F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 3, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-1308
v. (D. Colorado)
MICHAEL TYRONE SOMERVILLE (D.C. No. 04-CR-185-REB)
a/k/a Big Mike,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK , Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Following a jury trial, Michael Tyrone Somerville was found guilty of four
counts of distribution of five grams or more of crack cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B), and one count of possession of ammunition by a
felon, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 324 months’
imprisonment. He appeals his sentence, which we affirm.
BACKGROUND
In a series of controlled buys in Colorado Springs, Colorado, a confidential
informant, Anthony Johns, purchased crack cocaine from Somerville.
Specifically, on May 6, 2003, Johns met Somerville in the parking lot of a fast-
food restaurant and purchased from Somerville 12.7 net grams of crack cocaine.
Johns subsequently bought from Somerville 25.9 grams of crack cocaine on
May 7, 2003, 24.5 grams of crack cocaine on January 16, 2004, and 47.2 grams of
crack cocaine on February 6, 2004. 1
Law enforcement authorities arrested
Somerville a few hours after this last sale. During the execution of a federal
search warrant at Somerville’s residence on February 6, 2004, law enforcement
authorities found numerous rounds of live ammunition.
1
Ultimately 150.1 grams of crack cocaine or its equivalent were attributed
to Somerville. This included some crack cocaine found in a bag Somerville had at
the time of his arrest and some crack cocaine Somerville sold to another
individual just prior to Somerville’s arrest.
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During his trial, both Somerville and the confidential informant, Johns,
testified. Concerning the January 16, 2004, drug transaction, Johns testified that
he saw a .40 caliber weapon at the residence where the controlled buy took place
and where Somerville was cooking crack cocaine. Johns also surreptitiously
recorded the conversation he had with Somerville during that transaction. That
recording was played to the jury. 2
After the jury returned its guilty verdict, sentencing proceedings
commenced. The probation office prepared a presentence report (“PSR”), which
calculated Somerville’s base offense level as thirty-four, which it recommended
increasing by two levels, pursuant to United States Sentencing Commission,
Guidelines Manual (“USSG”), §2D1.1(b)(2) (Nov. 2004), because Somerville
possessed a dangerous weapon during the January 16, 2004, drug transaction, and
by another two levels, pursuant to USSG §3C1.1, because Somerville obstructed
justice. This latter allegation was based upon Somerville’s testimony at trial and
2
The record on appeal contains neither a copy of the audio tape of the
conversation, nor a transcription of it. However, the government’s brief contains
an excerpt from the transcription, and Somerville does not dispute the accuracy of
the government’s excerpt. We therefore assume that it accurately reflects the
conversation between Johns and Somerville. Moreover, we note that the district
court heard the audio tape and presumably read the transcription. Somerville
argues that we should reverse the district court’s firearm possession enhancement
because the tape of the conversation between himself and Johns was “confusing.”
Appellant’s Op. Br. at 6. He has significantly undermined his ability to make that
argument because he has failed to include the tape or a transcript of it in the
record before us.
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upon statements he had made to the police during its investigation into this case.
These enhancements resulted in a total offense level of thirty-eight. All parties
agreed that, as the PSR stated, Somerville qualified as a career offender under
USSG §4B1.1(a) because of several prior felony convictions for controlled
substance offenses, although, because his basic Guideline sentencing range was
more severe, that Guideline sentencing range applied rather than the career
offender provisions. The PSR also calculated a criminal history category of IV.
This yielded an advisory Guideline sentencing range of 324 to 405 months. The
PSR recommended a sentence of 324 months, followed by five years of
supervised release.
Somerville filed objections to the PSR, arguing that there was “no evidence
that he lied at trial, nor did he provide ‘materially false information to a judge.’”
Objections by the Def., PSR add. at A-1, R. Vol. XI. Additionally, Somerville
asserted that “[a]s the Court heard the testimony at trial, it is in a better position
than the probation officer to determine the applicability of this adjustment.” Id.
Somerville also objected to the two-level increase for possession of the firearm
during the January 16, 2004, drug transaction, arguing there was “insufficient
evidence” and again deferring to the district court’s better ability, as compared to
the probation office, to assess the applicability of this enhancement. Id.
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Somerville filed another objection to the PSR, reiterating the above objections
and more fully explaining why he felt he had not obstructed justice.
The district court overruled his objection to the obstruction of justice
enhancement, stating the following:
I presided over all pretrial and trial proceedings, and frankly
was amazed and nonplussed simultaneously at the ease and way in
which Mr. Somerville decided what then at the moment would be the
truth at the time. He confessed that he lied when convenient or
necessary to the authorities, including the police and then, whether
he realized it or not, to the trier of fact and to the sentencing Court.
That is obstruction of justice. That is the quintessence of obstruction
of justice.
Tr. of Sentencing at 14, R. Vol. IV. With respect to the firearm enhancement,
the court also overruled Somerville’s objection, stating the following:
I, too, listened to the trial evidence. And I would have found by
proof beyond a reasonable doubt, not merely a preponderance of the
evidence, that during the relevant transaction that the .40 caliber
handgun was present, and not surprisingly so. My own conclusion
was that Mr. Somerville at that time wanted [Johns] . . . to
understand that he was armed, that he did have firearms, and what
could be more logical in a gentleman who has chosen a philosophy
and a vocation of drug-dealing to warn clients, associates, and the
world alike that [he is] armed and dangerous and prepared to protect
[his] drug business.
Id. at 15.
The district court therefore adopted the findings and conclusions of the
PSR and calculated a total offense level for Somerville of 38, which included the
two disputed two-level enhancements. After considering the sentencing factors
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contained in 18 U.S.C. § 3553(a), as required by United States v. Booker , 543
U.S. 220 (2005), including the advisory Guidelines range of 324 to 405 months,
the district court sentenced Somerville to 324 months.
This appeal followed, in which Somerville argues the district court erred in:
(1) adding two levels to his Guidelines offense level for possession of a firearm
where “the weapon was not recovered and the only evidence of a weapon was the
tape recorded conversation with [Johns]”; and (2) adding two levels to his
Guidelines offense level when the court found Somerville had obstructed justice
during his trial testimony because “[w]hatever misstatements [Somerville] may
have made were minor in comparison to his clear admission to guilt in the crimes
for which he was charged.” Appellant’s Op. Br. at 5. Somerville further argues
that, without those two enhancements, his total offense level would have been 34
and, applying the career offender provisions, his Guidelines sentencing range
would have been 262 to 327 months. “Had the court determined the guideline
ranges correctly, it may have been inclined to impose a lower sentence despite its
comments to the contrary.” Id.
DISCUSSION
Following the Supreme Court’s decision in Booker , the Guidelines are
advisory. Nonetheless, because sentencing courts are required to “consider” the
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properly-calculated Guidelines sentencing range, United States v. Gonzalez-
Huerta , 403 F.3d 727, 748-49 (10th Cir.) (en banc) (internal quotation omitted),
cert. denied , 126 S. Ct. 495 (2005), we continue to review the sentencing court’s
factual findings under the Guidelines for clear error and its legal determinations
de novo. United States v. Serrata , 425 F.3d 886, 906 (10th Cir. 2005). “We give
due deference to the district court’s application of the guidelines to the facts.” Id.
(further quotation omitted). “A finding of fact is clearly erroneous if it is without
factual support in the record or if the appellate court, after reviewing all the
evidence, is left with a definite and firm conviction that a mistake has been
made.” United States v. Clark , 415 F.3d 1234, 1246 (10th Cir. 2005) (further
quotation omitted). We review for reasonableness the ultimate sentence imposed.
Booker , 543 U.S. at 261-62 (Bryer, J.) “[A] sentence that is properly calculated
under the Guidelines is entitled to a rebuttable presumption of reasonableness.”
United States v. Kristl , 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).
We have carefully reviewed the record in this case and conclude that there
is ample evidence supporting the two enhancements found by the district court.
Indeed, with respect to the possession of a firearm enhancement, not only does the
excerpt 3 from the taped conversation between Somerville and Johns clearly
indicate that Somerville had a .40 caliber firearm, but Johns, as indicated above,
3
See supra, note 2.
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testified that when he entered the house where the January 16, 2004, drug
transaction took place, he saw a .40 caliber weapon “[s]itting on top of a box.”
Tr. of Jury Trial at 256, R. Vol. VII. We find no clear error in the district court’s
application of that enhancement.
Similarly, we find no error in the district court’s conclusion that Somerville
had obstructed justice in this case by lying to police authorities and to the court.
Somerville’s testimony is riddled with inconsistencies, flat-out contradictions of
prior statements, and admissions that he lied to the police at various times about
material aspects of their case against him. Moreover, the district court was able
to view Somerville while testifying and assess his credibility. The district court’s
statement in support of the obstruction of justice enhancement makes it very clear
that the court found Somerville not credible and had observed him making false
statements under oath to the court. As the court noted, that is the quintessence of
obstruction of justice.
Aside from his argument that the two challenged enhancements contributed
to a longer sentence, Somerville develops no other argument that his sentence was
in any other way unreasonable under Booker . We conclude that it was reasonable
and the district court followed the dictates of Booker in imposing it.
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CONCLUSION
For the foregoing reasons, we AFFIRM Somerville’s sentence.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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