United States v. Shifflett

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4021

MICHAEL RAY SHIFFLETT,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-91-33)

Argued: April 8, 1998

Decided: September 24, 1998

Before WIDENER, MURNAGHAN, and MICHAEL,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Marvin David Miller, Alexandria, Virginia, for Appel-
lant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Robert P.
Crouch, Jr., United States Attorney, Jennie L.M. Waering, Assistant
United States Attorney, Kenneth N. Sorenson, Assistant United States
Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In a prior opinion, a panel of this court reversed the conviction of
Michael Ray Shifflett on a charge of engaging in a continuing crimi-
nal enterprise ("CCE"), and remanded the case to the district court for
resentencing. United States v. Shifflett, No. 93-9563, 1995 WL
125506 (4th Cir. Mar. 23, 1995) (unpublished) (per curiam). The
panel further concluded that the district court had committed revers-
ible error by entering an order of forfeiture without first determining
whether the forfeiture was proportional to Shifflett's crimes of con-
viction, and ordered the district court on remand to perform a propor-
tionality review. Id.

Shifflett now appeals the sentence imposed on remand, arguing that
the district court failed to make adequate findings regarding the quan-
tity of drugs for which Shifflett was responsible. He also contests the
recommended finding contained in the presentence report, arguing
that it is based on unreliable evidence. According to Shifflett, the reli-
able evidence of drug weight yields a figure materially lower than that
recommended by the presentence report. Shifflett also appeals the dis-
trict court's conclusion that the criminal forfeiture of his property was
not constitutionally excessive.

Finding no error in Shifflett's sentence or the order of forfeiture,
we affirm. Jurisdiction in the district court was proper pursuant to 18
U.S.C. § 3231. We have jurisdiction of the appeal under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).

2
I

A

Following a trial in the United States District Court for the Western
District of Virginia, a jury convicted Shifflett of five offenses related
to his distribution of marijuana and cocaine over a ten-year period,
including a charge that Shifflett had engaged in a continuing criminal
enterprise. See 21 U.S.C. § 848. Shifflett's sentence was calculated
under § 2D1.5 of the United States Sentencing Guidelines, which pro-
vides that the base offense level for a CCE conviction shall be the
greater of four plus the offense level from § 2D1.1, or 38. The United
States Probation Officer prepared a presentence report which con-
cluded that Shifflett was responsible for 2,130.32 kilograms of mari-
juana, producing an offense level of 32 under § 2D1.1.1 That number
was increased by four, yielding a total offense level of 36. Because
the Sentencing Guidelines require a minimum offense level of 38 for
a CCE conviction, those calculations were disregarded and Shifflett
was assigned a base offense level of 38.

On appeal, we held that there was insufficient evidence to support
Shifflett's CCE conviction. Therefore, we reversed the conviction and
remanded for resentencing. After Shifflett's case was remanded to the
district court, the probation officer prepared an addendum to the origi-
nal presentence report. The addendum again recommended that Shif-
flett be assigned responsibility for 2,130.32 kilograms of marijuana,
and assigned Shifflett a base offense level of 32.

Shifflett objected to the probation officer's recommendation, argu-
ing that a careful review of the trial testimony supported attribution
to Shifflett of no more than 742.603 kilograms of marijuana,2 and that
_________________________________________________________________
1 The total recommended drug weight included: (1) the weight of the
marijuana for which Shifflett could be held accountable; (2) the weight
of the cocaine for which Shifflett was responsible, converted into drug
weight in terms of marijuana; and (3) $154,446.46 in unexplained
income converted into drug weight in terms of marijuana.
2 According to Shifflett, the evidence revealed that he was responsible
for 16.803 kilograms of marijuana and 3.629 kilograms of cocaine. After
converting the cocaine weight to marijuana weight, Shifflett calculated
a total drug weight of 742.603 kilograms.

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the government had failed to present any reliable evidence that would
support the attribution to Shifflett of more than 2,000 kilograms. Shif-
flett also denied responsibility for the drugs attributed to him on the
basis of the trial testimony of William Ryan, arguing that Ryan per-
jured himself. In support, Shifflett presented the affidavit of Glen
Fowler, in which Fowler averred that Ryan had been untruthful when
he testified that he had purchased drugs from Shifflett. Fowler
claimed that he and Ryan had often used drugs together and that he
knew all of Ryan's drug sources, but that he had"never heard of any
drug dealings that mentioned the name of Michael Ray Shifflett."

On September 23, 1996, the district court issued a memorandum
opinion overruling Shifflett's objection to the recommended finding
contained in the presentence report. The district court first concluded
that the mandate of this court did not permit Shifflett to reopen the
issue of drug weight. Alternatively, however, the district court held
that the probation officer's calculation of drug weight in the presen-
tence report was accurate.

Shifflett was sentenced on December 18, 1996. At that time, Shif-
flett submitted to the court a transcript of a telephone conversation
between Gavin White and Shifflett's trial counsel. In that conversa-
tion, White admitted that he had purchased drugs from prosecution
witness Wilson Steppe, but asserted that he had never seen Shifflett
deliver anything to Steppe, and denied having purchased drugs from
Shifflett. White's statement directly contradicted a DEA report,
admitted at trial, which stated that White had described a transaction
between White and Shifflett involving one ounce of cocaine, and had
witnessed a delivery from Shifflett to Steppe of ten ounces of cocaine.
Shifflett argued that White's refutation of the report required the
exclusion of eleven ounces of cocaine from the drug weight attributed
to Shifflett. The district court refused to reduce the drug weight, how-
ever, concluding that Shifflett's effort to challenge the drug quantity
established in the presentence report was "totally beyond the scope of
the remand."

In sentencing Shifflett, the district court adopted the drug weight
finding recommended by the presentence report and assigned Shifflett
a base offense level of 32. Shifflett has appealed.

4
B

Shifflett first argues that the district court erred by refusing to con-
sider the issue of drug weight de novo. We agree that the mandate
issued by this court permitted reconsideration of drug quantity.
Although the original presentence report calculated the quantity of
drugs attributable to Shifflett, drug weight was not a factor relied on
by the district court in sentencing Shifflett. As a consequence, Shif-
flett had no reason to contest the presentence report's recommended
finding on drug weight. Following the reversal of Shifflett's CCE
conviction, however, drug weight became the primary determinant of
Shifflett's base offense level. Under those circumstances, we con-
clude that the district court was authorized to consider the question of
drug weight de novo. See United States v. Bell , 5 F.3d 64, 67 (4th Cir.
1993) (holding that when a "mandate of the appellate court instructs
or permits reconsideration of sentencing issues on remand, the district
court may consider the issue de novo, entertaining`any relevant evi-
dence on that issue that it could have heard at the first hearing'")
(quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.
1992)); United States v. Whren, 111 F.3d 956, 960 (D.C. Cir. 1997)
(permitting consideration of "such new arguments . . . as are made
newly relevant by the court of appeals' decision" and stating that "[a]
defendant should not be held to have waived an issue if he did not
have a reason to raise it at his original sentencing"), cert. denied, 118
S. Ct. 1059 (1998).

We find that Shifflett is mistaken, however, in claiming that the
district court failed to consider his objections to the presentence
report. With the exception of the evidence regarding the DEA report,
the district court did not refuse to hear Shifflett's objections, but
rather, permitted Shifflett to present his reasons for disagreeing with
the presentence report and to examine the probation officer regarding
the basis for the recommended finding.

We agree with Shifflett that the district court erred when it refused
to consider Gavin White's statement, which contradicted evidence
that the probation officer relied on in calculating drug weight. Never-
theless, we conclude that the error does not require reversal, because

5
the exclusion of the 11 ounces attributed to Shifflett on the basis of
the DEA report would have no material effect on his sentence.3

We reject Shifflett's contention that the district court failed ade-
quately to resolve his objections to the presentence report's recom-
mended finding on drug weight. Although the district court must
decide disputed factual issues at sentencing, United States v. Gilliam,
987 F.2d 1009, 1013 (4th Cir. 1993), it need not"separately recite its
findings as to each controverted matter," but may discharge its duty
by expressly adopting the recommended finding contained in the pre-
sentence report. United States v. Morgan, 942 F.2d 243, 245 (4th Cir.
1991); see United States v. McManus, 23 F.3d 878, 887 (4th Cir.
1994). The district court employed the latter approach here, stating in
a memorandum opinion: "After considering the evidence presented at
trial, the original and amended presentence reports, and defendant's
objections, this court would, if it returned to the issue, conclude that
the probation officer properly calculated the amount of drugs for
which defendant should be held responsible."

The sole remaining question is whether the district court clearly
erred in finding that Shifflett was responsible for more than 2,000
kilograms of marijuana. See McManus, 23 F.3d at 882; Morgan, 942
F.2d at 245. The government must prove by a preponderance of the
evidence the quantity of drugs for which a defendant should be held
accountable at sentencing. United States v. Hippolyte, 65 F.3d 1151,
1158 (4th Cir. 1995), cert. denied, 116 S. Ct. 1558 (1996). The court
is not limited to considering information that would be admissible
under the rules of evidence, but "may consider relevant information
without regard to its admissibility . . ., provided that the information
has sufficient indicia of reliability to support its probable accuracy."
United States Sentencing Guidelines Manual § 6A1.3(a). The district
court may rely on information contained in the presentence report
unless the defendant affirmatively shows "that the information in the
_________________________________________________________________
3 The Sentencing Guidelines provide for the assignment of a base
offense level of 32 if the defendant is responsible for more than 5 to 15
kilograms of cocaine or 1,000 to 3,000 kilograms of marijuana. The
exclusion of 11 ounces of cocaine would not lower the drug weight
attributable to Shifflett below the minimum thresholds of 5 kilograms of
cocaine or 1,000 kilograms of marijuana.

6
presentence report is unreliable, and articulate[s] the reasons why the
facts contained therein are untrue or inaccurate." United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990); United States v. Love, 134
F.3d 595, 606 (4th Cir.), cert. denied sub nom. Sheppard v. United
States, 118 S. Ct. 2332 (1998).

In calculating the quantity of drugs attributable to Shifflett, the pro-
bation officer relied on interviews of the task force agents who inves-
tigated the conspiracy, and testimony adduced at trial. Based on those
two sources of information, the probation officer concluded in the
presentence report that Shifflett was responsible for 60 to 100 pounds
of marijuana, and 10 to 12 kilograms of cocaine over the life of the
conspiracy.

There is ample support in the trial record for the probation officer's
conclusions regarding the quantity of marijuana attributable to Shif-
flett. The evidence showed that Shifflett distributed marijuana from
the late 1970s until 1989, when he began distributing cocaine. Ray-
mond Sipe testified that between 1987 and 1989, he purchased at least
66 pounds of marijuana in El Paso, Texas, to deliver to Shifflett in
Virginia;4 Wilson Steppe, 10 pounds; and James Wells, approxi-
mately 10-11 pounds. In short, the evidence showed that Shifflett was
responsible for at least 86 pounds of marijuana in the late 1980s
alone.

Shifflett concedes that the testimony of witnesses at his trial estab-
lished his responsibility for at least 3.629 kilograms of cocaine. Shif-
flett disregards, however, William Ryan's testimony that he watched
Shifflett cut up a full kilogram of cocaine into smaller portions for
resale.5 Other witnesses testified to the presence of large quantities of
_________________________________________________________________
4 Shifflett omits from his calculations of drug weight 50 pounds that
Sipe purchased for Shifflett but never delivered because he was appre-
hended at a United States Border Patrol Checkpoint. The marijuana,
however, is plainly attributable to Shifflett under the relevant conduct
provisions of the Guidelines. See United States Sentencing Guidelines
Manual § 1B1.3.
5 We perceive no error in the district court's decision to credit Ryan's
sworn testimony rather than Fowler's allegation of perjury. Fowler's
claim that he knew all of Ryan's drug suppliers merely because he had
shared drugs with Ryan on numerous occasions is not persuasive evi-
dence that Ryan lied under oath about his drug transactions with Shif-
flett.

7
cocaine at two parties given by Shifflett, although they could not esti-
mate the quantity.

Furthermore, Shifflett overlooks Wells' testimony that Shifflett had
lost $50,000 in an attempt to purchase cocaine from a supplier in
Florida. It was established at trial that Shifflett's cost for an ounce of
cocaine was generally $700. At that price, a $50,000 transaction
would have involved approximately 2.025 kilograms of cocaine. See
U.S.S.G. § 2D1.1 cmt. 12 (stating that, in estimating drug weight, a
court may consider, "for example, the price generally obtained for the
controlled substance"). Shifflett told Wells that he made up to
$20,000 per week selling drugs. Shifflett charged his cocaine dealers
$1,500 for an ounce of cocaine. Based on those figures, the evidence
suggested that Shifflett was selling up to 378 grams of cocaine per
week. At that rate, Shifflett could have sold 10 kilograms of cocaine
in six months; given that the conspiracy to distribute cocaine lasted
approximately two years, we discern no error in the district court's
attribution to Shifflett of 10 to 12 kilograms of cocaine.

Shifflett's computation of drug weight is based solely on the testi-
mony of witnesses regarding specific purchases made from or for
Shifflett. There was substantial evidence, however, that those specific
sales did not reflect the full extent of Shifflett's involvement in the
distribution of marijuana and cocaine. Therefore, we conclude that the
district court's finding that Shifflett was responsible for more than
2,000 kilograms of marijuana is fully supported by the record. We do
not reach Shifflett's remaining argument that the information pro-
vided to the probation officer by the task force agents was unreliable.

II

A

Following Shifflett's convictions, the jury returned a special ver-
dict of forfeiture against Shifflett's interest in two parcels of real
estate and three vehicles, having concluded that each item was either
purchased with proceeds of Shifflett's narcotics crimes or used to
facilitate those crimes. See 21 U.S.C. § 853(a). Without performing
a proportionality review, the district court ordered the criminal forfei-
ture of Shifflett's realty and other property.

8
On appeal, this court held that the district court had erred by enter-
ing an order of forfeiture without determining whether the forfeiture
was proportional to the crime of conviction. Accordingly, the order
of forfeiture was vacated and the district court was instructed on
remand to perform a proportionality review before entering a forfei-
ture order.

On remand, the district court held that the forfeiture of Shifflett's
property was not constitutionally excessive. The court noted that Shif-
flett was subject to a fine in the range of $25,000 to $6 million, see
United States Sentencing Guidelines Manual § 5E1.2(c)(4), and that
the value of the forfeited property was well within those limits. The
court continued: "Given the length of the conspiracy, the amount of
drugs involved, the number of participants, and the conspiracy's
effect on the community, it cannot be said that the forfeiture of defen-
dant's land, house, and truck would be a disproportionate punish-
ment."

B

Because a criminal forfeiture ordered pursuant to 21 U.S.C.
§ 853(a) is an element of the sentence imposed following a defen-
dant's conviction for substantive drug offenses, and therefore prop-
erly characterized as punishment, see Libretti v. United States, 516
U.S. 29, 38-39 (1995), our sole inquiry in analyzing whether the for-
feiture is constitutionally excessive is whether the forfeiture "is
grossly disproportional to the gravity of a defendant's offense."
United States v. Bajakajian, 118 S. Ct. 2028, 2036 (1998); see United
States v. Wild, 47 F.3d 669, 676 (4th Cir. 1995) (stating that the
excessiveness inquiry "beckons a comparison of the value of the
property being forfeited to the gravity of the offense committed by the
defendant and the nature and extent of the defendant's activities").
We review the proportionality determination of the district court de
novo, Bajakajian, 118 S. Ct. at 2037, and must accept the district
court's factual findings unless they are clearly erroneous, id. at 2037
n.10.

Shifflett does not contest the forfeiture of his vehicles, but chal-
lenges only the forfeiture of two parcels of property, one approxi-
mately 3 acres in size, the other approximately 18 acres. We conclude

9
that the forfeiture of those two parcels of realty does not violate the
Excessive Fines Clause. The district court found, and Shifflett does
not dispute, that the combined value of the property is "well within"
the range of fines permitted by the Sentencing Guidelines and statu-
tory limits, which allow the imposition of a fine between $25,000 and
$6 million. See Bajakajian, 118 S. Ct. at 2037 (noting that "judgments
about the appropriate punishment for an offense belong in the first
instance to the legislature"). We agree with the district court that the
forfeiture is justified in light of the length of Shifflett's involvement
in narcotics trafficking, the breadth of the conspiracy, and the impact
of Shifflett's activities on the community.

Shifflett argues, however, that the district court should not have
ordered the forfeiture of the 3-acre parcel of land because it was sepa-
rable from the 18-acre tract, citing our decision in United States v.
Chandler, 36 F.3d 358, 365 (4th Cir. 1994) (stating that the third con-
sideration in the instrumentality test for determining whether an in
rem forfeiture is constitutionally excessive is"the possibility of sepa-
rating offending property that can readily be separated from the
remainder"). Shifflett conveniently ignores the jury's verdict that the
smaller tract, independent of the larger parcel, was forfeitable as
either an instrumentality or proceed of Shifflett's drug crimes.6 Shif-
flett's reliance on Chandler, moreover, is misplaced; we have
expressly rejected the applicability of the Chandler instrumentality
test to criminal in personam forfeitures. Wild, 47 F.3d at 674.

Finally, we find no merit to Shifflett's contention that the district
court committed reversible error by issuing a final order of forfeiture
before imposing sentence. See 18 U.S.C.§ 3554 (providing that the
_________________________________________________________________
6 To the extent Shifflett attempts to argue that the evidence was insuffi-
cient to support the jury's verdict, we find that Shifflett waived that argu-
ment by failing to raise it in his first appeal. See United States v. Bell,
988 F.2d 247, 250 (1st Cir. 1993). The mandate of this court expressly
provided that the sole question to be decided by the district court on
remand was that of proportionality. For the same reason, we decline to
consider Shifflett's argument that the district court erred in ordering the
forfeiture of the 18-acre parcel without providing a remedy for value
Shifflett allegedly added to a house located on the property following his
arrest.

10
district court "in imposing sentence upon a defendant . . . shall order,
in addition to the sentence that is imposed pursuant to the provisions
of section 3551, that the defendant forfeit property"). The forfeiture
order, though entered before Shifflett's final sentencing hearing, was
expressly incorporated into the Judgment and Commitment Order
issued by the district court following the imposition of sentence, and
Shifflett has failed to show that he suffered any prejudice as a conse-
quence of the district court's premature issuance of the final order of
forfeiture.

III

To summarize, we hold that the district court adequately consid-
ered and resolved Shifflett's objections to the presentence report on
the issue of drug weight, and that the district court's finding is sup-
ported by the testimony adduced at Shifflett's trial. Therefore, we
affirm Shifflett's sentence. We also conclude that the forfeiture of
Shifflett's property was not disproportional to his crimes of convic-
tion, and therefore affirm the order of forfeiture entered by the district
court.

AFFIRMED

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