United States v. Todd Edward Matthews

5 F.3d 1161, 1993 U.S. App. LEXIS 24883, 1993 WL 378881
CourtCourt of Appeals for the Eighth Circuit
DecidedSeptember 29, 1993
Docket92-3193
StatusPublished
Cited by17 cases

This text of 5 F.3d 1161 (United States v. Todd Edward Matthews) 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. Todd Edward Matthews, 5 F.3d 1161, 1993 U.S. App. LEXIS 24883, 1993 WL 378881 (8th Cir. 1993).

Opinion

WOLLMAN, Circuit Judge.

Todd Edward Matthews appeals from the sentence entered upon his guilty plea to charges of distributing cocaine base and money laundering. We vacate the sentence and remand the case to the district court for resentencing.

I.

On September 10, 1991, federal agents executed a search warrant at Matthews’ resh dence near Ashdown, Arkansas. The agents discovered several items related to drug trafficking during the search. The agents recovered a loaded 9 mm. Glock pistol from the *1163 glove box of Matthews’ pickup, which was parked in the driveway to his house. Matthews, who was present during the search, admitted that the gun belonged to him.

A grand jury returned a nine-count indictment against Matthews. Count I charged Matthews with conspiracy to distribute crack cocaine from January 1988 through June 1990. Counts II through VI charged Matthews with distribution of crack cocaine at various times from June 1988 through August 1990. Count VII charged Matthews with distribution of crack cocaine during July 1990. Counts VIII and IX charged Matthews with money laundering offenses.

Matthews entered his plea of guilty to Counts VII and VIII in exchange for the government’s promise to drop the other seven counts.

The government presented seventeen witnesses at Matthews’ sentencing hearing. There was testimony that Matthews had held himself out as a “weight man,” slang for an individual who deals in large quantities of drugs. One witness testified that Matthews had openly stated that he used other people to distribute the drugs while h.e played the role of supplier. This witness also testified that Matthews had a cocaine source in Texas. Another witness testified that he had made two trips to Texas to obtain drugs for Matthews and that on each occasion he had transported a kilogram of cocaine back to Arkansas. Two witnesses testified that Matthews had attempted to recruit them to make trips to Texas to pick up shipments of cocaine.

Various witnesses testified that Matthews had “fronted” crack cocaine, either in individual rocks or larger quantities, to other persons. These individuals sold the allotments of crack, kept a percentage of the proceeds for themselves, and remitted the remainder to Matthews.

The district court calculated the weight of cocaine base attributable to Matthews to be 2.994 kilograms. The district court then stated that it had concluded that Matthews was a leader of a criminal activity involving five or more participants or which was otherwise extensive, for which it imposed a four-level enhancement pursuant to U.S.S.G. § 3Bl.l(a) of the Sentencing Guidelines.

The court also determined that Matthews did not merit a two-point reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, finding that Matthews had not cooperated sufficiently with the government concerning his drug trafficking activities and had refused to divulge his sources of drugs.

The district court imposed a two-level enhancement for possession of a firearm during the course of a drug offense pursuant to U.S.S.G. § 2D1.1, based upon the pistol seized from Matthews’ pickup.

Based on its several findings, the district court sentenced Matthews to consecutive terms of 240 months’ imprisonment on Count VII and 120 months’ imprisonment on Count VIII, to be followed by three years of supervised release.

II.

Matthews contends that the district court erred in sentencing him by (1) making an erroneous determination of relevant conduct with respect to his conviction for distribution of cocaine base; (2) enhancing his base offense level for being a leader or organizer; (3) refusing to provide him with a reduction in his base offense level for acceptance of responsibility; and (4) enhancing his base offense level for possession of a weapon. We address these issues in turn.

A. Relevant Conduct Calculation

Matthews argues that the district court erred in three respects in calculating his relevant conduct enhancement. As noted above, the district court calculated that the amount of cocaine involved was 2.994 kilograms, based upon an estimated weight of .24 grams per “rock” of crack cocaine. The district court obtained the .24 gram/rock figure from data in the presentence report. As Matthews points out and the government concedes, however, the only evidence offered at the sentencing hearing concerning the weight of a rock of crack cocaine came from Arkansas State Police officer Steve Clemmons, who testified that a rock of crack *1164 cocaine in southwest Arkansas weighs approximately .1 gram.

The government does not dispute that the .24 gram/rock figure relied upon by the district court was not presented during the sentencing hearing, but argues that Matthews waived his right to contest the issue because his counsel did not object to the district court’s use of the .24 gram/rock figure.

Because Matthews failed to raise this issue before the district court, we may review it only if “(1) the district court committed an error, i.e., deviated from a legal rule, (2) the error is plain, i.e., clear under current law, and (3) the error affected [the defendant’s] substantial rights.” United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993); Fed.R.Crim.P. 52(b). When a forfeited error meets these requirements, we have discretionary authority to order correction. United States v. Olano, — U.S. —, —, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). We should exercise our remedial discretion “if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at —, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).

Because the district court did not rely on any evidence presented during the sentencing hearing in determining the weight of a rock of crack cocaine, and because the only evidence presented at the hearing differed materially from the weight figure eventually used by the court, we conclude that a significant question remains concerning the weight of the crack cocaine to be attributed to Matthews. Accordingly, we vacate the district court’s relevant conduct determination and remand for a new hearing at which the parties may present evidence to assist the district court in determining the accurate weight of the crack cocaine.

In his second argument concerning relevant conduct, Matthews contends that the district court erroneously sentenced him on the basis of allegedly false information given by Keith Burton, who testified before the grand jury that he had sold crack cocaine for Matthews. At the sentencing hearing, however, Burton recanted his grand jury testimony, testifying that he had never sold any crack cocaine for Matthews and that he had testified falsely before the grand jury because he had been coerced by Drug Enforcement Administration agent Bill Bryant.

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Bluebook (online)
5 F.3d 1161, 1993 U.S. App. LEXIS 24883, 1993 WL 378881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-todd-edward-matthews-ca8-1993.