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Date: 10-06-2021

Case Style:

United States of America v. LOS ROVELL DAHDA

Case Number: 19-3283

Judge: Paul J. Kelly, Jr.

Court: UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:


Denver, CO - Criminal defense Lawyer Directory


Description:

Denver, CO - Criminal defense lawyer represented defendant with numerous counts arising out of a drug distribution operation in Kansas.



A jury convicted Dahda and other defendants of numerous counts arising out
of a drug distribution operation in Kansas. See Dahda I, 853 F.3d at 1106. The
district court sentenced him to 189 months of imprisonment and imposed a fine of
$16,985,250. See id. at 1105-06. On appeal, we affirmed the sentence of
imprisonment, but reversed the fine and remanded for reconsideration of the amount.
See id. at 1118.
1
One of Dahda’s co-defendants was his brother, Roosevelt Dahda. In
Roosevelt Dahda’s direct appeal, we held that the district court clearly erred in
estimating the quantity of marijuana attributable to him for purposes of sentencing.
United States v. Dahda (Roosevelt Dahda), 852 F.3d 1282, 1294 (10th Cir. 2017),
aff’d, 138 S. Ct. 1491 (2018). Because the district court had used the same method to
calculate the quantity of marijuana attributable to Dahda, on remand the court
expanded the scope of Dahda’s resentencing to apply this portion of Roosevelt Dahda
as well. Therefore, in addition to addressing the fine, the district court reconsidered
the quantity of marijuana attributable to Dahda, which resulted in a lower sentencing
range.2
But it refused to further expand the scope of the resentencing. Ultimately, it
resentenced Dahda to 135 months of imprisonment and waived the fine.
1 The Supreme Court granted certiorari and affirmed Dahda I’s discussion of
wiretapping issues. See Dahda v. United States, 138 S. Ct. 1491, 1494, 1500 (2018).
Those issues are not relevant to the resentencing or this appeal.
2 Neither party argues that the district court erred in applying this portion of
Roosevelt Dahda to Dahda’s resentencing.
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3
DISCUSSION
I. Imposing Sentence Without a Jury Finding on Drug Quantity
Dahda first challenges the 135-month sentence. Count one, which carries the
controlling sentence, charged a conspiracy to distribute 1,000 kilograms or more of
marijuana and to maintain drug-involved premise(s) in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii) and (b)(1)(A)(vii), 846, and 856 and 18 U.S.C. § 2. The
jury explicitly found Dahda guilty of all four proposed objectives of the conspiracy—
(1) manufacturing marijuana; (2) processing marijuana with the intent to distribute it;
(3) distributing marijuana, and (4) maintaining a drug-involved premise(s). But it
was not asked to (and did not) make any findings as to the quantity of marijuana
attributable to him individually. Renewing an argument he made in Dahda I, Dahda
challenges the district court’s ability to impose the 135-month sentence in the
absence of a jury finding as to the specific quantity of marijuana attributable to him.
We review this issue de novo. Dahda I, 853 F.3d at 1116.
Dahda I explained the foundation of the argument:
The penalties for violating § 841(a) appear in subsection (b).
Subsection (b)(1)(D) provides a maximum sentence of 5 years’
imprisonment if the total marijuana weight was less than 50 kilograms.
21 U.S.C. § 841(b)(1)(D). Subsection (b)(1)(C) provides a maximum
sentence of 20 years’ imprisonment when no specific amount is charged.
And subsections (b)(1)(A) and (B) provide higher maximum sentences
depending on the type and quantity of the substance; in cases involving
1,000 kilograms or more of marijuana, subsection (b)(1)(A) imposes a
mandatory minimum sentence of 10 years and a maximum sentence of life
imprisonment. 21 U.S.C. § 841(b)(1)(A)(vii).
Although [Dahda] was found guilty of participating in a conspiracy
involving 1,000 kilograms or more of marijuana, the government agreed to
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4
waive the 10-year mandatory minimum under § 841(b)(1)(A). Thus,
[Dahda] was sentenced under § 841(b)(1)(C).
But he argues that he should have been subject to the 5-year
maximum under § 841(b)(1)(D) because the verdict form did not require a
specific determination of the marijuana quantity.
Id. We “reject[ed] this argument because the marijuana quantity, 1,000 kilograms,
was an element of the charged conspiracy.” Id.
Shortly after Dahda I, this court held that a district court erred under Alleyne v.
United States, 570 U.S. 99, 114-16 (2013), by sentencing a defendant under
§ 841(b)(1)(A)—the mandatory-minimum provision—where the jury had not made a
specific finding as to the quantity of drugs individually attributable to that defendant.
United States v. Ellis, 868 F.3d 1155, 1170 (10th Cir. 2017). Ellis vacated the
sentence imposed under § 841(b)(1)(A) and remanded for resentencing under
§ 841(b)(1)(C). 868 F.3d at 1178-79, 1181.
Relying on Ellis, Dahda argued on remand that in the absence of a jury finding
on the drug quantity individually attributable to him, he should be resentenced to a
maximum of five years under § 841(b)(1)(D). The district court, however, applied
the law of the case doctrine and held that the twenty-year maximum under
§ 841(b)(1)(C) continued to control.
3
Dahda challenges this determination, again
3 At times, the district court indicated that regardless of § 841(b)(1), count one could
carry a twenty-year statutory maximum because, besides the other objectives of the
conspiracy, the jury found Dahda guilty of conspiracy to maintain a drug-involved
premise(s). See 21 U.S.C. §§ 846 (providing that conspiracy carries the same
punishment as the substantive offense), 856(b) (establishing 20-year statutory
maximum, without mentioning drug quantity, for maintaining a drug-involved
premise(s)). After the sentencing hearing, however, the district court issued a written
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arguing that he must be resentenced to no more than five years’ imprisonment under
§ 841(b)(1)(D).
We agree with the district court that Dahda I is the law of the case. See United
States v. Parada, 577 F.3d 1275, 1279-1280 (10th Cir. 2009) (“The law of the case
doctrine posits that when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case.” (internal
quotation marks omitted)). “We depart from the law of the case doctrine [only] in
exceptionally narrow circumstances.” Id. at 1280 (internal quotation marks omitted).
One exception is “when controlling authority has subsequently made a contrary
decision of the law applicable to such issues.” Id. (internal quotation marks omitted).
Alleyne would be “controlling authority,” as would the other Supreme Court
case Dahda cites, Burrage v. United States, 571 U.S. 204 (2014). But because both
of those decisions pre-date Dahda’s first sentencing and Dahda I, they did not
“subsequently” change the law. And Ellis does not qualify as “controlling authority”
that would change Dahda I’s result. As a panel decision, Ellis could not overrule
Dahda I. See Parada, 577 F.3d at 1280 (“[I]t is almost axiomatic that one panel of
this court cannot overrule another panel.” (internal quotation marks omitted)). To the
contrary, if Ellis and Dahda I conflict, Dahda I would control. See United States v.
Reese, 745 F.3d 1075, 1083 (10th Cir. 2014) (“[W]e have held that where . . . an
outlier exists—that is, when two panel decisions conflict—the earlier decision
Sentencing Memorandum clarifying that the sentence on count one was imposed
under § 841(b)(1)(C) and the law of the case doctrine.
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6
controls.”). Moreover, Ellis’s result is consistent with the result of Dahda I.
Although the Ellis jury did not attribute a specific quantity of drugs to the defendant,
Ellis held that “at the very least, Ellis stands properly convicted under 21 U.S.C.
§ 841(a)(1), (b)(1)(C).” Ellis, 868 F.3d at 1168 (emphasis added). And Ellis
remanded for resentencing under § 841(b)(1)(C), not § 841(b)(1)(D). See id. at
1178-79, 1181.
For these reasons, we affirm the district court’s decision to resentence Dahda
under § 841(b)(1)(C) rather than § 841(b)(1)(D).
II. Amendment 790
Dahda next argues that the district court failed to engage in the three-step
analysis required by Amendment 790, which amended Sentencing Guideline § 1B1.3
(relevant conduct) just after his first sentencing. Under § 1B1.3(a)(1)(B), in cases
involving jointly undertaken criminal activity, the district court can consider acts or
omissions of other persons that were (1) within the scope of the joint activity, (2) in
furtherance of the activity, and (3) reasonably foreseeable in connection with the
activity. Dahda complains that the district court did not recognize that
Amendment 790 was applicable on remand and did not make findings on each of the
three prongs in determining whether certain pallets of marijuana shipped by other
defendants were attributable to him.
The district court, however, did not refuse to apply the amended § 1B1.3. The
revised presentence report used for Dahda’s resentencing calculated his sentence
using the 2018 Guidelines, which incorporated Amendment 790. And the district
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7
court noted that it had “implicitly, if not explicitly, addressed” the prongs at the first
sentencing, R. Vol. IV at 30, and explained that it did not “think that Amendment 790
changed the law in any way that would require a different result in this
re-sentencing,” id. at 37. Further, for clarity, it specifically found that the disputed
pallets and crates “were acts in furtherance of the jointly-undertaken criminal
conspiracy of shipping marijuana to Kansas for resale.” Id. at 30-31.
To the extent that Dahda argues that the district court’s findings were
procedurally inadequate, he did not raise any such objection before the district court
at sentencing, and he does not argue for plain error before this court. He therefore
has waived this argument. See United States v. Oldman, 979 F.3d 1234, 1255
(10th Cir. 2020). And to the extent that he challenges the substance of the district
court’s findings, his opening brief makes only cursory statements that the
government failed to carry its burden of proof. Inadequately briefed arguments are
waived. See United States v. Yurek, 925 F.3d 423, 436 n.10 (10th Cir. 2019).
III. Ineffective Assistance of Appellate Counsel
Finally, Dahda alleges that his counsel in his first direct appeal was
ineffective. This court, however, generally defers ineffective-assistance claims to
collateral proceedings under 28 U.S.C. § 2255. See United States v. Galloway,
56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (“Ineffective assistance of counsel
claims should be brought in collateral proceedings, not on direct appeal. Such claims
brought on direct appeal are presumptively dismissible, and virtually all will be
dismissed.”). This is not one of those “rare instances” in which “an ineffectiveness
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8
of counsel claim may need no further development prior to review on direct appeal.”
Id.

Outcome: The district court’s judgment is affirmed.

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