United States v. Robert A. Tate

822 F.3d 370, 2016 U.S. App. LEXIS 9099, 2016 WL 2909249
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 18, 2016
Docket15-3227
StatusPublished
Cited by26 cases

This text of 822 F.3d 370 (United States v. Robert A. Tate) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Robert A. Tate, 822 F.3d 370, 2016 U.S. App. LEXIS 9099, 2016 WL 2909249 (7th Cir. 2016).

Opinion

HAMILTON, Circuit Judge.

In this appeal, we address two sentencing issues. First, defendant Robert A. Tate challenges the district court’s findings on the extent of his relevant conduct. Those findings were based on credibility determinations to which we give great deference, and we find no error. Second, we must also decide whether a conviction under an Illinois law that prohibits attempted procurement of anhydrous ammonia with intent that it be used to manufacture methamphetamine qualifies as a “controlled substance offense” under the Sentencing Guidelines’ career offender provision, U.S.S.G. § 4B1.1. Despite the conviction’s significant link to methamphetamine manufacture, careful parsing of the relevant Guideline provisions shows that a conviction under this particular statute does not actually qualify. The district court will be free to consider the nature of the conviction when it exercise its sentencing discretion on remand, but it will need to do so without treating this defendant as a career offender under the Guidelines.

I. Relevant Conduct

A jury found appellant Tate guilty of conspiring to manufacture methamphetamine between February 2013 and June 2014 and guilty on a single count of distribution in March 2014 stemming from a controlled buy. Tate does not challenge his convictions on appeal.

In applying the U.S. Sentencing Guidelines, a district court must determine the defendant’s criminal history and offense level. Tate’s criminal history category was VI, regardless of any issue under the career offender Guideline. The district court *373 found that Tate’s relevant conduct made him responsible for 400 grams of methamphetamine, yielding an adjusted offense level of 28. The court also found that Tate qualified as a career offender under the Guidelines, which raised his adjusted offense level to 32. The district -court’s guideline calculations produced a range of 210 to 262 months. The court sentenced Tate to 210 months in prison on each count, to be served concurrently.

The Sentencing Guidelines instruct district courts to base the offense level on the defendant’s “relevant conduct,” a calculation governed by § 1B1.3 of the Guidelines. In drug cases, the quantity of drugs for which the defendant is held responsible is “frequently the single most important determinant of the length of the defendant’s sentence under the Guidelines.” United States v. Acosta, 85 F.3d 275, 281-82 (7th Cir.1996).

Tate’s conviction for distribution of methamphetamine involved just 0.2 grams of methamphetamine, but at sentencing the district court held him responsible for an estimated 400 grams of methamphetamine. That quantity was based not on the single controlled buy but on the trial testimony of Tate’s former girlfriend, Brandy Pierce, and a proffer statement by Denise Huston. Pierce testified that she had supplied Tate with precursor materials and allowed him to cook methamphetamine daily at her home over a period of several months. Huston reported that Tate had manufactured methamphetamine at her home at least twenty times during the preceding year.

At sentencing, Tate argued that Pierce and Huston were not sufficiently credible to support the 400-gram figure. , Judge Gilbert rejected that argument. "He acknowledged that the estimates were not exact but explained that in his experience, witnesses like Pierce and Huston could credibly testify as to whether someone was cooking methamphetamine “every day or every other day” and could reasonably estimate the drug quantities involved.

We review a district court’s factual findings on drug quantity only for clear error, United States v. Austin, 806 F.3d 425, 430 (7th Cir.2015), citing United States v. Clark, 538 F.3d 803, 812 (7th Cir.2008), and we give substantial deference to the sentencing court’s determinations of witness credibility. United States v. Blalock, 321 F.3d 686, 690 (7th Cir.2003); United States v. Johnson, 227 F.3d 807, 813 (7th Cir.2000). “Determining how much of a particular drug a defendant possessed, over a lengthy period of time, is not an exact science.” United States v. Sewell, 780 F.3d 839, 849 (7th Cir.2015). As we have often explained, drug traffickers rarely keep reliable business records, and district courts determining relevant conduct may make reasonable estimates. See Austin, 806 F.3d at 431; Sewell, 780 F.3d at 849.

Pierce testified • that Tate cooked methamphetamine at least once a day from January 2013 until October 2013, producing at least two grams with each “cook.” The court’s estimate of 360 grams was at the low end of the range her testimony could support. Tate argues primarily that Pierce could not be believed because of her prior convictions and her repeated attempts to minimize her own role in the conspiracy. Those circumstances are not unusual with witnesses who have been involved in drug-trafficking operations. They did not preclude.the district court from finding that Pierce’s testimony was reliable enough to support the estimate in the presentence report. See United States v. Rodgers, 245 F.3d 961, 968 (7th Cir.2001) (The “district judge was free to credit Dexter. That Dexter was a convicted felon who stood to gain from his testi *374 mony against Rodgers is by no means a remarkable circumstance.”)- Pierce acknowledged participating in Tate’s methamphetamine operation. While she denied helping cook the drug, she also testified that she bought precursor materials for Tate a “few times a week,” that she allowed Tate to cook methamphetamine at her home, that she drove him to various locations to sell the drug, and that she crushed pills for Tate to use in cooks. The district court did not err in relying on Pierce’s testimony to hold Tate responsible for 360 grams of methamphetamine.

As for Denise Huston, Tate first argues that her proffer statement is inconsistent with her trial testimony. The second revised presentence report said that Huston saw Tate make methamphetamine at her house at least twenty times over the preceding year. At trial, however, Huston testified that Tate made methamphetamine at her house “[a]t least ten different ■ times.” The discrepancy, Tate argues, shows that Huston’s recollections are vague and incredible. We disagree.

Discrepancies or inconsistent pri- or statements are of course relevant in assessing witness credibility, but they “do not, as a matter of law, render a witness’s testimony incredible.” United States v. Hernandez, 544 F.3d 743, 747 (7th Cir.2008).

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Bluebook (online)
822 F.3d 370, 2016 U.S. App. LEXIS 9099, 2016 WL 2909249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-a-tate-ca7-2016.