IN THE COURT OF APPEALS OF IOWA

No. 20-1111

Filed April 14, 2021

STATE OF IOWA,

Plaintiff-Appellee,

vs.

CALEB LEE BIRCH,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Michael J. 

Shubatt, Judge.

Caleb Birch challenges his sentence for the crime of possession with intent 

to deliver marijuana. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney 

General, for appellee.

Considered by Bower, C.J., and Tabor and Ahlers, JJ.
2

AHLERS, Judge.

After pleading guilty to possession with intent to deliver marijuana, a class 

“D” felony,1 Caleb Birch requested a deferred judgment at his sentencing hearing. 

The district court rejected his request and adjudicated Birch guilty of the crime, 

imposed a prison sentence, suspended the prison sentence, and placed Birch on 

probation. Birch appeals, claiming the district court abused its discretion by 

improperly considering unproven and unadmitted offenses.

Before getting to the details of Birch’s claim, we will first address the legal 

standards governing our review. Birch makes no claim the sentence imposed fell 

outside the statutory limits for the offense, so we presume the sentence is valid 

and will only overturn the sentence for an abuse of discretion or reliance on 

inappropriate factors. See State v. Hopkins, 860 N.W.2d 550, 554 (Iowa 2015). 

Birch claims the district court improperly considered inappropriate factors and thus 

abused its discretion. It is Birch’s burden to prove the claimed abuse of discretion, 

and it is a heavy burden, as the sentence imposed is cloaked with a strong 

presumption in its favor. See State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983). 

However, if Birch meets his burden of showing the district court relied upon 

offenses that were neither admitted by Birch nor otherwise proved, then we will set 

aside the sentence and remand for resentencing. See State v. Sailer, 587 N.W.2d 

756, 762 (Iowa 1998).

Birch tries to meet his burden by pointing to the following statements by the 

district court at sentencing:

 

1 See Iowa Code § 124.401(1)(d) (2018).
3

I have looked at the record of the case. I’ve looked at the 

[presentence investigation report] in particular. I do note, as defense 

counsel points out, that Mr. Birch is young, that he doesn’t have a 

criminal record, and, frankly, if this were a garden variety delivery 

case, I don't think I would have any problem at all with a deferred

judgment.

But in reviewing the facts of the case, this is not what I would 

call a garden variety delivery case where somebody received a bag 

of marijuana and handed it or sold it to somebody else. This involved 

very, very significant quantities. It involved marijuana coming from 

different states. A fairly sophisticated operation of which Mr. Birch 

was a part, and it also involved delivery to high school students.

I think with all of those factors, while I’m taking Mr. Birch at his 

word, defense counsel’s word, that he may be changing and moving 

in the right direction, and that’s terrific. That’s great. I hope he 

continues to do so. However, this was more than just a single, you 

know, youthful mistake on a bad night or a bad day. This was 

something that happened over time and had to be planned out. And 

as such, I’m just not prepared to go along with a deferred judgment 

in the case.

Birch claims the court’s reference to importing marijuana from out of state pursuant 

to a sophisticated operation and delivering to high school students were unproven 

and unadmitted offenses.

We reject Birch’s claim for two reasons. First, the referenced details were 

part of the crime to which Birch pleaded guilty, not other offenses. Birch was 

charged with and pleaded guilty to a violation of Iowa Code section 124.401(1), 

which reads in pertinent part as follows:

Except as authorized by this chapter, it is unlawful for any person to 

manufacture, deliver, or possess with the intent to manufacture or 

deliver, a controlled substance, . . . or to act with, enter into a 

common scheme or design with, or conspire with one or more other 

persons to manufacture, deliver, or possess with the intent to 

manufacture or deliver a controlled substance.

(Emphasis added.) Not only does the statute reference acting with, entering a 

common scheme with, or conspiring with another, the trial information charged 

both the act itself and the alternative of acting with, entering a common scheme 
4

with, or conspiring with another. As a result, the “sophisticated operation” involving 

delivery to high school students was part of the crime with which Birch was charged 

and to which he pleaded guilty. The details noted by the district court were part of 

the “attending circumstances” of the offense, so were properly considered by the 

district court. See State v. Formaro, 638 N.W.2d 720, 724–25 (Iowa 2002) (listing 

“the attending circumstances” as one of the factors to consider in sentencing).

The second reason we reject Birch’s claim is that, even if we assumed the 

district court’s reference to importing marijuana from out of state pursuant to a 

sophisticated operation and delivering to high school students involved other 

offenses, the record establishes Birch admitted those facts. During the plea 

hearing, the following exchange took place:

COURT: There were minutes of [evidence] that were filed in 

this case. The minutes of [evidence] listed the witnesses who would 

testify against you if the case were to go to trial and also contained 

a summary of what the State believes that those witnesses would 

say under oath. Did you review the minutes of [evidence] at some 

point? BIRCH: Yeah.

COURT: If those witnesses came to court and testified to the 

things that are set forth in the minutes, would they be telling the truth? 

BIRCH: Yes.

The minutes of evidence asserted that a confidential informant (CI) would 

testify that the Subject2is one of the main suppliers of marijuana in Dubuque. The 

CI would also testify the Subject was selling marijuana and THC oil cartridges to a 

large number of people in Dubuque, including persons who were in high school, 

some of whom were under the age of eighteen. According to the CI, the Subject 

was receiving pounds of marijuana through the United States Postal Service 

 

2 The subject’s name is stated in full in the minutes of evidence, but we will use 

“the Subject” in an effort to maintain confidentiality.
5

(USPS) on a weekly basis from the states of California and Washington and was 

having the packages shipped to different addresses in the Dubuque area, 

sometimes using fictitious names, to avoid detection. Investigators identified Birch 

as the Subject’s “close associate” in the marijuana delivery scheme. A tracking 

device on the Subject’s vehicle showed the Subject frequently traveled to Birch’s 

residence. On the date of the offense with which Birch was charged, the Subject’s 

vehicle was observed in the parking lot of a store that housed a USPS branch. 

Birch was observed exiting the passenger side of the Subject’s vehicle carrying a 

large USPS envelope and entering the store. A short time later, Birch exited the 

store and got back into the Subject’s vehicle, and the vehicle left. A law 

enforcement officer who observed this behavior entered the store and spoke to the 

USPS employee about the customer who had just left (i.e., Birch). The employee 

explained that Birch had been in and purchased an envelope, left the store, and 

then returned with the envelope sealed and paid cash to send it by priority mail to 

Vancouver, Washington. The name disclosed on the envelope as the sender was 

a false name. The envelope was seized and then opened by a postal inspector. 

The envelope contained a heat-sealed package of baby wipes. Inside the baby 

wipes package was a stack of United States currency in the approximate amount 

of $6000.00. A search warrant was executed on the Subject’s residence. The 

Subject, the Subject’s paramour, and Birch were found in the residence along with 

over fourteen pounds of marijuana, over $17,000.00 in United States currency

(including $4500.00 in a baby wipes container placed in a USPS box), and a loaded

semi-automatic rifle.
6

 A sentencing judge is permitted to consider facts in the minutes of 

evidence “that are admitted to or otherwise established as true.” State v. Black, 

324 N.W.2d 313, 316 (Iowa 1982). Based on the above-quoted admission during 

Birch’s plea hearing, we find Birch admitted the allegations in the minutes. 

Therefore, the district court did not err in considering the information in the minutes 

as having been established.

Furthermore, essentially the same information contained in the minutes was 

repeated in the presentence investigation report (PSI). At the sentencing hearing, 

Birch did not challenge any part of the PSI after being given the opportunity to do 

so. Therefore, the district court was free to consider that information and doing so 

was not improper. State v. Grandberry, 619 N.W.2d 399, 402 (Iowa 2000) (“In 

determining a defendant’s sentence, a district court is free to consider portions of 

a presentence investigation report that are not challenged by the defendant.”).

Birch has not met his burden to establish the district court considered 

improper factors in sentencing him, which is the only challenge lodged on appeal. 

Therefore, we find no abuse of discretion and affirm the district court’s sentencing 

decision.

AFFIRMED.