United States v. Storey

FILED
United States Court of Appeals
Tenth Circuit

December 17, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 14-5019
v. (D.C. No. 4:13-CR-00156-CVE-1)
(N.D. Okla.)
MATTHEW SCOTT STOREY,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before GORSUCH, SEYMOUR, and BACHARACH, Circuit Judges.

Matthew Storey was waiting in Tulsa on a FedEx package. He wasn’t sure

exactly what it would contain, but he knew it would be drugs. And he knew what

he had to do. It’s a job he had carried out many times before: accept the delivery

and then drop the box on the side of a country road, where someone would pick it

up and smuggle the contents into an Oklahoma prison. The intended recipients

*
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judgment is not binding precedent, except under the doctrines of law of the case,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.
were gang members Mr. Storey knew from his own spell in prison for making

methamphetamine and other crimes.

Things didn’t go to plan. FedEx has a policy against transporting

contraband and Joshua Guthery, a longtime employee versed in spotting

suspicious packages, picked out Mr. Storey’s parcel at a sorting facility. Mr.

Guthery saw that the sender had paid in cash, completed the air bill by hand, and

used an awful lot of tape — facts that, in Mr. Guthery’s experience at least,

conspired to suggest contraband. Opening the package, Mr. Guthery found six

vacuum-sealed bundles wrapped in cellophane, a discovery that he thought tended

to confirm his suspicions.

Mr. Guthery called the police. In the meantime, he passed the parcel to

Gary Michener, a coworker, and asked him to investigate further. Mr. Michener

took a razor blade to the bundles and, by the time the police arrived, he had sliced

through most of the cellophane surrounding one bundle. It’s a task he continued

while the officers watched. The bundle split open, revealing methamphetamine.

Soon enough Mr. Storey was arrested and pleaded guilty to drug charges. In

doing so, though, he reserved the right to pursue this appeal.

Mr. Storey argues first and primarily that the government violated his

Fourth Amendment rights by searching the contents of the package; that all

evidence about the drugs must be suppressed; and that the charges against him

should be dismissed. But the district court observed a flaw in the essential

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premise of this argument and so must we: the Fourth Amendment concerns itself

only with searches performed by the government, not by private actors like

FedEx. See, e.g., United States v. Smythe, 84 F.3d 1240, 1242-43 (10th Cir.

1996).

Of course, private actors can effectively become governmental agents when

the state “coerces, dominates or directs [their] actions.” Id. at 1242 (quoting

Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir. 1989)). But the facts don’t

support that kind of conclusion here. Officers didn’t instigate the search. They

didn’t encourage it. They didn’t aid it. They didn’t even become involved until

FedEx employees had already opened the package and one was busy slicing

through bundles inside. We don’t overlook the fact Mr. Guthery has contacted

the police before about suspicious packages, maybe as many as one hundred

times. Neither do we ignore the fact Mr. Guthery and Mr. Michener seemed

intent on helping the police. But private persons are still free to choose to help

the government without becoming governmental agents. See id. at 1243 (finding

no coercion where bus station manager who contacted police searched a package

in the presence of officers); United States v. Alexander, 447 F.3d 1290, 1297

(10th Cir. 2006) (holding that an agency relationship doesn’t develop just because

the government is the beneficiary of a private party’s actions).

In his reply brief Mr. Storey introduces a provocative new fact. He notes

that a federal grand jury in California in July 2014, a year after the events in this

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case, indicted FedEx for conspiring to traffic misbranded prescription drugs for

Internet pharmacies. See Indictment, United States v. FedEx Corp., No. 3:14-CR-

00380-CRB (N.D. Cal. July 17, 2014). But Mr. Storey mentions the fact in a

passing sentence and promptly does nothing with it. We can see how someone

might try to develop further facts and argument around this nub of an idea and

suggest that the impending indictment in California placed such pressure on the

company to cooperate that its actions in Oklahoma were effectively coerced.

Sometimes those facing a potential indictment do agree to become governmental

agents. But in this case we just don’t know. We don’t because Mr. Storey only

mentions the indictment in a single sentence and moves on, leaving the rest to our

imagination. Did the company know of the impending indictment? What

messages did it receive from the government? Did it reach any agreements with

the government? What did it communicate to employees like Mr. Guthery? We

have no idea. And we are not inclined to guess. It is not for courts to conjure

facts and arguments to support a theory so fleetingly floated and quickly dropped.

See Yeomalakis v. FDIC, 562 F.3d 56, 61 (1st Cir. 2009) (“It is not our job . . . to

create arguments for someone who has not made them or to assemble them from

assorted hints and references scattered throughout the brief.”); see also Bronson

v. Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007) (declining to pass upon

“cursory statements” made “without supporting analysis and case law”).

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 Mr. Storey’s remaining three challenges to his sentence bear their own

problems.

First, he complains about the quantity of drugs the district court attributed

to him when calculating his advisory guidelines sentence. But under U.S.S.G.

§ 1B1.3(a)(1)(A), a defendant is deemed responsible for all acts and omissions he

willfully caused. The district court found that Mr. Storey willfully agreed to and

caused the receipt of the FedEx package and was thus responsible for the 2.39

kilograms of methamphetamine found inside. We see no reversible error in this

holding. That’s not to say that when calculating the applicable advisory

guidelines range a district court must always find a defendant responsible for the

full amount of drugs contained in every package he receives. Let alone that a

district court must issue a sentence in line with what the advisory guidelines

advise. It is only to say we see no reversible error in the district court’s decision

to hold Mr. Storey responsible for the package’s contents on the facts before us.

It seems every circuit to have faced a similar set of facts has reached a

similar conclusion. See United States v. Ukomadu, 236 F.3d 333, 341 (6th Cir.

2001); United States v. Fullilove, 388 F.3d 104, 107-09 (4th Cir. 2004); United

States v. Johnson, 357 F.3d 980, 985-87 (9th Cir. 2004); United States v.

Franklin, 926 F.2d 734, 736-37 (8th Cir. 1991); United States v. White, 888 F.2d

490, 498-500 (7th Cir. 1989), abrogated on other grounds by Stinson v. United

States, 508 U.S. 36 (1993). Neither do the only two cases Mr. Storey cites

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suggest a different view. One addressed a situation in which the government

offered no drug quantity evidence and the district court was left to guess how

much the defendant should be held responsible for, a problem not present here;

the other concerned the interpretation of a now-defunct section of the guidelines.

See United States v. Davis, 981 F.2d 906, 910-12 (6th Cir. 1992); United States v.

Hayes, 971 F.2d 115, 116-18 (8th Cir. 1992), superseded by guidelines

amendment as stated in United States v. Strange, 102 F.3d 356, 360 n.6 (8th Cir.

1996).

Second, Mr. Storey says the district court should have granted his motion

for a downward departure on the ground that the advisory guidelines range

overrepresented the seriousness of his prior offenses. But we lack jurisdiction to

review a district court’s refusal to depart downward unless “the denial is based on

the sentencing court’s interpretation of the Guidelines as depriving it of the legal

authority to grant” the requested relief. United States v. Fonseca, 473 F.3d 1109,

1112 (10th Cir. 2007). And that’s not what happened here. The district court

never suggested it lacked the authority to grant a downward departure. It just

made clear that it considered Mr. Storey a poor candidate for one, given his

extensive criminal history and his willingness to violate the law again only

months after being released from prison himself.

Finally, Mr. Storey contends his sentence is substantively unreasonable.

But the district court issued a within-guidelines and thus presumptively

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reasonable sentence. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.

2006). In an effort to overcome that presumption, Mr. Storey suggests that the

district court placed undue weight on the amount and purity of the

methamphetamine. But our review of the record confirms that the district court

carefully considered all of the statutorily prescribed sentencing factors, including

Mr. Storey’s criminal history, his willingness to plead guilty, and the sentences of

similarly situated defendants. All of which tends to disprove Mr. Storey’s

complaint and leave us without solid ground for preferencing Mr. Storey’s wish

for a 10-year sentence over the district court’s judgment that 15 years was more

appropriate.

Affirmed.

ENTERED FOR THE COURT

Neil M. Gorsuch
Circuit Judge

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