1

The Hon. Karen E. Schreier, United States District Judge for the District of

South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 01-1594SD

____________

United States of America, *

*

Appellee, * On Appeal from the United

* States District Court

* for the District of

v. * South Dakota.

*

Jeff Sweesy, * [To Be Published]

*

Appellant. *

___________

Submitted: October 16, 2001

Filed: November 27, 2001

___________

Before BYE, BRIGHT, and RICHARD S. ARNOLD, Circuit Judges.

___________

PER CURIAM.

Jeff Sweesy was convicted by a jury of attempting to manufacture

methamphetamine. The District Court1

 sentenced him to 13 years and 8 months (140

months) in prison, and he appeals.
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We think the issues are familiar and do not require extended discussion.

Defendant first asserts that the evidence was insufficient to make out a jury question

on all of the elements of the crime of attempt to manufacture methamphetamine. The

government’s evidence was not abundant, but it was sufficient. Defendant was in

possession of three of the four ingredients necessary for manufacture. On a recent

occasion, he had sold methamphetamine that had recently been manufactured by

someone. He knew how to manufacture it, and had discussed methods of

manufacturing with another person. We think a reasonable jury could have found

from this evidence, along with the other evidence in the record, that the defendant

possessed the ingredients for manufacture, together with some other drug

paraphernalia, that this possession was an affirmative step towards the completion of

the crime of manufacturing, and that defendant intended to complete the crime, and

would have done so had he not been interrupted by a search.

Defendant’s principal other argument is that the District Court abused its

discretion in denying him a reduction in his offense level for acceptance of

responsibility. The defendant pleaded not guilty and went to trial. He denied two of

the essential elements of the crime, intent and an affirmative step towards the

completion of the underlying offense. We recognize that this is not an absolute bar

to the reduction requested. It is, however, primarily for the district judge, the person

on the spot, to make a moral judgment as to the defendant’s level of contrition. Here,

defendant not only denied essential elements of the crime, he contested some of the

government’s subsidiary evidentiary facts. This was the District Court’s call. We see

no abuse of discretion.

Affirmed.
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BRIGHT, Circuit Judge, dissenting.

I concur in the conviction but dissent on the imposed sentence. Jeff Sweesy

is entitled to a credit for acceptance of responsibility under the Sentencing

Guidelines. 

In this case, the undisputed facts disclose that Mark Bender, Sweesy's

neighbor, gave Sweesy a box of chemicals as a Christmas present in December 1999.

On December 28, 1999, Game, Fish and Parks officials had a report of illegal

poaching on Sweesy's property. Police executed a search warrant on Sweesy's house.

The search uncovered a glass beaker in his living room and drug paraphernalia

located in places throughout the house. No methamphetamine, chemicals to make

methamphetamine, or methamphetamine lab were found. The police apparently did

not discover or seize the box of chemicals. Police arrested and charged Sweesy with

a gaming violation.

On January 3, 2000, Sweesy contacted the authorities regarding the chemicals

and glassware. After obtaining a second search warrant, police returned to Sweesy's

home. Sweesy directed officers to the location of the chemicals. Police then arrested

Sweesy. 

Prior to trial, Sweesy admitted to possessing the chemicals and drug

paraphernalia and knowing how to manufacture methamphetamine. However, he

denied any intent to manufacture methamphetamine. At trial, the government

presented evidence that Sweesy had previously sold methamphetamine to prove his

intent to manufacture methamphetamine. 

The Presentence Report indicated that Sweesy may be entitled to a reduction

of his offense level based on acceptance of responsibility. The probation officer

determined that this case would fall under the exception to United States Sentencing
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Guideline section 3E1.1 for acceptance of responsibility. Application note 2

provides:

This adjustment is not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying the essential

factual elements of guilt. . . . Conviction by trial, however, does not

automatically preclude a defendant from consideration for such a

reduction. In rare situations a defendant may clearly demonstrate an

acceptance of responsibility for his criminal conduct even though he

exercises his constitutional right to a trial. This may occur, for example,

where a defendant goes to trial to assert and preserve issues that do not

relate to factual guilt (e.g., to make a constitutional challenge to a statute

or a challenge to the applicability of a statute to his conduct).

U.S. SENTENCING GUIDELINES MANUAL § 3E1.1, cmt. n.2 (2000). The district court

determined that the reduction was not warranted because "the defendant went to trial

to preserve a factual issue dealing with whether he was guilty, that being whether he

intended to manufacture methamphetamine." 

Sweesy did not testify at trial. Therefore, the element of intent rested on the

jury's inferences from the undisputed facts. Sweesy recognized responsibility when

he admitted possession and turned the materials over to law enforcement personnel.

These facts are not in dispute. What he denied was the inference that the mere

possession of the materials constituted an attempt to manufacture methamphetamine.

He did not deny his conduct, he merely raised a good faith legal objection to the

conclusions drawn from that conduct. 

The question of Sweesy's guilt was the subject of two trials. The first jury did

not convict Sweesy. The government presented a weak case, one barely enough to

support a conviction from the second jury. A close question existed as to whether

Sweesy's possession of chemicals useable to manufacture methamphetamine is

sufficient to establish an intent to manufacture methamphetamine. Intent reflects a
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state of mind. Nothing in the acceptance-of-responsibility provision in the

Sentencing Guidelines requires a defendant to admit his intent. Rather, the provision

addresses conduct, Sweesy admitted his conduct. 

The sentence imposed is a mighty long time, thirteen years and eight months,

especially when the defendant did not produce methamphetamine and turned over the

incriminating materials of his own accord. 

Most judges, in my opinion, would have granted a reduction in the offense

level for acceptance of responsibility. Judges should take into account that many

guideline drug sentences are often heavier than is warranted by the nature of the

crime. This is where a district judge's discretion becomes important and where the

judge often should take advantage of the provisions that permit reducing sentences

under the guidelines. 

While the determination of the sentencing judge is entitled to great deference,

in this case the district judge made a mistake.

Thus, I dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.