plain error under the four-part test of United States v. Olano, 507 U.S. 725, 732-36 (1993), as stated in Johnson v. United States, 520 U.S. 461, 466-67 (1997):
[B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Following Pirani, Ellefson has established the first two parts of the Olano test. See Pirani, 406 F.3d at 550 (“The district court (understandably) committed Booker error by applying the Guidelines as mandatory, and the error is plain, that is, clear or obvious, at this time.“). To establish the third part, Ellefson bears the burden of demonstrating “a reasonable probability that [she] would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551.
Ellefson cannot establish a reasonable probability that the district court would have imposed a more favorable sentence under advisory guidelines. The district court stated that in determining where to sentence Ellefson within the applicable guidelines range, it considered the nature and circumstances of Ellefson‘s offense as well as her history and character and imposed a sentence “to afford adequate deterrence to criminal conduct and protect the public.” In addition, that Ellefson was sentenced at the bottom of the applicable guidelines range “is insufficient, without more, to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error.” Pirani, 406 F.3d at 553. After a careful review of the record, we find no evidence indicating that the district court would have imposed a lesser sentence under advisory guidelines. The arguments Ellefson makes regarding the probability of receiving a lesser sentence on remand are based only on speculation about the effect of Booker error on her sentence, and, therefore, she “‘has not met [her] burden of showing a reasonable probability that the result would have been different but for the error.‘” Id. at 553 (quoting United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)).
III. CONCLUSION
For the reasons set forth above, we affirm both Ellefson‘s convictions and her sentence.
LAY, Circuit Judge, concurring.
Ann Ellefson was addicted to drugs. During her addiction, she allowed her boyfriend to use her apartment as a storage and distribution center for his business in illegal narcotics. The evidence showed that she was aware of his activities, accompanied him on a delivery of illegal materials, and independently offered to aid him in carrying out his business. Under these circumstances, the jury reasonably found her guilty of aiding and abetting the sale of illegal narcotics. Yet I wonder the extent to which her drug addiction contributed to her crimes and I find myself doubting whether the interests of society – let alone those of Ellefson – are served by her 188-month sentence (almost sixteen years in prison). To the extent that her addiction caused her actions, a sentence addressing her underlying addiction would better serve the interests of society.
Unfortunately, our inflexible federal criminal justice policy responds to the epidemic of drug crimes without adequately providing federal judges with the ability to address drug addiction – the root cause of this epidemic. In contrast, many states have created specialized drug courts that approach this epidemic with much greater success. In most drug courts, nonviolent, substance-abusing offenders charged with drug-related crimes are channeled into judicially supervised substance abuse treatment, mandatory drugs testing, and other rehabilitative services in an effort to reduce recidivism. Eligible offenders typically have the charges against them stayed and dropped if treatment is successful, or plead guilty with prosecution deferred and criminal punishment withheld if treatment is successful. Evidence shows that the flexible and pro-active approach of drug courts reduces recidivism rates to less than