United States v. McDonald

43 F.4th 1090

UNITED STATES of America, Plaintiff - Appellee,

v.Guy Coleston MCDONALD, Defendant - Appellant.

No. 20-7052

United States Court of Appeals, Tenth Circuit.

FILED August 9, 2022

Keith Bradley, Squire Patton Boggs (US) LLC, Denver, Colorado (Chassica Soo, Squire Patton Boggs (US) LLC, Denver, Colorado, and J. Lance Hopkins, Tahlequah, Oklahoma, with him on the briefs), appearing for Defendant-Appellant.

Michael S. Qin, Special Assistant United States Attorney, Atlanta, Georgia (Brian J. Kuester, United States Attorney, Eastern District of Oklahoma, Tulsa, Oklahoma, with him on the briefs), appearing for Plaintiff-Appellee.

Before McHUGH, EBEL, and EID, Circuit Judges.

EBEL, Circuit Judge.

From 2017 to 2019, Guy Coleston McDonald dealt meth in Tahlequah, Oklahoma. After being arrested and charged for this activity, McDonald pleaded guilty to one count of conspiracy to violate federal narcotics laws under 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) in United States District Court for the Eastern District of Oklahoma. During the sentencing stage, the probation officer filed a presentence investigation report ("PSR"), alleging the relevant facts and calculating a guideline range of 292 to 365 months. The district court denied all of McDonald's objections to the PSR and adopted the PSR's recommendations. After denying McDonald's motion to depart downward, the court sentenced McDonald to 292 months’ imprisonment.

McDonald now appeals to this Court, arguing that the district court erred in calculating his base offense level and in applying three sentencing enhancements to his sentence. Primarily, McDonald contends that it was improper for the district court to rely on the facts alleged in the PSR given his objections. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. Background

A. Undisputed factual background

From 2017 to 2019, McDonald distributed methamphetamine to multiple co-conspirators in Tahlequah, Oklahoma. Law enforcement twice discovered methamphetamine in McDonald's possession during this period. On May 29, 2018, McDonald was arrested with a smoking pipe, some marijuana, and 2.41 grams of methamphetamine. One month later, during a second arrest, officers found a clear plastic bag containing another 2.41 grams of methamphetamine on the ground near McDonald. From July to November 2018, McDonald was incarcerated in Cherokee County Jail on felony charges relating to burglary and assault. After being released on bond, McDonald lived with a woman named Jasmine Meikle, and continued to distribute methamphetamine from their residence for about two months until January 2019. On January 10 and 14, police had a confidential informant ("CI") perform two controlled drug buys. On January 18, 2019, police executed a search warrant in McDonald's house where they discovered approximately $3,000 in cash, 1.9 grams of marijuana, 4.74 grams of methamphetamine, four cell phones, a set of digital scales, and a drug ledger. McDonald was taken into custody.

McDonald pleaded guilty to one count of conspiracy to violate federal narcotics laws under 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) in federal district court. For sentencing, the probation officer filed the PSR, alleging relevant facts and calculating a guideline range of 292 to 365 months.

B. The PSR and McDonald's objections below

The PSR calculated McDonald's base offense level at 32 because the quantity of meth attributable to him was higher than 1.5 kilograms, but lower than 5 kilograms. See U.S.S.G. § 2D1.1. The PSR recommended four two-level enhancements for 1) possession of a firearm under U.S.S.G. § 2D1.1 ; 2) use or credible threat of violence under U.S.S.G. § 2D1.1 ; 3) aggravated role in the offense under U.S.S.G § 3B1.1 ; and 4) obstruction of justice under U.S.S.G. § 3C1.1. This brought his total offense level to 40. The PSR then subtracted three levels based on his acceptance of responsibility. See U.S.S.G. § 3E1.1. Thus, McDonald's total offense level was 37. McDonald objected to the drug quantity calculation for his base offense level and to three of the enhancements recommended in the PSR.¹ The district court accepted the findings and recommendations of the PSR, rejected McDonald's objections, and sentenced McDonald to 292 months’ imprisonment.

i. The quantity of drugs attributable to McDonald

The PSR's "conservative estimate" of the amount of meth attributable to McDonald was 3.4 kilograms. 3 ROA at 15–16. This was based on statements of co-conspirators, McDonald's recorded phone calls, and the amounts actually recovered by law enforcement. The exact amounts are summarized as follows:

• Law enforcement found a total of 9.5 grams in McDonald's possession.

• Law enforcement recovered 56 grams from two controlled drug buys.

• McDonald referenced selling 680.4 grams in recorded phone calls.

• Jeremy Poafpybitty stated that he sold 17.5 grams on McDonald's behalf.

• A cooperating witness ("CW") stated that McDonald and Holmes supplied them one ounce every other day for six months (1105.6 grams).²

• RJ Meikle estimated that McDonald sold him 113.4 grams.

• Heather Chuculate stated that she saw McDonald obtain 340.2 grams.

• Robbie Holmes estimated that McDonald supplied him one ounce a week for 39 weeks (992.2 grams).

• Jimi Day stated that she stored 170.1 grams on behalf of McDonald.

McDonald objected to the inclusion of the statements of his co-conspirators—RJ Meikle, Chuculate, Holmes, and Day—and CW because they lacked credibility, had potential motives to lie to law enforcement, and their statements were not corroborated. McDonald asserted that the total "credible" quantity should be 1033.66 grams. This would have lowered the base offense level to 30 because it is more than 500 grams, but less than 1.5 kilograms of meth. See U.S.S.G. § 2D1.1.

ii. Credible threat or use of force

In determining the applicability of the threat or use of force enhancement, the PSR described a phone call from McDonald during his pretrial detention in jail instructing Day to tell her nephew that he "better do something about that" and "better handle it" regarding CI's cooperation with police. Additionally, the PSR describes an incident where multiple sources reported that McDonald had shot an individual named Shane Rose who was indebted to McDonald. The PSR further noted an incident where law enforcement officers responding to a 911 call at a residence were told that McDonald had broken into Keira Beaver's home and assaulted her. Beaver stated that McDonald had threatened to kill her via text message before the incident. The PSR also noted that CW had stated that McDonald had assaulted CW in CW's home with a .40-caliber taurus pistol.

McDonald objected to this enhancement, arguing that the phone call to Day was not a credible threat. As to the shooting of Rose and the assault of CW, McDonald argued that the statements lacked corroboration, and the individuals providing those statements lacked credibility.

iii. Obstruction of Justice

The PSR's only basis for applying an obstruction of justice enhancement was McDonald's phone call to Day during McDonald's incarceration, instructing her that her nephew "better handle" CI's cooperation with police. 3 ROA at 35. McDonald objected and argued that this was too ambiguous to demonstrate a threat and that there was no evidence that this was communicated to CI.

iv. Aggravated Role

In applying an enhancement for a leadership or organizer role, the PSR indicates that in recorded calls to Jasmine Meikle, McDonald provided names and numbers to contact for drugs and told her how to act while soliciting business. On September 19, 2018, he told her to "network" with someone who owed him $1,000 and to use his name for clout. Id. at 82. The PSR also indicates that McDonald directed Day to send people to Meikle to obtain methamphetamine, to conduct drug transactions, and to collect proceeds from drug transactions on his behalf.

McDonald objected to this enhancement as he maintained that the only person under his control was Day and that he was just a small-scale "street dealer." Id. at 90.

II. Standard of Review

At sentencing, "the government has the burden of proving by a preponderance of the evidence any findings necessary to support a sentence enhancement." United States v. Gambino-Zavala, 539 F.3d 1221, 1228 (10th Cir. 2008). When evaluating sentence enhancements under the Sentencing Guidelines, this Court reviews the district court's factual findings for clear error and questions of law de novo. United States v. Uscanga-Mora, 562 F.3d 1289, 1296 (10th Cir. 2009).

III. Discussion

A. The district court did not err in relying on the facts alleged in the PSR

We first consider whether the district court could properly rely on facts in the PSR in light of McDonald's objections. Fed. R. Crim. P. Rule 32(i)(3) governs the district court's use of a PSR in establishing the facts relevant to sentencing. It states:

At sentencing, the court: (A) may accept any undisputed portion of the presentence report as a finding of fact; [and] (B) must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing ....

Thus, "the district court may rely on facts stated in the presentence report unless the defendant has objected to them." United States v. Harrison, 743 F.3d 760, 763 (10th Cir. 2014). If a defendant properly objects to a fact in a PSR, "the government must prove that fact at a sentencing hearing by a preponderance of the evidence." Id. The government can meet its burden by either presenting new evidence at sentencing or referring to evidence presented at trial. See id. Here, McDonald pleaded guilty, so there was no trial evidence, and the government presented no evidence at sentencing. Thus, if McDonald properly objected to a fact in the PSR, that fact could not be...