United States v. Thomas Riehl
779 F.3d 776
8th Cir.
2015
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UNITED STATES of America, Plaintiff-Appellee v. Thomas Bryan RIEHL, Defendant-Appellant.

No. 14-2135

United States Court of Appeals, Eighth Circuit

March 5, 2015

776 F.3d 776

Submitted: Feb. 9, 2015.

On appeal, Peeler argues that the government proved only that he had a buyer-seller relationship with Ross, which by itself was insufficient to support the conspiracy conviction. He relies on , where we noted that “proof of a buyer-seller relationship, without more, is inadequate to tie the buyer to a larger conspiracy such as is charged here.” The principle is well-established, at least in this circuit, but it is limited to a narrow category of cases. “[B]uyer-seller relationship cases involve only evidence of a single transient sales agreement and small amounts of drugs consistent with personal use.” (quotation omitted), cert. denied, ; see ; . “Evidence of multiple sales of resale quantities of drugs is sufficient in and of itself to make a submissible case of a conspiracy to distribute.” (quotation omitted), cert. denied, .

In , we held that the evidence was sufficient to convict defendant of participating in the alleged conspiracy, but the district court erred in refusing to give a requested buyer/seller theory-of-defense instruction because “there was evidence indicating” defendant made only one purchase, knew only the seller, and had not ordered the cocaine he bought. Here, the district court gave a theory-of-defense instruction that accurately explained the buyer/seller defense as defined in our prior cases. Counsel for Peeler then vigorously argued this defense in closing. The jury‘s guilty verdict reflects that it found, in the words of the district court‘s instruction, that Peeler “acquire[d 81 grams of crack cocaine] from [Ross] intending to distribute or deliver the drugs to another person instead of using them for his own personal use, or ... purchased the drugs from [Ross] as part of the continuing buyer/seller relationship.” In reaching its verdict, the jury listened to the taped phone calls, as well as Agent Somerville‘s testimony explaining what the code words and jargon used in the conversations meant. Viewed in the light most favorable to the jury‘s verdict, this evidence together with Muhammad‘s partial corroboration was sufficient for a reasonable jury to find beyond a reasonable doubt that the 81-gram purchase was part of Peeler‘s ongoing relationship with Ross (and whoever was supplying Ross) to possess with intent to distribute powder and crack cocaine to other persons. “A defendant may be convicted for even a minor role in a conspiracy, so long as the government proves beyond a reasonable doubt that he or she was a member of the conspiracy.” (quotation omitted).

The judgment of the district court is affirmed.

Anne M. Laverty, Cedar Rapids, IA, for Plaintiff-Appellee.

John H. Lammers, AUSA, Sioux City, IA, for Defendant-Appellant.

Before BYE, BRIGHT, and BENTON, Circuit Judges.

PER CURIAM.

Thomas Riehl pleaded guilty to one count of conspiring to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine or 50 grams or more of actual (pure) methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. The district court sentenced him to 214 months’ imprisonment and 5 years’ supervised release. Riehl argues the district court1 erred in denying his motion for a downward variance. We affirm.

During late 2012 and early 2013, Riehl distributed large quantities of methamphetamine in northern Iowa. In August 2013, he was charged with one count of conspiring to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine or 50 grams or more of actual (pure) methamphetamine. He pleaded guilty to the charge pursuant to a plea agreement. The district court calculated Riehl‘s sentencing guidelines range to be 292 to 365 months and sentenced him to 214 months’ imprisonment, after an uncontested departure motion for a thirty-five percent reduction in the guidelines range. At the sentencing hearing on May 8, 2014, both parties argued for a downward variance by two levels in anticipation of Amendment 782 to the United States Sentencing Guidelines.2 The district court recognized it had the authority to vary downward but declined to do so, explaining the then-proposed amendment was not guaranteed to take effect.

On appeal, Riehl argues (1) the district court erred in denying the motion to vary downward by two levels from the correctly calculated guidelines range in anticipation of Amendment 782; (2) the district court should have given weight to the policy reasons behind Amendment 782; and (3) the district court “failed [to] permit argument” on the issue. As to the first issue, our case law is clear: “[T]he district court was not required to consider the pending guidelines amendment. Consideration of the pending amendment is merely permissible, not required.” ; (rejecting the argument that “the district court imposed an unreasonable sentence because it failed to consider a proposed amendment to the Guidelines that would have lowered the advisory Guidelines imprisonment range“); . The district court considered the motion and fully explained its reasons for not prospectively applying Amendment 782. It committed no error. Without any supporting authority, the dissent attempts to distinguish our case law on the basis that this case involves a different amendment and states that “[t]he applicability of the cases [above] ... may be questionable.” However, our holdings were not limited to any specific amendment. Moreover, they follow the firmly-established principle that the court must apply the Sentencing Guidelines in effect at the time of sentencing unless doing so would violate the ex post facto clause of the United States Constitution. See, e.g., .

As to the second issue, this is not an argument we can consider on appeal. See (“Whatever the district court‘s views as to the Sentencing Commission‘s policy judgment underlying a particular guidelines provision, our proper role on appeal is only to determine whether the court abused its discretion by imposing a substantively unreasonable sentence on a particular offender.“). Riehl does not argue the district court erred in considering the 18 U.S.C. § 3553(a) factors, and we find his sentence substantively reasonable. On the final issue presented by Riehl, the transcript of the sentencing hearing demonstrates both parties argued for a downward variance and made their record on the issue. At no time did the district court deny a request by either party to provide further argument. Rather, after each party presented the issue and stated its argument, the district court advised the parties they need not further pursue the request because it would be a waste of time. Riehl‘s assertion that he was not permitted to argue the issue is wholly without merit.

To address the dissent‘s concern, we note that Riehl has not been deprived of the opportunity to pursue the benefit of Amendment 782. See 18 U.S.C. § 3582(c)(2) (“[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.“). The dissent believes the opportunity to pursue relief under § 3582(c)(2) renders the issues on appeal moot because Riehl is “entitled to the relief he now seeks regardless of the outcome of this appeal.” However, Riehl has neither received the relief he seeks in this appeal nor is he guaranteed to receive it under § 3582(c)(2). See (en banc) (“[T]he district court retains the discretion to determine whether to resentence the defendant within the new lower range. It is not required to do so, and a new lesser sentence is not to be automatically awarded.“). Moreover, whether Riehl is entitled to a reduction in his sentence based on § 3582(c)(2) is a separate question from whether the district court erred in denying his motions.

Finally, the dissent asserts remand is appropriate so as not to “delay any further the remedy that [Riehl] deserves.” However, it acknowledges “the district court may immediately hold a hearing to rule on [Riehl‘s] eligibility for a sentence reduction and determine that reduction.” We do not believe our holding causes any delay or deprives Riehl of a benefit he may be entitled to, nor do we perceive any material benefit in remanding. Cf. (“This court notes that any claim for a sentence reduction based on Guidelines Amendment 782 ... should be raised in a sentence-reduction motion filed in the district court.“); (“[Appellant] may ask the district court for a sentence reduction based on Amendment 782 ... but he has not yet done so and we do not consider that argument here.“); (“Any motion respecting the applicability of Amendment 782 to the Guidelines should be brought in the sentencing court in the first instance.“); .

Accordingly, we affirm.

BRIGHT, Circuit Judge, dissenting.

For the reasons set forth in my dissenting opinion in (Bright, J., dissenting), I would neither affirm nor reverse this case. As a practical matter, the issue on appeal is moot. Since Riehl was sentenced on May 8, 2014, the reduction in the base offense levels for most drug quantity offenses under U.S.S.G. § 2D1.1 (Amendment 782) has become effective and retroactive. See U.S.S.G. § 1B1.10(d) and (e)(1); . Therefore, Riehl is entitled to the relief he now seeks (the benefit of the Amendment) regardless of the outcome of this appeal. See 18 U.S.C. § 3582(c)(2). Consistent with our precedent, we should remand with instructions for the district court to consider whether Riehl is entitled to a sentence reduction in light of Amendment 782.1

David E. Mullin, argued, Cedar Rapids, IA, for Plaintiff-Appellee.

Dan Chatham, AUSA, argued, Cedar Rapids, IA, for Defendant-Appellant.

Before BYE, BRIGHT, and BENTON, Circuit Judges.

This judge appreciates the majority calling attention to the fact that Riehl is now entitled to such consideration. The majority recognizes that this consideration can be immediate on a timely motion.

Notes

1
The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. As far as the dissent is concerned, the only relief to which Riehl is entitled on remand is a consideration under 18 U.S.C. § 3582(c)(2) by the district court of whether his sentence should be reduced in light of Amendment 782.
2
Amendment 782 became effective November 1, 2014, and applies retroactively to reduce most drug quantity base offense levels by two levels. See .
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