United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2519
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Rodger Lee Moran, *
*
Defendant - Appellant. *
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Submitted: January 14, 2010
Filed: July 14, 2010
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Before LOKEN,1 Chief Judge, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
Rodger Lee Moran was convicted by a jury of conspiracy to distribute at least
fifty grams of actual methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1),
and 841(b)(1)(A)(viii), and sentenced to life imprisonment. Moran brings this appeal,
arguing that (1) the evidence was insufficient to support his conviction; (2) the district
1
The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
court2 erred in concluding that sentencing manipulation did not occur; and (3) his
sentence constitutes cruel and unusual punishment in violation of the Eighth
Amendment. We affirm.
I.
In June 2006, Special Agent John Douglas Hurley of the Iowa Division of
Narcotics Enforcement was part of an investigation concerning methamphetamine
production in Mystic, Iowa. On June 22, Agent Hurley identified a possible supplier
by the name of Sarah Rhiner. Task Force Officer Jeff Koder, acting undercover,
engaged Rhiner in several telephone conversations in an effort to purchase
methamphetamine. As a result, Koder was able to arrange a meeting with Rhiner to
purchase one-quarter of an ounce of methamphetamine. Rhiner then delivered a
quantity of purported methamphetamine to Koder at a car wash in Knoxville, Iowa for
$600. The two also agreed to conduct additional methamphetamine transactions.
Following the purchase, Agent Hurley performed two field tests on the substance,
neither of which indicated the presence of methamphetamine.
On the afternoon of June 28, Officer Koder received a telephone call from an
individual named Rodger, which investigators recorded. Rodger instructed Koder to
meet with Rhiner, Rodger’s then-girlfriend, at a gas station in Des Moines to purchase
methamphetamine. Koder told Rodger that he had not been able to contact Rhiner.
Rodger responded that Rhiner would answer Koder’s call when Rodger told her to
answer.
Several minutes later, Koder received a telephone call from Rhiner. Rhiner
stated that “[h]e wanted me to call you.” Koder confirmed that Rhiner was referring
2
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
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to Rodger. Rhiner said that Rodger was getting ready and that Koder should prepare
to come to Des Moines. Rhiner told Koder that Rodger said it might be a little while
before he was ready to conduct the transaction, but Rhiner assured Koder it would not
be long. Rhiner stated that she would wait for Rodger’s call before meeting Koder in
Des Moines. Around twenty minutes later, Rodger called Koder. During the
conversation, Rodger informed Koder that he could supply him three quarters of an
ounce of methamphetamine for $1,200 and he encouraged Koder to come to Des
Moines. Koder agreed, and the two confirmed that the exchange would take place at
the gas station they had discussed earlier. Both of these conversations were also
recorded.
Later that evening, Koder purchased 10.4 grams of actual methamphetamine for
$1,200 from Rhiner at the arranged location. After the exchange, Rhiner told Koder
she needed to go meet with her “old man.” A few minutes later, Koder received an
un-recorded telephone call from Rodger. Rodger asked if Koder was pleased with the
amount of methamphetamine that Koder had received. Koder inquired about future
transactions, and Rodger replied that the price should come down as Koder purchased
more methamphetamine.
Around noon on July 13, Koder made a recorded telephone call to Rhiner.
During the conversation, Rhiner said that she would have Rodger call Koder after she
picked Rodger up at 5:15 p.m. Rhiner also explained that she did not know if she
would be able to come to Knoxville to sell methamphetamine to Koder. The next day,
Koder placed another recorded call to Rhiner. During this call, Rhiner stated that
Rodger was attempting to get methamphetamine for a better price from other sources,
but Rodger wanted to know whether Koder could travel to Des Moines to purchase
it. Rhiner said she would have Rodger call Koder after she spoke with him “because
[Rodger] knows what’s going on . . . [h]e never tells me shit.” Rhiner also offered to
check with other methamphetamine sources herself before calling Koder back. Later
that afternoon, Koder received a telephone call from Rhiner in which she agreed to
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sell Koder an ounce of methamphetamine for $1,450. They agreed to meet at the same
Des Moines gas station where the last transaction had occurred.
At approximately 4:00 p.m. that day, Koder met with Rhiner at the gas station.
Koder told Rhiner that he only had $1,400, and Rhiner agreed to loan Koder the other
fifty dollars. Koder then made a controlled buy of 10.4 grams of actual
methamphetamine for $1,400 from Rhiner. During the transaction, Rhiner informed
Koder that she would be able to supply him with two ounces of methamphetamine for
approximately $2,600.
Late on July 17, 2006, Officer Koder received a recorded telephone message
from Rodger asking Koder to call him. The next morning, Koder placed a recorded
telephone call to Rodger. During the call, Rodger asked Koder when he would be
coming to Des Moines. Koder said that he would have the money by Thursday and
asked Rodger what was available for sale. Rodger said he would sell “three [three
ounces of methamphetamine] for four [$4,000].” Koder offered to pay Rhiner $100
to deliver the four ounces to him in Knoxville. Rodger said that Rhiner could not do
that because her car was unreliable and he agreed to get back to Koder later. Later
that day, Koder placed another recorded call to Rodger during which Rodger
confirmed that Rhiner did not have a way to get to Knoxville. In response, Koder
offered to pay a higher price for one ounce of methamphetamine if Rhiner would
deliver a total of four ounces of methamphetamine to him in Knoxville. Rodger again
stated that Rhiner could not travel to Knoxville but asked if Koder wanted “three
[three ounces] for four [$4,000] and . . . one [one ounce] for fifteen [$1,500].” Koder
and Rodger agreed to work on the transportation problem.
On July 19, Koder made a recorded telephone call to Rhiner, and Rhiner
reiterated that she could not deliver the methamphetamine to Knoxville. She said that
Rodger had just left work and that she had both phones with her. Rhiner confirmed
that she could do a four ounce methamphetamine sale to Koder and agreed to let
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Rodger know to leave Koder a message on his phone so that Koder would “know
what’s going on.” Later that day, Rhiner called Koder and said that she could bring
the methamphetamine to Knoxville the next day, but the transaction never occurred.
On the morning July 22, Koder received a recorded telephone message from Rodger
asking Koder to call him. Koder returned Rodger’s call, but the call was not recorded.
Koder asked why no one had called to do the July 20th transaction. Rodger did not
really explain but stated that he had instructed Rhiner to call Koder. Rodger said that
he could still do the deal if Koder could make the purchase in Des Moines. Koder
said that he was having his own problems with transportation and offered to pay
Rhiner to bring the methamphetamine to Knoxville. Rodger stated that he had a friend
who might allow his girlfriend to bring Rhiner to Knoxville to deliver the
methamphetamine.
On July 24, Koder received a recorded telephone message from Rodger asking
that Koder call him. Koder spoke with Rodger that night, in a recorded telephone
conversation. Rodger told Koder that his source would not allow the
methamphetamine to leave Des Moines without payment, but said he could do the
transaction in Des Moines. Koder said he would try to find a way to travel to Des
Moines. During this conversation, Rhiner’s voice could be heard in the background.
Koder made another recorded call to Rodger and explained that he could travel to Des
Moines. Rodger instructed Koder to call Rhiner because Rodger was at work.
Following Rodger’s instructions, Koder had several recorded telephone
conversations with Rhiner in an attempt to set up the four-ounce transaction. On July
25, Koder received a recorded telephone call from Rhiner. Rhiner told Koder that she
found transportation and now could come to Knoxville. She also explained that she
would have to do the deal quickly because she needed to be in Des Moines by 10:45
p.m. to pick up her “old man.” Shortly after 10:00 p.m. that night, Koder made a
controlled purchase of 39.74 grams of actual methamphetamine from Rhiner at a car
wash in Knoxville, Iowa. Rhiner was arrested immediately after the transaction.
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Following Rhiner’s arrest, Koder received a telephone call from a private
number, and Koder immediately hung up after answering. Almost instantly, Koder
received a recorded phone message from Rodger stating “dude, why did you hang up
the phone on me? I’m going to have a problem with that. Answer the phone when I
call.” Shortly thereafter, Koder received another incoming call and a numeric page.
Less then ten minutes later, Koder received a recorded telephone message from
Rodger, who was calling from another number. Rodger demanded Koder call him
back or “I’m just going to have to send some dudes down to there to look for you.”
Rodger stated that “you need to call . . .. Do you understand that? It’s a small town.
I will find you.”
During the course of the investigation, officers came to believe that the
individual named Rodger with whom Koder communicated was Rodger Moran. After
Rhiner was arrested, investigators attempted to question her concerning Moran’s
involvement in the methamphetamine transactions. Although she initially refused to
implicate Moran, Rhiner eventually confirmed that “Rodger” from the tapes was in
fact Rodger Moran. Moran was arrested and indicted on one count of conspiracy to
distribute at least fifty grams of actual methamphetamine and one count of distribution
of at least five grams of methamphetamine. The government dismissed the latter
count, and Moran proceeded to a jury trial on the conspiracy charge.
During Moran’s trial, in addition to testimony from the officers involved, the
government introduced audio tapes of the telephone conversations between Koder and
Rhiner and between Koder and Rodger. Rhiner, who testified pursuant to a
cooperation plea agreement, stated that the voice on the tapes of the man known as
Rodger was that of the defendant, Rodger Moran. Rhiner explained that she was
romantically involved with Moran during the summer of 2006. According to Rhiner,
Moran was living at the Fort Des Moines correctional institution at the time, but he
was allowed to leave the half-way house for work purposes. Rhiner testified that she
drove Moran to and from work at the Bar-B Repair Shop that summer.
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Rhiner testified that around June 2006, Moran introduced her to Jimmy Brandt
for the purpose of obtaining methamphetamine for resale. She explained to the jury
that, while she believed that she had previously seen Brandt, she had never met or
spoken to him before Moran introduced her. Rhiner testified that shortly thereafter,
Brandt began to supply her with methamphetamine “on a front.” Rhiner explained
that “on a front” meant that Brandt gave her a quantity of methamphetamine and that
she would then resell the methamphetamine and pay Brandt.
During her testimony, Rhiner admitted to selling methamphetamine to Officer
Koder and explained that Brandt supplied her with the methamphetamine for the four
ounce controlled buy. She testified that Moran was aware of her involvement with
Koder and that Moran was in telephone contact with Koder “to set up deals and get
rid of methamphetamine.” She also testified that Moran directed her in the delivery
of methamphetamine to Koder on several occasions, including directing her to obtain
methamphetamine from a different supplier. Rhiner testified that one of the numbers
she would use to contact Brandt was the number from which Koder had received the
numeric page. Rhiner also testified that on the day of her arrest, Raeanna Paxton
drove her to Knoxville to deliver four ounces of methamphetamine to Koder. Rhiner
had hoped to be back in Des Moines to take Moran to work. When it became clear
that she would not be back in time, Rhiner asked Brandt to pick up Moran and take
him to work.
The government also produced testimony from James Lawrence Brandt, who
testified pursuant to a cooperation plea agreement with the government. Brandt
testified that he had been incarcerated with Moran and Shannon Paxton during the
spring of 2006. Brandt described discussions that he had with Moran in which the two
agreed to deal methamphetamine together when they got out of prison. After Brandt
was released from prison, he was contacted by Moran, who was incarcerated at the
Fort Des Moines half-way house. Moran asked Brandt to provide Rhiner with
quantities of methamphetamine for resale, explaining that they needed to make some
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money. Brandt did not know Rhiner before Moran introduced her. Brandt supplied
Rhiner with one-quarter ounce, one-half ounce, and one ounce quantities of
methamphetamine. Rhiner then paid Brandt for the methamphetamine after she sold
it.
Brandt testified that in July 2006, he agreed to supply Rhiner with four ounces
of methamphetamine. He explained that he delivered the methamphetamine to Rhiner
through a third party, Raeanna Paxton. Brandt testified that later that night, Rhiner
called and asked him to pick up Moran at the half-way house and take him to work,
and Brandt agreed. Brandt and his girlfriend, Erica Boden, picked up Moran, and
Moran became concerned that Rhiner had traveled to Knoxville to deliver the
methamphetamine. Moran then used Brandt’s cell phone and Boden’s cell phone to
try to track down Rhiner. Brandt testified that Boden’s cell phone number was one
from which Moran had called Koder.
At the close of evidence, Moran moved for a judgment of acquittal. The district
court denied the motion, and the jury found Moran guilty of conspiracy to distribute
at least fifty grams or more of actual methamphetamine. Because of his previous
felony drug convictions, Moran was sentenced to life imprisonment. This appeal
followed.
II.
Moran appeals, first arguing that there was insufficient evidence to support his
conviction. “This court reviews the sufficiency of the evidence de novo, viewing
evidence in the light most favorable to the government, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the verdict.”
United States v. Santana, 524 F.3d 851, 853 (8th Cir. 2008) (internal quotation marks
omitted). We will reverse only if no reasonable jury could have found Moran guilty
beyond a reasonable doubt. Id.
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To support a conviction for conspiracy to distribute methamphetamine under
21 U.S.C. §§ 841(a) and 846, the government must prove beyond a reasonable doubt
that (1) a conspiracy to distribute methamphetamine existed; (2) Moran knew about
the conspiracy; and (3) Moran knowingly became a part of the conspiracy. See United
States v. Vinton, 429 F.3d 811, 815 (8th Cir. 2005). In addition, the government must
demonstrate that the conspiracy involved the purported drug quantity, in this case at
least fifty grams of actual methamphetamine. See id.
Our review of the record reveals that the government met its burden. The
government introduced the testimony of Sarah Rhiner and James Brandt, both of
whom testified that there was an agreement between themselves and Moran to
distribute methamphetamine. Rhiner specifically testified that Moran was aware of,
and voluntarily agreed to participate in, the distribution of methamphetamine to
Koder. The government also produced the recorded tape conversations between
Koder and Rhiner and between Koder and Moran. The government linked the tapes
to Moran through the testimony of Rhiner, who was herself audibly present during at
least one of the recorded conversations between Moran and Koder. Rhiner testified
about Moran’s role in the distribution, including the amounts involved. Brandt also
testified that he and Moran made an agreement while in prison to work together to
distribute methamphetamine. The government produced testimony from Officer
Koder concerning his conversations with Moran and Rhiner and the controlled
purchases of methamphetamine that he made from Rhiner. Finally, the government
produced evidence that the substances that Officer Koder purchased from Rhiner,
Moran’s co-conspirator, exceeded fifty grams of actual methamphetamine.
Nonetheless, Moran argues that his conviction should be reversed because the
testimony of Rhiner and Brandt lacked credibility and contained inconsistencies.
However, “[i]t is for the jury to resolve conflicts in testimony and make credibility
determinations, and those determinations are virtually unreviewable on appeal.”
United States v. Trogdon, 575 F.3d 762, 767 (8th Cir. 2009) (internal quotation marks
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omitted), cert. denied, 78 U.S.L.W. 3394 (U.S. Jan. 11, 2010) (No. 09-7983). In
addition, the government’s other evidence supported Brandt’s and Rhiner’s testimony.
Accordingly, the government produced sufficient evidence to support Moran’s
conviction.
III.
Next, Moran argues that the district court erred by refusing to grant a downward
departure or variance because the government engaged in sentencing manipulation.
In this context, we review the district court’s factual findings for clear error and its
legal conclusions de novo. See United States v. Torres, 563 F.3d 731, 734 (8th Cir.
2009).
“Sentencing manipulation occurs when the government unfairly exaggerates the
defendant’s sentencing range by engaging in a longer-than-needed investigation and,
thus, increasing the drug quantities for which the defendant is responsible.” Id.
Where sentencing manipulation occurs, the court “should grant a downward departure
to the Guidelines range it believes would apply absent the manipulation.” Id. To
warrant a departure, the defendant must demonstrate by a preponderance of the
evidence “that the officers engaged in the later drug transactions solely to enhance his
potential sentence.” Id. (quoting United States v. Berber, 161 F.3d 531, 532 (8th Cir.
1998).
Moran argues that sentencing manipulation was present because “it was the
government, not the [d]efendant or Sarah Rhiner, that drove the amount of the
transactions.” In support of this argument, Moran points to evidence that the amounts
of drugs that the government informant requested increased over time. Moran also
claims that the drug quantity requested increased soon after an investigator learned
that he had two previous felony drug convictions.
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In response, the government points to the sentencing hearing testimony of the
case agent in charge, Agent John Douglas Hurley. Agent Hurley testified that “[t]he
ultimate goal of the investigation was to take down the source of supply . . . to identify
more people involved in the delivery of narcotics as well as take more narcotics off
the street.” Agent Hurley explained why the “bust” transaction involved a larger
quantity of drugs and was arranged to take place outside of the Des Moines area:
Ultimately we wanted to draw Ms. Rhiner out of the Des Moines area
into the Knoxville, Iowa, area where we could purchase a quantity of
three to four ounces of methamphetamine ice where she would have to
go back to Des Moines, ultimately roll on her source of supply and to
gain more information, more intelligence information, pay off her source
of supply and try to obtain more narcotics and take more narcotics off
the street.
...
[Knoxville is] a safer environment. We’re in control of the situation. We knew
entrances and exit points of where we wanted the transaction to occur for safety
purposes.
...
[W]e knew that [Rhiner] was going to be bringing a quantity of narcotics
that was probably in excess of money that she would have on hand
where she would have to go back and pay her source of supply. . . . We
want her now to give us her source of supply, take us to the person that
she received the drugs from, introduce one of us to her source of supply
and let us pay off her drugs and receive more information or more drugs
in return.
When questioned as to why the purchase amounts increased over time, Agent Hurley
explained that:
It’s a common thing that we do is start off with small quantities for the
fact if you come in there and you want to purchase four ounces from the
very beginning, people are going to think you’re a law enforcement
officer. We want to gain the rapport with them. We want to gain a little
bit of respect from them where they think that we have the money and
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we can come through with the transaction, and we want to ultimately
befriend them and to make things better in the long run.
Finally, Agent Hurley testified that he “had no idea at the time [that when he
instructed Officer Koder to ask for four ounces instead of three] that [Moran] was
looking at a life sentence based upon the purity level or the quantity.”
This court has made it clear that police are permitted to engage in “a legitimate
pattern of increasing amounts of drugs in order to determine what quantity of drugs
a defendant will deal” and “to establish that person’s guilt beyond a reasonable
doubt.” Id. (internal quotation marks omitted). We have also explained that police
are permitted to engage in transactions of increasing amounts in an effort to “probe
the depth and extent of [the] criminal enterprise, to determine whether coconspirators
exist, and to trace the drug deeper into the distribution hierarchy.” Id. (quoting United
States v. Shephard, 4 F.3d 647, 649 (8th Cir. 1993)). Our review of the record reveals
that the investigators in this case did precisely that. Moreover, even if the detectives
were aware of Moran’s earlier felony convictions, this awareness does not require that
they cease their investigation. The officers were entitled to pursue their legitimate
investigatory goals, and the record reveals no evidence that the officer’s engaged in
the higher drug quantity transactions “solely to enhance [Moran’s] sentence.” Id.
Accordingly, there was no sentencing manipulation, and the district court did not err
in refusing to grant a departure on that basis.
IV.
Finally, Moran argues that his mandatory sentence of life imprisonment violates
the Eighth Amendment’s prohibition on cruel and unusual punishment. This
argument, however, has been consistently rejected by our court. See United States v.
Whiting, 528 F.3d 595, 596-97 (8th Cir. 2008) (holding that mandatory life
imprisonment for defendant convicted of conspiracy to distribute and possession with
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intent to distribute cocaine did not violate the Eighth Amendment where defendant
had two prior drug felonies, citing numerous Eighth Circuit opinions upholding
mandatory life sentences in career offender drug cases).
V.
For the forgoing reasons, the judgment of the district court is affirmed.
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