United States v. Niles

708 F. App'x 496
CourtCourt of Appeals for the Tenth Circuit
DecidedSeptember 13, 2017
Docket16-8048
StatusUnpublished
Cited by1 cases

This text of 708 F. App'x 496 (United States v. Niles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Niles, 708 F. App'x 496 (10th Cir. 2017).

Opinion

ORDER AND JUDGMENT *

JEROME A. HOLMES Circuit Judge

Defendant-Appellant John Wesley Niles appeals from the district court’s order sentencing him to twenty-four months’ imprisonment. Mr. Niles pleaded guilty to possessing methamphetamine on November 29, 2014 with intent to distribute. Based on evidence of distribution activities between July of 2013 and November of 2014, the district court calculated Mr. Niles’s relevant conduct under § lB1.3(a)(2) of the U.S. Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) as “somewhere” between fifty-six and sixty grams of methamphetamine, and used that drug quantity as the initial predicate for Mr. Niles’s ultimate sentence.

Mr. Niles appeals, arguing that his relevant conduct for sentencing purposes should have included only the fourteen grams involved in his offense of conviction. More specifically, Mr. Niles argues that the district court erred: (1) by including the 4.5 grams of methamphetamine he allegedly distributed in July of 2013; (2) by finding he intended to distribute additional quantities of methamphetamine (apart from the amount that formed the basis of his conviction) that he allegedly obtained from his codefendant throughout November of 2014; and (3) by purportedly counting, as relevant conduct, personal-use quantities of methamphetamine.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm the district court’s sentencing order.

I

In the summer of 2014, agents with the Wyoming Division of Criminal Investigation (“DCI”) began investigating a methamphetamine distribution conspiracy. During the course of the investigation, the agents determined — through a series of intercepted communications — that Richard Shelby Schutt, Jr. and Mr. Niles, among others, engaged in a conspiracy to acquire and distribute methamphetamine. The relevant aspects of the investigation revealed, in particular, that Mr. Schutt and Mr. Niles repeatedly met during November of 2014, and, in conjunction with those meetings, Mr. Schutt provided Mr. Niles with methamphetamine. Notably, investigators learned from a call intercepted on November 4, that Mr. Niles told Mr. Schutt “[djon’t get rid of nothing. I want whatever you have.” R., Vol. Ill, at 62 (Tr. Sen. Hr’g, dated May 3, 2016); accord id., Vol. II, at 74 (Govt.’s Sen. Mem., filed May, 2016) (recounting the- contents of call 164). 1 Likewise, prior to what investigators believe was a drug transaction between Messrs. Schutt and Niles on November 22, 2014, Mr. Niles sent a text message to Mr. Schutt, saying “I’m ready when you are and bring lots.” Id., Vol. II, at 98 (Exhibit 1) (recounting the contents of call 588).

On the last occasion — and the single transaction to which he pleaded guilty— Mr. Niles called Mr. Schutt shortly before midnight on November 28, 2014, and arranged to pick up “ ‘double the usual.’ ” Id. at 77 (recounting the contents of call 715). Shortly after midnight on November 29, 2014, a DCI agent watched Messrs. Schutt and Niles engage in a transaction at a public rest area, and after the two men parted, a state officer stopped Mr. Niles’s vehicle (at DCI’s request) and found 13.92 grams of methamphetamine in his coat pocket.

On September 24, 2015, a federal grand jury in the District of Wyoming returned an indictment charging Mr. Niles (and others) with conspiracy to distribute methamphetamine and possession with intent to distribute methamphetamine. Mr. Niles pleaded guilty to the possession charge (under the terms of a plea agreement) on February 17, 2016, and the government dismissed the conspiracy count.

Following the plea, the U.S. Probation Office prepared a Presentence Report (“PSR”), 2 which recreated “a time frame of [the] distribution activities.” R., Vol. II, at 10 (PSR, prepared Mar. 17, 2016). Mr. Schutt indicated that, in July of 2013, Mr. Niles distributed a multiple-gram quantity of methamphetamine to him, including specifically a 3.5-gram amount, and, thereafter, between October of 2014 and November 29, 2014, Mr. Schutt “‘consistently’ provided methamphetamine to [Mr. Niles] in one-half and one ounce quantities ... ‘every day or two.’ ” Id. More specifically, the Probation Office found from the totality of the facts that, in July of 2013 Mr. Niles must have distributed “a minimum of 1 gram plus 3.5 grams” (i.e., 4.5 grams) of methamphetamine to Mr. Schutt and that Mr. Schutt “only had four ounces to distribute to” Mr. Niles in the October-to-November 2014 period. Id.

In sum, the PSR determined that Mr. Niles’s relevant “distribution activities” included:

1. 4.5 grams that Mr. Schutt allegedly obtained from Mr. Niles in July of 2013;
2. Mr. Schutt’s entire four-ounce supply between October and November of 2014; and
3. the fourteen grams (rounded up from 13.92 grams) that Mr. Niles acquired from Mr. Sehutt on November 29, 2014.

The PSR thus calculated the relevant drug quantity as 130.5 grams, “creating] a base offense level of 24.” Id.

Mr. Niles objected to this aspect of the PSR (and raised other objections not pressed on appeal), initially arguing that his relevant conduct should extenc} no further than the drug quantity involved in his offense of conviction — specifically, only the fourteen grams seized on November 29, 2014. In responding to Mr. Niles’s objection, the U.S. Probation Office agreed that the draft PSR overestimated the distribution activities between October of 2014 and November 29, 2014, but stressed — given Mr. Schutt’s statements — that Mr. Niles’s proposed figure would underestimate the relevant drug quantity. The U.S. Probation Office revised downward its original calculation, and concluded that “the most conservative [estimate] would involve at least a quarter-ounce distribution (7 grams); plus a half-ounce distribution (14 grams); plus a one-ounce distribution (28 grams); and the 14 grams seized, for a minimum of 63 grams of relevant conduct methamphetamine” — a drug quantity that carried the same “base offense level of 24.” Id. at 34 (Addendum to PSR, dated Apr. 1, 2016); of. id. at 10 (concluding that 130.6 grams of relevant conduct would equate to “a base offense level of 24”). Given the uncertainty regarding the precise drug quantity, however, the U.S, Probation Office indicated that the district court “may need to hold a relevant conduct hearing.” Id. at 34. And the district court did hold such a hearing.

On May 3, 2016, the court conducted a sentencing hearing. The government elected to offer the testimony of a state police officer assigned to DCI, Special Agent Bartel (“SA Bartel”), along with recordings of the intercepted exchanges between Messrs. Niles and Schutt, SA Bartel testified, based upon his experience with drug-distribution cases, on the topic of drug “fronting” — i.e., the practice of providing quantities of drugs without any up-front payment. See R., Vol. Ill, at 47-51.

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Bluebook (online)
708 F. App'x 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-niles-ca10-2017.