Case Information
*2 Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
____________
LOKEN, Circuit Judge.
Between October and December 2010, informant Colin Dorsey made four controlled methamphetamine buys from Daniel Miller at the home of Daniel and his wife, Rebecca Miller. When Mr. Miller was arrested and interviewed in February 2011, he admitted distributing enough methamphetamine between 2004 and 2010 to fill the conference room in which the interview was being conducted, receiving as much as two kilograms per week from his suppliers. Interviewed that same day, Mrs. Miller admitted that on several occasions she and her 17-year-old son assisted in the distribution of methamphetamine, including three occasions when she received money from Dorsey at the Millers’ home.
Mr. and Mrs. Miller were charged with conspiracy to distribute 500 grams or more of a methamphetamine mixture in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and 846. Based on Colin Dorsey’s four controlled buys, Mr. Miller was charged with four counts of aiding and abetting the distribution of more than 5 grams of actual methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii), and 18 U.S.C. § 2. Mrs. Miller was charged with three counts of aiding and abetting based on the three buys in which she participated. A jury found the Millers guilty on all counts, except it found Mrs. Miller guilty of conspiring to distribute only 50 grams or more of methamphetamine. Mr. Miller was sentenced to 360 months in prison. Mrs. Miller was sentenced to 188 months in prison. Both appeal. Mrs. Miller argues the evidence was insufficient to support her conviction. Mr. Miller argues the district court erred in denying pretrial discovery requests. Both challenge a two-level sentencing enhancement for maintaining their home for the purpose of distributing a controlled substance. We reject these contentions and affirm both convictions and Mr. Miller’s sentence. Mrs. Miller further argues the district *3 court committed procedural sentencing error in determining that her advisory guidelines sentencing range was 188-235 months in prison. We agree with this contention, vacate Mrs. Miller’s sentence, and remand for resentencing.
I. Sufficiency of the Evidence
Mrs. Miller argues the trial evidence was insufficient to prove beyond a
reasonable doubt that she aided or abetted the distribution of methamphetamine or
intentionally joined a conspiracy to distribute 50 grams or more of methamphetamine.
“We review the sufficiency of the evidence de novo, viewing evidence in the light
most favorable to the government, resolving conflicts in the government’s favor, and
accepting all reasonable inferences that support the verdict.” United States v.
Guenther,
The government introduced evidence that on October 8, 2010, Dorsey called Mr. Miller to purchase methamphetamine. Mr. Miller told Dorsey to come to his home. When Dorsey arrived, Mr. Miller was not home. Dorsey called Mr. Miller, who told Dorsey to give the $900 purchase money to Mrs. Miller. When Dorsey gave Mrs. Miller the money, she said “Okay.” Dorsey again called Mr. Miller, who said Dorsey would find the methamphetamine in a shoe on the rafter of the front porch. This buy involved 14.7 grams of actual methamphetamine in a mixture weighing 21.8 grams. On October 20, Dorsey called Mr. Miller and arranged another buy. When Dorsey arrived at the Millers’ residence, neither Mr. Miller nor Mrs. Miller was home. Mrs. Miller and their 17-year-old son soon arrived. Dorsey called Mr. Miller, who told Dorsey to give Mrs. Miller the money. The Millers’ son then retrieved the methamphetamine and gave it to Dorsey. This buy involved 17.7 grams of actual methamphetamine in a mixture weighing 21.6 grams. On December 2, Dorsey called Mr. Miller and set up another buy at Mr. Miller’s home. When Dorsey arrived, Mr. Miller was not home; Mrs. Miller answered the door. Mr. Miller told Dorsey by phone to give the money to Mrs. Miller and then said Dorsey would find the *4 methamphetamine above a barbeque pit on the property. This purchase involved 17.5 grams of actual methamphetamine in a mixture weighing 26.2 grams. In addition to admitting receiving money from Dorsey in these three transactions, Mrs. Miller admitted that over the prior twelve months she had accepted money for methamphetamine from two other individuals at the Millers’ residence.
The elements of aiding and abetting the distribution of a controlled substance
are: “(1) the defendant associated herself with the unlawful venture; (2) the
defendant participated in it as something she wished to bring about; and (3) the
defendant sought by her actions to make it succeed.” United States v. Ellefson, 419
F.3d 859, 863 (8th Cir. 2005) (quotation omitted). Mrs. Miller argues the government
failed to prove she possessed the necessary intent to be guilty of aiding and abetting.
She further argues the government failed to establish an essential element of a drug
conspiracy offense, that she “intentionally joined the conspiracy.” United States v.
Jiminez,
Alternatively, Mrs. Miller argues there was insufficient evidence to support the
jury’s finding that she conspired to distribute 50 grams or more of a mixture
containing methamphetamine. We disagree. Mrs. Miller
personally
participated in
three transactions involving a total of more than 50 grams of a methamphetamine
mixture. These transactions clearly were “reasonably foreseeable drug quantities that
were in the scope of the criminal activity that [she] jointly undertook.” United States
*5
v. Foxx,
II. Mr. Miller’s Discovery Motion
Three weeks before trial, Mr. Miller filed a Motion for Additional Discovery Regarding Cooperating Witness requesting, in twenty numbered subparagraphs, that the government produce for inspection and copying a variety of documents concerning “cooperating” and “prospective government” witnesses. The motion relied on Rule 16 of the Federal Rules of Criminal Procedure and on Brady v. Maryland, 373 U.S. 83 (1963). In response, the government objected to being required to disclose its witnesses prior to trial and stated that it would provide exculpatory and impeachment evidence that it was required to disclose under Brady “prior to cross-examination of the cooperating witness should he/she be called as a witness” at trial. Four days before trial, the district court granted the motion in substantial part, ordering the government to provide the requested information “prior to the cross-examination of the witness.” There is no contention the government failed to comply with this directive.
*6 On appeal, Mr. Miller challenges one portion of the district court’s ruling, the denial of his request for the “case names and numbers of any trials or evidentiary hearings at which any cooperating witness has testified.” He argues this ruling violated Brady, Rule 16(a)(1)(E)(i), and the Sixth Amendment’s Confrontation Clause. This contention is without merit; indeed, it was not properly preserved. Rule 16(a)(1)(E)(i) provides that, upon a defendant’s request, the government must produce for inspection and copying documents “material to preparing the defense.” In 1975, Congress amended Rule 16 to eliminate a requirement that the government disclose its witnesses prior to trial. See Pub. L. 94-64, § 3(23), 89 Stat. 370, 375; Rule 16 Advisory Committee Notes to the 1975 Enactment relating to Rules 16(a)(1)(E) and (b)(1)(C). Mr. Miller’s pretrial discovery motion was a thinly- [1]
disguised attempt to learn through discovery who the government was likely to call
as trial witnesses. The government properly objected, and the district court did not
abuse its discretion by ordering the government to provide discovery “prior to cross-
examination” of any cooperating witness at trial. See United States v. Roach, 28 F.3d
729, 734 (8th Cir. 1994); United States v. Rogers,
At trial, the only cooperating witness who testified was Colin Dorsey. Dorsey
testified on direct examination that he cooperated with the government in making the
controlled buys after he was arrested for drug possession, that he did so in exchange
for the government’s promise to make his cooperation known to the local district
attorney, and that he was paid for these efforts and had been paid by law enforcement
for work on other past cases. Mr. Miller cross-examined Dorsey for bias, and the
district court in no way limited this cross examination. Mr. Miller made no showing
that he was being denied effective cross-examination, or his right to confront Dorsey,
because the government had failed to provide exculpatory or impeachment materials
required either by Brady or by the district court’s discovery order. Thus, he failed to
establish a Brady violation by showing “the government suppressed evidence that was
favorable to the defendant and material either to guilt or to punishment.” United
States v. Heppner,
III. The “Crack House” Sentencing Enhancement
Mr. and Mrs. Miller both argue the district court committed procedural
sentencing error by imposing a two-level increase for “maintain[ing] a premises for
the purpose of manufacturing or distributing a controlled substance.” U.S.S.G.
§ 2D1.1(b)(12). We review factual findings that the Millers maintained the premises
for the purpose of distributing methamphetamine for clear error. See United States
v. Baker,
*8
In the Fair Sentencing Act of 2010, Congress directed the Sentencing
Commission to add a two-level enhancement if “the defendant maintained an
establishment for the manufacture or distribution of a controlled substance, as
generally described in section 416 of the Controlled Substances Act (21 U.S.C. 856).”
Pub. L. No. 111-220, § 6(2), 124 Stat. 2372, 2373 (2010). This statute, commonly
known as the “crack-house” statute, makes it unlawful to “knowingly open, lease,
rent, use, or maintain any place, whether permanently or temporarily, for the purpose
of manufacturing, distributing, or using any controlled substance.” 21 U.S.C.
§ 856(a)(1); see United States v. Verners,
Here, though it is unclear who owned the premises, Mr. and Mrs. Miller lived there, used the home as their primary residence, and controlled access to the property. In addition to the four controlled buys, the government presented evidence Mr. Miller admitted that he distributed massive quantities of methamphetamine between 2004 and 2010, that he told customers they would find the methamphetamine in unusual locations such as beside a fence post and he would collect the purchase price at a later *9 time, and that he kept ledgers with the names and locations of suppliers and customers that the government recovered and presented at trial. On October 22, 2010, Mr. Miller reported to local law enforcement officers that someone had planted ten grams of methamphetamine in his home and tried to convince the officers to use him as a confidential informant, claiming to know every drug dealer in the area. The district court did not clearly err in finding that Mr. Miller “maintained” the premises for drug distribution.
Mrs. Miller argues that she did not maintain the home “for the purpose of” distributing controlled substances. Application Note 28 to § 2D1.1 instructs that
Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises. In making this determination, the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes.
Focusing on the frequency-of-use factor and her minimal role in her husband’s criminal enterprise, Mrs. Miller argues that her primary use of the premises was as a family home, where she resided with her husband and raised eleven children, their own and children of Mr. Miller’s sisters.
We assume that § 2D1.1(b)(12), like the 21 U.S.C. § 856(a)(1) offense that it
parallels, requires proof that the specific defendant being sentenced maintained the
premises “for the purpose of” drug manufacture or distribution. “It is not sufficient
that others possess the requisite purpose.” United States v. Payton,
We are somewhat baffled by Application Note 28’s instruction to compare the
frequency of lawful and unlawful uses in this type of case. When the premises in
question was the defendant’s family home, by definition it was used for that lawful
purpose 100% of the time. Yet Congress in enacting § 856 and in directing the
Commission to adopt § 2D1.1(b)(12) surely intended to deter the manufacture and
distribution of illegal drugs in “crack houses” where children are being raised. Thus,
prior decisions have upheld § 856 convictions where defendant used the premises in
question as a primary residence as well as for substantial drug trafficking. See United
States v. Shetler,
IV. Mrs. Miller’s Advisory Guidelines Range
Mrs. Miller’s initial PSR stated that the offense conduct was three controlled buys by a confidential informant (Dorsey) and the relevant conduct was a fourth buy, resulting in a base offense level of 32 based on 64 total grams of actual methamphetamine. Daniel Miller’s initial PSR likewise recommended a base offense level of 32 based on 64 grams of actual methamphetamine, with all four controlled buys being offense conduct for Daniel. The government objected that Daniel’s base offense level should be 38 because he admitted distributing more than 15 kilograms of methamphetamine over a lengthy period. The government objected that Mrs. Miller’s base offense level should also be 38 because “she was convicted as a part of the same conspiracy as Mr. Miller.” Mrs. Miller objected that the fourth buy should not be included in her drug quantity. The probation officer agreed with the government. However, the revised PSR mistakenly listed a base offense level of 38 “based on a total of 64 grams of actual methamphetamine,” rather than on more than 15 kilograms of methamphetamine. The revised PSR rejected Mrs. Miller’s objection to including the fourth buy because she was “convicted of a conspiracy charge.”
The revised PSR also recommended the two-level increase under § 2D1.1(b)(12) previously discussed, a two-level increase under § 3B1.4 for using her minor son to commit the offense, and no adjustment for role in the offense. Mrs. Miller objected to both increases and urged a four-level reduction because she was a minimal participant in the conspiracy under § 3B1.2(a).
At sentencing, the district court ruled on these revisions and objections based on the trial record. The court upheld the revised base offense level of 38. Without making a specific quantity finding or noting that the revised PSR’s total of 64 grams of actual methamphetamine is level 32, not level 38, the court observed:
The conspiracy was more than just the counts as such. It covered the whole range of criminal conduct under what we call “relevant conduct.” So the court ruled that Mrs. Miller was convicted of conspiracy. She should be charged with the entire amount of those drugs.
The court then rejected Mrs. Miller’s objection to including the fourth buy because “you were convicted of a conspiracy and a conspiracy covers the entire range of conduct.” However, the court granted a four-level reduction, finding Mrs. Miller a minimal participant in the conspiracy, and rejected a two-level increase for use of a minor in committing the offense because “Mr. Miller was more involved in the use of your son that you were.” These findings resulted in a total offense level of 36 and, with a criminal history category of I, an advisory guidelines range of 188-235 months in prison. The court sentenced Mrs. Miller to the bottom of that range, 188 months.
This record presents two procedural sentencing issues that lead us to conclude
we should remand for resentencing. First, it appears no one at sentencing recognized
that the district court’s finding that Mrs. Miller was entitled to a four-level minimal-
role adjustment brought into play an amendment to the “mitigating role cap” in
§ 2D1.1(a)(5) mandated by the Fair Sentencing Act of 2010: “If the resulting offense
level is greater than level 32 [after a § 3B1.2 mitigating role adjustment] and the
defendant receives the 4-level (“minimal participant”) reduction in § 3B1.2(a),
decrease [the base offense level] to level 32.” See U.S.S.G. App. C, Vol. III, Amend.
748, at p.382 (2011); Pub. L. No. 111-220, § 7(1), 124 Stat. 2372, 2374 (2010). Here,
the PSR recommended no role adjustment, so it did not consider § 2D1.1(a)(5). Mrs.
Miller in urging a minimal role adjustment did not bring the mitigating role cap to the
district court’s attention, even after the court announced at sentencing it was granting
the adjustment. Because the court started with a base offense level of 38, it
determined that Mrs. Miller’s total offense level was 36 after the adjustment (and the
premises enhancement). Even under plain error review, the failure to apply amended
§ 2D1.1(a)(5) resulted in an erroneous application of the Guidelines that may have
*13
substantially increased Mrs. Miller’s advisory guidelines range, making remand
appropriate. See United States v. Jackson,
in furtherance of the conspiracy and either known to that defendant or reasonably foreseeable to [her]. Factors relevant to foreseeability include whether the defendant benefited from [her] co-conspirator’s activities and whether [she] demonstrated a substantial level of commitment to the conspiracy.
United States v. Brown,
In this case, the drug quantity in the initial PSR was 64 grams of actual
methamphetamine sold to Dorsey in four controlled buys over a three-month period.
Mrs. Miller objected to including the fourth buy as relevant conduct. The district
court’s overruling of that objection required nothing more than a cryptic reference to
*14
the conspiracy nature of her offense. But the revised PSR had increased the base
offense level from 32 to 38, accepting the government’s objection that Mrs. Miller’s
base offense level should be based upon Mr. Miller’s boastful admissions that he
distributed more than 15 kilograms of methamphetamine during the course of his six-
year conspiracy. No doubt more than 64 grams of actual methamphetamine could
reasonably be attributed to Mrs. Miller. Not only was she Mr. Miller’s wife who
lived with him in premises they used for drug distribution, she also admitted
accepting money for methamphetamine from two other individuals in the prior year.
But the government asserted she was responsible for the entire 15 kilograms simply
because she “was convicted as a part of the same conspiracy as Mr. Miller.” This
was contrary to well-established Eighth Circuit precedent. See Spotted Elk, 548 F.3d
at 674 (“a defendant’s conviction for conspiracy does not automatically mean that
every conspirator has foreseen the total quantity of drugs involved in the entire
conspiracy”); United States v. Rogers,
Miller’s activities, and despite the jury’s finding of a lesser quantity than charged in the indictment and the court’s grant of a minimal role adjustment. In these *15 circumstances, we conclude that the interests of justice are well-served by a remand for resentencing following a redetermination of Mrs. Miller’s advisory guidelines range. This seems particularly appropriate because, the day after Mrs. Miller’s sentencing, the district court in sentencing Mr. Miller adopted his argument for base offense level 32, without a specific drug quantity finding, in order to reduce his advisory guidelines range from life to 360 months-to-life. Whether this was a reduced drug quantity finding or a de facto downward variance is in our view unimportant. It simply reinforces our view that, in this post-Booker world, a remand for resentencing in this case is needed.
For the foregoing reasons, we affirm Daniel Miller’s conviction and sentence. We affirm Rebecca Miller’s conviction, vacate her sentence, and remand to the district court for resentencing not inconsistent with this opinion.
______________________________
Notes
[1] This had been the rule before a 1974 amendment required the government to
disclose its witnesses before trial. See United States v. Cole,
[2] Prior to 2003, § 856(a)(1) made it unlawful to “knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance.” The 2003 amendment did not affect the issue in this case.
[3] Compare § 2D1.1(c)(1) with § 2D1.1(c)(4).