United States v. Hopkins

310 F. App'x 254
Court of Appeals for the Tenth Circuit·Decided February 4, 2009·No. 06-3067·Unpublished

Opinions

ORDER AND JUDGMENT*

TERRENCE L. O’BRIEN, Circuit Judge.

This is the second appeal from the sentencing of Charles William Hopkins for his role in a multi-state conspiracy to manufacture and distribute methamphetamine. In the first appeal, we reversed and remanded for re-sentencing, concluding the district court applied an erroneous “proportional estimate” methodology to determine the quantity of drugs attributable to Hopkins. United States v. Hopkins, 128 Fed.Appx. 51, 55 (10th Cir.2005) (Hopkins I). On remand, the district court held a two-day hearing. It allowed the government to present witnesses. However, it ultimately declined to consider this evidence because the government had not shown good cause for failing to present the testimony at the first sentencing. United States v. Hopkins, 408 F.Supp.2d 1123, 1137 (D.Kan.2005) (Hopkins II). After a lengthy analysis, the district court sentenced Hopkins to 108 months imprisonment, a net decrease of thirteen months from his original sentence of 121 months. Id. at 1147. The government appeals asserting the district court erred in rejecting its evidence at the second sentencing hearing and again applied an improper sentencing methodology. Exercising jurisdiction pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291, we vacate Hopkins’ sentence and again remand for re-sentencing.

I. BACKGROUND

Hopkins was one of twenty defendants named in a seventy-seven count superseding indictment filed on October 5, 2000. He was named in three counts: conspiracy to manufacture and distribute more than one kilogram of a mixture or substance containing a detectable amount of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 846 (Count 1) and two counts of using a telephone to facilitate the of[256] fense in violation of 21 U.S.C. § 843(6) (Counts 10 & 11).

At trial, the evidence demonstrated Hopkins participated in the conspiracy by stealing industrial-grade chemicals and laboratory equipment from his employer and providing the materials to Shane Wright, the methamphetamine “cook”1 and leader of the conspiracy. Hopkins provided materials used to manufacture the methamphetamine in exchange for finished product. On January 26, 2000, Shane Wright and Hopkins’ brother, Michael, were arrested near Springfield, Missouri. Immediately following news of the arrest, Hopkins went to his brother’s home to remove an illegal firearm and then to Wright’s house to assist in removing drug manufacturing evidence and guns. Wright returned and reconstituted his lab to produce another cook. The jury found Hopkins guilty of conspiracy to manufacture and distribute methamphetamine (Count 1), but concluded the government had not proved the conspiracy involved 50 grams or more.2 Hopkins was acquitted on Counts 10 and 11.

A. Original Sentence

Hopkins’ presentence report (PSR) noted that the specific date Hopkins became involved in the conspiracy was not certain but he began supplying equipment and chemicals to Wright some time in 1999. Because the date of Wright’s arrest and subsequent destruction of evidence was certain (January 26, 2000), the PSR concluded Hopkins was responsible for “at least the quantity of methamphetamine produced by Shane Wright from January 2000, until the raids and subsequent arrests of the defendant and codefendants in this case in March 2000.” (R. Vol. Ill at 35.) The PSR determined the evidence at trial established Wright manufactured approximately sixteen pounds (7.25 kilograms) of methamphetamine in the two months prior to his January arrest. The PSR then extrapolated a quantity of sixteen pounds for the two-month period between the date Hopkins assisted in the clean up of his brother and Wright’s houses and the date Hopkins’ involvement in the conspiracy ended, his arrest in March.3

Based on this drug quantity, the PSR calculated a base offense level of 38. Adding two levels for possession of a firearm and two levels for obstruction of justice, the PSR reached a total offense level of 42. With an offense level of 42 and a Criminal History Category of I, the guidelines sentence was 360 months to life imprisonment. Hopkins filed a written objection to the drug quantity used to calculate his base offense level.4 Primarily, he argued the jury’s finding of a lesser drug quantity and his limited involvement in the conspiracy demonstrated his sentence should be based only on the drugs he received. He also stated, “DEA Agents’ affidavits indicate ... Wright’s meth gang ceased all drug [257] activity for the substantial period of time before their arrest on March 27, 2000” and a codefendant stated there was only one cook in the time between the clean up and the March arrests. (Vol. Ill at 52.)

The government’s written response pointed to the .trial evidence of Hopkins’ two-fold participation in the conspiracy— the provision of supplies for manufacturing the drug and his concealment of evidence — and asserted it was “a sufficient basis on which to hold [Hopkins] accountable for the entire amount of drugs attributable to the conspiracy as a whole.” (Id. at 56.)

Prior to the day of the sentencing hearing, neither the government nor Hopkins intended to question witnesses before the court. Several hours before the sentencing hearing, the district court provided the government and Hopkins’ counsel a proposed sentencing order applying a “proportionality analysis” which was not advanced by either party. However, at sentencing, the government objected to the court’s proposed findings and asked for a continuance. The government explained it needed more time to review the record of the six-week trial to address the court’s particular factual findings forming the basis for its analysis. It also asked for a continuance to present evidence regarding the court’s relevant conduct determinations. Hopkins objected to a continuance, claiming it would be “very burdensome.” (Vol. II at 229.) The district court denied the government’s request and proceeded to sentencing.

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