United States v. Robert Freeman

Filing

OPINION FILED - THE COURT: William Jay Riley, James B. Loken and Bobby E. Shepherd AUTHORING JUDGE:Bobby E. Shepherd (PUBLISHED) [4047919] [12-3110]

United States Court of Appeals
For the Eighth Circuit
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No. 12-3110
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Robert Michael Freeman
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 12, 2013
Filed: June 24, 2013
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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Robert Freeman pled guilty to multiple charges related to methamphetamine
distribution and possession of a firearm in relation to drug trafficking. The district
court1 sentenced Freeman to 110 months imprisonment for the drug counts and 60
1

The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.

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months on the firearm count, to be served consecutively. Freeman now argues the
district court committed procedural error by failing to address his objection to the
Presentence Investigation Report (“PSR”). Additionally, Freeman argues his 170month sentence was substantively unreasonable. We affirm.
I.
In January 2011, Freeman twice sold methamphetamine to a confidential
informant working for the Kansas City Police Department. A sale on January 5,
2011, involved 4.1 grams of methamphetamine, and a second sale on January 19,
2011, involved 5.5 grams. After the second sale, officers conducted a traffic stop of
Freeman’s vehicle and placed him under arrest on an unrelated warrant. A search
incident to arrest of Freeman’s person yielded $1,804 in cash, $460 of which was
prerecorded money supplied by the Kansas City police for the second confidential
informant purchase. Later, in June 2011, Freeman was the subject of another traffic
stop. Once again, Freeman was arrested on an unrelated warrant, and a search of the
vehicle incident to arrest yielded a handgun, 10.9 grams of methamphetamine, and
drug paraphernalia.
Following this second arrest, Freeman was indicted for one count of conspiracy
to distribute methamphetamine, see 21 U.S.C. §§ 841(a)(1), 846, three counts of
aiding the distribution of methamphetamine, see § 841(a)(1), 18 U.S.C. § 2, and one
count of possessing a firearm in furtherance of drug trafficking, see 18 U.S.C.
§ 924(c)(1)(A). Freeman pled guilty to all five charges, and the court ordered a PSR.
The PSR held Freeman responsible for a total of 31.53 grams of
methamphetamine (actual): 4.1 grams from the January 5 sale, 5.5 grams from the
January 19 sale, 11.03 grams based on a conversion of cash recovered from Freeman

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on January 19,2 and 10.9 grams recovered in the June traffic stop. Based on this
amount of methamphetamine, Freeman’s base offense level was 28. After applying
a three-level reduction for acceptance of responsibility, Freeman’s total offense level
was 25. When combined with Freeman’s criminal history category (VI), the
recommended Guidelines range was 110 to 137 months imprisonment for the four
drug counts, and a mandatory minimum of 60 months for the firearm count.
Freeman objected to the PSR’s calculation of his total offense level, arguing
(1) the methamphetamine totals were greater than the actual purity of
methamphetamine he possessed, (2) the cash converted into drugs was not derived
from drug proceeds, and (3) the amount of cash converted was not equivalent to 11.03
grams of methamphetamine. Prior to the sentencing hearing, both parties filed
sentencing memoranda discussing the 18 U.S.C. § 3553(a) factors in relation to
Freeman’s potential sentence.
At the sentencing hearing, defense counsel renewed Freeman’s objections to
the PSR, and the court heard arguments from both defense counsel and the
government. The court then sentenced Freeman to 110 months imprisonment on the
four drug charges, a consecutive 60 months imprisonment on the firearm charge, and
3 years supervised release. Freeman filed a timely appeal of his sentence.

2

The PSR determined the $1,804 recovered from Freeman on January 19, 2011,
was derived from drug sales. After subtracting the $460 in prerecorded money, the
PSR converted the remaining $1,344 into methamphetamine (actual) based on the
January 5 sale price of approximately $122 per gram. See United States Sentencing
Commission, Guidelines Manual, §2D1.1, n.12 (Nov. 2011).
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II.
Freeman presents two arguments on appeal. First, he argues the district court
committed procedural error by failing to rule on his objections to the PSR. Second,
he argues his 170-month sentence was substantively unreasonable.
A.
“In reviewing a sentence for procedural error, we review the district court’s
factual findings for clear error and its application of the guidelines de novo.” United
States v. Barker, 556 F.3d 682, 689 (8th Cir. 2009). Here, Freeman argues the district
court committed procedural error by failing to rule on his objections to the PSR’s
calculation of total methamphetamine (actual). Although the sentencing record
suggests the district court did, in fact, rule on Freeman’s objections,3 we need not
reach the merits of this argument. Even if Freeman’s alleged procedural error is
credited, the alleged error is harmless because it did not impact the outcome of his
sentencing. See United States v. Woods, 670 F.3d 883, 886 (8th Cir. 2012) (“[A]
district court’s Guidelines computation error is harmless if the government can show
the procedural error did not substantially influence the outcome of the sentencing
proceeding.” (internal quotation marks omitted)).
Freeman objected to paragraph 17 of the PSR, specifically the conversion of
$1,344 seized during his January 19 arrest into 11.03 grams of methamphetamine.
Freeman did not object, however, to the amounts of methamphetamine attributed to
him in paragraphs 7, 9, and 13. “This court has repeatedly held that unless a
3

At the sentencing hearing, Freeman’s counsel specifically mentioned the prior
objection to the PSR, but did not present any additional arguments on the issue.
Sentencing Hr’g Tr. 3. The Government briefly responded. Sentencing Hr’g Tr. 3.
Later, the district court stated, “Well, with regard to the objection, I’m going to rule
adversely to the defendant on the objection.” Sentencing Hr’g Tr. 12.
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defendant objects to a specific factual allegation contained in the PSR, the court may
accept that fact as true for sentencing purposes.” United States v. Oaks, 606 F.3d
530, 541 (8th Cir. 2010) (quotation omitted). Thus, these unobjected-to paragraphs
can properly be used to hold Freeman accountable for at least 20.5 grams of
methamphetamine.
Critically, the Guidelines base offense level for the amount of
methamphetamine Freeman did not object to ( 20.5 grams) is the same as for the
amount of methamphetamine actually used in the PSR (31.53 grams). See USSG
§2D1.1(c)(6) (assigning base offense level 28 for “at least 20 G but less than 35 G of
Methamphetamine (actual)”). Thus, even if we assume Freeman’s objection is valid,
unobjected-to facts in the PSR establish an amount of methamphetamine (actual)
resulting in the same Guidelines base offense level used by the district court when
calculating Freeman’s Guidelines range. Consequently, the alleged procedural error
would not have substantially influenced the outcome of Freeman’s sentencing, and
thus was harmless.
B.
Freeman also argues his 170-month sentence is substantively unreasonable
under 18 U.S.C. § 3553(a) and the parsimony principle. We “review the ‘substantive
reasonableness of the sentence’ under the abuse-of-discretion standard considering
the totality of the circumstances.” United States v. Alvizo-Trujillo, 521 F.3d 1015,
1017 (8th Cir. 2008) (quoting Gall v. United States, 128 S. Ct. 586, 597 (2007)). “A
sentence within the guideline range is given a presumption of substantive
reasonableness on appeal.” United States v. Norris, 685 F.3d 1126, 1128 (8th Cir.
2012) (per curiam) (quotation omitted).
After reviewing sentencing memoranda from both parties that extensively
discussed the section 3553(a) factors, the district court stated that “the advisory
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sentencing guideline range is not unreasonable in this case and not greater than
necessary.” Sentencing Hr’g Tr. 13; see also United States v. Zastrow, 534 F.3d 854,
855 (8th Cir. 2008) (“A mechanical recitation of the § 3553(a) factors is unnecessary,
. . . particularly when a judge elects simply to apply the advisory guideline range to
a particular case.” (quotation omitted)). The court then sentenced Freeman to 110
months imprisonment for the four drug counts, the bottom of the Guidelines range,
and a consecutive 60 months imprisonment for the firearm count, the statutory
minimum. Although Freeman suggests we could reasonably conclude his case
warrants a less severe sentence, this fact standing alone is not sufficient grounds for
reversal. See United States v. Braggs, 511 F.3d 808, 812 (8th Cir. 2008) (“Reversal
is not justified on grounds that we could reasonably conclude that a different sentence
was appropriate.”). Considering the totality of the circumstances, the district court
did not abuse its considerable discretion in sentencing Freeman to 170 months
imprisonment.
III.
Accordingly, we affirm.
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