United States v. Darcy Jay Betterton

essentially was collat- damage some of the family with his since any contact make that, result, noted, as As the IJ eral to the conflict implausible. 1995 was a well because of family targeted Nicholas was was not Ombongi’s brother result, race, nationality, it was not mem- religion, As magistrate. known their Ombongi would expect particular group. in social bership unreasonable years in find him the have been able from the is insubstantial evidence There Ombongi attempt made no any potential since that threat of country report fam- party, of which his the FORD contact level. exists at a nationwide persecution members, them. in order to locate ily were it was within the IJ’s discre- Consequently, information about the any recent Without showing Ombongi require tion whether family, it is unknown of his state Kenya. within safely not relocate could jeopardy family still Ombongi’s persecution.

feared III. Last, Ombongi pro was unable to Accordingly, the reasons stated any any corroborating evidence vide above, Ombongi’s petition for re- deny we of corroboration allegations. The lack his view. Ombongi was not does not mean alone However, in combination with credible. factors, the dearth of documenta

the other credibility. his We

tion does undermine it difficult for a is often

recognize from to obtain documentation

petitioner Ashcroft, country. Bellido v.

their home (8th Cir.2004). Further, get sub petitioners expected America, cannot be UNITED STATES persecu from their documentation Appellee, stantial Ashcroft, Ahmadshah v. tors. Cir.2005). Nonetheless, Darcy Jay BETTERTON, Appellant. corroboration, especially from

lack of matter, “friendly” sources this combined 04-2151. No. issues, credibility with the other raises Appeals, Court of Ombongi’s story. substantial doubts about Eighth Circuit. result, find no error with the IJ’s As a we credibility of findings concerning the Om 13, 2004. Submitted: Dec. bongi’s claims. 2, 2005. Aug. Filed: credibility is without the Even IJ, by the it is far from clear sues raised Ombongi’s claims rise to the level noted,

required by statute. As IJ freely leave the coun

Ombongi was able to opposition harassment. His

try without

party represented legisla the national alleged damage to

ture. Some of the his

family’s including stoning of property, car, to ethnic conflict. How was due

ever, finding the IJ did not err Uhl, Moines, Iowa, argued,

Keith E. Des appellant. for Fletcher, argued, Kevin C. Asst. U.S. Iowa, Attorney, City, appellee. Sioux BYE, HANSEN, Before GRUENDER, Judges. Circuit GRUENDER, Judge. Circuit Darcy Jay appeals Betterton his convic- possession tion on three counts of with intent to a controlled substance distribute pay the tow bill. After of not have cash convicted previously having been after cash, with sufficient offense, Vonnahme returned in viola- felony drug one at least 841(b)(1)(B) informed her that Officer Fett 841(a), §§ U.S.C. tion sign of the car could registered owner addition, raises and 851. thereafter, Jones, Pam Shortly it. argument appeal the first time on owner, for the registered sign arrived sentence, application on his based call car. Fett told Jones he would Officer Sentencing Guidelines the United inventory completed. was her when fashion, unconstitutional. mandatory below, affirm we the reasons discussed For performed Fett and Fleecs then Officers Betterton’s sen- vacate the conviction but seat, In the search. back court for to the district and remand tence bag of the they zipped discovered a black resentencing. commonly laptop to hold a com- type used bag methamphet- contained puter. The I. BACKGROUND amine, marijuana, as cocaine and as well Carroll, Iowa drug paraphernalia and cash. Officer Fett stopped was Betterton car immediately prepare because the left to warrant Jason Fett police officer arrest, had a cracked wind- Betterton’s while Officer Fleecs driving was Betterton of completed inventory driver’s line search. impeded the shield which immediately admitted sight. on three counts Betterton was indicted license was Fett that his driver’s Officer to distribute a of with intent possession also informed Offi- suspended. Betterton having after been controlled substance girl- belonged car to his cer Fett that the felony of at least one previously convicted friend, Fett decided Pam Jones. Officer offense, in violation of U.S.C. drug driving with sus- to arrest Betterton 841(a), 841(b)(1)(B), During §§ and 851. the car was license. Because pended trial, jury prosecution introduced his busy area on a stopped no-parking convictions of prior evidence of his two street, called on another offi- Officer Fett intent to deliver metham- possession with Fleecs, cer, arrangements make Officer testimony from the arrest- phetamine via at bay to a secure the car to be towed copies of the ing officers and certified inventory station for an search police jury instructed that judgments. The Police to an unwritten Carroll pursuant prove evidence could be used this policy. Officer Department impoundment motive, intent, knowledge, Betterton’s police Betterton to the Fett then drove carrying out lack mistake or accident of station, and released. he was booked where charged in the indictment. the acts to the had the vehicle towed Officer Fleecs on all three jury guilty found Betterton phone several Betterton made station. to concurrent counts. He was sentenced to find attempt in an calls from the station one, on count terms of 360 months prison car, initially pick up the but he someone to two, and 120 months months on count was unsuccessful. appeals the dis- on count three. Betterton of evidence obtained trict court’s admission inventory search of the vehi- Before the of evidence inventory search and commenced, from the friend Donna cle Betterton’s also convictions. Betterton up of his pick at the station to arrived Vonnahme appeal the the first time on raises for informed the car. Officer Fett Vonnahme unconstitutionally argument that he was inventory obligated that he was addition, mandatory application under a In sentenced releasing it. vehicle before Sentencing of the Guidelines. did Fett learned Vonnahme Officer judgment by some latitude and exercise of II. DISCUSSION police officer when those decisions are Inventory A. The Search “legitimate on based concerns related to court The district denied Better- purposes impoundment.” of an Id. suppress ton’s motion to the evidence ob inventory tained from the search. We re Officer Fett testified that it was findings the district factual view court’s for within his impound discretion to the car clear error and its conclusions of law de stopped because it was in a traffic in a lane Escamilla, novo. United States v. no-parking zone and would be a hazard if Cir.2002). authority left location. “The in Betterton contends police to seize and remove from the streets ventory search violated the Fourth impeding threatening vehicles traffic or constitutional, Amendment. “[a] To public safety beyond and convenience is warrantless search must be challenge.” Opperman, at pursuant police proce done to ‘standard addition, 96 S.Ct. 3092. the officers purpose dures’ and for the ‘protecting could not allow Betterton himself to drive ” the car and its contents.’ United the car to a safer location because Better- (8th Best, 1223, States v. 135 F.3d 1225 suspended. ton’s license was Officers Fett Cir.1998) (quoting Op South Dakota v. they and Fleecs both testified had no 364, 372, 373, perman, 428 U.S. 96 S.Ct. any awareness of criminal history on the 3092, (1976)). 49 L.Ed.2d 1000 “[P]olice part of Betterton and had no reason to may impound exercise discretion to a ve suspect inventory the search yield would hicle, long ‘so as that discretion is exer Therefore, evidence of criminal activity. according cised to standard criteria and the district court in concluding did not err on the of something basis other than that the decision impound to was based on suspicion of evidence of criminal activi legitimate safety concern of traffic ” ty.’ Petty, United States v. 367 F.3d merely was “not ‘a general ruse for rum (8th Cir.2004) 1012 (quoting Colo maging order to discover incriminating Bertine, 367, 375, rado v. 479 U.S. 107 ” Petty, (quot evidence.’ 367 F.3d at 1012 (1987)). S.Ct. 93 L.Ed.2d 739 Wells, 1, 4, ing Florida v. 110 1632, 109 (1990)). 1

Betterton L.Ed.2d argues that the Carroll Department’s Police lack of poli a written argues Betterton also pub that the

cy controlling impound the decision to safety lic interest also would have been gave police vehicle its officers unconstitu if police served tionally However, had remained at the broad discretion.1 scene of the traffic stop absence of a and allowed policy controlling written Von However, pick nahme to impound up decision to the car. vehicle does not automatically “[n]othing the Fourth inventory render an search Amendment re quires police department unconstitutional. policy While a written to allow an may preferable, testimony person arrange can be arrested to suffi for another cient police impoundment person to establish to pro pick up impound his car to avoid Petty, cedures. inventory.” 367 F.3d at 1012. ad ment and United v. States dition, (8th Cir.1994). impoundment policy may an Agofsky, allow 873 Department The conducting Carroll Police did have a not assert that the method of policy controlling written how the inventory search was unconstitutional. performed. search was to be Betterton does

831 Williams, fail- Betterton contends Finally, Cir.2002) the car its immediately (quoting release United States v. How- ure to ard, (8th Cir.2000)). Jones, owner, she arrived at the Pam when F.3d inventory search had before the station past For evidence of to be crimes Iowa violated Code commenced 404(b), admissible under Rule the evidence 321J.4B(5)(a) (2002), states: § which (1) issue; must be relevant to a material following persons shall be entitled (2) overly similar in kind and not remote motor to immediate return of the vehicle crime; (3) charged supported time to the with payment without of costs associated (4) evidence; by sufficient such or immobilization of impoundment potential its prejudice does not substantial the vehicle: Williams, ly outweigh probative its value. (1) vehicle, if The owner of the motor 308 F.3d at 837. the motor person operated who vehi- argues prior not a of the motor vehi- that his cle is co-owner not relevant cle. convictions were to a material However, issue. past drug- evidence of Although it doubtful related crimes is relevant to establish 321J.4B(5)(a) prevent § an in- applies knowledge the charged drug and intent for ventory it has been im- of vehicle after See, offense. e.g., United States v. Thom we do not need to address the pounded, (8th Cir.2005) as, terms, By here. its own issue (holding two convictions for distribu 321J.4B(5)(a) impound- only applies tion of crack relevant show intent resulting from a violation of ments distribute the crack found in defendant’s J.2, under the influ- “Operating § while 321 Mendoza, possession); States United v. drug having alcohol or or while ence of (8th Cir.2003) 687, (holding 341 692 alcohol of .08 or more an concentration prior possession for conviction of metham 321J.4B(2). (OWI).” § See Iowa Code phetamine knowledge to show and relevant there 321J.2 violation in Because was no intent for conspiracy distribute where 321J.4B(5)(a) case, § with connection this the he defendant claimed was unaware apply. does not person the vehicle was another court conclude that the district did We methamphetamine). distributing in denying not err Betterton’s motion to convictions, the from the suppress evidence obtained prior one Betterton’s 1999, search. from 1998 from both and one were possession methamphetamine with of B. Evidence of Prior Convictions They certainly intent to distribute. were to, kind, court denied similar in if not identical the district Better- charged possession of of of metham ton’s motion exclude evidence his two offenses marijuana of in possession phetamine, convictions meth cocaine and with prior Furthermore, amphetamine given with intent to distribute. tent distribute. prior convictions review the district court’s admission of similarities between We offenses, past and the which occurred evidence crimes under Fed.R.Evid. current 404(b) 2002, discretion, not and convictions were abuse of we will “clearly overly charged in time from the not reverse unless the evidence remote Thomas, 1063; bearing conduct. 398 F.3d at had no on the case and intro See Frazier, solely prove v. 847 pro duced the defendant’s (8th Cir.2002) (holding evidence of similar pensity to commit criminal acts.” United 832 years in

drug-related past crimes five apply plain-error We test as set Olano, was “well within bounds of admis forth in United States v. 507 U.S. sion”). 725, 732-36, 113 S.Ct. 123 L.Ed.2d (1993). The test has been stated as argument makes no follows: that the supported by convictions were not an appellate before court can correct an sufficient evidence. Betterton also fails to trial, error not raised at there must be show that past the evidence of the convic (1) (2) error, (3) plain, that is jury tions would tend to inflame the or affects rights. substantial If all three suggest that it guilt otherwise decide on an met, conditions are an appellate court improper basis. See United States v. Lu may then (8th Cir.2002) exercise its discretion to notice pino, 301 F.3d (4) (“Unfair error, only forfeited but if the error ... prejudice means an undue seriously fairness, integrity, affects the tendency suggest an improp decision on basis.”) public reputation judicial er (quoting proceed- Fed.R.Evid. 403 advi note). Furthermore, ings. sory committee

district jury court instructed the to consid Pirani, 406 F.3d at 550 (quoting Johnson er respect the evidence with to Bet- States, v. 466-67, United 520 U.S. intent, motive, knowledge, terton’s 1544, 137 (1997)). L.Ed.2d 718 lack of mistake or in carrying accident out Pirani, inAs the first two factors charged the acts the indictment. “A are satisfied because the district court jury instructions,” presumed to follow its committed error in applying guidelines Flute, United fashion, in a mandatory and the error is (8th Cir.2004) (quoting Angelone, Weeks v. plain at appellate the time of consideration. 225, 234, 120 S.Ct. Pirani, See 406 F.3d at 550. satisfy To (2000)), L.Ed.2d 727 and therefore “the factor, the third Olano Betterton must a limiting use of instruction decreases the “a demonstrate reasonable probability that danger that unfair prejudice will result he would have received a more favorable Thomas, from admission of the evidence.” sentence with the Booker error eliminated 398 F.3d at 1063. by making the advisory.” Guidelines Id. We conclude that the district court did at 551. not abuse its discretion in admitting evi- dence of Betterton’s prior two convictions. Because of prior his two felony convictions for controlled substance of Sentencing

C. fenses, Betterton’s offense level of 37 and sentence, argues Betterton that his pro- criminal history category of VI were deter nounced under a mandatory application of mined from the 4B1.1 career offender Guidelines, the Sentencing is erroneous table. His resulting guidelines range was — Booker, under United States v. U.S. 360 months to life. The district court sen -, 125 S.Ct. 160 L.Ed.2d 621 tenced Betterton to the lower end of the (2005). court, Before the district range, Better- 360 months. A sentence at the argue ton did not Apprendi or Blakely lower not, end of the range by itself, is guidelines error or that the were unconsti- enough to show a reasonable probability Therefore, tutional. we review his sen- that Betterton would have received a more plain tence for error. United States v. favorable sentence advisory under guide Pirani, (8th Cir.2005) 406 F.3d However, lines. Id. at 553. the district (en banc). court went on to state that “if I had discre- not, tion, be-giving you affecting rights not a 360- error substantial does I would more, satisfy [plain-error] The court also without district month sentence.” standard, discretion, it had it would for otherwise the discretion af- that if stated 52(b) meet would be impose [Fed.R.Crim.P.] a lesser sentence “that would forded illusory,” 507 U.S. at objectives sentencing” all 113 S.Ct. of the “too feel to follow compelled sentence was we nevertheless the 360-month enough prior precedent. to too severe.” This is Circuit harsh and probability that the “a reasonable establish therefore exercise our discretion We imposed á more district court would have vacate Betterton’s sentence and remand error.” sentence absent Booker lenient “How- resentencing. the district court Pirani, at 653. 406 F.3d We conclude ever, in this nothing opinion should be factor. satisfies third Olano suggesting construed as more lenient [a] decide, the fourth must now under We necessarily ... warranted ] [is] sentence! factor, our dis- “whether to exercise Olano or reasonable. district court would be plain it to review a error because cretion analyses in resentencing must conduct its fairness, ‘seriously integrity, affects Plumman, at first instance.” ” judicial public reputation proceedings.’ 932. Johnson, at Id. (quoting 1544). do ‘We not foreclose III. CONCLUSION possibility may plain that there Booker conclude the district did We court factor errors that meet third Olano denying err in Betterton’s motion not Id. but not the fourth.” at the evidence obtained from the suppress first three who meet the For defendants search, admitting nor in evi- in the Book plain-error- factors of the test convictions. dence of Betterton’s two context, cho repeatedly er this Court has Therefore, affirm conviction we Betterton’s its under the sen to exercise discretion However, vacate on all three counts. we sen fourth factor to vacate the defendant’s to the Betterton’s sentence and remand recognized “refusing tence. haveWe resentencing court for under an district to be resentenced defendant] allow [a regime. advisory guidelines incarcerated would leave [the defendant] than longer period that to which HANSEN, concurring. Judge, Circuit him court would have sentenced district reluctantly, advisory regime.” fully, I but concur an under Cir.2005). The reason Fleck, opinion judgment. court’s that our enough my my reluctance belief have held that this alone is We fairness, addressing the fourth integrity, prior panel opinions and seriously affect the plain-error test Booker judicial proceed prong of the of the public reputation for the respect ings prison. cases are—with utmost placed defendant colleagues sat on -those Id.; Killings my of who see also United States v. views (8th 760, Cir.2005); circuit’s en worth, panels- with this 413 F.3d 766 —irreconcilable Plumman, 919, Su- and the United States precedent v. 409 F.3d banc United States Nonetheless, (8th Cir.2005); precedent. preme v. Rodri Court’s 932 (8th 937, opinions panel, this prior panel -bind guez-Ceballos, 407 F.3d 941-42 those Cir.2005). cor- perceive I can be we fear such conclu and the error While rehearing through petition en factor sory analysis of the fourth Olano rected plain petition that “a banc or certiorari. violates Olano’s admonition 834 panel opinions of the state or Mr. may very

Some Brown’s sentence well have that, significantly imply when defendant satisfies the exceeded the sentence that the district court would have if prongs plain-error by pronounced first three of the test it had applied the correct rule of law. In showing plain that there was error which words, other to let the sentence stand in rights, affected his substantial he should present circumstances would be a mis granted being required be relief without justice.”); carriage of United States v. anything demonstrate more at the fourth (8th 760, Killingsworth, 413 F.3d 765 Cir. prong of the test. See United States v. 2005) (“The prospect that Mr. Williams’s (8th F.3d Aldridge, 413 835-36 Cir. sentence is much more severe than what 2005) (granting relief after finding the the district court imposed pur would have satisfied, prong third analyzing without advisory guidelines suant to the and the prong); fourth United Rodri other considerations set out in 18 U.S.C. (8th guez-Ceballos, 941 Cir. 3553(a) satisfies this last element of 2005) (“Given Rodriguez-Ceballos’s suc error.”); Fleck, plain United States v. 413 handily cess in meeting the first three (8th Cir.2005) (“Because Ken conditions, Olano Rodriguez- we conclude has shown a probability reasonable that he Ceballos also has established the fourth would have received more favorable sen error, plain may condition for such that we tence had the district court treated the exercise our discretion to remand for re- guidelines advisory, as refusing to allow sentencing.”). him to be resentenced would leave Ken view, my In these cases are not faithful longer period incarcerated for a than that binding Supreme precedent. Court to which the district court would have sen Supreme Court could not have been clear- him advisory tenced under an regime. We er it plain when held that “a error affect- find that this would seriously affect the not, ing substantial rights does without fairness, integrity, public reputation more, satisfy standard, [plain-error] judicial proceedings placed inKen otherwise the discretion afforded prison.”); Valdivia-Perez, United States v. 52(b) Rule would illusory.” United (8th Cir.2005) Fed.Appx. Olano, 725, 737, States v. 113 (“[B]ecause Valdivia-Perez spend would (1993). 123 L.Ed.2d prison additional time in as a result of the addition to showing plain error affecting sentence, imposed fairness,, integrity, rights, substantial a defendant must show public reputation judicial proceed the error seriously affects fair- ings affected.”); are seriously United ness, integrity, public reputation of the Plumman, States v. judicial Olano, proceedings. Under with- Cir.2005) (“Based on the district court’s out showing, such a we are not authorized sentencing, comments at the district court to exercise our discretion to correct the more than likely would imposed not have error. life sentences on I through Counts VI advisory under an Guidelines scheme. prior panel opinions Some of the state circumstances, Under these affirming the that a defendant makes a sufficient show- life ‘seriously sentences would affect the ing prong at the fourth if he spend would fairness, integrity, public reputation or of additional in prison time due to the error. ” judicial proceedings.’ the (quoted source Brown, See United States v. 414 F.3d omitted)). and internal marks (8th Cir.2005) (“We conclude, too, 978 that this is a case in plain view, which error relief In my these cases are not faithful should granted think binding because we that to Eighth precedent Circuit an-

835 Likewise, cases, In in Booker I court en United believe by our banc. nounced (8th Pirani, existing we should review the record on 553-54 F.3d States v. to determine there is a Cir.2005) (en banc), appeal whether the acknowl court 3553(a) § the 18 fac- basis within U.S.C. fairness, integrity, and edged “that the impose tors for the district court judicial proceedings of public reputation still under lower but reasonable sentence seriously affected when a defendant are v. advisory Guidelines. See States United on prison time in spend must additional Cir.2005) (8th 919-20 Ryder, sentence,” illegal such as account of an (in conducting analysis, the fourth-prong wrong court the applied the district “when 3553(a) § age the of and identifying factor of mandatory guidelines range because 3553(a)(2)(D) § the factor of the need added). (emphasis or other errors” clerical care as the district court medical factors error, on the The held that “Booker court present were was unable determined but situation!;] hand, presents other a different fully take it into due to the account under illegal ... not the sentence itself Guidelines); mandatory nature of the Booker, advisory regime by the mandated United v. Whipple, States in the district court used process the Cir.2005) (same); Rodri- 890-91 cf. (em at 554 arriving at that sentence.” Id. (men- guez-Ceballos, 407 at 941-42 F.3d added). result, involv phasis As a in cases tioning during fourth-prong the discussion error, ing the prescribed Booker court the district court identified the had inquiry ... more akin to “fourth-factor 3553(a)(6) § factor of need to avoid the Cotton, 625, 122 v. U.S. [535 among disparities sentence unwarranted (2002) Id. 152 L.Ed.2d ].” S.Ct. have with similar records who defendants of Apprendi addressed the error conduct, Cotton guilty found of but been similar in indict allege drug quantity the failing fully unable to it into account due was take the failing ment to submit the issue to mandatory and the Guide- to the nature of lines). 3553(a) Fifth and petit jury, § in violation of the If factors mitigating no at this er court Sixth Amendments. effect of were articulated the district in sentencing apparent or are elsewhere ror the maximum lawful sen was severe: record, the defendant is not entitled the years prison, in but the dis tence was 20 fourth-prong plain the of the error relief at had sentenced defendants trict court some fair- the seriously It does not affect test. imprisonment and other years of ness, of the integrity, public reputation or Nonetheless, prison. defendants to life judicial a sentence proceedings to affirm factors of finding even first two imposed statutory range and within the had plain-error test been satisfied mandato- Congressionally approved under third factor assuming arguendo Guidelines, of as has done tens ry been satisfied, Supreme had Court also been Congress’s of times thousands between sentences, in unanimously affirmed the Act Sentencing Reform enactment of prison, holding that “the cluding life the Supreme of 1984 and Court’s fairness, seriously not affect the error did Booker, appar- is no decision when there judicial public reputation integrity, 3553(a) for a factors ent basis within Cotton, 632-33, at proceedings.” advisory under Guidelines. lower sentence Supreme 1781. The Court S.Ct. Gonzalez-Huerta, 403 See United the record as whole and conclud scoured banc). (10th Cir.2005) (en 736-39 drug quantity ed that the evidence case, noth- “essentially uncontro- instant I can discern “overwhelming” 633, 122 suggest in the record that would ing Id. at verted.” 3553(a) § reasoned basis within the factors imposing a lower sentence on Better-

ton if were the case remanded for resen- advisory

tencing under Guidelines. To the

contrary, everything the record relevant 3553(a)

to the factors suggests that Bet- richly

terton deserved a sentence at least harsh, harsher,

as if not than the one he fourth, fifth,

received for these —his and felony-grade

sixth drug-trafficking of- he

fenses—which committed while on state

parole. writing If we were on a clean

slate, I would affirm Betterton’s sentence.

However, me, panel, including our prior panel opinions

bound until and Court, Supreme

unless the or this court en

banc, overturns them. With these obser-

vations, join opinion I the court’s judg-

ment. America,

UNITED STATES Appellee,

Plaintiff — GARCIA,

Joab J. Defendant—

Appellant. No. 04-3350. Hansen, FPD, Michael J. argued, Lin- United States Court Appeals, coln, Nebraska, for appellant. Eighth Circuit. Kimberly Bunjer, AUSA, C. argued, Omaha, Nebraska, for appellee. Submitted: Feb. 2005. Aug. Filed: BYE, HEANEY, MELLOY, Before Judges.

Circuit MELLOY, Judge. Circuit Joab J. pled guilty Garcia to a charge of possession with intent to distribute over fifty grams of methamphetamine. At sen- tencing, the district court found a base

Case Details

Case Name: United States v. Darcy Jay Betterton

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 2, 2005

Citation: 417 F.3d 826

Docket Number: 04-2151

Court Abbreviation: 8th Cir.