United States v. Beckstrom

Filing

[9888699] Affirmed. Terminated on the merits after oral hearing. Written, signed, published. Judges Kelly, Anderson, and Lucero (authoring judge). Mandate to issue.

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FILED
United States Court of Appeals
Tenth Circuit

PUBLISH

July 28, 2011

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.

No. 10-4108

KIM DAVIS BECKSTROM,
Defendant–Appellant.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 1:07-CR-00089-TC-1)

Deirdre A. Gorman, Deirdre A. Gorman, P.C., Ogden, Utah, for the DefendantAppellant.
Diana Hagen, Assistant United States Attorney (Carlie Christensen, United States
Attorney, with her on the briefs), Office of the United States Attorney, District of Utah,
Salt Lake City, Utah, for the Plaintiff-Appellee.

Before KELLY, ANDERSON, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

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Kim Davis Beckstrom was convicted of possession of fifty grams or more of
methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Because
he had two prior felony drug convictions, Beckstrom was sentenced to life in prison
under the mandatory sentencing provision of § 841(b)(1)(A). On appeal, Beckstrom
challenges both his conviction and sentence. He argues the district court improperly
denied him the opportunity to present a duress defense, erred in treating his two prior
felony convictions as separate criminal episodes sufficient to qualify under
§ 841(b)(1)(A), and unconstitutionally increased his maximum sentence based on facts
never found by a jury.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. Beckstrom was
properly denied the opportunity to pursue a duress defense because he failed to proffer
evidence showing he lacked a reasonable opportunity to escape the threatened harm. As
a general matter, the opportunity to seek the assistance of law enforcement will suffice as
a reasonable alternative. A defendant who contends that police would have been
unwilling or unable to help, but does not provide specific factual bases to conclude
contacting law enforcement would be futile, falls short of meeting his evidentiary burden.
We further conclude that the district court was correct to treat Beckstrom’s two
prior drug felonies as arising from separate criminal episodes. Beckstrom had prior
convictions for continuing criminal enterprise (“CCE”) and possession of dangerous
drugs for sale. The conduct forming the basis of the possession charge was one of three
predicate offenses required to establish the CCE conviction. We hold that two prior
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convictions will subject a defendant to a mandatory life term under § 841(b)(1)(A) if the
second conviction requires proof of: (1) a criminal act separate from the acts supporting
the first conviction, (2) which occurs at a distinct time from the acts supporting the first
conviction, and (3) which occurs after the defendant had a meaningful opportunity to
discontinue his unlawful drug-related activity. We reject Beckstrom’s constitutional
challenge to § 841 because, as he concedes, it is foreclosed by Supreme Court precedent.
I
On September 11, 2007, a confidential informant (the “CI”) introduced Beckstrom
to undercover agent Craig Warr. Warr was posing as the CI’s cousin from Idaho who
was interested in purchasing methamphetamine. Beckstrom and Warr exchanged phone
numbers and agreed to meet again. Two day later, after trading phone calls, Warr met
Beckstrom outside of the auto body shop where Beckstrom worked. Beckstrom sold
Warr one pound of methamphetamine in exchange for $7,000 and Warr’s promise to pay
another $7,000 once he sold the drugs. The pound was later determined to contain 93.6
grams of pure methamphetamine.
Suspecting that Beckstrom’s supplier was in the vehicle, law enforcement officers
followed a vehicle that left the auto body shop shortly after the drug deal. The driver,
“Dam” Montoya, was stopped and eventually arrested, but the $7,000 Warr gave to
Beckstrom was never recovered.
Warr and Beckstrom later arranged another meeting, with Warr promising to bring
the remaining $7,000. Beckstrom was arrested when he attempted to meet Warr. An
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ensuing search of the auto body shop where Beckstrom worked revealed plastic bags, a
digital scale, and a chemical commonly used as “cut” in the manufacturing of
methamphetamine.
Following his arrest, Beckstrom waived his Miranda rights and admitted to police
that he had sold Warr a pound of methamphetamine. He was charged in federal court on
a single count of possession of fifty grams or more of methamphetamine with intent to
distribute in violation of 21 U.S.C. § 841(a)(1). The government also filed an
information pursuant to 21 U.S.C. § 851(a)(1) notifying Beckstrom that he could be
subject to an increased sentence based on two prior convictions: an Arizona state
conviction for possession of dangerous drugs for sale and a federal CCE conviction.
Before trial, Beckstrom filed proposed jury instructions which included an
instruction on a duress defense. In response, the government filed a motion in limine
seeking to exclude evidence regarding duress, arguing that Beckstrom could not show
duress as a matter of law. The district court held a hearing on the motion at which
Beckstrom agreed to proffer his duress evidence. According to the proffer, Beckstrom
introduced a long-time acquaintance to his suppliers, Montoya and a man known as
“Chino.” After the acquaintance fell into debt with the suppliers, they held Beckstrom
responsible. Beckstrom claimed Montoya threatened to kill him and his family unless he
agreed to sell methamphetamine to pay off the debt. Granting the government’s motion,
the district court held that Beckstrom’s proffer was legally insufficient to show he lacked
a reasonable opportunity to escape the threatened harm.
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The case proceeded to trial. A jury found Beckstrom guilty of distributing fifty
grams or more of methamphetamine. Based on the two prior convictions noted supra, the
government sought to enhance Beckstrom’s sentence under 21 U.S.C. § 841(b)(1)(A).
Beckstrom opposed the enhancement, arguing that the two offenses upon which the
government relied were part of a single criminal episode, and that the court could not rely
on the convictions to increase his sentence because the jury did not make a finding that
Beckstrom had been previously convicted. The district court rejected both arguments.
Applying § 841(b)(1)(A), the court sentenced him to a mandatory life sentence.
Beckstrom timely appealed.
II
Beckstrom raises three issues on appeal. He argues: (1) the district court abused
its discretion in precluding a duress defense; (2) his two prior convictions were
insufficient to qualify under § 841(b)(1)(A) because they constituted a single criminal
episode; and (3) his mandatory life sentence under § 841(b)(1)(A) is unconstitutional
because it rests on facts that were never found by a jury.
A
“A criminal defendant is entitled to an instruction on his theory of defense
provided that theory is supported by some evidence and the law.” United States v.
Haney, 318 F.3d 1161, 1163 (10th Cir. 2003) (citation omitted). In reviewing whether a
proffer was sufficient to establish an affirmative defense, this circuit “respect[s] the trial
judge’s role as gatekeeper” and thus reviews “the denial of a duress defense for abuse of
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discretion.” United States v. Portillo-Vega, 478 F.3d 1194, 1197 (10th Cir. 2007)
(quotation omitted). But see United States v. Patton, 451 F.3d 615, 637 (10th Cir. 2006)
(recognizing “that other circuits use de novo review for this essentially legal question”
(italics omitted)).
Defendants bear the burden of proving duress at trial by a preponderance of the
evidence. Portillo-Vega, 478 F.3d at 1197. “A coercion or duress defense requires the
establishment of three elements: (1) an immediate threat of death or serious bodily
injury, (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable
opportunity to escape the threatened harm.” United States v. Scott, 901 F.2d 871, 873
(10th Cir. 1990). In evaluating the defendant’s proffer, a trial court should evaluate the
evidence in a manner favorable to the defendant. See United States v. Al-Rekabi, 454
F.3d 1113, 1123 (10th Cir. 2006).
We agree with the district court that Beckstrom failed to proffer evidence
sufficient to satisfy the third prong of the duress defense. This case is markedly similar
to Scott, in which the defendant sought a duress defense based on threats from a
codefendant. 901 F.2d at 872-73. Scott claimed that the codefendant had threatened to
kill him or his family members unless he took part in a methamphetamine manufacturing
conspiracy. Id. We affirmed the district court’s refusal to instruct the jury on duress,
because Scott, during his months-long involvement with the codefendant, “had countless
opportunities to contact law enforcement authorities or escape the perceived threats.” Id.
at 874. Having “made no attempt to contact law enforcement officials,” we concluded,
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Scott did not present evidence sufficient to warrant a duress instruction. Id.
Beckstrom contends that by relying on Scott the district court failed to appreciate
the severity of the threat posed by Montoya and his associates. He argues that Scott is
inapposite because “the new generation of Mexican drug cartel members” is far more
dangerous than the codefendant in Scott. Beckstrom points to Montoya’s employment of
undocumented immigrants who are difficult to track and his claim that Montoya
introduced him to former victims of coercion, “characters who had things like bullet
wounds in their heads [or] fingers cut off.”
But allegations of Montoya’s dangerousness do not establish that Beckstrom
lacked a reasonable opportunity to escape. The ability to contact law enforcement will
generally constitute a reasonable alternative to illegal activity. See Scott, 901 F.2d at
874; see also United States v. Bailey, 444 U.S. 394, 410 n.8 (1980) (noting a case in
which “a person acting under a threat of death to his relatives was denied defense of
duress where he committed the crime even though he had an opportunity to contact the
police”); United States v. Sawyer, 558 F.3d 705, 712 (7th Cir. 2009) (rejecting duress
defense because defendant “did not present evidence that she never had the chance to
contact the police”). There is no doubt Beckstrom had such an opportunity here.
Although Montoya was present at Beckstrom’s place of employment when the September
13 drug deal occurred, Beckstrom claimed that Montoya had been threatening him “from
the beginning of September.” He does not claim that Montoya prevented him from
reaching out to police during the entire two-week span.
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Instead, Beckstrom argues that police would have been unable to protect him and
his family from Montoya. A defendant may pursue a duress defense by showing that the
alternative of contacting law enforcement was illusory or futile. United States v. Gant,
691 F.2d 1159, 1164 (5th Cir. 1982). But Beckstrom did not proffer any specific reasons
to doubt that the law enforcement alternative was viable. He simply alleges in general
terms that police would have been ineffective or unwilling to protect him. Such
generalized statements fall well short of satisfying a defendant’s burden. See id.
(rejecting an argument that contacting police would have been futile based on slow police
response on a single occasion).
To accept Beckstrom’s argument would allow him to seek a license to sell
methamphetamine over a lengthy period of time based on nothing more than conclusory
allegations that police would be unable or unwilling to help him. Because Beckstrom had
numerous opportunities to seek the aid of law enforcement, and because Beckstrom failed
to provide any specific reasons to doubt the efficacy of seeking police help,1 the district
court correctly denied him the opportunity to present a duress defense.
B
Beckstrom also argues that the convictions upon which the government relied to
1

On appeal, Beckstrom notes that police were unable to recover the $7,000 Warr
used to purchase the methamphetamine. He did not argue below that this failure
demonstrated that law enforcement would be unable to protect him. We generally do not
review issues raised for the first time on appeal. See Laurson v. Leyba, 507 F.3d 1230,
1232 (10th Cir. 2007). In any event, a single instance of vanishing buy money does not
support the conclusion that it would have been unreasonable to seek police assistance.
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impose a mandatory life sentence were insufficient under 21 U.S.C. § 841(b)(1)(A). We
review de novo whether prior convictions satisfy § 841(b)(1)(A). United States v. Harris,
369 F.3d 1157, 1167 (10th Cir. 2004).
Section 841(b)(1)(A) imposes a mandatory life sentence for any individual
convicted under § 841(a) “after two or more prior convictions for a felony drug offense
have become final.” § 841(b)(1)(A). Our circuit, like all others to have considered the
issue, requires that the two convictions used to enhance a sentence pursuant to
§ 841(b)(1)(A) arise from separate “criminal episodes.” United States v. Pace, 981 F.2d
1123, 1132 (10th Cir. 1992) abrogated on other grounds as recognized in, United States
v. Bell, 154 F.3d 1205, 1209-10 (10th Cir. 1998); see also United States v. Powell, 404
F.3d 678, 682 (2d Cir. 2005); United States v. De Jesus Mateo, 373 F.3d 70, 74 (1st Cir.
2004); United States v. Gray, 152 F.3d 816, 821 (8th Cir. 1998); United States v. Barr,
130 F.3d 711, 712 (5th Cir. 1997); United States v. Rice, 43 F.3d 601, 605 (11th Cir.
1995); United States v. Garcia, 32 F.3d 1017, 1018 (7th Cir. 1994); United States v.
Liquori, 5 F.3d 435, 437 (9th Cir. 1993); United States v. Hughes, 924 F.2d 1354, 136061 (6th Cir. 1991); United States v. Blackwood, 913 F.2d 139, 146 (4th Cir. 1990).
Whether two acts constitute “separate criminal episodes” is not always selfevident. For example, two qualifying convictions, one for conspiracy to distribute drugs
and one for the substantive offense underlying the conspiracy conviction would present a
difficult case. See, e.g., United States v. Hazel, 1994 WL 642198, at *3 (4th Cir. Nov.
15, 1994) (unpublished) (affirming mandatory life sentence based on convictions for: (1)
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conspiracy to distribute heroin between May 1, 1968 and January 8, 1971; and (2)
distributing heroin on January 8, 1971). A conspiracy and an underlying substantive
offense can be viewed as “separate,” to the extent that “[c]onspiracy is a crime separate
from the substantive violation.” Pace, 981 F.2d at 1132. But insofar as a defendant can
be convicted of both a one-day conspiracy to distribute drugs and the actual distribution
of drugs that same day, see, e.g., United States v. Cardenas, 105 F. App’x 985, 986 (10th
Cir. 2004) (unpublished), such convictions do not obviously arise from separate
“episodes.” Fortunately, the case law clarifies the matter by setting forth three
requirements that must be met before courts will treat a second conviction as arising from
a separate criminal episode.
First, the second conviction must arise from a criminal act distinct from the acts
supporting the first conviction. See Pace, 981 F.2d at 1132 (the dispositive inquiry is
whether “the prior offenses constitute separate criminal episodes or a single act of
criminality” (emphasis added)). Second, the two criminal episodes supporting the
mandatory life sentence under § 841(b)(1)(A) must have “occurred at distinct times.” Id.
(quotation omitted). Third, and perhaps most helpfully for our analysis, we look to
whether a defendant had an “opportunity to discontinue his involvement in unlawful
drug-related activity” to determine whether criminal episodes are distinct. Hughes, 924
F.2d at 1362. Taken together, this three-part rule comports with Congress’ intent to
target recidivism. “In the structure of [§ 841’s] mandatory enhancement provisions,
Congress has mandated a progressive, incremental, ‘stairstep’ approach to punishment of
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repeat offenders.” Blackwood, 913 F.2d at 147.
In Beckstrom’s case, the court imposed a mandatory life sentence based on two
prior convictions: a state conviction for possession of dangerous drugs for sale and a
federal conviction for CCE. The state conviction arose from Beckstrom’s possession of
methamphetamine on or about December 12, 1989. Beckstrom pled guilty to the charge
and was sentenced to five years’ imprisonment. The indictment for the federal charge
alleged that Beckstrom engaged in a continuing criminal enterprise from May 1989 to
August 1990. Beckstrom pled guilty to that charge pursuant to a written plea agreement
in which he stipulated that the government would be able to prove: (1) on May 10, 1989,
Nevada Highway Patrol stopped a vehicle occupied by Beckstrom and two other
individuals and discovered methamphetamine; (2) Beckstrom possessed
methamphetamine and methamphetamine manufacturing material in his home on
December 13, 1989—the conduct giving rise to the state conviction; and (3) an associate
of Beckstrom’s admitted to dealing approximately two pounds of methamphetamine per
week on behalf of Beckstrom from June 1989 to January 1990. Beckstrom was
sentenced to five years on the federal charge.
Because the conduct underlying Beckstrom’s state conviction was also a part of
the continuing course of conduct for which he was convicted in federal court, Beckstrom
contends that the two convictions arose from the same acts and thus constitute a single
criminal episode. We considered a similar argument in Pace, in which a defendant had
been previously convicted of five substantive drug offenses, and also of conspiracy to
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manufacture, possess and distribute marijuana. 981 F.2d at 1131. The conspiracy charge
alleged twenty overt acts, including the five instances charged separately as substantive
drug offenses. Id. We rejected the argument that the five substantive drug convictions,
which were based on conduct that occurred over a six-month period, constituted a single
criminal episode merely “because the substantive offenses also were alleged as overt acts
in support of the conspiracy.” Id.
This case presents a distinct question from that answered in Pace. There, the
substantive drug convictions used to support the § 841(b)(1)(A) mandatory sentence were
clearly based on different acts occurring at distinct times. The defendant’s argument was
merely that these distinct convictions were “related” because they had also been charged
as overt acts supporting his conspiracy conviction. Pace, 981 F.2d at 1131. Beckstrom is
correct to observe that, unlike in Pace, his prior convictions are based on conduct that
was not entirely distinct. His life sentence is based on a CCE conviction and a conviction
for a substantive drug offense committed as part of the criminal enterprise—in other
words, the conduct leading to his state conviction was also a part of the conduct that led
to his federal conviction.
But the two prior convictions are not necessarily based on the same criminal
episode simply because they arise from acts committed during the same criminal
enterprise. Beckstrom’s federal conviction required proof of at least two other “predicate
offenses.” See Garrett v. United States, 471 U.S. 773, 775 (1985) (“[T]hree predicate
offenses . . . must be shown to make out a CCE violation.”); United States v. Barajas-12-

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Diaz, 313 F.3d 1242, 1244 (10th Cir. 2002) (“We have held . . . that the ‘continuing
series of violations’ mentioned in this statute requires proof of three or more related
violations.”). But see Richardson v. United States, 526 U.S. 813, 818 (1999) (“We
assume, but do not decide, that the necessary number [of drug crimes] is three . . . .”).
And the two other predicate offenses that led to Beckstrom’s CCE conviction were
criminal episodes distinct in time from the episode resulting in his state conviction. In
pleading guilty to CCE, Beckstrom stipulated that he was caught with methamphetamine
on May 10, 1989, and that an associate sold methamphetamine on his behalf on numerous
occasions between June 1989 and January 1990. These criminal episodes are plainly
distinct from his possession of methamphetamine in his home on December 12 or 13,
1989. See Hughes, 924 F.2d at 1361 (holding conduct constituted separate criminal
episodes because the “events occurred at distinct times spanning a nine-month period”).
As the government argues, it would be a peculiar result if a defendant could
escape § 841’s mandatory sentence simply because he was charged with committing a
series of crimes in a single count rather than being charged separately for each criminal
act.
An ongoing course of criminal conduct may involve many criminal
episodes, each a discrete occurrence. The fact that all are related, part of a
series, or part of a continuous course of criminal dealing, does not
necessarily render them a “single” criminal episode, particularly where the
episodes occur over time. To so hold would insulate the very career
criminals the statute is designed to reach—those continuously engaged in
criminal conduct.

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Liquori, 5 F.3d at 437-38 (quotation and alterations omitted); see also Hughes, 924 F.2d
at 1361 (“An episode is an incident that is part of a series, but forms a separate unit
within the whole. Although related to the entire course of events, an episode is a
punctuated occurrence with a limited duration.”).2
Importantly, Beckstrom could have ceased his drug-related activity after he was
stopped with methamphetamine in May 1989 or after methamphetamine was seized from
his home in December 1989. Cf. Hughes, 924 F.2d at 1362. He forwent that
opportunity, and instead chose to engage in additional criminal activity. This is the very
essence of a separate criminal episode.
In short we hold that a conviction arises from a separate criminal episode if it
requires proof of: (1) a criminal act separate from the acts supporting the first conviction,
(2) which occurred at a distinct time from the acts supporting the first conviction, and (3)
which occurred after the defendant had a meaningful opportunity to discontinue his
unlawful drug-related activity. Beckstrom’s convictions satisfy this test.
C
Lastly, Beckstrom argues that § 841(b) is unconstitutional because it allows prior
convictions to be used to increase a statutory maximum sentence without a jury finding
that the convictions occurred. In Almendarez-Torres v. United States, 523 U.S. 224

2

Nevertheless, a single CCE conviction, standing alone, could not support a
mandatory life sentence under § 841(b)(1)(A) because the statute requires two prior
convictions.
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(1998), the Court held that a prior conviction which increases a defendant’s statutory
maximum sentence is not an element of the crime that must be alleged in the indictment
and proven to a jury. Id. at 226-27. Two years later, Justice Thomas—one of the
members of the five-Justice majority in Almendarez-Torres—characterized his vote in
that case as an “error.” Apprendi v. New Jersey, 530 U.S. 466, 520 (2000) (Thomas, J.,
concurring). Beckstrom notes that in light of Justice Thomas’ changed position it is now
possible that a majority of the Court holds the view that the Constitution requires any
prior conviction that increases a statutory maximum sentence to be found by a jury.
Nevertheless, Almendarez-Torres has not been overruled. Accordingly,
Beckstrom’s argument is doomed in this court. See United States v. Apperson, 441 F.3d
1162, 1213 (10th Cir. 2006) (“[T]he Supreme Court has consistently held . . . that a prior
felony conviction is a sentencing factor and thus does not need to be pled in the
indictment or be decided by a jury.” (citation omitted)). He concededly raises the issue
only to preserve Supreme Court review.
III
For the foregoing reasons, Beckstrom’s conviction and sentence are
AFFIRMED.3

3

Beckstrom’s motion to file a supplemental pro se brief is denied.
See Fed. R. App. P. 28 (permitting an appellant to file an opening brief and a reply brief).
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