United States v. Keith Clayton Mesner

377 F.3d 849, 2004 U.S. App. LEXIS 15369, 2004 WL 1647389
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 26, 2004
Docket03-2673
StatusPublished
Cited by23 cases

This text of 377 F.3d 849 (United States v. Keith Clayton Mesner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Keith Clayton Mesner, 377 F.3d 849, 2004 U.S. App. LEXIS 15369, 2004 WL 1647389 (8th Cir. 2004).

Opinion

SMITH, Circuit Judge.

Keith Mesner pleaded guilty to conspiring to manufacture methamphetamine within 1,000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Mesner now appeals his sentence, arguing the district court clearly erred in finding (1) that he is accountable for 315 grams of actual methamphetamine, and (2) that his role in the offense was that of “an organizer, leader, manager, or supervisor” of a criminal activity that involved fewer than five participants. For the reasons stated below, we affirm in part and reverse and remand in part.

I.

On November 29, 2001, law enforcement officers responded to a report that a strong ether odor was emanating from Mesner’s garage at 206 South Eleventh Street, Sac City, Iowa. When the officers arrived, they spoke to Mesner and Gary Moeller, who was also present. When the officers asked Mesner about the smell of ether, Mesner told the officers that the smell was due to his spraying for spiders. Inside Mesner’s garage, the officers saw a white jug and asked Mesner about its contents. Mesner retrieved the jug and poured the liquid on his hands and told the officers it was water. Mesner then went back into the garage and returned carrying a grey, liquid-filled pan. Mesner told the officers that the liquid was also water. Mesner poured the liquid out and the officers immediately recognized the odor of kerosene. They also noticed two pieces of grey metal in the pan, later identified as lithium battery strips.

Based upon their observations, the officers obtained and executed search warrants at Mesner’s and at Moeller’s residences. The officers found methamphetamine laboratories at both residences. Three amounts of methamphetamine were seized at Mesner’s residence and garage and tested-yielding 1.19 grams (19% purity); 1.23 grams (15% purity); and 3.43 grams (17% purity). As a result, Mesner was arrested on state-drug charges, and he provided an arrest interview. Mesner confessed that he was cooking methamphetamine in his garage and was using one-half to one gram of methamphetamine a day.

Mesner began cooperating with federal authorities and met with them on three occasions in 2002. During these debriefings, Mesner admitted that he began manufacturing methamphetamine in the spring of 2001. He stated that Moeller had the recipe but could not read it so he helped Moeller read it and eventually got a copy of the recipe. Mesner also estimated that, during a six-month period, he completed a total of thirty methamphetamine cooks. Each cook yielded three to four “eight-balls” (10.5 to 14 grams), for a total of 315 to 420 grams of methamphetamine.

In June 2002, local police arrested Mes-ner in Storm Lake, Iowa, after finding precursors for methamphetamine in his car following a traffic stop. In October of 2002, Mesner was arrested a second time after officers stopped him and discovered methamphetamine precursors in his vehicle. After the second arrest, federal inves *851 tigators informed Mesner that they would not be using him as a cooperating witness.

Federal authorities arrested Mesner in December 2002 charging Mesner, Moeller, and another defendant with one count of conspiracy to manufacture and distribute 50 grams or more of actual (pure) methamphetamine within 1,000 feet of the Sac Community High School. On February 4, 2003, Mesner pleaded guilty pursuant to a plea agreement. He did not admit to the drug quantity, but consented to having the sentencing judge determine the quantity of methamphetamine attributable to him and to determine his role in the offense. Mes-ner also agreed to have the sentencing judge determine the issues of acceptance of responsibility and obstruction of justice.

On June 13, 2003, at the sentencing hearing, Moeller, testifying for the government, reported that he and others helped Mesner manufacture methamphetamine. Mesner testified at the hearing that he had cooked methamphetamine roughly thirty times, which was consistent with his earlier testimony. The district court determined that Mesner was responsible for 315 grams of actual methamphetamine. The district court determined Mesner’s base offense level was 34 based on 315 grams of actual methamphetamine. Mesner received a two-level increase for being an organizer, leader, manager, or supervisor and a one-level increase for committing the offense within a protected location. He received a three-level reduction for acceptance of responsibility and no obstruction enhancement. This resulted in an adjusted offense level of 34. Mesner was sentenced to 168 months imprisonment. This timely appeal followed.

II.

Mesner first argues that the district court erred by enhancing his base offense level by two levels for his role as “an organizer, leader, manager, or supervisor” of a criminal activity that involved fewer than five participants. U.S.S.G. § 3Bl.l(c). “We review the district court’s decision to assess a sentencing enhancement based upon a defendant’s role in the offense for clear error, and the government has the burden to prove that such an increase is warranted.” United States v. Johnson, 278 F.3d 749, 752 (8th Cir.2002). We find no error.

To apply an adjustment under § 3B 1.1, a sentencing court should consider such factors as “the exercise of decision-making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1, cmt. n. 4.

Mesner’s own testimony provides sufficient evidence to support the district court’s role enhancement. Mesner testified before a federal grand jury that in the thirty or so methamphetamine cooks he performed, Deb Luetje was with him for at least half of them. He stated that Luetje purchased most of the pills for him and in exchange he provided Luetje with methamphetamine. Mesner also testified that Tina Wiltse purchased pills for him approximately six to eight times. Mesner recalled that Ken Wiltse, Tina’s husband, drove him twice to obtain anhydrous ammonia. Also, Mesner stated that Doug Harms got pills for him and would crush foils, get jars, and help him clean up after the cooks in exchange for methamphetamine. Mesner stated that he sold methamphetamine to Harms once a month.

Based on this evidence, the government was able to demonstrate by a preponder- *852 anee of the evidence that Mesner “controlled at least one other participant in the drug trafficking offense.” United States v. Yerkes, 345 F.3d 558, 563 (8th Cir.2003); see also, United States v. Encee, 256 F.3d 852, 854 (8th Cir.2001). The evidence established that Mesner was a manager or supervisor of a criminal activity. Here, Mesner managed at least four others-Harms, Luetje and the Wiltses.

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Cite This Page — Counsel Stack

Bluebook (online)
377 F.3d 849, 2004 U.S. App. LEXIS 15369, 2004 WL 1647389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-keith-clayton-mesner-ca8-2004.