## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 15 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. DON ALAN KEELING, also known as D. A. Keeling, Defendant - Appellant. No. 99-6209

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CR-98-99-M)
Richard D. Biggs (and Marcia G. Shein, with him on the briefs), Shein & Biggs, Atlanta, Georgia, for Plaintiff - Appellee. M. Jay Farber, Assistant United States Attorney (an d Patrick M. Ryan, United States Attorney and Daniel G. Webber, Jr., United S tates Attorney, on the briefs), Oklahoma City, Oklahoma, for Defendant - Appellant.

Before SEYMOUR , Chief Judge, KELLY , and HENRY , Circuit Judges.

KELLY , Circuit Judge.
Defendant-Appellant, Don Alan Keeling, appeals his sentence for possession with intent to distribute approximately 150 pounds of marijuana- 2 -

(“Count 6”), 21 U.S.C. § 841(a)(1), and use of a co mmunication facility to facilitate a conspiracy to possess with intent to d istribute marijuana (“Counts 8-21 and 23-31”), 21 U.S.C. § 843(b). In a jury trial, Mr. Keeling was acquitted of five other possession with intent to distribute cou nts, alleging various quantities, and a conspiracy count, 21 U.S.C. § 846. He was se ntenced to 121 months as to Count 6 and 48 months for each of Counts 8-21 and 2 3-31, to be served concurrently, and a fine of $5000 with a special as sessment of $2400. Moreover, in accord with the jury’s verdict, Mr. Keeling is r equired to forfeit $240,000. The district court also imposed a supervised release te rm of five years on Count 6 and one year on Counts 8-21 and 23-31, to be served con currently. On appeal, Mr. Keeling argues that he is entitled t o re-sentencing on the grounds that the district court (1) improperly impo sed a five year term of supervised release, based on its erroneous conclusi on that 21 U.S.C. § 841(b)(1)(C) was inapplicable to his ultimate punis hment; (2) improperly calculated relevant conduct in fashioning his sente nce by including (i) a quantity (2,494) of marijuana plants that were outside the s cope of his involvement in the underlying crimes, and (ii) drug amounts from acqui tted counts, using an improper standard; and (3) improperly adjusted his sentence upward for obstruction of justice, U.S.S.G. § 3C1.1, given that his actions did not impede the government’s access to forfeitable assets. Additio nally, Mr. Keeling (4)- 3 -

challenges the forfeiture amount on the grounds that the amount should have been calculated according to his profit rather than the purchase price, and (5) contends that in light of Apprendi v. New Jersey , 120 S. Ct. 2348 (2000), his sentence must be vacated and the case remanded for a sentence on Count 6 of not more than 60 months.
1. Supervised Release The government advises that in light of United States v. Santos , 195 F.3d 549, 552-53 (10th Cir. 1999) (holding that mandatory sentencing provisions of § 841(b) are to be calculated solely with respect t o the drug quantities involved in the offense of conviction), the statutory minimum term of supervised release f or Mr. Keeling for Count 6 is three years. Thus, the parties agree that Mr. Keeling’s sentence is incorrect in this regard, and a limitedremand must be made.
2. Calculation of Base Offense Level a. Inclusion of 2,494 Plants in Relevant Conduct Ca lculation Mr. Keeling argues that the district court impermis sibly included 2,494 plants from a crop grown by a third party (“Mr. Hod ges”) as relevant conduct in determining his sentence. Mr. Keeling contends that the district court relied on incredible evidence, namely, Mr. Hodges’ testimony, to determine that this crop was grown with Mr. Keeling in mind, and was intende d for his receipt. Mr. Keeling argues that the district court relied impro perly on the representation of- 4 -

Special Agent Creson to evaluate Mr. Hodges’ credib ility. Moreover, Mr. Keeling claims that Mr. Hodges’ testimony was fraug ht with inconsistency. Thus, Mr. Keeling argues that the quantity of marijuana i n question is not attributable to him for purposes of relevant conduct. “We review questions of law regarding application o f the Sentencing Guidelines de novo. . . . [and] findings of fact un der the clearly erroneous standard, mindful of our obligation to give ‘due re gard’ to the district judge’s determinations of the credibility of witnesses.” U nited States v. Wiseman , 172 F.3d 1196, 1217-18 (10th Cir.) (citation omitted), cert. denied , 120 S. Ct. 211 (1999). Moreover, “[w]e will not disturb a sentenc ing court’s factual findings unless they are ‘without factual support in the rec ord, or if after reviewing all the evidence we are left with the definite and firm con viction that a mistake has been made.’” United States v. Moore , 130 F.3d 1414, 1416 (10th Cir. 1997) (citation omitted). The government must prove, by a preponde rance of the evidence, the amount of drugs attributable for purposes of the Se ntencing Guidelines. See id

. Under present law, a sentencing court may consider drug quantities from uncharged or acquitted conduct. In order to consti tute relevant conduct under U.S.S.G. § 1B1.3(a)(2), the court must find (1) the offense in question included conduct set forth by §§ 1B1.3(a)(1)(A) and (B); (2) the offense must be groupable with the offense of conviction; and (3) the offense must be “‘part of the same- 5 -

course of conduct or common scheme or plan.’” Unit ed States v. Taylor , 97 F.3d 1360, 1363 (10th Cir. 1996) (quoting U.S.S.G. § 1B1 .3(a)(2)). In the instant case, these factors are all satisfied. The trial court e xplicitly found that the 2,494 plants were grown by Mr. Hodges to be received by M r. Keeling. See Aplt. App. at 151-152. The court made this determination on the strength of the testimony at trial and the statements by Special Agent Creson. While Mr. Keeling challenges the credibility of Mr. Hodges, who testified that the crop was for Mr. Keeling, we must defer to the district court’s findings. See Wiseman , 172 F.3d at 1218. Despite the fact that Mr. Keeling was acquitted of conspiracy, the trial court is empowered to determine, as it did, by a preponderan ce of the evidence, that the marijuana from the 1997 crop was reasonably foresee able by Mr. Keeling and “part of the conspiratorial objectives in furtheran ce of the conspiracy.” Aplt. App. at 150; see also , Moore 130 F.3d at 1416 (noting that acquitted conduct may be evaluated as relevant conduct for sentencing purposes). Thus, Mr. Keeling’s claim fails. b. Inclusion of Drug Quantities from Dismissed Cou nts We likewise reject Mr. Keeling’s claim that the tri al court was not entitled to consider drug quantities from acquitted counts o n the ground that the jury evaluated the amount of drugs involved under both areasonable doubt and preponderance standard for purposes of determining forfeiture. A review of the- 6 -

record shows that the trial court was correct in fi nding that the jury was properly instructed only to consider drug quantities from co nvicted counts for purposes of forfeiture. See Aplt. App. 152-153. Additionally, the government’ s contention that it is for the sentencing court, not the jury, to determine relevant conduct remains true after Apprendi , provided that an enhanced penalty based upon additional relevant conduct quantity does not excee d the range authorized by the count of conviction. See United States v. Doggett , 230 F.3d 160, 166 (5th Cir. 2000) United States v. Meshack , 225 F.3d 556, 576 (5th Cir. 2000); United States v. Aguayo-Delgado , 220 F.3d 926, 933 (8th Cir. 2000), cert. denied ,__ S. Ct. __, (U.S. Nov. 27, 2000) (No. 00-6746).
3. Obstruction of Justice Enhancement Mr. Keeling next argues that the trial court errone ously assessed a twolevel increase for obstruction of justice, U.S.S.G. § 3C1.1, because he executed various quitclaim deeds and mortgaged a property, a ll of which were designated as substitute assets for purposes of forfeiture. H e claims that his actions were not calculated to circumvent the government’s potential collection of forfeiture. Moreover, Mr. Keeling notes that his actions could not have had this effect, given that the government’s interest in the property woul d be superior to subsequent purchasers because of the previously filed notice o f lis pendens. Mr. Keeling argues that he undertook these actions to raise funds to pay the- 7 -

forfeiture that he anticipated would result from hi s conviction. The district court, noting the closeness of the question, ultimately di d not find Mr. Keeling’s arguments persuasive. The timing of the conveyance s, the fact that the transactions involved Mr. Keeling’s girlfriend and father, and Mr. Keeling’s incomplete explanation as to how simple quitclaims would raise the anticipated forfeiture amount, persuaded the district court to find obstruction of justice. While reasonable minds could differ on the import o f these facts, given the deferential standard of review, we conclude that th e district court did not clearly
err. See United States v. Hankins , 127 F.3d 932, 934 (10th Cir. 1997). As to Mr. Keeling’s remaining argument, we reiterate our hold ing in Hankins that factual impossibility is no defense to § 3C1.1. See id

. 4. Forfeiture Mr. Keeling argues that he should only be responsib le in forfeiture for the amount of the profits rather than the gross proceed s of his narcotics enterprise. He contends that the majority of the gross proceeds went to his supplier. Because Mr. Keeling did not properly preserve this issue fo r review, we evaluate his claim according to a plain error standard of review. Und er any standard of review, however, Mr. Keeling’s claim is utterly without mer it. As the Fourth Circuit noted after surveying the legislative history and p olicies undergirding 21 U.S.C. §
853:- 8 - Were we to read proceeds in § 853 to mean only profits, . . . we would create perverse incentives for criminals to employ complicated accounting measures to shelter the profits of their illegal enterprises. The purpose of forfeiture is to remove property facilitating cr ime or property produced by crime – all of which is tainte d by the illegal activity. United States v. McHan , 101 F.3d 1027, 1042 (4th Cir. 1996). We agree wi th this analysis and conclude that for purposes of § 853, “ proceeds” contemplates gross proceeds and not merely profits. Accordingly, Mr. Keeling’s claim for relief on this ground fails.
5. Apprendi Challenge At oral argument, Mr. Keeling raised the issue of the applicability of the Apprendi decision and we requested supplemental briefs. Un der § 841(b)(1)(C) and Santos , the statutory range of punishment for Count 6 bas ed upon a quantity of 150 pounds (68.18 kilograms) is up to 20 years i mprisonment, a fine not to exceed $1,000,000, and not less than 3 years superv ised release. Section 841(b)(1)(C) applies to quantities of marijuana of at least 50, but less than 100 kilograms. In the absence of a jury-determined quantity, Mr. Keeling argues that the appropriate statutory range for an undeterminedamount of marijuana should apply, specifically, § 841(b)(1)(D)--up to 5 years imprisonment, a fine not to exceed $250,000, and at least 2 years supervised re lease. In Apprendi , the Supreme Court held, based upon the Sixth and Fourteenth- 9 -

Amendments that “[o]ther than the fact of a prior c onviction, any fact that increases the penalty for a crime beyond the prescr ibed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 120 S. Ct. at 2362-63. The Court invalidated a procedure require d by a New Jersey statute that increased the maximum term authorized by certain of fenses from 10 to 20 years if the sentencing judge found, by a preponderance of the evidence, that the defendant “‘acted with a purpose to intimidate an i ndividual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’” Apprendi , 120 S. Ct. at 2351 (quoting N.J. Stat. Ann. § 2C: 44-3(e) (West Supp. 2000)). Apprendi was influenced by Jones v. United States , 526 U.S. 227 (1999), which determined, based upon statutory intent, thata finding of “serious bodily injury,” required to impose a certain penalty underthe federal carjacking statute, 18 U.S.C. § 2119, was an element of the offense, no t merely an enhancement.
Jones , 526 U.S. at 252. As an element, it “must be char ged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict.” Id. After
Jones , we adhered to our position that the quantity dete rmination associated with various penalties under § 841(b) was entirely a matter for the sentencing judge.
See United States v. Jones , 194 F.3d 1178, 1183-84 (10th Cir. 1999). However , the Supreme Court granted certiorari, vacated the j udgment and remanded in light- 10 -

of Apprendi . See Jones v. United States , 120 S. Ct. 2739 (2000). The government concedes that Apprendi applies to the drug quantities used to determine punishment in § 841(b), and to this ca se because it is pending on direct review and not yet final. See Griffith v. Kentucky , 479 U.S. 314, 321 n.6, 328 (1987). We agree with our sister circuits thatApprendi applies to § 841(b).
See United States v. Angle , 230 F.3d 113, 123 (4th Cir. 2000); Doggett , 230 F.3d at 164 (5th Cir.); United States v. Rogers , 228 F.3d 1318, 1326-27 (11th Cir. 2000); United States v. Nordby , 225 F.3d 1053, 1059 (9th Cir. 2000); AguayoDelgado , 220 F.3d at 932-33 (8th Cir.). As noted, Count 6 of the indictment charged “approximately 150 pounds,” however, the go vernment concedes that drug quantity was not presented to the jury as an e lement of the offense with the requirement of proof beyond a reasonable doubt. Mr . Keeling did not object to the instruction given. Because drug quantity matte rs, this case cannot be resolved on the principle that Apprendi does not require reversal where a defendant is sentenced to less than the maximum sentence support ed by the jury verdict without reference to drug quantity. To notice plain error under Fed. R. Crim. P. 52(b), the error must (1) be an actual error that was forfeited; (2) be plain or ob vious; and (3) affect substantial rights, in other words, in most cases the error mus t be prejudicial, i.e. it must have affected the outcome of the trial. See United States v. Olano , 507 U.S. 725,- 11 -

733-34 (1993). Where the law was settled at the ti me of trial and clearly contrary to the law on appeal, it is sufficient if the erroris plain on appeal. See Johnson v. United States , 520 U.S. 461, 468 (1997). Given plain error thataffects substantial rights, an appellate court should exerc ise its discretion and notice such error where it either (a) results in the convictionof one actually innocent, or (b) “‘seriously affect[s] the fairness, integrity or pu blic reputation of judicial proceedings.’” Olano , 507 U.S. at 736 (quoting United States v. Atkinso n , 297 U.S. 157, 160 (1936)). Even if the first three ele ments of the plain error test are satisfied, where the evidence on a misdescribed or omitted element of the offense is overwhelming, the fourth element, that the errorseriously affects the fairness, integrity, or public reputation of judicial proceed ings, is not. See Johnson , 520
U.S. at 470. Plain error cases have been steadfast in the requir ement that the error be judged against a complete record. See United States v. Young , 470 U.S. 1, 16 (1985). Accordingly, we exercised our discretion and obtained the complete record, rather than rely upon the excerpts containe d in the appendix. A review of that record confirms that the jury was not instruct ed that quantity was an element of Count 6, I R. doc. 59, Instr. 37. The jury was instructed that the government
was notrequired to prove the particular amount of control led substance alleged in1 Amount of Controlled Substance Involved Certain counts of the Indictment allege that a particular amount of controlled substance was invol ved. The evidence in the case need not establish that th e amount or quantity of controlled substance was as alleged in the indictment, but only that a measurab le amount of the controlled substance was in fact the subject of the acts charged in the indictment. I R. Doc. 59, Instr. 23. - 12 - the indictment. 1 Given the applicability of Apprendi to § 841(b), the first two requirements for plain error are met. A jury instruction which omitted quantity as an element in these circumstances is actual error that is now plain and obvious. Although the government urges us to assess plain error in light of various admissions by the Defendant in the course of his sentencing, we decli ne to do so as did the court in Nordby , 225 F.3d at 1061 n.6, because the assessment of p rejudice must focus on whether the error affected the jury’s verdict. Lik ewise, we decline to consider the forfeiture proceeding in assessing prejudice with i ts focus on quantification of a forfeiture amount and different standard of proof, i.e. preponderance of the evidence. Where the jury has not found quantity beyond a reas onable doubt and quantity is integral to punishment, a defendant candemonstrate prejudice if the evidence suggests a reasonable doubt on quantity. See Nordby , 225 F.3d at 1061.- 13 -

This case does not require us to decide the precise contours of the the third element of the plain error test given this record. In pertinent part, the indictment charged Mr. Keeli ng with possession with intent to distribute three loads of marijuana with different quantities (Count 5, 80 pounds; Count 6, 150 pounds; and Count 7, 30 pounds ), all in October 1996. As noted, he was acquitted of Counts 5 and 7. Mr. Hod ges’ trial testimony places the quantity of the pertinent marijuana shipment in Cou nt 6 at 150 pounds based upon his notes that were seized by the government during a search of his residence after his arrest. See Aplee. Supp. App. 29, 45-46 (Trial Tr. at 532, 548 -49); Trial Tr. at 528. The notes were held in the custody of the FBI and admitted at trial. Trial Tr. at 527-29. Mr. Keeling argues that Mr. Hodges’ testimony is un corroborated, and that it is not worthy of belief because it was inconsist ent with a smaller quantity stated at Mr. Hodges’ debriefing after his arrest. At trial, Mr. Keeling attempted to impeach the testimony on the latter basis, however, Mr. Hodges testified that he did not have access to his notes at the debriefing because they had been seized.
See Aplee. Supp. App. 46 (Trial Tr. at 549). Moreover , at trial, Mr. Hodges explained his system and the entries associated with Mr. Keeling. One Mr. Anderson testified that between 1991 and 19 94 he transported seven loads of marijuana for Mr. Keeling and contin ued to transport for him in- 14 -

1996 when Mr. Hodges was the supplier. Trial Tr. at 476, 484. Although Mr. Anderson could not remember the quantities associat ed with the marijuana loads he transported claiming it was of little concern to him, he guessed the most recent trip he made in October 1996 could have been 70 pou nds, but “30 pounds was way too small.” Id. at 491-92. Mr. Anderson testified that Mr. Keelin g gave him the money to buy and helped him select a small pickup truck as a marijuana transport vehicle. Id. at 486. In 1996, Mr. Keeling partially subsidizedthe acquisition of a larger truck for the same purpose. Id. at 487. Over objection, a tape was played containing admissions by Mr. Keelin g that he had been dealing marijuana since high school; he was 45 at the time of trial. See Trial Tr. at 369-
72. In view of the record, it is doubtful that Mr. Keel ing can satisfy his burden of persuasion with respect to prejudice, see Olano , 507 U.S. at 734. Notwithstanding that Mr. Keeling argued for a judgm ent of acquittal and before the jury that there was no credible proof as to the 150-pound quantity contained in Count 6, Trial Tr. at 593-95, 635, 639-40, the evid ence of Mr. Keeling’s involvement with Mr. Hodges’ growing operation overtime was overwhelming. The explanation Mr. Hodges gave for the discrepancybetween an amount mentioned in his debriefing and the 150 pounds base d upon his notes that he later obtained, went unchallenged. Moreover, Mr. Anderso n’s testimony is highly- 15 -

corroborative of Mr. Hodges’ testimony about the r elationship between Mr. Hodges and Mr. Keeling. Because the evidence is ov erwhelming, we hold that the fourth element of the plain error test cannot b e satisfied. Although we acknowledge that we have found plain error in circu mstances where an intervening Supreme Court decision changed the defi nition of an element, we did so based upon a conclusion that the evidence was no t overwhelming, and the jury instruction given did not focus the jury’s attentio n on a part of the instruction that would have supported the conviction. See United States v. Spring , 80 F.3d 1450, 1466 (10th Cir. 1996). The former cannot be said o f this case.
AFFIRMED in part; REMANDED in part for limited resentencing on the issue of supervised release.