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United States of America v. RONALD DANIEL KELLY
Case Number: 06-6284
Judge: Carlos F. Lucero
Court: UNITED STATES COURT OF APPEALS
Plaintiff's Attorney: Not Listed
Denver, CO - Criminal defense lawyer represented defendant with possession of
pseudoephedrine with intent to manufacture methamphetamine charges.
On December 30, 2003, Kelly pleaded guilty to possession of
pseudoephedrine with intent to manufacture methamphetamine in violation of 21
U.S.C. § 841(c)(1). Nothing in the charging documents, plea agreement, or
petition to enter a guilty plea indicated the quantity of pseudoephedrine Kelly
possessed at the time of his arrest. Kelly’s Presentence Report (“PSR”) indicated
that he possessed 2.592 kilograms of pseudoephedrine, resulting in a base offense
level of 36. After a three point adjustment for acceptance of responsibility,
Kelly’s offense level was reduced to 33. With three criminal history points from
a prior conviction for first-degree murder, the PSR calculated a criminal history
category of II. For an offense level of 33 and a criminal history category of II,
the recommended Guidelines range is 151 to 188 months’ imprisonment.
Kelly raised objections to the PSR and, in particular, contested the quantity
of pseudoephedrine, claiming that he believed he was receiving less than one
kilogram of the methamphetamine precursor. On May 26, 2004, the district court
heard testimony from Officer Mark Danner, a task force officer with the Drug
Enforcement Administration (“DEA”) who was involved in Kelly’s arrest, and
concluded that the quantity listed in the PSR was correct. The court sentenced
Appellate Case: 06-6284 Document: 010130747 Date Filed: 09/12/2007 Page: 2
exclusively to what was reported at the August 24, 2006, resentencing hearing,
the transcript of which is included in the record.
McKee pleaded guilty to a single telephone count and received a sentence 2
of 48 months’ imprisonment.
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Kelly to 151 months’ imprisonment, which sentence Kelly appealed. While his
appeal was pending, the Supreme Court decided United States v. Booker, 543
U.S. 220 (2005), and we subsequently remanded his case for resentencing for
nonconstitutional Booker error. Kelly, 159 F. App’x at 865.
At Kelly’s resentencing hearing, Danner testified again, stating that in 2003
the DEA received information from a confidential informant that Kelly and
Kelly’s co-defendant, David McKee, were interested in purchasing a large 2
quantity of pseudoephedrine in order to manufacture methamphetamine. On
October 23, 2003, Danner, acting undercover, and the confidential informant met
with McKee to discuss a possible deal. McKee told them that Kelly was an
accomplished methamphetamine “cook” who could produce high yields of
methamphetamine if Danner and the informant supplied him with
pseudoephedrine. They arranged another meeting with McKee and Kelly for
November 17, 2003. At that meeting, Danner told Kelly that he could provide
five cases of pseudoephedrine, with each case consisting of 144 bottles, and each
bottle containing 60 tablets weighing 60 milligrams. In response, Kelly claimed
he could produce two and one-half kilograms of methamphetamine from that
Appellate Case: 06-6284 Document: 010130747 Date Filed: 09/12/2007 Page: 3
Kelly contested the quantity of pseudoephedrine in the PSR, requested a 3
minor participant adjustment, and argued that he should not receive three criminal
history points because his murder conviction fell outside of the 15-year applicable
time period set in U.S.S.G. § 4A1.2(e)(1).
In Booker, the Supreme Court “reaffirm[ed] [the] holding in Apprendi: 4
Any fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or
a jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” 543 U.S. at 244.
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amount of pseudoephedrine. A few minutes later, Danner brought the cases to
Kelly, whereupon Kelly was arrested.
Kelly raised several arguments at the resentencing hearing, some of which
reiterated his objections to the PSR. Determining that the case law of this circuit 3
directly controlled most of these issues, and finding that the evidence presented
did not support Kelly’s claims, the district court rejected his arguments and again
sentenced Kelly to 151 months’ imprisonment. Kelly now appeals.
Kelly asserts six arguments as to why he should be resentenced: (1)
Kelly’s counsel’s statement that Kelly thought he was receiving a lesser amount
of pseudoephedrine does not constitute an admission by Kelly under Booker; (2) 4
Kelly’s sentence was unreasonable because it was disproportionate to the sentence
received by his co-defendant; (3) In denying Kelly’s request for a belowGuidelines sentence, the sentencing court failed to adequately explain its reasons;
(4) Danner’s hearsay testimony regarding the confidential informant violated
Kelly’s Sixth Amendment right to confrontation; (5) Facts that enhance a
Appellate Case: 06-6284 Document: 010130747 Date Filed: 09/12/2007 Page: 4
We note that Kelly does not challenge this appellate presumption of 5
reasonableness, which was recently upheld in Rita v. United States, 127 S. Ct.
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sentence must be proved beyond a reasonable doubt; and (6) When applied
retroactively, Kelly should receive the benefit of Booker’s Sixth Amendment
interpretation but not the Booker remedy.
We review sentencing decisions for both procedural and substantive
reasonableness in light of the factors in 18 U.S.C. § 3553(a). United States v.
Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007). Moreover, we apply an appellate
presumption of reasonableness to within-Guidelines sentences. United States v. 5
Geiner, ___ F.3d ___, 2007 WL 2358678, at *2 (10th Cir. Aug. 20, 2007).
Because all of the issues raised by Kelly are controlled by established circuit
precedent and the doctrine of law of the case, and because the district court
properly considered the factors in § 3553(a), we determine that Kelly’s sentence
In Kelly’s first appeal before this court, we held that his counsel’s
statement regarding the quantity of pseudoephedrine that he intended to possess
constituted an admission on Kelly’s behalf, citing United States v. Buonocore,
416 F.3d 1124, 1134 (10th Cir. 2005). Kelly, 159 F. App’x at 868 n.4. Under the
law of the case doctrine, our previous decisions on a rule of law should govern
the same issues in later stages of the same case. Rohrbaugh v. Celotex Corp., 53
F.3d 1181, 1183 (10th Cir. 1995) (“[W]hen a case is appealed and remanded, the
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Kelly urges us to adopt the position advocated by Judge Seymour in her 6
concurrence in Buonocore, 416 F.3d at 1137-38, that counsel’s statements are not
admissions for Sixth Amendment purposes. This panel, however, cannot overrule
the majority holding of another panel of this court. See In re Smith, 10 F.3d 723,
724 (10th Cir. 1993) (per curiam).
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decision of the appellate court establishes the law of the case and ordinarily will
be followed by both the trial court on remand and the appellate court in any
subsequent appeal.”). Although this doctrine is not an “inexorable command,”
Pittsburgh County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694,
711 (10th Cir. 2004), we determine that the rule in Buonocore applies to this issue
and thus counsel’s statement constitutes an admission on behalf of Kelly.6
As to Kelly’s second argument, a disparity in sentences between codefendants does not provide a basis for relief. See United States v. Davis, 437
F.3d 989, 997 (10th Cir. 2006). With respect to his third argument, when a
district court imposes a within-Guidelines sentence, 18 U.S.C. § 3553(c) requires
only that the court provide a general statement of “the reasons for its imposition
of the particular sentence.” § 3553(c); United States v. Ruiz-Terrazas, 477 F.3d
1196, 1199 (10th Cir. 2007). In Rita v. United States, the defendant requested a
sentence below the Guidelines range, which the district court denied. 127 S. Ct.
at 2469. In upholding the district court’s decision, the Supreme Court noted that
the district judge “listened to each argument [made by the defendant],”
“considered the supporting evidence,” and concluded that the Guidelines range
was “not ‘inappropriate’” and a sentence at the bottom of the range was
Appellate Case: 06-6284 Document: 010130747 Date Filed: 09/12/2007 Page: 6
Kelly asserts that the Supreme Court has not addressed this issue head on.
This argument, however, does not mean that this panel may overrule Magallanez,
see In re Smith, 10 F.3d at 724, and we also note that the Court denied certiorari
in that case. See Magallanez v. United States, 546 U.S. 955 (2005).
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“appropriate.” Id. The Court held that “[w]here a matter is as conceptually
simple as in the case at hand and the record makes clear that the sentencing judge
considered the evidence and arguments, we do not believe the law requires the
judge to write more extensively.” Id. In the present case, Kelly, speaking on his
own behalf at the resentencing hearing, presented reasons as to why a downward
departure was warranted in his case. The district court listened to his arguments,
but concluded, with reference to the § 3553(a) factors, that a sentence of 151
months’ imprisonment was appropriate. Given that the district court’s
explanation of its decision contained more detail than that which the Court upheld
in Rita, we conclude that the district court’s explanation was sufficient.
In United States v. Bustamante, 454 F.3d 1200, 1202-03 (10th Cir. 2006),
we held that a sentencing court’s reliance on hearsay testimony does not violate
the defendant’s Sixth Amendment rights, and thus Kelly’s fourth argument fails.
In response to his fifth argument, we have previously held that drug quantity may
be proven by a preponderance of the evidence, United States v. Magallanez, 408
F.3d 672, 684-85 (10th Cir. 2005), a decision which we cited in ruling on this
same issue in Kelly’s first appeal. See Kelly, 159 F. App’x at 868. In addition, 7
Appellate Case: 06-6284 Document: 010130747 Date Filed: 09/12/2007 Page: 7
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we determine that the district court did not commit clear error in finding that the
evidence supported the quantity of pseudoephedrine attributed to Kelly.
Finally, Kelly argues that because his crime was committed before Booker,
the Booker remedy making the Guidelines advisory cannot be applied
retroactively to his case without violating his Fifth Amendment due process
rights. Kelly asserts, however, that he is entitled to the benefit of the Booker
holding, that facts affecting his sentence must be admitted by him or proved
beyond a reasonable doubt. In his previous appeal, we held that this argument is
without merit in light of our decision in United States v. Rines, 419 F.3d 1104,
1106 (10th Cir. 2005). We again conclude that this argument is meritless.
Outcome: Accordingly, we AFFIRM the sentencing decision of the district court.