Submitted: January 9, 2017
from United States District Court for the Western District of
Missouri - Kansas City
SMITH, Chief Judge, GRUENDER and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Western District of Missouri grand jury returned an
indictment charging Timothy Kirlin with conspiracy to
distribute 1, 000 or more grams of heroin and some amount of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A); being a felon in possession of an explosive
device, in violation of 18 U.S.C. §§ 842(i)(1),
844(a)(1); and possession with intent to distribute and
distribution of heroin, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(c).
jury trial the United States introduced evidence that Kirlin
and his co-conspirators conducted a heroin distribution
operation in the Kansas City, Missouri area spanning a period
of ten years. During this time Kirlin and others would
regularly travel to Texas to obtain significant quantities of
heroin and other drugs for distribution. In March of 2002,
one of Kirlin's customers, Joshua Webb, overdosed and
died after taking heroin supplied by Kirlin. Kirlin was
present in Webb's apartment at the time of Webb's
death and, while others attempted to revive Webb, Kirlin
concealed drugs and marijuana plants. The medical examiner
testified that Webb would have lived had he not ingested
appeared at the jury trial pro se with the Federal Public
Defender as standby counsel. Kirlin made no opening statement
or closing argument and did not cross-examine the
government's witnesses. Kirlin presented no witnesses or
other evidence in his defense, and he made no motion to
acquit at the close of the government's case. The jury
returned a verdict of guilty as to each count of the
indictment and, in a special verdict form, found that Joshua
Webb would not have died but for his ingestion of heroin
distributed by Kirlin.
sentencing, the government represented that Kirlin had been
previously convicted of two drug-related felonies and
therefore was subject to a mandatory life sentence on the
conspiracy count pursuant to 21 U.S.C. § 841(b)(1)(A).
The presentence report attributed between four and five
kilograms of heroin to the conspiracy and it did not
recommend a reduction in the Guidelines offense level for
acceptance of responsibility. Kirlin's Guidelines
sentencing range was determined to be 292 to 365 months and
Kirlin was sentenced to life imprisonment on the conspiracy
count, 120 months imprisonment on the felon in possession of
an explosive device count, and 360 months imprisonment on
each of the seven counts of possession with intent to
distribute and distribution of heroin. The sentences were
ordered to run concurrently with each other.
appealed and, after the filing of Kirlin's opening brief,
we granted the government's unopposed motion to remand
this case to the district court for resentencing because,
according to the government, Kirlin's two prior
drug-related felony convictions should have been counted as
one conviction under 21 U.S.C. § 841(b)(1)(A). On
remand, at the beginning of the second sentencing hearing,
Kirlin made a lengthy statement challenging the jurisdiction
of the district court, the authority of the United States
Attorney, and the government's case against him. The
district court found that as a result of amendments to
the Sentencing Guidelines, effective on November 1, 2014,
which altered the drug quantity table under USSG §
2D1.1, the base offense level was reduced by two levels and
the Sentencing Guidelines range was reduced to 235 to 293
months. The district court varied upward and sentenced Kirlin
to 360 months on the conspiracy count, 120 months on the
explosive device count, and 360 months on each of the
remaining counts, with the sentences to run concurrently.
Kirlin again appeals.
asserts the district court committed procedural error in
failing to further reduce the base offense level by two
levels for acceptance of responsibility under USSG §
3E1.1, failing to properly consider the sentencing factors
set forth in 18 U.S.C. § 3553(a), and failing to
adequately explain the sentence. He further contends the
sentence is substantively unreasonable.
reviewing a challenge to a sentence, we must first ensure
that the district court committed no significant procedural
error. . . . If we discover no procedural error, we then
consider the substantive reasonableness of the sentence
imposed under a deferential abuse-of-discretion
standard." United States v. Timberlake, 679
F.3d 1008, 1011 (8th Cir. 2012) (citation omitted) (internal
quotation marks omitted). "In reviewing a sentence for
significant procedural error, we review a district
court's factual findings for clear error and its
interpretation and application of the guidelines de
novo." United States v. Bryant, 606 F.3d 912,
918 (8th Cir. 2010). However, "[i]f a defendant fails to
timely object to a procedural sentencing error, the error is
forfeited and may only be reviewed for plain error."
United States v. Phelps, 536 F.3d 862, 865 (8th Cir.
district court accepted the presentence report's
recommendation to deny an acceptance of responsibility
reduction in the offense level. Kirlin did not request an
acceptance of responsibility adjustment nor did he object to
the district court's failure to apply an acceptance of
responsibility reduction. Therefore, under plain error
review, Kirlin "must show (1) the district court
committed an error, (2) the error is clear or obvious, and
(3) the error affected his substantial rights."
United States v. White Bull, 646 F.3d 1082, 1091
(8th Cir. 2011). Even if these elements are shown, we
"will only reverse if the error 'seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.'" United States v.
Jean-Guerrier, 666 F.3d 1087, 1091 (8th Cir. 2012)
(alteration in original) (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)).
contends that under USSG § 3E1.1 the district court was
required to reduce his offense level for acceptance of
responsibility because "he did nothing to challenge the
government's case against him" at trial. Further,
Kirlin asserts that he declined to plead guilty and went to
trial only because his attorney misled him as to the sentence
he would face if he pled guilty and "because the
government's only plea offer was contingent on the guilty
plea of a co-defendant" who declined to plead guilty.
§ 3E1.1(a) provides: "If the defendant clearly
demonstrates acceptance of responsibility for his offense,
decrease the offense level by 2 levels." Among the
factors which may be considered in determining whether a
defendant qualifies for this reduction are the
defendant's "truthfully admitting the conduct
comprising the offense(s) of conviction[;]"
"voluntary termination or withdrawal from criminal
conduct or associations;" "voluntary payment of
restitution prior to adjudication of guilt;"
"voluntary surrender to authorities promptly after
commission of the offense;" "voluntary assistance
to authorities in the recovery of the fruits and
instrumentalities of the offense;" "voluntary
resignation from the office or position held during the
commission of the offense;" "post-offense
rehabilitative efforts (e.g., counseling or drug