United States v. Briesemeister

273 F. App'x 534
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 8, 2008
DocketNos. 06-3633, 06-3726, 06-3851
StatusPublished
Cited by4 cases

This text of 273 F. App'x 534 (United States v. Briesemeister) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Briesemeister, 273 F. App'x 534 (7th Cir. 2008).

Opinion

ORDER

Michele Nelson and her husband, Timothy Nelson, were arrested after selling methamphetamine to a confidential informant. They were interviewed by police and fingered Reann Taylor and Jamie Briesemeister as middlemen in their local business. The government charged the Nelsons with distributing methamphetamine, 21 U.S.C. § 841(a)(1), and them along with Taylor and Briesemeister with conspiring to distribute the drug, see id. §§ 846, 841(a)(1). Michele Nelson, Taylor, and Briesemeister pleaded guilty to the conspiracy charge, and the government dismissed the distribution charge against Michele. (Timothy Nelson’s case was transferred to the District of Minnesota for undisclosed medical reasons.) Taylor appeals her sentence, while appointed counsel for Nelson and Briesemeister move to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the following reasons, we affirm Taylor’s sentence. We also grant the motions to withdraw and dismiss Nelson’s and Briesemeister’s appeals.

I. Background

The Nelsons sold drugs from their home in Hudson, Wisconsin. They started with marijuana and“crank” — an impure form of methamphetamine — but in September 2001 they lost most of their marijuana supply. After that they concentrated on selling crank along with a purer form of methamphetamine known as “glass.” The Nelsons kept their stash in their bedroom, and their customers reported seeing guns in that room, in the living room, and in an outdoor shed.

Taylor, a friend and customer, started running drugs for the Nelsons in early 2003. She had known the Nelsons for years before joining the conspiracy, and she considered them family. She and her two children had moved in with the Nelsons in late 2002, and a few months later the Nelsons bought her a trailer in nearby River Falls, Wisconsin. Soon after she moved into the trailer, Taylor began selling glass for the Nelsons primarily to young people in River Falls. Taylor continued selling glass from the trailer park until she was evicted in late 2004. She then moved her trailer onto the Nelsons’ property and continued dealing from there.

Briesemeister started selling methamphetamine in the fall of 2003. She initially dealt glass for Taylor, who was her neighbor in their River Falls trailer park. But soon she earned the trust of Michele Nelson and began selling for the Nelsons directly. And when Taylor’s drug habit interfered with business, Briesemeister “took over” some of the customers Taylor had been serving.

The conspiracy ended in December 2004 when a confidential informant bought less than a gram of methamphetamine from the Nelsons. Following their arrests, Michele and Timothy volunteered the names of drug associates and promised to continue to cooperate. They later reneged on that promise.

II. Analysis

A. Reann Taylor

Following Taylor’s guilty plea, the probation officer concluded that she was re[538]*538sponsible for at least 1.5 kilograms of methamphetamine. The district judge overruled Taylor’s objection to that drug-quantity calculation, noting that she had admitted seeing two pounds of glass in the Nelsons’ bedroom and had distributed multiple-ounce quantities of the drug for them over the course of 18 months. That calculation earned Taylor a base offense level of 34, see U.S.S.G. § 2D1.1(c)(3), which the district court increased by two levels after attributing the guns in the Nelsons’ home to Taylor, see id. § 2D1.1(b)(1), but then reduced by three levels because she accepted responsibility for the crime, see id. § 3E1.1. The resulting total offense level of 33 coupled with Taylor’s criminal history category of III yielded a guidelines imprisonment range of 168 to 210 months. See id. Ch. 5, Pt. A. The court sentenced Taylor to 180 months’ imprisonment and five years’ supervised release.

Taylor first challenges the district court’s conclusion that she was responsible for between 1.5 and 5 kilograms of methamphetamine. She argues that the district court should not have added to her drug quantity the two pounds of methamphetamine she saw in the Nelsons’ home at an unspecified time, and that the court failed to explain its finding that she had distributed multiple-ounce quantities of methamphetamine for a period of about 18 months. We review the court’s drug-quantity calculation for clear error. United States v. Wilson, 481 F.3d 475, 483 (7th Cir.2007).

The government had to prove the applicable drug quantity by a preponderance of the evidence. See United States v. Artley, 489 F.3d 813, 821 (7th Cir.2007). Any amount from 1.5 to 5 kilograms of methamphetamine would have yielded the same base offense level. See U.S.S.G. § 2Dl.l(c)(3). Taylor was accountable not only for what she sold personally but also for the reasonably foreseeable amounts sold by her coconspirators as part of the jointly undertaken activity, id. § 1B1.3(a)(1)(B); Wilson, 481 F.3d at 483. And although a sentencing court may not speculate about the quantity of drugs for which a defendant is responsible, the guidelines do permit the court to make a reasonable estimate. United States v. Hollins, 498 F.3d 622, 631 (7th Cir.2007). In making that estimate, however, the court cannot include coconspirators’ conduct that occurred before the defendant joined the conspiracy — even if the defendant knew about the conduct. See U.S.S.G. § 1B1.3, cmt. n. 2; United States v. Zaccagnino, 467 F.3d 1044, 1047 (7th Cir.2006). That is what the district court did here, says Taylor, when it added in the two pounds of glass she saw in the Nelsons’ house.

We do not agree. Although Taylor never said precisely when she observed the glass, the district court reasonably concluded that the date was after Taylor had joined and endorsed the full scope of the Nelsons’ conspiracy. Taylor had lived with the Nelsons for only a short time before she started dealing for them, and the district court reasonably concluded that she saw the two pounds (roughly 907 grams) at some point during the 18 months she was involved in the conspiracy. Moreover, nothing in this record suggests that Taylor limited her involvement in the conspiracy; she stood ready and willing to sell — or at least try to sell — whatever amount of methamphetamine the Nelsons could supply, so the two pounds she saw after joining the conspiracy was properly attributed to her. See Hollins, 498 F.3d at 630-31.

Even without the two pounds, though, the 1.5-kilogram quantity was satisfied because the district court reasonably [539]*539relied on the probation officer’s conclusion that Taylor had sold multiple-ounce quantities for approximately 18 months. Taylor says there is no evidence to support that conclusion, but her presentence report recounts Michele Nelson’s statement that Taylor“went through between an ounce and a quarter pound of ‘glass’ each week,” and we know that Taylor was involved for 18 months.

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Related

United States v. Reanne Taylor
Seventh Circuit, 2018
United States v. Michele Nelson
448 F. App'x 637 (Seventh Circuit, 2012)

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Bluebook (online)
273 F. App'x 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-briesemeister-ca7-2008.