United States v. McArthur

11 F.4th 655

UNITED STATES of America, Plaintiff - Appellee

v.Wakinyan Wakan MCARTHUR, Defendant - Appellant

No. 20-1487

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2021

Filed: August 25, 2021

Michael L. Cheever, Andrew Dunne, David Genrich, Assistant U.S. Attorneys, Andrew Robert Winter, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN, Lisa D. Kirkpatrick, Assistant U.S. Attorney, U.S. Attorney's Office, Saint Paul, MN, for Plaintiff-Appellee.

Frederick J. Goetz, Goetz & Eckland, Minneapolis, MN, for Defendant-Appellant.

Wakinyan Wakan McArthur, U.S. Penitentiary, Coleman, FL, Pro Se.

Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.

PER CURIAM.¹

Wakinyan Wakan McArthur appeals his 420-month sentence for multiple drug and firearm counts. McArthur argues that the district court² clearly erred in (1) determining that he was responsible for a drug equivalency of 1,000 to 3,000 kilograms of marijuana, resulting in a base offense level of 30 pursuant to U.S.S.G. § 2D1.1(c)(5) ; (2) finding that McArthur maintained a premises for manufacturing and distributing a controlled substance ("stash house") under U.S.S.G. § 2D1.1(b)(12) ; and (3) finding that McArthur committed the offenses as part of a pattern of criminal conduct engaged in as a livelihood under U.S.S.G. § 2D1.1(b)(14)(E) (2014).

I. Background

A jury convicted McArthur of criminal offenses stemming from his involvement with the Native Mob, a Minnesota prison-and-street gang. Specifically, the jury convicted McArthur of conspiracy to participate in racketeering activity ("Count 1"); conspiracy to use and carry firearms during and in relation to a crime of violence ("Count 2"); conspiracy to distribute and possess with intent to distribute controlled substances ("Count 7"); and distribution of a controlled substance ("Count 8"). See 21 U.S.C. § 841(a), (b) ; 18 U.S.C. § 2. He was also convicted of two counts of using and carrying a firearm during and in relation to a crime of violence ("Count 10" and "Count 11"). See 18 U.S.C. § 924(c). Each of the § 924(c) counts corresponded to two separate acts undertaken as part of the racketeering conspiracy. For Count 10, the district court imposed a mandatory 60-month term of imprisonment. Id. § 924(c)(1). For Count 11, the district court imposed a 300-month consecutive sentence. In total, the district court sentenced McArthur to 516 months’ imprisonment.

In his first appeal, McArthur challenged his convictions and sentences on the § 924(c) counts—Counts 10 and 11. We vacated McArthur's conviction on Count 11, affirmed his remaining convictions, vacated his entire sentence, and remanded for resentencing on all the remaining counts under the "sentencing package doctrine." See United States v. McArthur (McArthur I) , 850 F.3d 925, 943 (8th Cir. 2017).

On remand, the district court sentenced McArthur to 480 months’ imprisonment on the remaining counts of conviction: (1) a 240-month concurrent sentence on Count 1; (2) a 240-month concurrent sentence on Count 2; (3) a 420-month concurrent sentence on Count 7; (4) a 240-month concurrent sentence on Count 8; and (5) a 60-month consecutive sentence on Count 10, the lone remaining § 924(c) count.

In his second direct appeal, McArthur initially argued that the district court erroneously imposed a 480-month sentence by (1) determining that McArthur was responsible for a drug equivalency of 1,000 to 3,000 kilograms of marijuana, resulting in a base offense level of 30 pursuant to U.S.S.G. § 2D1.1(c)(5) ; (2) finding that McArthur maintained a stash house under U.S.S.G. § 2D1.1(b)(12) ; and (3) finding that McArthur committed the offenses as part of a pattern of criminal conduct engaged in as a livelihood under U.S.S.G. § 2D1.1(b)(14)(E) (2014). Subsequently, in supplemental briefing, McArthur argued that § 924(c)(3)(B) ’s residual clause is unconstitutionally vague. After the Supreme Court held that § 924(c)(3)(B) ’s residual clause is indeed unconstitutionally vague, see United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), the government conceded that McArthur's § 924(c) conviction was invalid and must be vacated. We vacated McArthur's conviction on Count 10, vacated his entire sentence under the sentencing package doctrine, and remanded for further proceedings. See McArthur II , 784 F. App'x at 461.

Following the second remand for resentencing, a third revised presentence investigation report (PSR) was prepared. McArthur renewed his objections from the first sentencing proceeding, including his objections to the drug-quantity, stash-house, and criminal-livelihood determinations.

At the third sentencing hearing, the district court again determined that McArthur was responsible for a drug equivalency of 1,000 to 3,000 kilograms of marijuana, maintained a stash house, and committed the offenses as part of a pattern of criminal conduct engaged in as a livelihood. The court incorporated by reference its earlier rulings. The district court had previously ruled that (1) the government proved that the conspiracy included the drug equivalent of between 1,000 and 3,000 kilograms of marijuana;³ (2) abundant evidence existed that the house at issue was used as a stash house for cutting drugs, storing drugs, and distributing drugs; and (3) McArthur's offenses were part of a pattern of criminal conduct.

It again adopted the PSR and the same total adjusted offense level of 49, capped at 43, and a criminal history category of III. The resulting Guidelines range of life imprisonment was capped at 960 months’ imprisonment by operation of the cumulative statutory maximum penalties applicable to the remaining counts of conviction. The district court sentenced McArthur to 420 months’ imprisonment.

II. Discussion

On appeal, McArthur argues that the district court clearly erred in (1) its drug-quantity calculation; (2) finding that McArthur maintained a stash house under § 2D1.1(b)(12) ; and (3) finding that McArthur committed the offenses as part of a pattern of criminal conduct engaged in as a livelihood under § 2D1.1(b)(14)(E) (2014).

A. Drug Quantity

McArthur first argues that the district court clearly erred in finding him "responsible for the greatest amount of drugs that could still be consistent with the jury's findings: 499 grams of cocaine and 279 grams of cocaine base," which is the drug equivalent of "between 1,000 and 3,000 kg of marijuana." Appellant's Br. at 20. Specifically, he asserts that "little evidence" exists showing that he "was involved in the sale of cocaine or cocaine base in quantities beyond the minimum under the jury's findings." Id. at 21. According to McArthur, his coconspirator, Christopher Wuori, "was involved in greater weights of cocaine," and McArthur was not connected to most of Wuori's drug activity. Id. McArthur maintains he was present only for "some of this activity ... and was directly involved in some sales for small amounts of cocaine." Id.

At sentencing, "[t]he government bears the burden of proving drug quantity by a preponderance of the evidence." United States v. Sainz Navarrete , 955 F.3d 713, 720 (8th Cir. 2020) (quoting United States v. Plancarte-Vazquez , 450 F.3d 848, 852 (8th Cir. 2006) ). On appeal, "[w]e review [a district court's drug-quantity finding] for clear error and reverse only when ‘the entire record definitely and firmly illustrates that the lower court made a mistake.’ " Id. (quoting United States v. Marshall , 411 F.3d 891, 894 (8th Cir. 2005) ).

For purposes of calculating drug quantity in a drug conspiracy case, the district court may consider amounts from drug transactions in which the defendant was not directly involved if those dealings were part of the same course of conduct or scheme. This includes all transactions known or reasonably foreseeable to the defendant that were made in furtherance of the conspiracy.

United States v. Lewis , 976 F.3d 787, 797 (8th Cir. 2020) (cleaned up); see also United States v. Washington , 968 F.3d 860, 865 (8th Cir. 2020) ("In the context of a conspiracy, the drug quantity for sentencing purposes includes not only quantities [the defendant] was personally involved with, but ‘all quantities of contraband that were involved in transactions carried out by other participants, if those transactions were within the scope of, and in furtherance of, the jointly undertaken criminal activity and were reasonably foreseeable in connection with that criminal activity.’ " (quoting U.S.S.G. § 1B1.3 cmt. n.3(D))).

"It is well-established that the testimony of co-conspirators may be sufficiently reliable evidence upon which the court may base its drug quantity calculation for sentencing purposes." Plancarte-Vazquez , 450 F.3d at 852 ; see also United States v. Sarabia-Martinez , 276 F.3d 447, 450 (8th Cir. 2002) ("A sentencing court may determine drug quantity based on the testimony of a co-conspirator alone."). "[I]t is [also] well established that in sentencing matters a district court's assessment of witness credibility is quintessentially a judgment call and virtually unassailable on appeal." United States v. Rodriguez , 711 F.3d 928, 938 (8th Cir. 2013) (quotation omitted). A "district court may rely on trial testimony to determine drug quantity." United States v. Janis , 995 F.3d 647, 652 (8th Cir. 2021) (citing United States v. Young , 689 F.3d 941, 945 (8th Cir. 2012) ).

We hold that the district court did not clearly err in finding a drug quantity of between 1,000 and 3,000 kilograms of marijuana. The district court was entitled to rely on the trial testimony of McArthur's coconspirators, including Dale Pindegayosh, Kenny Roberts, Dwight Jones, Randy Seelye, and Justin Hollins, in determining the drug-quantity amount. Their testimony was more than sufficient to support the district court's finding of a drug quantity between 1,000 and 3,000 kilograms of marijuana. First, Pindegayosh testified that McArthur and Wuori "pooled their...