United States v. Dellheim

187 F. App'x 573
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 6, 2006
Docket04-5811, 04-5812
StatusUnpublished
Cited by4 cases

This text of 187 F. App'x 573 (United States v. Dellheim) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Dellheim, 187 F. App'x 573 (6th Cir. 2006).

Opinions

ROGERS, Circuit Judge.

This is an appeal from a sentence imposed pursuant to the Dellheims’ plea to a large drug conspiracy. Both Robert and Brianna Dellheim agreed to plea bargains with appeal waivers. With respect to Robert’s claim, the first issue is whether an appeal waiver that waives the right to appeal any “lawful sentence” prohibits the court from considering the merits of an appeal. It does not, and we consider the merits of the appeal to determine that Robert’s sentence was lawful. We also consider the merits of Brianna’s appeal because all parties agreed during the plea colloquy that Brianna had the right to appeal an unlawful sentence. On the merits, we affirm the district court because substantial evidence supports the enhancement for use of a weapon.

[575]*575I. Background

Robert and Brianna Dellheim pled guilty to a conspiracy to distribute about 6000 pounds of marijuana. They each pled guilty in plea agreements signed in September 2004. In his plea agreement, Robert waived the “right to appeal and the right to attack collaterally ... any lawful sentence.” JA 56. Brianna Dellheim waived the “right to appeal and the right to attack collaterally the ... sentence.” JA 62. During the plea colloquy, the United States Attorney explicitly agreed that Brianna could appeal an “unlawful” sentence. JA 71.

Robert and Brianna admitted to a conspiracy to distribute 6000 pounds of marijuana between 1995 and April 2, 2003. After the arrest and cooperation of a drug courier associated with Robert, the DEA obtained an arrest warrant for Robert. On September 9, 2003, agents entered the Dellheims’ home to arrest him. Robert was not home, but his wife Brianna was home. Brianna did not consent to a search, but the officers observed what they believed to be marijuana seeds and a note from a suspected co-conspirator on the refrigerator. The plain view observations formed the basis for a search warrant.

When the agents returned with a search warrant, the suspected marijuana seeds were missing. Brianna admitted to flushing them down the toilet. The officers searched Brianna’s purse and discovered four bank checks made out to Brianna Dellheim, dated September 9, 2003. Those checks totaled over one million dollars. The agents also searched the house and discovered guns.

Agents testified that they discovered about 45 firearms on the Dellheims’ property. On September 11, 2003, the agents returned to open a safe located in the barn. The safe contained weapons. According to the agents, in addition to containing weapons, the barn was also the area where Robert distributed marijuana. A co-conspirator, Mr. Lopez, testified that he delivered marijuana to the barn in 1999 and 2000. Among other guns, the officers found a loaded .44 or .45 caliber revolver, a shotgun, a shotgun with a pistol grip, an “SKS” military-type rifle used by “Communist block nations,” a rifle of unknown type, a Ruger mini 14, and an AR-15 “military-type” rifle. Additionally, the officers found a “drawer full” of hunting and survival-type knives in a spare bedroom.

The DEA did not look up the serial numbers on the guns to determine when they were purchased. The DEA only determined that the guns were not stolen. The DEA agent also admitted that no guns were found in the particular part of the barn where the marijuana was allegedly processed. Lastly, the DEA agent admitted that he did not know that the guns were in the house or barn when marijuana was processed at the Dellheims’ property.

One of the co-conspirators, Mr. Lopez, testified that he saw “four or five boxes of long bullets” that were a “gold color” when delivering marijuana to the barn between 1999 and 2000.

The district court made the “logical” finding that the Dellheims did not go out and collect all the weapons between April (the last date of the charged conspiracy) and September (when the guns were found). JA 140-41. Additionally, the district court relied on circumstantial evidence when finding that guns were present on the Dellheims’ property during the conspiracy. The district court enhanced both Robert and Brianna’s offense level under U.S.S.G. § 2D1.1(b)(1) (2003) for possession of a dangerous weapon. Robert was sentenced to 135 months (lowest under the guideline range). Brianna was sentenced to 60 months.

[576]*576The Dellheims filed timely notices of appeal. The only issue argued on appeal concerns the enhancement for possession of a firearm.

II. Appeal Waiver

The Sixth Circuit reviews de novo the question of whether a defendant waived his right to appeal his sentence. United States v. Murdock, 398 F.3d 491, 496 (6th Cir.2005). Waiver is “the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The threshold dispute is whether the language in the plea agreement is an effective “intentional relinquishment” of the right to appeal. If the appeal waivers contained in the Dellheims’ plea agreements prevent them from challenging how their sentencing was conducted, then we may not address the appeal. United States v. McGilvery, 403 F.3d 361, 363 (6th Cir.2005). Because the appeal waivers do not actually function to bar an appeal, we reach the merits.

A Robert Dellheim’s waiver

Robert waived the “right to appeal and the right to attack collaterally ... any lawful sentence.” The material difference between Brianna and Robert’s waiver is the adjective “lawful.” Because Robert’s waiver is effectively nugatory, we consider the merits of Robert’s appeal to determine if his sentence was “lawful.” See United States v. Johnson, 979 F.2d 396, 399 (6th Cir.1992) (stating that “ambiguity [in a plea agreement] must be construed against the government”). We interpret the word “lawful” to mean that Robert can challenge the calculation of his sentence.

The term “lawful sentence” describes a sentence that conforms with statute and accurately reflects how a judge would adjudicate it. That is, the waiver of a right to appeal any “lawful sentence” requires this court to determine if the sentence complies with law and, therefore, does not really function as an appeal waiver.

The government argues that we should apply United States v. Rice, 145 Fed.Appx. 155, 157-58 (6th Cir.2005), and hold that a waiver of the right to appeal any “lawful sentence” is the same as a waiver of the right to appeal “any sentence.” Rice is not applicable to the instant situation because Rice conceded that he waived the right to appeal. Id. at 157 (stating that, “Defendant argues that ‘although [his] plea agreement contained a waiver of his right to appeal, that waiver is not enforceable’ ”). Robert does not argue that the plea agreement is unenforceable. Unlike Rice, Robert does not concede that a waiver of the right to appeal any “lawful sentence” actually functions as an appeal waiver. Robert argues, instead, that the terms of the appeal waiver do not function as a waiver of the right to appeal. Thus, Rice does not apply to Robert’s case.

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Bluebook (online)
187 F. App'x 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dellheim-ca6-2006.