User Name: XFSS3WA Date and Time: Apr 16, 2012 14:41 EST Job Number: 244853

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1. United States v. Vanderpool, 566 F.3d 754 Client/matter: Wentzville: Other Legal Services

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Cited As of: April 16, 2012 2:41 PM EDT

United States v. Vanderpool

United States Court of Appeals for the Eighth Circuit January 14, 2009, Submitted; May 14, 2009, Filed No. 08-2542 Reporter: 566 F.3d 754; 2009 U.S. App. LEXIS 10283 United States of America, Plaintiff-Appellee, v. Heather Louise Vanderpool, Defendant-Appellant. Prior History: [**1] Appeal from the United States District Court for the Eastern District of Missouri. Core Terms distribute, methamphetamine, Guidelines, Sentencing, correctional facility, controlled substance, jail, prison, district court, enhancement, levels, possessed Case Summary Procedural Posture Defendant appealed the 77-month sentence imposed by the United States District Court for the Eastern District of Missouri following her guilty plea to possessing with intent to distribute more than five grams of actual methamphetamine, a violation of 21 U.S.C.S. 841(a)(1) and 841(b)(1)(B)(viii). The district court applied a two-level sentencing enhancement because defendant distributed methamphetamine in a correctional facility. Overview On appeal, the court held that the district court correctly interpreted U.S. Sentencing Guidelines Manual 2D1.1(b)(3) and did not clearly err when it applied 2D1.1(b)(3) to increase defendants offense level by two levels. Because defendant pled guilty to possession with intent to distribute actual methamphetamine, there could be no dispute that the object of her offense was to distribute a controlled substance. The court rejected defendants claim that the government had to prove that, prior to her incarceration, she formed the intent to transport drugs into the jail with the purpose of distributing them therein. The Guidelines required only that the object of the offense was the distribution of a controlled substance in a prison, correctional facility, or detention facility. There was no temporal requirement that intent to distribute a controlled substance in a correctional facility must be formed prior to entering the correctional facility. Outcome The court affirmed defendants sentence. LexisNexis Headnotes
Criminal Law & Procedure > ... > Appeals > Standards of Review > De Novo Review Criminal Law & Procedure > ... > Appeals > Standards of Review > Clear Error Review Criminal Law & Procedure > Sentencing > Sentencing Guidelines > General Overview

The court of appeals reviews the district courts interpretation of the United States Sentencing Guidelines de novo, and its application of the Guidelines to the facts for clear error.
Criminal Law & Procedure > ... > Sentencing Guidelines > Adjustments & Enhancements > General Overview

U.S. Sentencing Guidelines Manual 2D1.1(b)(3) reads: If the object of the offense was the distribution of a controlled substance in a prison, correctional facility, or detention facility, increase by 2 levels. 2D1.1(b)(3).

Page 2 of 4 566 F.3d 754, *754; 2009 U.S. App. LEXIS 10283, **1

Criminal Law & Procedure > ... > Sentencing Guidelines > Adjustments & Enhancements > General Overview

The United States Sentencing Guidelines require only that the object of the offense was the distribution of a controlled substance in a prison, correctional facility, or detention facility. U.S. Sentencing Guidelines Manual 2D1.1(b)(3). There simply is no temporal requirement that intent to distribute a controlled substance in a correctional facility must be formed prior to entering the correctional facility. Section 2D1.1(b)(3) is not ambiguous.
Governments > Legislation > Interpretation Criminal Law & Procedure > ... > Sentencing Guidelines > Adjustments & Enhancements > General Overview

The rule of lenity will not be applied to the United States Sentencing Guidelines enhancement in the absence of a grievous ambiguity or uncertainty in its language or structure. Counsel: For United States of America, Plaintiff - Appellee: Sirena Miller Wissler, Assistant U.S. Attorney, U.S. ATTORNEYS OFFICE, Eastern District of Missouri, St. Louis, MO. For Heather Louise Vanderpool, Defendant - Appellant: Adam Douglas Fein, ROSENBLUM & SCHWARTZ, St. Louis, MO. Heather Louise Vanderpool, Defendant - Appellant, Pro se, Danbury, CT. Judges: Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges. Opinion by: SHEPHERD Opinion [*755] SHEPHERD, Circuit Judge. Heather Louise Vanderpool pled guilty to one count of possessing with intent to distribute more than five grams of actual methamphetamine in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(viii). The district court 1 applied a two -level sentencing enhancement because Vanderpool distributed methamphetamine in a correctional facility. The district court then sentenced Vanderpool to 77 months imprisonment. We affirm. On January 24, 2008, Vanderpool traveled to the Thomas F. Eagleton United States Court House in St. Louis, Missouri, to be sentenced after pleading [**2] guilty to participating in a conspiracy to manufacture [*756] methamphetamine. On her way to the courthouse, Vanderpool was pulled over by police officers in Wentzville, Missouri, and arrested pursuant to warrants for outstanding traffic violations. Unbeknownst to the officers, Vanderpool possessed approximately 18 grams of methamphetamine at the time of her arrest. The following day, Vanderpool was sentenced to 46 months imprisonment, remanded to the custody of the United States Marshals Service, and transported to jail in Lincoln County, Missouri, to await designation by the Federal Bureau of Prisons. Vanderpool failed to advise law enforcement officials that she possessed methamphetamine. While incarcerated in Lincoln County, Vanderpool shared a cell with Gina Morrison. On February 3, 2008, prison personnel received an anonymous tip that Morrison possessed methamphetamine. A female correctional officer searched Vanderpool and Morrison and discovered a small, plastic bag inside Vanderpools mouth that contained actual methamphetamine. Later that day, prison personnel received information from another female inmate that Vanderpool may have concealed something inside her jumpsuit. When a female [**3] correctional officer confronted Vanderpool with this new information, Vanderpool retrieved another small bag containing actual methamphetamine from inside her vagina. Vanderpool then confessed that she had distributed some methamphetamine to Morrison inside the prison facility. Vanderpool pled guilty to one count of possessing with intent to distribute more than five grams of actual methamphetamine in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(viii). At the sentencing hearing, the district court calculated a base offense level of 26. See United States Sentencing Commission, Guidelines Manual, 2D1.1(c)(7) (at least 5 G but less than 20 G of Methamphetamine (actual)). The court increased the offense level by two lev1

The Honorable Carol E. Jackson, Chief Judge, United States District Court for the Eastern District of Missouri.

Page 3 of 4 566 F.3d 754, *756; 2009 U.S. App. LEXIS 10283, **3 els, finding that the object of Vanderpools offense was the distribution of a controlled substance in a correctional facility. See id. 2D1.1(b)(3). The court decreased the offense level by three levels for acceptance of responsibility, see id. 3E1.1, resulting in a total offense level of 25. With a criminal history category of IV, Vanderpools initial Guidelines range was 84 to 105 months. However, the court granted a downward departure of one offense level because [**4] Vanderpool provided useful testimony against Morrison, resulting in an ultimate Guidelines range of 77 to 96 months. See id. 5K1.1, p.s. The court then sentenced Vanderpool to 77 months imprisonment. Absent the enhancement for distributing a controlled substance in a correctional facility, Vanderpools ultimate Guidelines range would have been 63 to 78 months. Improperly calculating the Guidelines range constitutes significant procedural error. E.g., United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008). Vanderpool appeals her sentence, arguing that the district court erred in applying the two-level enhancement pursuant to USSG 2D1.1(b)(3) because the government did not prove that the object of Vanderpools offense was to distribute a controlled substance in a correctional facility. Instead, Vanderpool contends that the court impermissibly rested its finding on the fact that she knowingly distributed drugs in such a facility. This court reviews the district courts interpretation of the Sentencing Guidelines de novo, and its application of the Guidelines to the facts for clear error. United States v. Miller, 560 F.3d 751, 753 (8th Cir. 2009). Guidelines section 2D1.1(b)(3) [**5] reads: If the object of the offense was the distribution [*757] of a controlled substance in a prison, correctional facility, or detention facility, increase by 2 levels. Id. 2D1.1(b)(3). In applying this enhancement, the district court reasoned as follows: [D]efendants intent may be discerned by defendants conduct. That is acts the defendant knowingly commits may be indicative of the defendants intent. Here [] its undisputed that Miss Vanderpool had methamphetamine in her possession in the jail from as early as January 24th until February the 3rd when it was discovered by the jail authorities. She never told anyone that she had it in her possession. She kept it concealed for more than a week and she was in a jail facility when she distributed some of that methamphetamine to her cellmate. We know . . . Miss Vanderpool intended to distribute methamphetamine in a jail facility because she distributed methamphetamine in a jail facility. It wasnt an accident. She intended and deliberately and knowingly shared the meth with her cellmate, so the guideline in issue provides that an offense level is to be increased by two levels . . . . Now maybe on January 24th she had some different plan with [**6] respect to . . . the methamphetamine that she was concealing on her person. . . . [But] [w]hat she did was she kept it concealed and then ultimately she distributed it . . . to someone within the jail . . . . She did it deliberately, she did it knowingly, she did it intentionally and that was her object. She pled guilty to possession with intent to distribute actual methamphetamine. She had possession and she had the intent to distribute and she did in fact distribute methamphetamine and . . . she knew she was in jail. (Sentencing Tr. 7-8.) Because Vanderpool pled guilty to possession with intent to distribute actual methamphetamine, there can be no dispute that the object of her offense was to distribute a controlled substance. 2 However, Vanderpool believes the government must prove that, prior to her incarceration, she formed the intent to transport drugs into the jail with the purpose of distributing them therein. We find this argument unpersuasive. The Guidelines require only that the object of the offense was the distribution of a controlled substance in a prison, correctional facility, or detention facility . . . . USSG 2D1.1(b)(3). There simply is no temporal requirement that [**7] intent to distribute a controlled substance in a correctional facility must be formed prior to entering the correctional facility. Section 2D1.1(b)(3) is not ambiguous, and we decline Vanderpools invitation to apply the rule of lenity. See United States v. Clawson, 408 F.3d 556, 558-59 (8th Cir. 2005) (refusing to apply rule of lenity to Guidelines enhancement in the absence of a grievous ambiguity or uncertainty in [its] language or structure). When Vanderpool committed the instant offense, the object of her offense was to distribute a controlled substance to her cellmate in the Lincoln County jail. We hold that the district court correctly interpreted Guidelines section
2

The terms object and intent are synonymous. Compare Websters Third New International Dictionary 1176 (1986) (defining intent as an end or object proposed), and id. at 1555 (defining object as something (as an end, aim, or motive) by which the mind or any of its activities is directed).

Page 4 of 4 566 F.3d 754, *757; 2009 U.S. App. LEXIS 10283, **7 2D1.1(b)(3) and did not clearly err when it applied section 2D1.1(b)(3) to increase Vanderpools offense [*758] level by two levels. Accordingly, Vanderpools sentence is affirmed.