Diane Demar v. United States

228 F. App'x 940
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 21, 2007
Docket06-12853
StatusUnpublished
Cited by7 cases

This text of 228 F. App'x 940 (Diane Demar v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diane Demar v. United States, 228 F. App'x 940 (11th Cir. 2007).

Opinion

PER CURIAM:

Diane Demar, who is serving a term of life imprisonment based on six counts arising out of a methamphetamine-related conspiracy, appeals the denial of her 28 U.S.C. § 2255 motion to vacate, set aside, or correct her sentence. Demar raises three issues on appeal: (1) that the district court failed to consider her expert testimony at the § 2255 evidentiary hearing concerning the purity of the methamphetamine involved in the conspiracy; (2) that the district court failed to consider her contention that the government was collaterally es-topped from attributing a greater amount of drugs to her than it did to her co-conspirator; and (3) that the district court erred in concluding that her sentencing counsel was not ineffective for failing to adequately challenge her co-conspirator’s credibility. For the reasons set forth below, we AFFIRM the denial of her § 2255 motion.

I. BACKGROUND

In 1991, a jury in the Northern District of Georgia convicted Demar of five separate counts arising out of a methamphetamine trafficking conspiracy, including counts for conspiracy to distribute more than 100 grams of methamphetamine, 21 U.S.C. §§ 841(a)(1) and 846; aiding and abetting in the possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and aiding and abetting in the manufacture of methamphetamine, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Demar was also convicted of a sixth count for knowingly carrying a firearm in connection with the drug conspiracy, in violation of 18 U.S.C. § 924(c).

Prior to Demar’s first sentencing hearing, a pre-sentence investigation report (“PSI”) was prepared. The PSI set forth the details of the drug conspiracy, which involved a number of separate home methamphetamine labs and a number of different participants. In order to calculate the amount of methamphetamine attributable to Demar for sentencing purposes, the PSI relied primarily upon statements that had been made by Demar’s co-conspirator, Charlie Blanchard, to John Cagle, a special agent with the Georgia Bureau of Investigations (“GBI”). Blanchard had stated to Agent Cagle in phone conversations that: (1) between March and May 1989, the conspiracy had manufactured 6 gallons of “oil” 1 ; (2) in December 1989, Blanchard had “cooked” up 6 gallons of oil; (3) in February 1990, Blanchard had cooked up 3 gallons of oil; and (4) in 1989, three separate “cooks” had been carried out a home *943 laboratory in Hernando County, Florida, producing approximately 16 gallons of oil. Based on these statements to Agent Cagle, the government determined that a total of 31 gallons of P2P oil had been produced during the course of the drug conspiracy.

In calculating the aggregate amount of methamphetamine for Demar’s sentencing, the probation officer determined that one gallon of P2P oil typically produced approximately 3 pounds of pure methamphetamine. 2 Accordingly, the PSI multiplied 31 gallons of oil by a factor of three, resulting in a total attribution of 93 pounds of pure methamphetamine. A total of 93 pounds of pure methamphetamine equated to 42. 3 kilograms of pure methamphetamine. Thus, the probation officer recommended that Demar be accountable for 42 kilograms of pure methamphetamine, resulting in a base offense level of 42, see U.S.S.G. § 2Dl.l(a)(3)(c)(l) (1990).3 After additional enhancements that are not germane to this appeal, Demar’s total offense level was 47. With a total offense level of 47 and a criminal history category of II, Demar’s recommended guideline range was life imprisonment. Prior to the sentencing hearing, Demar’s counsel, Dennis Mackin, made a written objection to the amount of pure methamphetamine that had been attributed to her in the PSI.

At the sentencing hearing, which was held in December 1991, Demar was represented by attorney Mackin. 4 Bruce Harvey, the attorney for her co-defendant, Eddie Demar, who had also been held accountable for 93 pounds of methamphetamine, objected to the total amount of methamphetamine set forth in the PSI, because it was based primarily on Blanchard’s statements to investigators, and there was insufficient testimony that one gallon of oil could yield 3 pounds of pure methamphetamine. Mackin indicated to the district court that he joined in Harvey’s arguments regarding the amount of methamphetamine attributable to his client, Diane Demar.

The district court rejected these arguments, implicitly finding that the one-to-three conversion ratio of P2P oil to methamphetamine used by the GBI chemist was reliable, despite the fact that the conversion rate had not been testified to at trial. Further, the district court found that it was permissible to rely upon statements made to law enforcement agents concerning drug quantities in reaching its sentence. In light of those determinations, the court concluded, based upon Blanchard’s statements and his corroborating notes, that the government had established by a preponderance of the evidence that the conspiracy manufactured at least 93 pounds of pure methamphetamine. Accordingly, the court adopted the recommendations of the PSI and sentenced Demar to a sentence of life imprisonment, plus five years. Demar appealed her conviction and sentence to this court. We affirmed both her conviction and her sentence, without opinion. See R1-257; United States v. Holbrook, No. 91-9161, 986 F.2d 507 (Feb. 16, 1993) (per curiam).

*944 In December 2001, 5 Demar, through counsel, filed the present § 2255 motion to vacate or modify her sentence. 6 The basis of the § 2255 motion was Demar’s allegation that her counsel at the sentencing hearing, Mackin, had been ineffective in three ways: (1) failing to challenge the amount and type of methamphetamine that was attributed to her, either by disputing the government’s estimates or by calling an independent expert to testify; (2) failing to challenge the credibility of co-conspirator Charlie Blanchard 7 ; and (3) failing to prove at the sentencing hearing whether the methamphetamine involved in the conspiracy was type “D” methamphetamine or type “L.”

The district court held two evidentiary hearings on Demar’s § 2255 motion, in March and September, 2005, respectively.

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Bluebook (online)
228 F. App'x 940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diane-demar-v-united-states-ca11-2007.