United States v. Luke Keller

413 F.3d 706, 2005 U.S. App. LEXIS 13301, 2005 WL 1558125
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 5, 2005
Docket04-2459
StatusPublished
Cited by42 cases

This text of 413 F.3d 706 (United States v. Luke Keller) 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. Luke Keller, 413 F.3d 706, 2005 U.S. App. LEXIS 13301, 2005 WL 1558125 (8th Cir. 2005).

Opinions

WOLLMAN, Circuit Judge.

Luke Keller appeals from the sentence imposed upon him by the district court1 following his guilty plea for engaging in a continuing criminal enterprise (Count 2), a violation of 21 U.S.C. § 848, and using a firearm in a crime of violence and drug trafficking crime (Count 5), a violation of 18 U.S.C. §§ 2 and 924(c). We affirm.

I.

Between October 2000 and June 2002, Keller and several associates engaged in a drug conspiracy in Minnesota and Iowa in which they distributed more than 27,600 grams of a mixture containing methamphetamine, 5,800 grams of “ice” methamphetamine, 20,000 grams of cocaine, 200 grams of ecstasy, and 1,000 kilograms of marijuana. The marijuana equivalent of the combined drug quantity exceeded 177,-000 kilograms. Keller received between $20,000 and $30,000 per month from his involvement in the drug ring.

At some point in the conspiracy, Keller and his associates kidnapped at gunpoint Patrick Carlone, one of Keller’s drug dealers who owed him money. After taking Carlone to Keller’s basement, which was covered with tarps, Keller struck Carlone in the forehead with a gun, causing him to bleed. Keller’s associates then kicked Carlone. After the beating, two of Keller’s associates wearing rubber gloves cleaned the carpet with a wet-dry vacuum.

In May 2002, Greg Molitor, Jess Ballha-gen, and Chris Witter stole a substantial quantity of cash and drugs from Keller’s stash house. Keller initially suspected Brian Anderson of the theft. According to the presentence investigation report (PSR), Keller, aware that Anderson was coming to his house, spread a tarp over his basement floor to protect the floor from blood. When Anderson arrived, Keller took him to the basement, where Keller and two associates beat him. After concluding that Anderson was not involved in the theft, Keller shifted his suspicions to Witter. Keller brought handguns from Minnesota to Iowa and provided them to his associates, who kidnapped Witter at gunpoint. A witness observed the abduc[708]*708tion and contacted police, who apprehended Keller’s associates before they harmed Witter.

Keller pled guilty to Counts 2 and 5 pursuant to a plea agreement, whereupon the district court sentenced him to 437 months’ imprisonment.

II.

Keller asserts for the first time on appeal that the government breached the plea agreement by introducing Keller’s proffer at sentencing. We review de novo issues pertaining to the interpretation and enforcement of a plea agreement. United States v. DeWitt, 366 F.3d 667, 669 (8th Cir.2004).

Keller’s breach argument relates to the base offense level on Count 2. Under the terms of the plea agreement, Keller’s “base offense level [was] 38 pursuant to USSG § 2D1.5(a)(2).” Plea Agreement at 7. The prosecutor at no time argued to the contrary. In fact, when asked about the base offense level by the district court, the prosecutor responded that “with regard to the base offense level, we’re bound by our plea agreement.” Sen. Tr. at 165. The prosecutor noted that although the plea agreement was not binding on the district court, “it is binding on us, so I have nothing to add to [the issue of the base offense level].” Id.

Prior to imposing sentence, the district court emphasized that, unlike the prosecutor, it was not bound by the stipulation to the base offense level of thirty-eight. Id. at 13. The district court concluded that:

The base offense level involved a minimum of 177,278.39 kilograms of marijuana equivalent drugs. Under 2D1.5(a)(l), the base offense level is computed by adding four levels, plus the offense level from 2D 1.1, and, therefore, applying the guideline, the base offense level is then forty-[two].

Id. at 184-85. Keller ignores the prosecutor’s and the district court’s statements and focuses instead on the prosecutor’s introduction into evidence of Keller’s proffer statement. Keller infers that the prosecutor must have offered the statement to support a base level offense of 42 in contravention of the plea agreement. The record is devoid of any evidence supporting Keller’s inference.2

III.

Keller challenges on appeal four sentencing enhancements based on facts not found by a jury beyond a reasonable doubt. Three of these enhancements apply to his sentence on the Count 2 conviction: a two-level increase for restraint of a victim during the offense, a two-level increase for obstruction of justice, and a two-level increase for sanctioning the use of violence.3 The fourth challenged enhancement is the district court’s 24-month increase to the mandatory minimum under 18 U.S.C. § 924(c) on the Count 5 conviction based on its finding that Keller brandished (rather than simply possessed) a firearm. Although the district court used [709]*709the preponderance of the evidence standard to determine each of the four enhancements to which Keller objects, those enhancements are not necessarily constitutionally infirm under United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

A.

We have recently held that a fact in a PSR not specifically objected to is a fact admitted by the defendant for purposes of Booker. See United States v. McCully, 407 F.3d 931, 933 (8th Cir.2005). Further, sentencing enhancements can be supported by admitted acts and omissions that were “... committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused,” and include “reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § lB1.3(a)(l).

The district court based its enhancement for restraint of a victim on section 3A1.3 of the guidelines, which provides that “[i]f a victim was physically restrained in the course of the offense, increase by 2 levels.” Physical restraint means “the forcible restraint of the victim such as by being tied, bound, or locked up.” Id. at § 1B1.1, commentary application notes at ¶ 1(K). The PSR indicates that two of Keller’s associates tied up Carlone after Keller beat him, that Carlone was tied to “a lawn chair with zip ties to the lawn chair cutting off circulation to [his] legs,” and that Carlone was locked in a closet and tied up for three to four days. PSR at ¶¶ 76, 77, 78. Keller’s sole objections to these statements are that he “was not involved in” the lawn chair restraint and that he “never locked [Carlone] in a closet.” Objections to PSR at 3. Keller, however, does not dispute that any of these acts took place, and he does not deny knowledge of the acts, which were clearly related to his criminal enterprise. We conclude that the facts in the PSR, which are admitted for Booker purposes, justify the district court’s enhancement for restraint of a victim.

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Cite This Page — Counsel Stack

Bluebook (online)
413 F.3d 706, 2005 U.S. App. LEXIS 13301, 2005 WL 1558125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-luke-keller-ca8-2005.