USA v. Thomas Kohler

Filing

Opinion issued by court as to Appellant Thomas Kohler. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-14782

Date Filed: 06/12/2017

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14782
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00425-CEH-MAP-4

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS KOHLER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 12, 2017)
Before WILLIAM PRYOR, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:

Case: 16-14782

Date Filed: 06/12/2017

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Thomas Kohler appeals his sentence of 151 months of imprisonment for
conspiring to possess with intent to distribute 500 grams or more of
methamphetamine. 21 U.S.C. § 841(a), (b)(1)(A)(viii). Kohler challenges the
finding that he was responsible for more than 1.5 kilograms of methamphetamine
ice, which is defined as a mixture containing methamphetamine of at least 80
percent purity, United States Sentencing Guidelines Manual § 2D1.1 n.(C) to Drug
Quantity Table (2015). Kohler also argues that his sentence is substantively
unreasonable. We affirm.
The government argues that Kohler invited any error in the calculation of the
quantity of drugs involved in his offense, but we disagree. A party invites error by
inducing or agreeing to a decision that it later challenges as error. United States v.
Love, 449 F.3d 1154, 1157 (11th Cir. 2006). Kohler acknowledged that the
government correctly appraised the street value of methamphetamine ice, but he
contested determining the quantity of the drug based on its price.
The district court did not clearly err in attributing to Kohler more than 1.5
kilograms of methamphetamine ice. Kohler delivered to a known coconspirator a
backpack containing a lunchbox filled with $45,000 in cash. The district court
reasonably inferred that the cash constituted drug proceeds based on Kohler’s role
as a courier and a telephone conversation recorded by the jail in which the manager
of the conspiracy, Isaias Villa, discussed the contents of the backpack with Kohler.
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See United States v. Chavez, 584 F.3d 1354, 1366–67 (11th Cir. 2009). And Kohler
did not object during sentencing when a witness for the government referred to the
cash as drug proceeds. See United States v. Wise, 881 F.2d 970, 973 (11th Cir.
1989). Based on the undisputed conversion value of $20,000 per kilogram, the
district court was entitled to find that the drug proceeds represented the sale of
about 2 kilograms of methamphetamine ice. See Chavez, 584 F.3d at 1367.
The district court did not abuse its discretion in sentencing Kohler to 151
months of imprisonment. Kohler’s presentence investigation report provided an
offense level of 36, but the district court reduced his offense level by three levels to
adjust for his mitigating role, see U.S.S.G. § 2D1.1(a)(5), and an additional two
levels for his minor role, see id. § 3B1.2(b), which resulted in an advisory
guideline range of 151 to 188 months of imprisonment. The district court
reasonably determined that a sentence at the low end of Kohler’s advisory
guideline range was required to “account[] for [his] personal history and
characteristics including [his] involvement” in the conspiracy. See 18 U.S.C.
§ 3553.
Kohler complains about a disparity between his sentence and the lesser
sentences received by his coconspirators, but Kohler was not similarly situated to
those coconspirators. See United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir.
2009). As the district court stated, Kohler had a higher criminal history score, had
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“been incarcerated before . . . several times,” had “violated probation and
community control,” and had decided to go to trial instead of pleading guilty and
testifying for the government. Kohler’s sentence is reasonable.
We AFFIRM Kohler’s sentence.

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