United States v. Santonelli

128 F.3d 1233, 1997 WL 694312
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 4, 1997
DocketNos. 96-3830, 96-4127
StatusPublished
Cited by20 cases

This text of 128 F.3d 1233 (United States v. Santonelli) 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. Santonelli, 128 F.3d 1233, 1997 WL 694312 (8th Cir. 1997).

Opinion

BRIGHT, Circuit Judge.

In this appeal, Anthony Luciano Santonelli again challenges the sentence for his drug trafficking conviction. Previously, we remanded this case for resentencing following Santonelli’s first successful appeal. See United States v. Santonelli, 83 F.3d 984 (8th Cir.1996)(Santonelli I).1 On remand, the district court resentenced Santonelli to 162 [1235]*1235months imprisonment, which was thirteen months fewer than the initial sentence in Santonelli I. Both Santonelli and the government are dissatisfied with the district court’s resentencing.

Santonelli asserts, in effect, that because the government, following Santonelli I, sought and obtained a sentence enhancement of one point, he should on this appeal, and in this court, raise issues about the sentence that had been previously resolved and had not been presented in district court, ie.,'alleged double counting of drug quantities. He also seeks a reduction of the sentence as a minor participant, a claim Santonelli did raise in the district court on remand.

The government by its cross-appeal seeks a still heavier sentence against Santonelli. It claims Santonelli obstructed justice by lying in his trial testimony. It further seeks to recalculate drug quantities to a much higher level, based on a greater amount of drugs by way of potential dilution of the seized drugs, if those drugs were sold on the street.

We affirm the district court in all respects and reject Santonelli’s appeal, as well as the government’s appeal.

1. BACKGROUND

This court’s prior opinion in this matter sets out the full factual background. See United States v. Santonelli, 83 F.3d 984 (8th Cir.1996) (Santonelli I). We will therefore underscore only a few necessary facts. A jury convicted Santonelli and Jane Allen Byrne of conspiring to distribute heroin, powder cocaine and cocaine base, as well as multiple-related substantive drug trafficking counts. Thereafter, the probation officer prepared a presentence report, in which he concluded that the cumulative drug quantities for which Santonelli was responsible required a base offense level of 28. The probation officer further determined that the available sentencing information did not provide grounds for any upward or downward adjustment. In particular, the probation officer determined that no information existed that suggested that Santonelli obstructed justice. The probation officer found that Santonelli was a category VI offender and that his resulting sentencing range was 140-175 months imprisonment. The government presented no objection to this presentence report. The district court sentenced Santonelli to 175 months imprisonment along with a fine, a special assessment and supervised release.

In the first app.eal of this ease, this court affirmed. Santonelli’s conviction but vacated his sentence and remanded for resentencing, reasoning that the presentence report should not have counted against Santonelli the drugs seized from Byrne’s Newstead residence because Santonelli had been in custody for the entire month before the government’s seizure. Santonelli I, 83 F.3d at 993. In addition, this court rejected Santonelli’s contention that the presentenee report had “double counted” some of the drug amounts seized from the Newstead residence. Id. This court opined that any “double counting” was “more than offset” by other amounts of drugs omitted in the presentence report, but might properly have been coúnted against Santonelli, and by the seemingly available enhancement for drug distribution near a protected location and for obstruction of justice. Id.

On remand, the probation officer prepared another presentence report, this time determining that Santonelli was responsible for trafficking drugs in an amount that placed Santonelli’s'base offense level at 26 rather than at 28. This reduction was in accord with Santonelli I. The probation officer, however, increased the offense level one point to 27 because Byrne’s Victor Avenue apartment, which was used by the conspiracy for drug distribution, was located near a “protected location.”2 The probation officer [1236]*1236found no other applicable adjustments to the base offense level, particularly noting that “[tjhere was no information to suggest that the defendant impeded or obstructed justice.” Based on Santonelli’s status as a category VI offender, the probation officer calculated the appropriate sentence range at 130-162 months imprisonment. The district court accepted this calculation and sentenced Santonelli to a term of 162 months.

In this appeal, Santonelli argues the district court erred in four respects. Specifically, Santonelli contends the district court improperly allowed the “protected location” enhancement, “double counted” when calculating the quantity of drugs sold in the conspiracy, incorrectly denied Santonelli’s request for a “minor participant” reduction and improperly included the entire month of September when determining the extent of the conspiracy’s drug sales.

As already mentioned, the government, in its appeal, challenges the district court’s refusal to apply an obstruction of justice enhancement and the district court’s method of quantifying certain “uncut” drugs.

II. DISCUSSION

The controversy in this ease focuses on this court’s discussion of sentencing and the nature of the remand in the prior case, Santonelli I.

In Santonelli I, in discussing the quantities of drugs attributable to Santonelli, we said:

The presentence report calculation of drug quantity did include these drugs and their inclusion did change the offense level. Including the drugs seized from Byrne’s apartment at the time of her arrest on March 3, 1994, 2.7 grams of heroin and 2.5 grams of cocaine, increased the total drug quantity attributable to Santonelli to slightly more than 400 kilograms of marijuana equivalents and thus increased the offense level from 26 to 28.
Because the sentence may have been affected by this incorrect information, we vacate Santonelli’s sentence and remand the case to the district court for resentencing.

Santonelli I, 83 F.3d at 993 (emphasis added).

Santonelli also contended in his initial appeal that the presentence report double counted drug quantities by adding rather than subtracting the drugs seized from Byrne’s apartments.- We responded as follows:

Assuming for purposes of analysis that it was “double-counting” to add the. drugs actually seized to the estimated quantity of drugs based on Byrne’s statement,' we hold that the error was harmless. The presentence report calculated the total drug quantity involved in the conspiracy on the basis of smaller amounts than Byrne reported in her statement (10 grams of heroin per week rather than 10.5 grams, a difference of 12.5 grams over the 25-week conspiracy). That difference alone would substantially offset the double-counting.

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128 F.3d 1233, 1997 WL 694312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-santonelli-ca8-1997.