United States v. Long

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 13, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 07-8064
v. (D.C. No. 07-CR-23-CAB)
(D. Wyo.)
RICHARD LONG,

Defendant-Appellant.

ORDER AND JUDGMENT*

Before BALDOCK, BRORBY, and EBEL, Circuit Judges.

Defendant-appellant Richard Long pleaded guilty to one count of conspiracy to

possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 846,

841(a)(1), (b)(1)(B). He now appeals his 135-month sentence. The only issue in dispute

before the district court, and the only issue raised on appeal, is the quantity of drugs

attributable to Mr. Long.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding precedent,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. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
 I.

A federal grand jury in Wyoming returned a two-count indictment against

Mr. Long. Count I charged him with conspiracy to possess with intent to distribute 50

grams or more of a mixture or substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B). Count II

charged him with being an unlawful user of a controlled substance in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(3), 924(a)(2). Mr. Long agreed to plead

guilty to Count I and accept a two-point increase to his offense level for possessing a

firearm in connection with the conspiracy. In exchange, the government agreed to

dismiss Count II and recommend a three-point reduction for acceptance of responsibility.

The parties were unable to agree on the amount of methamphetamine involved in the

conspiracy.

The district court held an evidentiary hearing to determine the amount of

methamphetamine attributable to Mr. Long in order to determine his base offense level

under the Guidelines. U.S.S.G. § 2D1.1(c). Paul Claflin, an agent of the Bureau of

Alcohol, Tobacco, Firearms, and Explosives; Daryl Sloan, a co-conspirator, and

Mr. Long testified at the hearing. At the close of the hearing, the district court noted that

“the most reliable testimony that I’ve heard is that of [Agent] Claflin’s,” and it then

concluded that Mr. Long was responsible for a total of 23 ounces, or approximately

652 grams, of methamphetamine. R. Vol. VI, Tr. at 65. The district court calculated the

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relevant Guidelines range as 135 to 168 months’ imprisonment. Mr. Long was sentenced

to 135 months. This appeal followed.

On appeal, Mr. Long raised an issue with respect to Mr. Sloan’s credibility and the

reliability of Mr. Sloan’s testimony at the hearing. We could not determine from the

record how the district court viewed Mr. Sloan’s credibility. Because of this, we directed

a limited remand to the district court to make supplemental findings on this issue. On

February 23, 2009, the district court filed supplemental findings, which were certified to

this court as a supplemental record. On February 26, we entered an order giving the

parties an opportunity to file supplemental briefs to address the district court’s

supplemental findings. Neither party filed a supplemental brief.

II.

Testimony at the Evidentiary Hearing

Agent Claflin testified at the hearing about his investigation of Mr. Long.

Agent Claflin’s testimony was based upon two interviews with Mr. Long and upon

information obtained from Mr. Sloan, who had traveled with Mr. Long to California to

purchase methamphetamine from Mr. Sloan’s nephew. According to information

provided by Mr. Sloan, he and Mr. Long had traveled to California on four occasions in

the summer of 2005 to purchase methamphetamine. Agent Claflin testified that on the

first trip, Mr. Long told him that he and Mr. Sloan purchased seven ounces. On the

second trip, Mr. Long told Agent Claflin that they purchased another seven ounces;

Mr. Sloan said that they purchased six ounces on this trip. Mr. Long did not give any

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information about a drug purchase on the third trip; according to Mr. Sloan, they

purchased five ounces. On the fourth trip, Mr. Sloan said they purchased four ounces.

After each trip, Mr. Long and Mr. Sloan returned to Wyoming and resold the drugs. The

only other evidence testified to by Agent Claflin was a motel receipt from California in

Mr. Sloan’s name from the alleged fourth trip in September 2005.

The government also called Mr. Sloan as a witness. He testified to essentially the

same information as he had previously provided to Agent Claflin, except that his amounts

were off by one ounce for each trip (eight ounces for the first trip, seven for the second

trip, five or six for the third and five for the fourth). On cross-examination, Mr. Sloan

was asked about a statement that he gave to law enforcement agents when his residence

was searched in March 2006. In that statement, Mr. Sloan said that he and Mr. Long

made three, not four trips to California, and that on each trip they obtained four ounces.

Mr. Sloan claimed that he did not remember giving this statement and that he was under

the influence at the time it was made.

Mr. Long testified on his own behalf. He claimed he had made three trips to

California with Mr. Sloan. He admitted that, on the first of these trips, he purchased

seven ounces of methamphetamine, which he then resold in Wyoming. But he claimed

that, on the other two trips, he merely accompanied Mr. Sloan and did not purchase any

drugs. Mr. Long denied ever making a fourth trip.

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 Supplemental Findings

The district court found that Mr. Sloan’s testimony was credible and that the

information to which he testified was reliable. Specifically, the district court found that

Mr. Sloan credibly testified that he and Mr. Long bought eight ounces of

methamphetamine on the first trip, seven ounces on the second trip, five or six ounces on

the third trip, and five ounces on the fourth trip. Because Mr. Long admitted to

purchasing seven ounces on the first trip, the district court found that seven ounces

(198.45 grams) was the amount purchased on the first trip. The district court found that

Mr. Sloan and Mr. Long purchased seven ounces (198.45 grams) on the second trip. The

district court found that Mr. Long’s testimony at the hearing that he was only aware that

Mr. Sloan had purchased methamphetamine on the first trip was not credible. The district

court found that Mr. Sloan and Mr. Long purchased five ounces (141.75 grams) on the

third trip and four ounces (113.40 grams) on the fourth trip.

The court found further that the cross-examination of Mr. Sloan was effective in

pointing out that Mr. Sloan had given a statement during the search of his residence in

March 2006 that he purchased four ounces of methamphetamine in California on three

different occasions. The court found, however, that Mr. Sloan’s testimony at the hearing

was credible and that at the time of the March 2006 statement he was minimizing his

illegal behavior. Finally, the court reviewed the testimony of Agent Claflin. The court

indicated that it was not relying solely on the testimony of Agent Claflin but that it found

his testimony well-informed and credible.

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 The district court concluded by finding “that the credible testimony of Mr. Sloan

and Agent Claflin, along with [Mr. Long’s] own admissions, proved that [Mr. Long]

purchased at least 652.05 grams of methamphetamine.” Supp. R. at 4.

Analysis

“Factual findings regarding drug quantities are reviewed for clear error and are

reversed only if the district court’s finding was without factual support in the record or we

are left with the definite and firm conviction that a mistake has been made.”

United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005) (quotation omitted).

In his opening brief on appeal, which was filed before the district court’s

supplemental findings, Mr. Long appears to argue that the district court implicitly found

the testimony of Mr. Sloan not credible. Mr. Long argues that the district court erred in

its drug quantity determination when it relied on the testimony of Agent Claflin because

the testimony of Agent Claflin was based on information provided to him by Mr. Sloan.

Mr. Long contends if the district court thought the information was not reliable when

Mr. Sloan testified to it then that same information should not be considered reliable

when Agent Claflin testified to it. In response, the government argues that “the district

judge in no way found [Mr.] Sloan’s . . . testimony anything but credible.” Aplee. Br. at

13. As we noted earlier, we could not discern from the original record whether the

district court found Mr. Sloan credible or not credible. The district court’s supplemental

findings resolve this issue because the district court found that Mr. Sloan’s testimony at

the hearing was credible. Mr. Long had the opportunity to address those findings in a

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supplemental brief, but he failed to do so. Accordingly, we conclude that the factual

record supports the district court’s finding that Mr. Long was responsible for 652 grams

of methamphetamine.

The judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock
Circuit Judge

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