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United States v. Kirlin

United States Court of Appeals, Eighth Circuit

June 12, 2017

United States of America Plaintiff- Appellee
v.
Timothy M. Kirlin Defendant-Appellant

          Submitted: January 9, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before SMITH, Chief Judge, GRUENDER and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         A 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).

         At a 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 heroin.

         Kirlin 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.

         At 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.

         Kirlin 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[1] 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.

         Kirlin 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.

         "In 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. 2008).

         The 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)).

         Kirlin 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.

         USSG § 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 ...


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