United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2229
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United States of America, *
*
Appellee, *
*
v. *
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Colin Spotted Elk, *
*
Appellant. *
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Appeals from the United States
No. 09-2230 District Court for the
___________ District of South Dakota.
United States of America, *
*
Appellee, *
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v. *
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Flint Thomas Red Feather, *
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Appellant. *
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Submitted: March 9, 2010
Filed: February 16, 2011
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Before RILEY,* Chief Judge, JOHN R. GIBSON,** and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Colin Spotted Elk and Flint Thomas Red Feather were members of a drug
trafficking conspiracy on the Pine Ridge Oglala Sioux reservation in South Dakota.
After they appealed their sentences, we reversed in part and remanded for
resentencing. United States v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008). They now
appeal their new sentences. We affirm.
I.
Spotted Elk and Red Feather were members of a drug trafficking network led
by Geraldine Blue Bird. Blue Bird's network sold marijuana and cocaine on the Pine
Ridge reservation starting in or before 2003. Spotted Elk exchanged cocaine for
firearms. Red Feather sold cocaine, handling approximately fourteen ounces per
month. Red Feather stopped selling by February 2005, when he left Pine Ridge and
moved in with his girlfriend and child in nearby Oglala. Around that time Blue Bird's
network increased its volume of sales, trafficking a kilogram of cocaine every three
to four weeks until a series of arrests destroyed the network in late 2005.
The government charged sixteen people with drug trafficking and firearms
offenses. A jury found all defendants guilty of all charges. Five defendants, including
Spotted Elk and Red Feather, appealed their convictions and sentences on
*
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
**
The Honorable John R. Gibson retired from service on this court on January
26, 2011. This opinion is being filed by the remaining judges of the panel pursuant
to 8th Cir. Rule 47E.
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various grounds. We affirmed in part as to Spotted Elk and Red Feather but reversed
and remanded their cases for resentencing. Id.
In his first appeal Spotted Elk challenged the sufficiency of the evidence
supporting his conviction for using a firearm in a drug trafficking crime. 18 U.S.C.
§ 924(c)(1). The district court jury instruction had permitted the jury to find Spotted
Elk guilty of violating § 924(c)(1) for receiving a firearm in exchange for drugs.
While his appeal was pending, the Supreme Court ruled that § 924(c) does not apply
in such circumstances. Watson v. United States, 552 U.S. 74, 83 (2007). The
government confessed reversible plain error, and we vacated Spotted Elk's firearm
conviction and remanded for resentencing on the remaining counts. Spotted Elk, 548
F.3d at 665. On remand the district court applied the dangerous weapon enhancement
under U.S.S.G. § 2D1.1(b)(1), which Spotted Elk now challenges as procedural error.
Red Feather meanwhile challenged the district court's determination of his
relevant conduct under U.S.S.G. § 1B1.3, holding him responsible for over sixteen
kilograms of cocaine, the entire amount handled by the conspiracy. Red Feather
argued that he had ceased participating in the conspiracy by early 2005 and could not
be punished for drug sales beyond that time. The district court decided that Red
Feather was liable for the entire amount unless he had withdrawn from the conspiracy
"in the particular manner required by conspiracy law." Spotted Elk, 548 F.3d at 673.
On his appeal we concluded that the district court had erred by conflating relevant
conduct with criminal liability in a drug conspiracy. Id. We vacated Red Feather's
sentence and instructed the district court to make the relevant findings under U.S.S.G.
§ 1B1.3. Id. at 680.
At resentencing the district court found that "kilo sales had not yet started" by
early 2005 when Red Feather says he left the conspiracy. He admitted that he was
responsible for trafficking 3 kilograms and 14 ounces of cocaine before that time, but
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the government argued that the court was bound by the jury's finding that the
conspiracy involved over fifteen kilograms.
After a recess to allow briefing, the district court concluded that it was bound
by the jury's cocaine quantity determination. It also found independently that it was
foreseeable that Red Feather's monthly fourteen ounce sales would continue regardless
of his absence from the reservation in 2005. That amount added to the quantity for
which he admitted responsibility led to the court's finding him responsible for between
5 and 15 kilograms of cocaine. The district judge sentenced him to 151 months at the
low end of the guideline range, a substantial reduction from his original 200 month
sentence. Red Feather now argues that the district court committed procedural error
in his resentencing.
II.
We review sentences under a deferential abuse of discretion standard, reviewing
the district court's factual findings for clear error and its application of the guidelines
de novo. United States v. Moore, 565 F.3d 435, 436 (8th Cir. 2009). A district court
commits procedural error by "failing to calculate (or improperly calculating) the
Guidelines range," "selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence." Gall v. United States, 552 U.S. 38, 51
(2007).
A. Spotted Elk
The sentencing guidelines provide for a two level enhancement if a defendant
possessed a dangerous weapon while involved in drug trafficking, U.S.S.G. §
2D1.1(b)(1), but that enhancement cannot be used if the defendant was convicted of
using a weapon in his drug trafficking offense. See § 924(c)(1); U.S.S.G. § 2K2.4
cmt. n.4. Since Spotted Elk's § 924 conviction was vacated and his case was
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remanded for "resentenc[ing] on the remaining counts," Spotted Elk, 548 F.3d at 665,
Spotted Elk argues that the district court lacked authority to apply the dangerous
weapon enhancement on remand or otherwise alter his sentence. We rejected such an
argument in Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997), where we
concluded that the district court could apply the guideline enhancement to a drug
trafficking sentence after a § 924 conviction had been vacated. In these circumstances,
"vacating the § 924(c) convictions without allowing for resentencing on the drug
convictions would result in [sentences] based on an erroneous application of the
Sentencing Guidelines." Id. at 736.
In Spotted Elk's first appeal we clearly directed the district court to consider the
effect of the vacatur on Spotted Elk's sentence and to resentence him on the remaining
counts. 548 F.3d at 668. Spotted Elk argues that the government did not request the
weapon enhancement in its letter confessing plain error. Since he had not appealed
his original drug sentence, the government was not obliged to counter arguments not
raised. The district court did not err in applying the weapon enhancement in
resentencing under § 2D1.1(b)(1).
On remand the district court varied eight months below the 360 month bottom
of Spotted Elk's new guideline range, imposing the same 352 month sentence it stated
it would have imposed without the weapon enhancement. If "the sentence imposed
falls within the [requested] guideline range . . . and if it is clear that the sentencing
court would have imposed the same sentence regardless . . . , there can be no
reversible error in the sentence." United States v. Spikes, 543 F.3d 1021, 1025 (8th
Cir. 2008). Spotted Elk's sentence should be affirmed.
B. Red Feather
On remand the district court found that Red Feather's offense involved between
5 and 15 kilograms of cocaine and calculated his guideline range accordingly. It gave
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two reasons for its finding. The court first stated that it was "bound by the jury
determination" that the conspiracy involved over sixteen kilograms of cocaine. The
district court observed that it is "axiomatic that a fact proved beyond a reasonable
doubt" has been proved to the preponderance standard applicable at sentencing, see
United States v. Campos, 362 F.3d 1013, 1015–16 (8th Cir. 2004), but only if the jury
addressed the same issue as the district court. That is not the situation here, however.
The jury was instructed to "determine the total quantity of [cocaine] involved
in the conspiracy," including that which coconspirators foreseeably distributed as "a
necessary or natural consequence of the conspiracy." That figure was relevant to Red
Feather's statutory minimum sentence, but § 1B1.3 refers to the narrower concept of
the joint activity in which the individual defendant participated. The scope of such
activity "is not necessarily the same as the scope of the entire conspiracy, and hence
relevant conduct is not necessarily the same for every participant." U.S.S.G. § 1B1.3,
cmt. n.2. We earlier remanded for resentencing precisely because the district court
had not made this distinction in its factual findings. Spotted Elk, 548 F.3d at 679.
The district court erred in holding that the jury's quantity finding controlled its
analysis.
Our review does not end here, however, because the district court gave a second
reason for its conclusion. It observed that Red Feather had admitted trafficking over
three kilograms of cocaine before leaving Pine Ridge in early 2005. At that point he
had been handling around fourteen ounces of cocaine per month. Had he continued
selling at that rate, Red Feather would have handled a total of five kilograms of
cocaine within about four more months. Red Feather's coconspirators in fact
continued trafficking for at least nine months after he stopped. The district court did
not clearly err in finding that this amount of continued sales would have been
"reasonably foreseeable in connection with [the] criminal activity" that this "particular
defendant agreed to jointly undertake." U.S.S.G. § 1B1.3, cmt. n.2.
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Red Feather insists that the district court made a contrary factual finding during
the first session of his bifurcated resentencing proceeding. The district court was
inclined initially only to "hold [Red Feather] responsible for the activity that occurred
prior to early 2005" on the theory that "the kilo sales that occurred in 2005 . . . were
not reasonably foreseeable" to him. The district court later clarified its position by
finding that Red Feather could have foreseen ongoing sales "at the multiple ounce
quantities, [but] not at the kilo quantity." These findings are therefore entirely
consistent with the district court's alternative holding that Red Feather's relevant
conduct included monthly fourteen ounce sales after he himself was no longer making
the transactions.
Finally, Red Feather asserts that he withdrew from the conspiracy when he
stopped selling in early 2005 and that analysis of his relevant conduct should end
there. As we explained before, "the common-law withdrawal test [has not] replaced
the foreseeability requirement of § 1B1.3." Spotted Elk, 548 F.3d at 678. Although
at resentencing the district court did use the term "withdrawal," it is clear in context
that it referred only to the end point of Red Feather's own sales.
For the foregoing reasons the judgment of the district court is affirmed.
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