CR 12-01259 DKW IN THE UNITED STATES COURT OF APPEALS … · CR 12-01259 DKW (District of Hawaii) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,

CA NO. 14-10439 CR 12-01259 DKW (District of Hawaii)

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/Appellee v. DAVID STEIDELL Defendant/Appellant. __________________________________ _______________________ APPELLANT'S OPENING BRIEF _____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII HONORABLE DERRICK K. WATSON UNITED STATES DISTRICT COURT JUDGE DE ANNA S. DOTSON, ESQ. 33121 Ocean Ridge Dana Point, CA 92629 (808) 594-6480 Attorney for Appellant DAVID STEIDELL

Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 1 of 77

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TABLE OF CONTENTS

Page TABLE OF AUTHORITIES…………………………………………………5 I. STATEMENT OF ISSUE PRESENTED FOR REVIEW ................9 II. STATEMENT OF THE CASE ...........................................................10 A. NATURE OF THE CASE 1. JURISDICTION OF THE DISTRICT COURT .............10 2. BASIS FOR JURISDICTION IN THE COURT OF APPEALS..........................................................................10 3. NOTICE OF APPEAL WAS TIMELY ...........................10 B. PROCEEDINGS AND DISPOSITION OF THE TRIAL COURT.............................................................................10 C. BAIL STATUS ............................................................................12 III. STATEMENT OF THE FACTS ........................................................13 IV. STANDARD OF REVIEW AND ARGUMENT A. STEIDELL WAS ENTRAPPED BY A GOVERNMENT

UNDERCOVER AGENT TO COMMIT A CRIME WHICH

SIGNIFICANTLY INCREASED HIS SENTENCE …………24

1. Standard of Review……………………………………24

2. Summary of Argument………………………………...25


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3. Legal Analysis…………………………………………28

a. Steidell Lacked The Intent to Produce

Methamphetamine………………………………29

b. Steidell Lacked The Capability to Produce

Methamphetamine……………………………….31

c. The District Court’s Determination of Steidell’s

Offense Level Was Error Which Was Clear…….36

d. The Error Affected Steidell’s Substantial Rights

and Was Prejudicial……………………………..37

e. Seriously Affected Integrity of Judiciary ………39

B. THE DISTRICT COURT ERRONEOUSLY FOUND THAT

STEIDELL WAS A LEADER AS EVIDENCE FAILED TO

DEMONSTRATE THAT STEIDELL HAD THE REQUISITE

CONTROL OVER OTHERS ………………………………..41


2. Summary of Argument………………………………...41

3. Legal Analysis…………………………………………45

C. STEIDELL’S SENTENCE WAS UNREASONABLE………58



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2. Legal Analysis………………………………………..59

a. Sentence Disparity Between Co-Defendants

Steidell and CHO………………………………60

b. The Court Failed to Adequately Resolve

Steidell’s Objections to the PSR………………..65

c. Steidell’s Sentence Was Substantively

Unreasonable……………………………………72

V. CONCLUSION .....................................................................................73 CERTIFICATE OF RELATED CASES......................................................29 CERTIFICATE OF COMPLIANCE ...........................................................30 CERTIFICATE OF SERVICE……………………………………………31


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TABLE OF AUTHORITIES CASES PAGE Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed. 2d 314 (2013)……………………………...36, 37 Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000). ……………36 Freeman v. United States, 131 S. Ct. 2685, 2692, 180 L. Ed. 2d 519 (2011). ………………………..59 Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007)..24, 58, 59, 60, 65 Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997)……………36

Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007). …………..65

United States v. Ameline, 409 F.3d 1073, 1085-86 (9th Cir. 2005) (en banc)…………………………65 United States v. Bonilla-Guizar, 729 F.3d 1179, 1187 (9th Cir. 2013)……………………………………….24 United States v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010)………………………………….35, 38, 40 United States v. Calderon Espinosa, 569 F.3d 1005, 1008 (9th Cir. 2009)……………………………………….40 United States v. Cantrell, 433 F.3d 1269, 1279-80 (9th Cir. 2006)………………………………..40, 41 United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc)……………………24, 59, 65, 72


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United States v. Cortes, 732 F.3d 1078 (9th Cir 2013)…………………………………………...35, 39 United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009)…………………………………….72 United States v. Garcia Guerrero, 635 F.3d 435, 438 (9th Cir. 2011)…………………………………………..24

United States v. Gomez-Leon, 545 F.3d 777, 782 (9th Cir. 2008)………………………………………….59 United States v. Harper, 33 F.3d 1143, 1151 (9th Cir. 1994)……………………………………45, 57

United States v. Hoac, 990 F.2d 1099, 1111 (9th Cir. 1993)……………………………………….45 United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007) ………………………………………45 United States v. Lillard, 354 F.3d 850, 855 (9th Cir. 2003) …………………………………………25 United States v. Lopez-Sandoval, 146 F.3d 712, 716 (9th Cir 1998) …………………………………..41, 45, 58 United States v. Marcus, 560 U.S. 258, 130 S. Ct. 2159, 2164, 176 L. Ed. 2d 1012 (2010). ………..37

United States v. Mejia, 559 F.3d 1113, 1118 (9th Cir. 2009)……………………………………28, 36 United States v. Naranjo, 52 F.3d 245, 250 n.13 (9th Cir. 1995)………………………………….29, 40

United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)……………24


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United States v. Paladino, 401 F.3d 471, 483 (9th Cir 2005)…………………………………………...39 United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995)…………………………………………...41 United States v. Schafer, 625 F.3d 629, 639 (9th Cir. 2010)………………………………………28, 35 United States v. Si, 343 F.3d 1116, 1128 (9th Cir. 2003)……………………………………….28 United States v. Showalter, 569 F.3d 1150, 1160 (9th Cir. 2009)………………………………………..65 United States v. Staufer, 38 F.3d 1103, 1107 (9th Cir. 1994)……………………………..28, 35, 39, 40 United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc)………………………………..73 United States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013)………………………………………..65 United States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012) ………………………………………….45 United States v. Yuman-Hernandez, 712 F.3d 471, 474 (9th Cir. 2013)…………………………………………..34 STATUTES AND RULES 18 U.S.C. § 922(g)(1)………………………………………………………23 18 U.S.C. § 924(a)(2)………………………………………………………..23 18 U.S.C.§ 924(c)(1)(A)…………………………………………………12, 23

18 U.S.C. § 3231…………………………………………………………….10


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18 U.S.C. § 3553(a)…………………………………………………….59, 73

18 U.S.C. § 3553(a)(6)…………………………………………………60, 61 21 U.S.C. 841 (a)(1) and (b)(1)(A)………………………………………11, 12

21 U.S.C. §841(b)(1)(C)…………………………………………………11, 12

21 U.S.C. § 846……………………………………………………………...11

28 U.S.C. § 1291 ……………………………………………………………10 U.S.S.G. § 3B1.1(c) ……………………………………………41, 45, 46, 58

U.S.S.G. §2D1.1(c)………………………………………………………...38

Application Note 5 of the 2013 U.S.S.G. § 2D1.1……………………..38, 39


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CA NO. 14-10439 CR 12-01259 DKW (District of Hawaii) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/Appellee, vs. DAVID STEIDELL Defendant/Appellant. ____________________________

I.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Steidell’s sentence was enhanced due to government

sentencing entrapment.

2. The District Court erroneously adjusted Steidell’s offense

level for leadership.

3. Steidell’s sentence was unreasonable.


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II.

STATEMENT OF THE CASE

A. Nature of the Case

1. Jurisdiction of the District Court.

This appeal is from the District Court's Judgment on September

9, 2014 and filed on September 10, 2014. The District Court had jurisdiction

pursuant to Title 18 U.S.C. § 3231.

2. Basis for Jurisdiction in the Court of Appeals.

Mr. David Steidell is appealing his judgment and sentence. This

Court has jurisdiction over appeals from final judgments under Title 28 U.S.C.

§ 1291.

3. Notice of Appeal was Timely.

The district court entered sentence and judgment against

appellant on September 10, 2014. The Notice of Appeal was filed timely on

September 18, 2014. ER: 1 1

B. Proceedings and Disposition of the Trial Court.

On December 4, 2012, a Criminal Complaint was filed under

seal, against Jesse Cho-Paek (“CHO”), David Steidell (“Steidell”), Jasmine 1 ER refers to Excerpt of Clerk’s Record, DS refers to Court Docket Sheet, PSR refers to Presentence Report, CCA refers to sealed Criminal Complaint Affidavit.


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Trujillo (“TRUJILLO”), and Demario Bell (“BELL”) that they knowingly and

intentionally did distribute 5000 tablets of BZP on August 7, 2012, in violation

of 21 U.S.C. §§841(a)(1) and 841(b)(1)(C). (Criminal Complaint Filed Under

Seal)

On December 20, 2012, an Indictment was filed under criminal

case 12-01259 SOM against Appellant Steidell (02) and co-defendant CHO

(01), TRUJILLO (03), and BELL (04), charging them with conspiracy to

possess with intent to distribute MDMA and BZP in violation of 21 USC

§§841(a)(1) and 841(b)(1)(C); 846. (ER: 103)

On February 05, 2014, a Superseding Indictment was filed

charging the same four (4) defendants with Count 1: conspiracy to possess

with intent to distribute MDMA and BZP in violation of 21 USC §§ 841 (a)(1)

and 841 (b)(1)(C); 846.

Count 2: charged Steidell and CHO with conspiracy to possess

with intent to distribute fifty (50) grams or more of methamphetamine, its

salts, isomers, and salts of its isomers in violation of 21 USC §§ 841(a)(1) and

841(b)(1)(A); 846.

Count 3: charged Steidell and CHO with intentionally

distributing fifty (50) grams or more of methamphetamine, its salts, isomers,

and salts of its isomers in violation of 21 USC §§ 841(a)(1) and 841(b)(1)(A).


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Count 4: charged BELL with knowing use and possession of a firearm, during

and in relation to a drug trafficking crime in violation of 21 USC § 841(a)(1)

and 18 USC 924(c)(1)(A).

Count 5: charged Steidell with possession with intent to distribute

BZP in violation of 21 USC §§ 841 (a)(1) and 841 (b)(1)(C). (ER: 89-92)

On May 20, 2014, Steidell withdrew his not guilty plea and pled

guilty to the charges stated in the Superseding Indictment. (ER: 73,74) The

District Court entered judgment and sentence on September 10, 2014. Steidell

was sentenced to170 months imprisonment to be served consecutive to his

state sentence of 80 months. (ER: 26-32, 69,70)

Steidell filed a notice of appeal from the judgment and sentence

on September 18, 2014. (ER: 1)

C. Bail Status

Appellant Steidell is presently in custody serving his state

sentence at the Honolulu Federal Detention Center. His release date is

unknown at this time since he has not commenced his federal sentence.(ER:

57, 94, 95)


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III.

STATEMENT OF THE FACTS

In July 2011, a confidential informant (“CI”) reported to

investigators from Homeland Security Investigations, Immigration and

Customs Enforcement, and Drug Enforcement that Jonathan Long (“Long”)

distributed ecstasy in Hawaii. The CI participated in controlled drug

transactions with Long where Long sent large quantities of ecstasy from

California to the CI in Hawaii. Upon Long’s arrest he agreed to cooperate

and identified CHO as his source of supply. (PSR ¶ 11) Long then became a

cooperating defendant (“CD”).

On February 05, 2012, Long (now the CD), contacted CHO to

coordinate delivery of funds to purchase 1000 tablets of ecstasy and paid

CHO $2800. On February 12, 2012, the CD contacted CHO to complete the

transaction; however CHO told the CD that he had to obtain the tablets from

a different supplier so additional money would be required. CHO provided

the CD with 1000 tablets of ecstasy in exchange for the additional $700.

After laboratory analysis CHO distributed 971 tablets weighing 302.1 grams

MDMA. (emphasis added) (PSR ¶ 13)

On August, 7, 2012, the CD, along with a Homeland Security

Investigations undercover agent (“UC”) met with CHO to pick up 1000


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tablets of ecstasy. The CD (Long) introduced the UC to CHO. CHO and the

UC made verbal arrangements to meet later so CHO could provide the UC

with an additional 5000 tablets of ecstasy from his source of supply in

Riverside, CA. (emphasis added)(CCA ¶ 5; ER: 6-8) Subsequent laboratory

analysis established that CHO distributed 1055 tablets weighing 207.1 grams

of BZP. (PSR ¶14)

While waiting to pick up these additional 5000 tablets of

ecstasy, CHO explained to the UC that “his guy” (later identified as Steidell)

was waiting on another person to bring the dope over. (CCA ¶8) This person

was identified to be BELL. (ER: 8)

The UC handed CHO $15,000 for the 5000 tablets. (CCA ¶10).

While the UC was waiting, CHO exchanged numerous text messages with

the UC and in one message told the UC that Steidell was willing to sell an

additional ‘boat’ (street name for 1000 tablets of ecstasy) for $2000. (CCA

¶11)

During these text messages, CHO told the UC not to tell

Steidell that he was from Hawaii and that they had met through Long, the

CD. Just prior to the UC leaving the parking lot, Cho stated through text to

the UC that he told Steidell that the UC was “his Hawaii guy” so the UC

would not have to lie about who he was. (CCA ¶12)


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After Steidell placed a Ziploc bag in front of the UC with

approximately 1000 tablets, CHO then introduced the UC to Steidell. The

UC tried to pay Steidell $2000; however he was told he doesn’t have that

‘boat’ but will get it the next day and to hold onto the money until then.

(CCA ¶18)

TRUJILLO and BELL (CHO calls him ‘Cash’) are now present

in the kitchen with CHO and Steidell as he placed five (5) baggies

containing ecstasy tablets on the kitchen island. This purchase of the 5000

tablets of ecstasy was from Steidell, CHO, BELL, and TRUJILLO. (ER: 7)

After departing Steidell’s residence, CHO told the UC that

Steidell doesn’t do small orders and has a minimum of 5000 pills for ecstasy

and four (4) ounces for cocaine. (CCA ¶ 22)

August 10, 2012, CHO sent series of text messages to the UC to

discuss the planned shipment of 1000 tablets of ecstasy from California to

Hawaii. (PSR ¶21)

The UC wanted more pills than he could get on August 07,

2012; therefore the UC had an agreement with CHO to have more ecstasy

tablets shipped to Hawaii. According to CHO’s testimony at his change of

plea hearing on February 12, 2012, the only way for the agent to get in

contact with the information regarding the shipment of more tablets to


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Hawaii was to go through CHO. CHO would text the UC with the

information needed for the shipment of ecstasy to Hawaii. CHO further

testified that he gave Steidell the information of where to ship the tablets in

Hawaii. Steidell packaged and mailed the shipment of additional 1000

tablets to the UC based on CHO’s information. (ER: 81, 82) After

laboratory analysis the parcel contained 997 tablets containing BZP; weight

not noted. (PSR ¶21)

During subsequent recorded conversations with CHO, the UC

suggested possibly obtaining all of the drugs he needed from Steidell.

However, CHO attempted to convince the UC to purchase

methamphetamine from CHO by stating that he had access to multiple

sources of supply that could supply high quality methamphetamine. (PSR

¶21a)

The UC advised Steidell that methamphetamine was the ‘big

money maker’ in Hawaii; however Steidell replied that the quality of

methamphetamine in their area of California was poor, so he would not sell

any methamphetamine to the UC until good quality was available. (PSR ¶

19) Steidell did not purchase, sell or distribute methamphetamine. (ER: 9,

85, 86)


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The court asked CHO during his change of plea hearing

concerning the transaction on September 14, 2012 with the UC, “And the

$30,000 that the agent gave to you and to Mr. Steidell was in exchange for

what?” CHO responded: “It was for the ecstasy…” The court confirmed that

it was for the 10,000 tablets of ecstasy. After testing there were 8,030 tablets

with active BZP. (ER: 85) This transaction for the ecstasy took place at

CHO’s residence in his living room. (ER: 83, 84)

CHO produced the methamphetamine the next day. (ER: 9)

CHO admitted during his change of plea hearing that he was the one that

purchased and sold the methamphetamine to the UC in September 2012. The

UC called CHO and told him he was outside his home. CHO went out and

gave him four (4) bags of methamphetamine. CHO told the court how he

acquired the methamphetamine by stating, “Basically I had to make phone

calls and was like to pick it up---I just basically had to go pick it up. I picked

it up and dropped it off.” The court asked CHO if he picked it up from

Steidell. CHO responded, “No, it was another person who sells

methamphetamine. Someone I set up—someone who I started being in

contact with.” (ER: 9, 85, 86)


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The laboratory results for the methamphetamine that CHO sold

to the UC was gross weight of 128.7 grams at 93% purity of

methamphetamine. (ER: 86)

CHO further testified that he was a middleman and would make

a profit. “...whatever transaction that transpired between them I would get a

cut. I would get paid for it basically.” (ER: 87) It was unclear the meaning

of ‘them’ as it could have been Steidell, BELL, and CHO dealing with the

UC or any other customers or suppliers.

The UC had set up another transaction for the purchase of

50,000 tablets of ecstasy from Steidell, CHO, BELL, and TRUJILLO. Since

Steidell had been arrested for a state charge on November 26, 2012, the UC

contacted CHO. CHO said he had to contact TRUJILLO to set up the deal.

(ER: 9,10)

On December 7, 2012, BELL was arrested. The next day CHO

was arrested, then later in the day TRUJILLO was arrested. CHO decided to

cooperate and called TRUJILLO concerning the agreed upon purchase of

ecstasy. TRUJILLO said that they did not have the entire amount to give the

UC (they referred to the UC as Hawaii), but she said that there were 6,000

tablets in a storage locker controlled by Steidell’s father. TRUJILLO then


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directed CHO to contact Mr. Steidell Sr. to get the key to the storage locker

and pick up the tablets to provide to the UC. (ER:10, 11)

At the time of TRUJILLO’s arrest she waived her rights and

answered questions. However her only statement was that she was dating

Steidell and knew that he had been arrested on charges of fraud. At the time

of her arrest there were several incoming calls for TRUJILLO; she had

approximately five (5) telephones. At that point TRUJILLO ended her

cooperation with the agents. (ER: 11)

Mr. Steidell Sr. gave the agents permission to search his storage

unit. It had already been established by the investigators that TRUJILLO

was part of the conspiracy to distribute ecstasy. Steidell tried to downplay

TRUJILLO’s part by claiming that she was trying to raise money for his

defense, but indicated that she did have knowledge of what was in the

storage unit. It was indicated by Mr. Steidell Sr. that the contents of his unit

belonged to his son, Steidell. Steidell lived in Riverside and the storage unit

was located in Morena Valley. (ER: 16)

The unit was filled with many items in an unorganized manner.

The agents found four bags of yellow pills and three bags of purple pills

inside a Huggies box. Inside a Coach bag were approximately 66 capsules of


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unknown narcotic. There was also a .40 Ruger caliber pistol inside the box

(ER: 12-15)

The pills were organized as an exhibit as follows: line item 1 –

approximately 4000 yellow ecstasy pills; line item 3 were 66 capsules; line

item 8 were the purple pills. Homeland Security Investigations was not

permitted to retain seized narcotics so they were turned over to Customs and

Border Protection to hold for trial. The seized pills were sent for analysis.

The only items that contained controlled substances were the

purple pills in line item 8. There were approximately 2569 purple pills; only

three pills were tested. All of the pills in item 8 were subsequently

destroyed. Ms. Lisa Leung, an officer with the U.S. Customs and Border

Protection, who was in charge of preserving the evidence inadvertently had

the evidence destroyed approximately April 13, 2013. (ER:17-25)

These purple pills were the basis for Count 5 of the Superseding

Indictment against only Steidell, even though CHO and TRUJILLO were

involved in trying to get these pills to sell to the UC. This Superseding

Indictment was filed February 5, 2014, approximately ten (10) months after

the evidence was destroyed by the government and prior to Steidell pleading

guilty to this charge on May 20, 2014. (ER: 4, 33) It is unknown whether or


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not Steidell knew the evidence to support this charge was destroyed at the

time he pled guilty or even at his sentencing on September 9, 2014.

The Motion to Suppress Evidence filed by TRUJILLO was

heard on September 11, 2014. (ER: 4)This was after Steidell was sentenced.

He had no opportunity to object to being sentenced for drugs destroyed by

the government and no longer available for anyone to dispute or have

separately analyzed. Additionally, there was no mention in the PSR that was

prepared on August 26, 2014, that this evidence was destroyed.

When BELL was arrested investigators recovered a Glock 19,

9mm semi-automatic pistol from his vehicle. From his master bedroom

closet investigators recovered a loaded Taurus “Judge” revolver and a small

loaded EIG revolver. In BELL’s storage unit the investigators recovered an

Intra-Tec-9 semi-automatic machine pistol with a magazine and

ammunition; a Browning .22 caliber pistol with a magazine; heat seal bags;

packaging material; pill pressing equipment and a cocaine kilo press. (PSR

¶¶25, 26)

BELL admitted to distributing marijuana through another

source of supply, and having multiple offers to work for the Mexican Drug

cartel. BELL also admitted that he traded narcotics for the firearms and used

the weapons for protection. (PSR ¶27)


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The investigators executed a search warrant on CHO’s

residence and recovered jars of purple colored tablets and cocaine. They

recovered miscellaneous documents, a digital scale with residue, a small safe

of money, and guitar case filled with money. Subsequent laboratory analysis

of the recovered drugs established 34.1 grams of MDMA2 and 17.6 grams of

cocaine. CHO identified his cocaine source and it was not Steidell. (PSR ¶¶

28, 29)

The PSR contained information obtained from co-defendants

CHO, BELL, and TRUJILLO that incriminated Steidell; however there was

no evidence to support any of these hearsay statements by the co-defendants.

Steidell was young and had a tendency to boast and brag; however there was

no evidence to support any of his exaggerated characterizations of his drug

dealings or activities. There was no mention of a search of Steidell’s

residence or of any evidence found to support the hearsay statement by co-

defendants. (ER: 54)

On February 12, 2014, CHO pled guilty without a plea

agreement to Counts 1, 2, and 3 of the Superseding Indictment. (ER: 88) On

November 7, 2014, CHO was sentenced to 46 months. (ER: judge)

2 This drug found in CHO’s residence was included in the total drug quantity for determining the offense level 32 against Steidell .


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On June 4, 2014, BELL pled guilty pursuant to a plea

agreement to Count 1 of the Superseding Indictment; Count 4 was dismissed

which charged a violation of USC 18 § 924(c)(1)(A). BELL pled guilty to

Count 1 under CR.NO. 14-00546DKW for violation of 18 USC §§922(g)(1)

and 924(a)(2). On September 17, 2014, BELL was sentenced to 64 months

for each count to run concurrently. (ER: 112 -119)

On September 26, 2014, TRUJILLO pled guilty pursuant to a

plea agreement for Count 1 of the Superseding Indictment. Her sentencing

hearing is scheduled for January 2015. (ER: 120-122)

On May 20, 2014, Steidell pled guilty during his change of plea

hearing for Counts 1,2,3, and 5 of the Superseding Indictment. (ER: 73, 74)

On September 9, 2014, Steidell was sentenced to 170 months as to each of

Counts 1, 2, 3, and 5 to run concurrently, but consecutive to the state of

California case number SCD 244487 which was for 80 months. (ER: 69, 70;

PSR ¶60) Steidell’s state convictions did not involve any drug charges.

The U.S. Marshal took custody of Steidell from the California

state prison where he was serving his sentence of 80 months pursuant to a

Writ of Habeas Corpus Ad Prosequendum. This Writ stated that custody

would remain with the U.S. Marshall until the termination of criminal


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charges pending which at that point Steidell was to be returned to the

custody of Wasco State Prison. (ER: 94,95)

IV.

ARGUMENT

A. STEIDELL WAS ENTRAPPED BY A GOVERNMENT

UNDERCOVER AGENT TO COMMIT A CRIME WHICH

SIGNIFICANTLY INCREASED HIS SENTENCE

1. Standard of Review

The Court reviews the district court's sentencing decisions for

abuse of discretion. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586,

169 L. Ed. 2d 445 (2007); United States v. Carty, 520 F.3d 984, 993 (9th

Cir. 2008) (en banc). The Court reviews the legality of a sentence de novo.

United States v. Garcia Guerrero, 635 F.3d 435, 438 (9th Cir. 2011).

Steidell objected to the PSR determinations of various aspects

of drug types and quantities; however there was no specific objection to

sentence entrapment. Where a defendant fails to raise an objection to a

sentencing error in the district court, the Court reviews for plain error.

United States v. Bonilla-Guizar, 729 F.3d 1179, 1187 (9th Cir. 2013); Fed.

R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732, 113 S. Ct.

1770, 123 L. Ed. 2d 508 (1993).


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"Before an appellate court can correct an error not raised at

trial, there must be (1) error, (2) that is plain, and (3) that affects substantial

rights. If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings." United

States v. Lillard, 354 F.3d 850, 855 (9th Cir. 2003)

2. Summary of Argument

Sentence entrapment involves a government agent using a sting

operation to trap a person known to be involved in some type of illegal drug

activity to produce a larger quantity of drugs to increase the sentence. This is

exactly what happened to Steidell.

Steidell was a small time supplier of ecstasy in the California

area only. He dealt with several people who were distributing ecstasy and

producing ecstasy, including CHO and BELL and TRUJILLO.

Steidell was erroneously charged and convicted of possession

and distribution of methamphetamine. There was no evidence to show that

Steidell had ever dealt with methamphetamine. There was only evidence that

Steidell was involved with ecstasy.


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The UC brought up the idea of selling methamphetamine to

Steidell when the UC told Steidell that methamphetamine was the ‘big

money maker’ in Hawaii. However, Steidell did not jump on the suggestion

to distribute methamphetamine, but instead he tried to stay away from that

drug by explaining to the UC that the quality of methamphetamine in their

area of California was poor, so he would not sell any to the UC. (PSR ¶ 19)

If Steidell had the inclination or intent to sell methamphetamine

in Hawaii he would have immediately seized that opportunity at the

suggestion by the UC. However, that did not happen. In fact, Steidell

discouraged the UC from buying methamphetamine from him. Steidell

specifically avoided any pretense that he had the intent or capability to get

involved with methamphetamine.

Steidell was interested in distributing ecstasy to the Hawaii

market; therefore when the UC wanted to increase his purchases of ecstasy

from CHO and Steidell, he did agree. Steidell worked with CHO and the UC

to set up the deal for the 10,000 tablets of ecstasy that was delivered on

September 14, 2012, at CHO’s residence in California. That same deal also

included the transaction for the methamphetamine; however Steidell was not

involved in that transaction. Steidell said he set up the deal that included the


27

ecstasy and methamphetamine, but he had nothing to do with the

methamphetamine. (ER: 72)

The day after the transaction involving the ecstasy, CHO alone

met with the UC again at his home, to personally deliver the

methamphetamine to the UC. CHO testified at his change of plea hearing

that he was the person that purchased the methamphetamine from his

supplier, picked it up, and delivered it to the UC. CHO also testified that he

gave the ecstasy tablets to the UC the day before, not Steidell. (ER: 79,

85,86)

The government set up a sting operation to entice Steidell into

selling more drugs and different drugs in order to increase his sentence.

Steidell was never involved in the methamphetamine transaction other than

to include it with the sell of the ecstasy negotiated by CHO and Steidell.

However, Steidell was charged with possession and distribution of the

methamphetamine and his sentence was significantly enhanced. With those

charges for the methamphetamine his sentence now included a mandatory

minimum sentence of ten years and his offense level jumped to level 32

from a possible level 26 or 28, depending on the quantity of drugs included

from the conspiracy from Count 1.


28

In order to increase Steidell’s sentence the government

entrapped him into selling methamphetamine, a drug that he neither had the

intent to sell nor the capability to obtain. Steidell was the subject of the

classic scenario of sentence entrapment by the government.

3. Legal Analysis

"Sentencing entrapment occurs when a defendant is predisposed

to commit a lesser crime, but is entrapped by the government into

committing a crime subject to more severe punishment." United States v.

Schafer, 625 F.3d 629, 639 (9th Cir. 2010) quoting United States v. Mejia,

559 F.3d 1113, 1118 (9th Cir. 2009). The defendant must show that the

government participated in "outrageous official conduct which caused the

individual to commit a more significant crime for which a greater penalty

attaches." Schafer at 640 quoting United States v. Si, 343 F.3d 1116, 1128

(9th Cir. 2003).

The underlying principle is that it is impermissible for the

government to "structure sting operations in such a way as to maximize the

sentences imposed on defendants" without regard for the defendant's

culpability or ability to commit the crime on his own. United States v.

Staufer, 38 F.3d 1103, 1107 (9th Cir. 1994).


29

The burden is on the defendant to show, by a preponderance of

the evidence: 1) the lack of intent to produce the quantity of drugs; and 2)

the lack of capability to produce the quantity of drugs. See United States v.

Naranjo, 52 F.3d 245, 250 n.13 (9th Cir. 1995).

a. Steidell Lacked The Intent to Produce

Methamphetamine

The record was void of any evidence that Steidell had a history

of selling methamphetamine. Additionally, there was no evidence found in

his home or storage unit indicating Steidell had ever possessed or distributed

methamphetamine. (ER: 13-15)

Steidell had a tendency to boast and brag as reported in the PSR

where Steidell asked the UC what else he could ‘use’ in Hawaii. The UC

understood that to mean that Steidell was asking what other drugs the UC

would like to distribute. There was no evidence to support the UC’s

conclusion that Steidell was asking about other drugs to distribute in Hawaii

other that the ecstasy, and in particular Steidell made no mention of

methamphetamine.

The UC brought up the idea of selling methamphetamine to

Steidell when the UC advised Steidell that methamphetamine was “the big

money maker” in Hawaii. Steidell responded to the UC’s suggestion that he


30

sell him methamphetamine by stating that “…the quality of

methamphetamine in their area of California was poor, so he would not sell

any methamphetamine to the UC ….” (PSR ¶ 19)

The UC suggested to CHO that he could obtain all the drugs he

needed from Steidell. However, CHO attempted to convince the UC to

purchase methamphetamine from CHO, by stating that “he had access to

multiple sources of supply, who could supply high quality

methamphetamine.” (PSR ¶21a)

During discussions between CHO and the UC after the

transaction on August 7, 2012, nothing was ever mentioned by CHO that

Steidell distributed methamphetamine. CHO bragged to the UC that Steidell

did not do small orders for narcotics and had a minimum of 5000 pills for

ecstasy and four ounces for cocaine. 3(CCA ¶22) Based upon conversations

between CHO and the UC, if Steidell had ever distributed methamphetamine

CHO most likely would have bragged about that fact in order to impress the

UC and open another area for business with the UC and the Hawaii market.

There was no evidence of any such conversations.

3 There was no evidence that Steidell supplied or distributed cocaine.


31

b. Steidell Lacked The Capability to Produce

Methamphetamine

The last time that Steidell was actually personally involved in

any drug transaction occurred on September 14, 2012, in CHO’s home.

CHO and Steidell met with the UC for the transaction involving the 10,000

tablets of ecstasy. The UC handed the money to someone - CHO’s

testimony is unclear concerning whether the UC (he called him Reyn) came

first and then handed Cho the money or if Steidell came first. CHO did not

clarify who actually took possession of the $30,000, only that it exchanged

hands in his living room. (ER: 83)

During CHO’s Change of Plea hearing on February 12, 2014,

the court stated that “…when the agent (UC) handed you and Mr. Steidell

the money, you in turn gave him the 10,000 tablets of ecstasy?” Cho

responded yes. (ER: 83-85)

The transaction involving the methamphetamine did not take

place that same day or with Steidell present. According to the PSR, the UC

contacted CHO on September 14, 2012, to pick up the 4 ounces of

methamphetamine, not Steidell. The next day, September 15, 2012, CHO


32

met the UC at his residence gave the UC four (4) bags of methamphetamine.

(ER: 85, 86; PSR ¶ 23)

Additional proof that Steidell was not involved in the

distribution of the methamphetamine was found in the testimony on

September 11, 2014, by Todd James Nerlin, special agent with Homeland

Security Investigations (“Nerlin”), at the hearing regarding the destruction of

drug evidence by the government. 4 Nerlin was able to testify concerning

conversations and events involving the undercover agent (UC) in this case

because the UC was wearing a wireless transmitter and recorder. (ER: 6, 8)

Nerlin testified that on September 14, 2012, the UC purchased 10,000 tablets

of ecstasy from Steidell and CHO. Nerlin further testified that “… the next

day, September 15th, Mr. Cho produced four ounces of methamphetamine.

(ER: 9)

During CHO’s change of plea hearing on February 12, 2014, he

confessed that he was the one that was distributing the methamphetamine as

shown by his testimony as follows:

Court: How did you come to acquire that methamphetamine?

4 The evidence that was destroyed by the government was confiscated from Mr. Steidell Sr.’s storage locker where his son, Steidell, had stored various items including the destroyed ecstasy tablets.


33

CHO: Basically I had to make phone calls and it was like pick it up….I just basically had to go pick it up. I picked it up and then just dropped it off. Court: And you picked it up from Mr. Steidell? CHO: No, it was another person who sells methamphetamine. Someone I set up… (emphasis added). Court: Someone who what? CHO: Someone who I started being in contact with. (ER: 85, 86) The information in the PSR contradicts CHO’s testimony by

claiming that CHO confirmed the drugs were from “Dave’s (Steidell’s

boy)(PSR ¶23)

Additional testimony on February 2014, during CHO’s change

of plea hearing, the Court asked CHO to explain why he was guilty of

Counts 2 and 3 (possession and distribution of methamphetamine) he

testified that, “…regarding the methamphetamine, I was kind of like a

liaison---like a messenger. I got it and then gave it to the agent.” (ER: 79)

On May 20, 2014, during Steidell’s change of plea hearing the

following testimony between the Court and Steidell confirms that Steidell

did not have anything to do with the distribution or procurement of the

methamphetamine. For the transaction on September 15, 2012, the court

stated:


34

Court: And you gave the four ounces of methamphetamine to your co-defendant, Mr. Cho, to pass on to the undercover agent? Steidell: No, that’s incorrect. (emphasis added) Court: How did that come about then? Steidell: You know what Your Honor, I have no idea how he acquired them. I set up the deal, but I have no idea how he acquired the methamphetamine. …….. Court: But Mr. Cho, your co-defendant, was the one who actually handed over the narcotic to the undercover officer. Steidell: As far as I understand, yes. Court: And you have no idea where he got that from? Steidell: No, Your Honor. (ER: 72)

Steidell was coerced into setting up the deal for the

methamphetamine with the UC; however as testified by both CHO and

Steidell, he had nothing to do with buying or selling that drug to the UC.

There is no evidence to suggest that Steidell had ever possessed or

distributed methamphetamine. However, his sentence was greatly enhanced

by the distribution of the methamphetamine by CHO.

In United States v. Yuman-Hernandez, 712 F.3d 471, 474 (9th

Cir. 2013), the court stated that "the capability to sell a certain quantity of

drugs has concrete contours: the defendant either can or cannot procure or


35

produce the amount in question. Similarly, the capability to purchase a given

amount often turns on the defendant’s financial resources."

Steidell has shown both elements for sentence entrapment. See,

e.g., United States v. Naranjo, 52 F.3d at 249-51 (finding that the defendant

"had neither the intent nor the resources to engage" in a higher quantity drug

sale). Steidell did not intend or have the capability to buy and sell

methamphetamine to the UC.

In United States v. Cortes, 732 F.3d 1078 (9th Cir 2013), the

Court explained that "[S]entencing entrapment occurs where 'a defendant,

although predisposed to commit a minor or lesser offense, is entrapped in

committing a greater offense subject to greater punishment.'" United States

v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010) (quoting United States v.

Staufer, 38 F.3d at1106).

"[I]t is impermissible for the government to 'structure sting

operations in such a way as to maximize the sentences imposed on

defendants' without regard for the defendant's culpability or ability to

commit the crime on his own." United States v. Schafer, 625 F.3d at 640,

(quoting Staufer, 38 F.3d at 1107).


36

c. The District Court’s Determination of Steidell’s

Offense Level Was Error Which Was Clear

An error is plain if it is "contrary to the law at the time of

appeal . . . ." United States v. Mejia, 559 F.3d at 1115. Johnson v. United

States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997).

According to Alleyne v. United States, 133 S.Ct. 2151, 186

L.Ed. 2d 314 (2013), mandatory minimum sentences increase the penalty for

a crime. It follows, then, that any fact that increases the mandatory minimum

is an “element” that must be submitted to the jury. Id. at 2156.

Facts that increase the mandatory minimum sentence are

elements and must be submitted to a jury and found beyond a reasonable

doubt. Id at 2160. Steidell contends that raising his mandatory minimum

sentence based on a sentencing judge’s finding that he possessed and

distributed methamphetamine violates his Sixth Amendment.

“It is indisputable that a fact triggering a mandatory minimum

alters the prescribed range of sentences to which a criminal defendant is

exposed.” Alleyne at 2161 citing Apprendi v. New Jersey, 530 U.S. 466,

490, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000). “Apprendi's definition of

"elements" necessarily includes not only facts that increase the ceiling, but

also those that increase the floor. Both kinds of facts alter the prescribed


37

range of sentences to which a defendant is exposed and do so in a manner

that aggravates the punishment. Facts that increase the mandatory minimum

sentence are therefore elements and must be submitted to the jury and found

beyond a reasonable doubt.” Alleyne v. United States, 133 S.Ct. at 2158.

d. The Error Affected Steidell’s Substantial Rights

and Was Prejudicial

A defendant must show that the alleged error was "'prejudicial,'

which means that there is a reasonable probability that the error affected the

outcome.” United States v. Marcus, 560 U.S. 258, 130 S. Ct. 2159, 2164,

176 L. Ed. 2d 1012 (2010).

The error affected Steidell’s substantial rights. Steidell’s

offense level was substantially increased due to the charge of possession and

distribution of methamphetamine. Not only was his offense level increased,

but also the charges for the methamphetamine (Counts 2 and 3), triggered a

mandatory minimum sentence of 10 years. The one time distribution of

methamphetamine of September 15, 2012, increased the total base offense

level to 32 based on a marihuana equivalency of 2,634.97 kg. . However, if

the methamphetamine were eliminated then the total marihuana equivalency


38

would be 416.97 kg. with an offense level of 28. 5

Steidell was not involved in any transaction that involved

MDMA and in particular, the MDMA found in the possession of co-

defendant CHO after his arrest.6 If the 34.1 grams of MDMA were deducted

from the total net weight of the drugs confiscated and attributed to Steidell,

then his total marijuana equivalency would be less than 400 kg for an

offense level of 26. (PSR ¶ 35, 43, 46; USSG §2D1.1(c)). The addition of

the two (2) Counts for the methamphetamine resulted in a significant

difference in the possible guideline range for sentencing and enhanced his

sentence with a mandatory minimum sentence of at least 10 years.

When sentencing entrapment occurs, "the amount of drugs used

in calculating the defendant's sentence should be reduced by the amount that

'flows from the entrapment.'" United States v. Briggs, 623 F.3d at 729.

Pursuant to Application Note 5 of the 2013 U.S.S.G. § 2D1.1, it

states that if “…the defendant establishes that the defendant did not intend

to provide or purchase, or was not reasonably capable of providing or

purchasing, the agreed-upon quantity of the controlled substance, the court

5 This total drug quantity included the 34.1 grams of MDMA found in CHO’s residence on December 8, 2012, after his arrest and search. 6 Steidell was charged in Count 5 of the superseding indictment for ecstasy tablets found in the storage unit; however that amount was not included in the conspiracy whereas the MDMA found in CHO’s residence was included.


39

shall exclude from the offense level determination the amount of controlled

substance that the defendant establishes that the defendant did not intend to

provide or purchase or was not reasonably capable of providing or

purchasing.”

e. Seriously Affected Integrity of Judiciary

The district court’s sentencing violated Steidell’s Sixth

Amendment in light of Alleyne, in which the jury must determine the type

and drug quantity involved in the offense if the drug type and/or quantity

increases the statutorily prescribed minimum sentence. See United States v.

Cortes, 732 F.3d at 1088, 1090-91. “It is a miscarriage of justice to give a

person an illegal sentence…” United States v. Paladino, 401 F.3d 471, 483

(9th Cir 2005). An acknowledged violation of the Constitution would

undermine the fairness, and integrity of the judicial process.

Steidell forfeited many of his constitutional rights when he pled

guilty without the benefit of a jury determining beyond reasonable doubt the

type and quantity of drugs charged. By including the methamphetamine that

the government UC entrapped Steidell into distributing via the conspiracy

allegation with CHO, the district court sentenced Steidell pursuant to an

erroneous offense level and Guideline range.

The Court held in United States v. Staufer, 38 F.3d at1107, that


40

where the government induced a target to sell far more of a controlled

substance than had formerly been within his practice or resources, that

sentence entrapment applied and a downward departure was authorized. The

Court also stated that “ law enforcement agents should not be allowed to

structure sting operations in such a way as to maximize the sentences

imposed on defendants.” Id.

The Court in Staufer recognized the "unfairness and

arbitrariness of allowing drug enforcement agents to put unwarranted

pressure on a defendant in order to increase his or her sentence." Id. at 1107.

“A material error in the district court's calculation of the

appropriate Guidelines range requires a remand for resentencing, unless the

error was harmless.” United States v. Calderon Espinosa, 569 F.3d 1005,

1008 (9th Cir. 2009) See United States v. Cantrell, 433 F.3d 1269, 1279-80

(9th Cir. 2006). In those cases where sentencing entrapment occurs, the

amount of drugs used in calculating the defendant's sentence should be

reduced by the amount that 'flow[s] from [the] entrapment.'" Briggs, 623

F.3d at 729 (quoting United States v. Naranjo, 52 F.3d at 250). Significantly

increasing a sentence is not harmless.

Similarly, in this case Steidell’s sentence must be vacated and

remanded for resentencing.


41

B. THE DISTRICT COURT ERRONEOUSLY FOUND THAT

STEIDELL WAS A LEADER AS EVIDENCE FAILED TO

DEMONSTRATE THAT STEIDELL HAD THE REQUISITE

CONTROL OVER OTHERS


A district court's determination that a defendant was an

"organizer or leader" for purposes of enhancement under U.S.S.G. §

3B1.1(c) is reviewed for clear error. United States v. Lopez-Sandoval, 146

F.3d 712, 716 (9th Cir 1998) citing United States v. Ponce, 51 F.3d 820, 826

(9th Cir. 1995).

The district court's interpretation of the Guidelines is reviewed

de novo and its factual findings for clear error. United States v. Cantrell,

433 F.3d at 1279.

2. Summary of Argument

The government and the court relied on information contained

in the PSR in order to conclude that Steidell was the leader of the

conspiracy. There was only one charge that related to the conspiracy of more

than just Steidell and CHO and that was Count 1 of the Superseding

Indictment. Counts 2 and 3 involved Steidell and CHO only. Count 4 was

BELL only for his possession of firearms in relation to drug trafficking.


42

Count 5 referred to Steidell only for the ecstasy found in the storage unit that

was later destroyed by the government.

There was no evidence in the record to support the government

or court’s allegations that Steidell was the leader. The government and court

relied upon hearsay statements in the PSR by CHO and BELL. These

hearsay statements were made after their arrests and most likely made to

place any blame upon Steidell and take some of the government’s focus off

themselves and eventually help reduce their sentences, i.e. self-serving

statements.

This was not an organized conspiracy for a large scale

distribution of drugs. Count 1 was a conspiracy charge with Steidell, CHO,

BELL, and TRUJILLO listed as co-conspirators. Count 2 stated that CHO

and Steidell conspired together to possess and distribute methamphetamine.

However, as evidenced by CHO’s testimony at his change of plea hearing,

he admitted that he alone make arrangements, purchased, and sold the

methamphetamine to the UC. (Refer to arguments above in Section A)

Count 1 of the Superseding Indictment alleged the following transactions for

ecstasy:

1. August 7, 2012, CHO sold 1000 ecstasy tablets to the UC;

2. August 7, 2012, CHO, Steidell, BELL, and TRUJILLO sold


43

4927 tablets containing BZP to the UC;

3. August 10, 2012, CHO sent messages to the UC regarding

impending shipment of ecstasy to Hawaii;

4. August 14, 2012, the UC received a parcel in Hawaii containing

997 tablets BZP sent by Steidell;

5. September 14, 2012, CHO and Steidell sold 8030 tablets

containing BZP to the UC;

6. October 9, 2012, Steidell called the UC in Hawaii to discuss the

sale of ecstasy. (ER: 90)

There was no evidence in the record to support the

government’s allegations that Steidell was the decision maker for the

charged conspiracy in Count 1 or Count 2, or that he had control or authority

over the other co-conspirators. The evidence does show that CHO made

most of the decisions regarding the distribution of the ecstasy and had

complete control over the possession and distribution of methamphetamine.

CHO was the most active participant of the co-conspirators and

appeared to make many of the important decisions, such as when and where

to distribute the ecstasy to the UC in California and Hawaii. CHO testified

that Steidell only mailed the package to Hawaii as directed by CHO; Steidell

did not obtain the ecstasy that was contained in the package sent to Hawaii


44

according to CHO.

Count 5 only charged Steidell with possession with intent to

distribute ecstasy; however once he was incarcerated in November 2012,

TRUJILLO and CHO tried to get the drugs to send to the UC. These drugs

were later destroyed by the government in April 2013.

The facts taken from the criminal complaint filed in this case,

CHO’s change of plea hearing, and the testimony from the government

agent at the motion to suppress evidence together prove that the allegations

of leadership against Steidell are in error. Steidell was not the leader or even

a major player in any charged conspiracy.

The record cannot support the court’s two point role adjustment

as leader for Steidell. The record is totally absent of any facts that show

Steidell had control over any of the other co-defendants. These were four (4)

separate individuals working together on a few drug transactions without

any apparent leader. Furthermore, from codefendant statements it appeared

each had their own agenda and side occupations dealing or supplying other

or similar drugs. If anyone could be considered a leader it would have been

CHO. Seidel was not a leader of any of the co-defendants.


45

3. Legal Analysis

The Sentencing Guidelines allow for a two-level role

enhancement if a defendant is an "organizer, leader, manager, or

supervisor." U.S.S.G. § 3B1.1(c). A court may impose this enhancement if

there is "evidence that the defendant exercised some control over others

involved in the commission of the offense or was responsible for organizing

others for the purpose of carrying out the crime." United States v. Whitney,

673 F.3d 965, 975 (9th Cir. 2012) quoting United States v. Ingham, 486 F.3d

1068, 1074 (9th Cir. 2007)

This renders conduct which may have been integral to the

success of the criminal enterprise, see United States v. Harper, 33 F.3d 1143,

1151 (9th Cir. 1994), or conduct that reflects a high degree of culpability,

United States v. Hoac, 990 F.2d 1099, 1111 (9th Cir. 1993), insufficient to

support a leadership enhancement unless the defendant also exercised the

requisite control over others.

It is not necessary that the district court make specific findings

of fact to justify the imposition of the role enhancement. Lopez-Sandoval,

146 F.3d at 717. There must, however, be evidence in the record that would

support the conclusion that the defendant exercised the necessary level of


46

control. In this case, the evidence is lacking in the record to justify an

enhancement under U.S.S.G. § 3B1.1(c).

The PSR stated the following facts to support the two (2) level

adjustment for leadership role for Steidell: “In this case, the defendant

instructed Bell as to which chemicals to order and paid him between $9,000

and $10,000 per order. Bell estimated that he distributed at least “twenty

boats” (20,000 pills) of ecstasy for the defendant, which included deliveries

to Cho. The defendant negotiated the drug transactions with the UC, and

also coordinated the shipping of drug parcels. As the defendant exercised

decision-making authority, handled all of the money during drug

transactions, collected a larger share of the drug proceeds and was in

possession of the drugs, a 2-level adjustment is warranted for a leadership

role.” (PSR ¶ 50)

Co-defendants CHO and BELL provided the information stated

in the PSR. These hearsay statements were taken after their arrest in order to

place the blame on Steidell to take the emphasis away from them.

The government argued at the sentencing hearing for the

leadership enhancement for Steidell stating similar reasons as found in the

PSR. However, as will be shown there was no evidence in the record to


47

support either the conclusions in the PSR or the statements made during the

sentencing hearing by the government or by the court.

Allegation of Decision Making

The government alleged as the first factor to show leadership of

decision making authority that because the transaction on August 7, 2012,

for the additional 5000 tablets (after the purchase from CHO earlier that

same evening) occurred at Steidell’s residence and that Steidell directed

BELL to bring those drugs that proves Steidell had decision making

authority. (ER: 35, 36)

However, there was no evidence in the record that Steidell had

any authority over CHO or BELL or that Steidell ‘directed’ BELL to deliver

the drugs to him. If Steidell received drugs from BELL to supply to CHO

then he is not a leader but one of CHO’s suppliers or working together with

all the co-defendants to complete the transaction.

The affidavit in support of the criminal complaint filed under

seal December 4, 2012, charging all four (4) co-defendants – Steidell, CHO,

TRUJILLO, and BELL with the criminal acts on August 7, 2012, stated the

following:

“On August, 7, 2012, Long, (the Cooperating Defendant (“CD”), along with a Homeland Security Investigations undercover agent (“UC”) met with CHO to pick up 1000 tablets of ecstasy. The CD introduced the UC


48

to CHO. CHO and the UC made verbal arrangements to meet later so CHO could provide the UC with an additional 5000 tablets of ecstasy from his source of supply in Riverside, CA.” (emphasis added)(CCA ¶5; ER: 6, 7)

CHO was the person that knew and had previously worked with

the CD (Long) on drug deals. CHO not Steidell negotiated the drug

transaction not only for the first 1000 tablets of ecstasy on August 7, 2012,

but also for the additional 5000 tablets that the UC requested. The UC was

going to meet CHO at his supplier’s residence. (PSR ¶ 14) CHO collected

the money for the first transaction. The UC handed CHO $15,000 for the

1000 tablets. (CCA ¶10). There was no evidence that the money was then

turned over to Steidell.

There was no evidence to support the allegations that Steidell

directed BELL to deliver the drugs to him. As stated in the criminal

complaint’s affidavit: “While waiting to pick up this additional quantity of

ecstasy, CHO explained to the UC that “his guy” (later identified as

Steidell) was waiting on another person to bring the dope over.” (emphasis

added) (CCA ¶8) This person was identified to be BELL.(ER: 8)

Additionally, after BELL delivered the ecstasy to CHO,

Steidell, and Trujillo very late August 7, 2012, after the initial 1000 tablets

CHO had already delivered to the UC, BELL told the UC “that he had to


49

pull some of the of narcotics off of the street to finalize the ecstasy purchase

for the UC.” (CCA ¶20)

There was no mention that Steidell had directed BELL to do

this or that Steidell had even been in communication with BELL. CHO was

the one that had negotiated the extra 5000 tablets with the UC after the

delivery of the first 1000 tablets earlier that evening. (CCA ¶5)

Allegation of Participation

Next, the government claimed that the nature of the

participation was another factor to show leadership by alleging that it was

Steidell throughout the conspiracy who asked the UC what drugs he wanted

in Hawaii and what quantity. The government contends that for the

transactions on September 13 and 14, 2012, it was Steidell that negotiated

the price, where and when it would occur. (ER: 36) However, the record

does not support the government’s allegations.

CHO exchanged numerous text messages with the UC and in

one message told the UC that Steidell was willing to sell an additional ‘boat’

(street name for 1000 tablets of ecstasy) for $2000. (CCA ¶11) This merely

details what a supplier would do and not directions or instructions from a

leader.


50

After departing Steidell’s residence, CHO told the UC that

“Steidell doesn’t do small orders and has a minimum of 5000 pills for

ecstasy and four (4) ounces for cocaine.” (CCA ¶ 22) However, this was

CHO boasting to the UC and there was no evidence in the record to show

that these facts were true about Steidell or that Steidell was dealing in

cocaine or was the leader. Actually, it was not a statement concerning a

leader, but rather regarding a person’s (CHO) supplier.

August 10, 2012, CHO sent a series of text messages to the UC

to discuss the planned shipment of 1000 tablets of ecstasy from California to

Hawaii. During these text messages, CHO told the UC not to tell Steidell

that he was from Hawaii and that they had met through the CD. Later Cho

stated through text to the UC that he told Steidell that the UC was “his

Hawaii guy” so the UC would not have to lie about who he was. (CCA ¶12)

The UC wanted more pills than he could get on August 07,

2012; therefore the UC had an agreement with CHO to have more ecstasy

tablets shipped to Hawaii. According to CHO’s testimony at his change of

plea hearing on February 12, 2012, the only way for the agent (UC) to get in

contact with the information regarding the shipment of more tablets to

Hawaii was to go through CHO. CHO would text the UC with the

information needed for the shipment of ecstasy to Hawaii. CHO further


51

testified that he gave Steidell the information of where to ship the tablets in

Hawaii. Steidell packaged and mailed the shipment of additional 1000

tablets to the UC based on CHO’s information. (ER:81, 82)

In direct contradiction of CHO’s testimony, the PSR in support

of the leadership enhancement, stated that Steidell coordinated the shipping

of drug parcels. (PSR ¶ 50) CHO was the person that coordinated the

shipment, not Steidell as he only packaged and mailed it.

An additional meeting with Steidell and CHO was set up for

September 14, 2012 to purchase 10,000 tablets of ecstasy along with four (4)

ounces of crystal methamphetamine. CHO produced the methamphetamine

the next day. (ER: 9)

During CHO’s change of plea hearing on February 12, 2014,

the court asked CHO about the transaction on September 14, 2012 with the

UC:

The Court: And the $30,000 that the agent gave to you and to Mr.

Steidell was in exchange for what?

CHO: It was for the ecstasy…

The court confirms that it was for the 10,000 tablets of ecstasy.

This transaction took place at CHO’s residence in his living room. (ER: 83,

84)


52

CHO admitted during his change of plea hearing that he was the

one that purchased and sold the methamphetamine to the UC in September

2012. The UC called CHO and told him he was outside his home. CHO went

out and gave him four (4) bags of methamphetamine. CHO told the court

how he acquired the methamphetamine by stating, “Basically I had to make

phone calls and was like to pick it up---I just basically had to go pick it up. I

picked it up and dropped it off.” The court asked CHO if he picked it up

from Steidell. CHO responded, “No, it was another person who sells

methamphetamine. Someone I set up—someone who I started being in

contact with.” (emphasis added) (ER: 85, 86)

Allegation of Control and Authority Over Others

And finally to support its leadership arguments, the government

alleged that the degree of control and authority over others, claimed rights to

a larger share related to the transaction of methamphetamine, the

relationship between the UC and Steidell, negotiations for parcels to be

mailed to Hawaii were between the UC and Steidell, and Steidell transported

those parcels to the UC in Hawaii. (ER: 37)

There was no evidence in the record that Steidell had the degree

of control or authority over others necessary for the leadership adjustment.

There was no evidence that Steidell received any money from the transaction


53

of methamphetamine. However, there was evidence that CHO admitted that

he made the arrangements and purchased and sold the methamphetamine to

the UC as evidenced by CHO’s statements during his change of plea

hearing.

CHO’s testimony confirmed that Steidell had nothing to do

with the transaction for the methamphetamine or evidence that he received

any money for that transaction. Testimony by Nerlin, a government witness

that was listening to the transactions with the UC via a wireless transmitter,

also testified that CHO produced the four ounces of methamphetamine on

September 15, 2012. Steidell was not present nor had anything to do with

that transaction. (ER: 6-9)

Concerning the government’s allegation that Steidell was the

one that received the larger share from all transactions, the court asked CHO

during his change of plea hearing concerning the transaction on September

14, 2012 with the UC, “And the $30,000 that the agent gave to you and to

Mr. Steidell was in exchange for what?” CHO responded: “It was for the

ecstasy…” The court confirmed that it was for the 10,000 tablets of ecstasy.

This took place at CHO’s residence in his living room. (ER: 83, 84) There

was no evidence concerning the division of the $30,000 or who took


54

possession of the money. If Steidell supplied the ecstasy then he was entitled

for payment as he most likely had to pay his suppliers, maybe even BELL.

Additionally, CHO testified during his change of plea hearing

that “…whatever transaction that transpired between them I would get a cut.

I would get paid for it basically.” (ER: 87) This statement under oath

confirmed that CHO and not Steidell was acting in a position of a leader by

commanding a share of all transactions.

Steidell did not have control or authority over the parcels sent

to the UC in Hawaii as supported by CHO’s testimony. The UC wanted

more pills than he could get on August 07, 2012; therefore the UC had an

agreement with CHO to have more ecstasy tablets shipped to Hawaii.

According to CHO’s testimony at his change of plea hearing on

February 12, 2012, the only way for the agent to get in contact with the

information regarding the shipment of more tablets to Hawaii was to go

through CHO. CHO would text the UC with the information needed for the

shipment of ecstasy to Hawaii. CHO further testified that he gave Steidell

the information of where to ship the tablets in Hawaii. Steidell packaged and

mailed the shipment of additional 1000 tablets to the UC based on CHO’s

directions. (ER: 81, 82)


55

This evidence established that CHO and not Steidell was the

one giving the orders and directions – CHO was the person in a leadership

role as described by the government.

As far as the relationship between Steidell and the UC, that was

very limited; however CHO had a close relationship with the UC as he was

the first one to have contact with him. CHO supplied ecstasy to Long (the

eventual CD) in Hawaii for several months and maybe even since 2011.

Long contacted CHO in February 2012 to purchase 1000 tablets of ecstasy.

In August 7, 2012, Long and the UC met with CHO to purchase 1000 tablets

of ecstasy. (PSR ¶¶ 11,13,14)

As previously stated above, CHO was the one making the deal,

delivering the drugs and collecting the money from the UC, not Steidell.

The Court’s Allegations to Support the Leadership

The court stated that many of the facts relied upon for the leader

enhancement came from Steidell’s co-defendants, CHO and BELL as

described in the PSR. The court stated that the law enforcement agent

involved from August to December 2012, says that Steidell was the principal

dealer, negotiator and supplier. The court further stated that the $30,000

went directly to Steidell for the payment of the MDMA and

methamphetamine. (ER: 39, 40)


56

The evidence in the record contradicts the court’s conclusions

that Steidell was the principal dealer, negotiator and supplier. CHO was the

person that met with the UC and the CD on August 7, 2012 to pick up 1000

tablets of ecstasy. CHO agreed to sell the UC an additional 5000 tablets of

ecstasy that night. It was CHO that was negotiator and dealer for the

transactions with the UC.

During CHO’s change of plea hearing he testified that: “So

regarding the ecstasy transactions, basically I met with the agent and set up

the meetings and basically sold the ecstasy to the agent, I think three or four

times. And regarding the methamphetamine, I was kind of like a

liaison…like a messenger. I got it and then gave it to the agent.” CHO

further testified about his participation in the drug transactions.

CHO was responsible entirely for the methamphetamine transaction. (ER: 6-

9, 79-86; CCA ¶¶ 5-23)

There was no evidence that Steidell coordinated or oversaw the

procurement or distribution of all the alleged drugs. The co-defendants were

each involved in their own separate procurement and distribution of various

drugs.


57

A search of CHO’s residence after his arrest in December 2012,

produced MDMA (34.1 grams)7 and cocaine (17.6 grams) plus money and

instruments of distribution. CHO admitted after his arrest to selling the UC

approximately 30,000 to 40,000 ecstasy tablets and distributing cocaine.

(PSR ¶¶ 28, 29) However, Steidell was only involved with CHO for

approximately 14,000 tablets of ecstasy as stated in the PSR. (PSR ¶35)

After BELL’s arrest he was found to be possession of numerous

weapons and instruments of production and distribution of drugs. BELL

admitted that he distributed marijuana and had offers to work for the

‘Mexican Drug Cartel.’ (PSR ¶¶ 25, 26, 27)

As this court held in United States v. Harper, 33 F.3d at 1151, a

sentencing court may not conclude that an enhancement is appropriate where

the record lacks evidence that the defendant exercised the requisite control

— even if the presentence report states that it is. To the contrary, there must

be "reference [in the record] . . . to any specific facts that indicate [the

defendant] exercised control over or organized others in committing this

crime." Id. at 1151.

7 Steidell was sentenced for the 34.1 grams MDMA as part of the conspiracy in Count 1; however the ecstasy found in the storage unit was not included in this same conspiracy.


58

Under this circuit's clear articulation of § 3B1.1(c), "even a

defendant with an important role in an offense" cannot receive an

enhancement unless there is also a "showing that the defendant had control

over others." Lopez-Sandoval, 146 F.3d at 717.

However, the record was insufficient to support a determination

that Steidell was an organizer or leader as shown by the various testimonies

of the UC contained in the cited affidavit, the sworn testimony of co-

defendant CHO, in addition to the lack of credible evidence in the record,

the allegations made by the court, the government or contained within the

PSR. The district court’s finding that Steidell qualified for the leadership

upward adjustment of two (2) levels was clearly erroneous. Therefore, this

Court must vacate Steidell’s sentence. (Refer to CCA; PSR; ER: 4-14, 34-

43, 77-87)

C. STEIDELL’S SENTENCE WAS UNREASONABLE


The Court reviews a sentence for abuse of discretion in two

steps. Gall v. United States, 552 U.S. at 51. “First, we ensure that the

district court did not commit any significant procedural errors. Second, once


59

we determine that the sentence was procedurally sound, we review the

substantive reasonableness of the sentence.” Gall at 51.

2. Legal Analysis

The Supreme Court has held that improperly calculating the

Guidelines range may constitute "significant procedural error." Id.at 51.

Additionally, “it would be procedural error for a district court to treat the

Guidelines as mandatory instead of advisory; to fail to consider the

§ 3553(a) factors; to choose a sentence based on clearly erroneous facts; or

to fail adequately to explain the sentence selected, including any deviation

from the Guidelines range." Id.

The Court must reverse if the district court committed a

significant procedural error. See United States v. Gomez-Leon, 545 F.3d

777, 782 (9th Cir. 2008). In determining substantive reasonableness, the

Court is to consider the totality of the circumstances. See United States v.

Carty, 520 F.3d at 993.

As the Supreme Court has repeatedly held, the Sentencing

Guidelines are the "starting point" for a district court's sentencing analysis.

Freeman v. United States, 131 S. Ct. 2685, 2692, 180 L. Ed. 2d 519 (2011).

Steidell objected to the guideline calculations that included the type and


60

quantity of drugs that determined the base offense level of 32 and the

additional 2 points for leadership. (PSR: pp28-31) After reductions for

acceptance of responsibility of 3 points, Steidell’s total offense level was 33.

Steidell alleges that the court improperly calculated his

guideline range based on improper reliance on the hearsay statements by co-

defendants in the PSR; misinterpreted statements from the government

undercover agent (UC); failure to take into account statements under oath

that contradicted statements in the PSR; and incorrect drug type and

quantities attributed solely to Steidell and not all members of the charged

conspiracy.

a. Sentence Disparity Between Co-Defendants Steidell

and CHO

Steidell further alleges procedural error by the court

improperly calculating his sentence on the ground of disparity with co-

defendants under 18 U.S.C. § 3553(a)(6).

Section 3553(a)(6) requires judges to consider "the need to

avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct." Gall v. United

States, 552 U.S. at 54.


61

Steidell and CHO were both charged and convicted for the

same two conspiracies in Counts 1, 2, and 3 of the Superseding Indictment. 8

They both pled guilty without the benefit of a plea agreement. Steidell had a

higher criminal history than CHO and CHO received a downward departure

pursuant to the safety valve; however that does not account for the great

disparity in their sentences. Steidell was sentenced to 170 months and CHO

only received 46 months.

They both should have started at the guideline offense level 32

for the amount of drugs for the two conspiracies. Taking into consideration

the various adjustments and departures for each defendant, the difference in

the sentence was still too great to follow the mandates of 18 USC §

3553(a)(6) to avoid unwarranted sentence disparities.

Steidell’s offense level 32 was calculated based on the

following drug quantities:

BZP 3.9992 kg (399.92kg marihuana equivalency);

Methamphetamine (ice) 110.9 gm (2218.0kg marihuana equivalency);

MDMA 34.1gm (17.05kg marihuana equivalency)

Total of 2,634.97 kg marihuana equivalency. 9(PSR ¶¶46, 47)

8 Steidell had one additional Count, however the resulting drug amounts did not change the guideline offense level (Count 5). 9 The total amount for BZP of 3999.2 grams included the August 7, 2012


62

Since these were the drugs attributed to the conspiracy counts 1,

2, 3, then CHO who was a charged member of both conspiracies should have

received the same offense level. The MDMA of 34.1 grams was found in

CHO’s residence pursuant to a search warrant after his arrest. Steidell was

already in state custody at this time; however Steidell was charged for the

MDMA for his total offense level. (PSR ¶¶28, 43)

Steidell does not know the offense level used to determine

CHO’s sentence, but the same drug type and quantities calculated for the

same two conspiracies (Counts 1, 2, 3) should apply to both Steidell and

CHO.

During CHO’s change of plea hearing, the government stated

that on August 7, 2012, CHO met with the UC and the CD to pick up the

1000 tablets of ecstasy. The CD introduced the UC to CHO and they made

arrangements to meet later that evening so that CHO could provide the UC

with an additional 5000 tablets of ecstasy. The government stated that the

first 1000 tablets were tested; “however that’s going to be counted as

relevant conduct.” (emphasis added)(ER: 77, 78)

In other words, the 1000 tablets distributed by CHO on August

7, 2012, with a net weight of 207.1 grams was not included in the calculation

transaction by CHO for 207.1 grams. (PSR ¶¶35, 43)


63

of CHO’s offense level, but this transaction was included in Steidell’s

offense level calculations. Why?

Steidell’s 3.9992kg of BZP consisted of the following

transactions: 08/07/2012 – 207.1 grams, 08/07/2012 – 1096 grams,

08/14/2012 – 195.7 grams, 09/14/2012 – 1947.2 grams, and 12/10/2012 –

search of storage unit, 553.2 grams which were later destroyed by the

government . (PSR ¶¶ 35, 43, 46, 47)

CHO was the one that was working with the CD and UC

months before Steidell was even involved. In July 2011, a confidential

informant reported that Long (who became the CD in this case), distributed

ecstasy in HI. After Long’s arrest he identified CHO as his source of supply

for the ecstasy he was distributing in HI. CHO continued to deal with Long

in 2012. (PSR ¶¶11,13,14) CHO definitely had been dealing in ecstasy

since at least 2011 with Long so why include that known amount of 207.1

grams for Steidell and not CHO a co-conspirator?

Steidell had a final offense level of 33 with a criminal history

category IV and received a sentence of 170 months. CHO’s actual final

offense level is unknown to Steidell; however according to the USSG

Sentencing Table for a criminal history category I, a 46 month sentence had

to be anywhere from an offense level no greater than 23 (46-57 months).


64

That would be a nine (9) level departure from the original starting

offense level of 32 for the drug quantity attributed for the two (2)

conspiracies. Both Steidell and CHO received the benefit of the two (2) level

reductions for Amendment 782 so that had no impact for the difference in

sentences. CHO received a one (1) level reduction for acceptance of

responsibility; Steidell received a three (3) level reduction for acceptance of

responsibility.

Therefore, a nine (9) offense level difference in the resulting

sentence when the original offense level for the quantity of drugs should

have been the same level 32, demonstrates a significant sentence disparity

between similarly charged and convicted co-defendants Steidell and CHO.10

There should not have been such a disparity in the sentences between

Steidell and CHO of 124 months!

Additionally, CHO was found to be in possession of 34.1 grams

of MDMA and 17.6 grams of cocaine after his arrest and a search of his

residence. The MDMA was used to calculate Steidell’s offense level.

Steidell does not have access to CHO’s PSR, therefore is unaware if this

drug was included in his offense level or not. However, CHO’s sentence

10 CHO and Steidell both pled guilty without a plea agreement.


65

does not equate to the same drug type and quantity as was used to calculate

Steidell’s offense level.

b. The Court Failed to Adequately Resolve

Steidell’s Objections to the PSR

“When a defendant raises objections to the PSR, the district

court is obligated to resolve the factual dispute, and the government bears

the burden of proof…The court may not simply rely on the factual

statements in the PSR. " United States v. Showalter, 569 F.3d 1150, 1160

(9th Cir. 2009) (citing United States v. Ameline, 409 F.3d 1073, 1085-86

(9th Cir. 2005) (en banc).

It is a general principle of federal sentencing law that district

courts have a duty to explain their sentencing decisions. Carty, 520 F.3d at

992-93; United States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013). This

duty exists for two distinct prudential reasons. First, “explanations allow

circuit courts to conduct meaningful appellate review of sentencing

decisions.” Gall, 552 U.S. at 50. Second, explanations "promote the

perception of fair sentencing," Id., “creating trust in sentencing decisions by

reassuring the public of the judiciary's commitment to reasoned

decisionmaking,” Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456,

168 L. Ed. 2d 203 (2007).


66

The court relied on hearsay statements from co-defendants

stated the PSR for determining Steidell’s sentence. The court failed to

consider any evidence that contradicted the accuracy of the facts relied on by

the court. The court relied on clearly erroneous facts found in the PSR to

support sentence enhancements and increased drug type and quantities for

Steidell only.

During sentencing Steidell argued against the two (2) level

increase for leadership. The court’s response acknowledged that “it is true

that much of the …many of the facts supporting whether defendant in fact

qualified for that two-level increase came from his codefendants, Cho and

Bell. Both described, as detailed in the PSR, the defendant in turn made it

clear that he in fact was the leader of this conspiracy and not anyone else.”

(ER: 38) There was no evidence to prove these statements. (Refer to opening

brief argument section B on leadership enhancement.)

The court continued by stating, “And Cho similarly described

his role of drug sales occurring on behalf of the defendant; that the defendant

was Mr. Cho’s source of supply at least for MDMA, BZP and

methamphetamine, not for cocaine.” (ER: 38) The court also referred to a

quote from the PSR to establish that Steidell obtained the methamphetamine

that was sold to the UC in September 2012; however CHO had already


67

admitted in his change of plea before this same judge that he was the one

that purchased and distributed the methamphetamine, not Steidell. (ER: 41,

85, 86) The court’s statement was incorrect as CHO admitted that he

purchased the methamphetamine from his own supplier and not through

Steidell.

The court also stated in error that the drug quantities were based

on the transactions that the UC negotiated and consummated with Steidell.

(ER: 40, 41) For example, Long, the CD, identified CHO as his source of

supply for ecstasy. (ER: 79, 85, 86; PSR ¶ 11) There was no direct evidence

other than the self-serving hearsay statements by CHO and BELL that

Steidell was their supplier.

Steidell questions the truthfulness and veracity of the following

statement made by the court during his sentencing as well as the proof of the

statement since it contradicts other evidence already mentioned. The court

stated that, “The law enforcement agent who was involved from the start to

finish here, again from August to December 2012 I think it was the time

frame, he says that the principal dealer, negotiator and supplier in this case

was not Cho or Bell or Ms. Trujillo, but it was Mr. Steidell. (ER: 39, 40)

During Steidell’s sentencing the court made numerous

erroneous statements such as, “ The defendant is a major large scale drug


68

distributor in California as well as here in Hawaii. Along with his

coconspirators, they attempted to flood the local market with BZP, MDMA

and to a lesser extent methamphetamine.” (ER:67)

Reviewing the statements found in the affidavit by Special

Agent Nerlin for the criminal complaint and his testimony during the motion

to suppress evidence, and testimony by CHO during his change of plea

hearing, all significantly contradict the court’s conclusions and statements

made during his sentencing. These statements more accurately apply to CHO

not Steidell. The court appeared to disregard actual evidence and rely solely

on hearsay and false statements as the basis for Steidell’s sentence. (Refer

to arguments in opening brief section A – sentencing entrapment; section B

leader)

The court continued to overrule Steidell’s other objections on

the drug quantities. The court construed known testimony in order to show

that Steidell was the person that was responsible for all the drugs used to

calculate his sentence. (ER: 40-42) As a specific example, the court stated:

“Cho later gave the UC the methamphetamine that was purchased on that

particular day; that didn’t occur until the next day. But when he did so, he

told the UC that the methamphetamine came from, quote/unquote, Dave’s

boy, in reference to Mr. Steidell.” (ER: 41)


69

However, CHO testified at his change of plea hearing on

February 12, 2014, that he did not buy the methamphetamine from

Steidell. Additionally, the court tried to make CHO implicate Steidell by

asking CHO: “And you picked it up from Mr. Steidell?” CHO replied NO.

(ER: 85, 86)

During CHO’s change of plea hearing the government wanted

CHO to clarify what his agreement was with his co-defendants (Steidell,

BELL, and TRUJILLO). Instead of asking that direct question the court

implied that Steidell was the leader by asking CHO the following, “… did

you not, with at least one of your co-defendants, and in particular Steidell,

because he was the principal among the four of you…” No other person

other than Steidell was indicated by the court. (emphasis added)(ER: 87)

CHO’s testimony at his change of plea hearing was in February

2014, several months prior to Steidell’s sentencing hearing in September

2014 and prior to the preparation of the PSR.

During Steidell’s sentencing the court further stated,

“So the mere fact that some of the drug quantities are attributed to the defendant, based on statements from his codefendants, is of little consequence. The codefendants are not avoiding and cannot avoid personal responsibility for the same drugs by attributing them in part to the codefendant…to their codefendant, Mr. Steidell. They’re all going to be held responsible for the drugs that they transacted. “ (ER: 42) (emphasis added)


70

However, that was not what happened since all codefendants

received significantly lower sentences. As stated above the government

specifically did not include the 1000 tablets of ecstasy CHO distributed on

August 7, 2012. (ER: 77, 78)

CHO and Steidell were both charged for the same two

conspiracies in Counts 1, 2, and 3 of the Superseding Indictment. Steidell

received a sentence of 170 months, CHO was sentenced to 46 months; and

BELL was sentenced to 64 months, which included two weapons charges.

BELL who was arrested in possession of several weapons in his

car, home, and storage unit did not receive punishment for those crimes.

BELL was also charged for the conspiracy in Count 1 and definitely was not

sentenced for the drug quantities for the conspiracy in Count 1. BELL

admitted that he traded narcotics for firearms and used the weapons for

protection. Count 4 of the Superseding Indictment that charged BELL for

use and carrying a firearm during a drug trafficking crime in violation of 18

USC § 924 was dismissed. BELL was also charged under a different

criminal case for felon in possession of a firearm (18 USC § 922) and

sentenced to 64 months to run concurrent to the other 64 month sentence.

(ER: 112-119)


71

However, the court added a two level enhancement for a gun

found in Steidell’s storage unit. There was no evidence that Steidell ever

used this gun or that it was used during or in connection to a drug offense

other than being in the same storage unit with a small amount of drugs.11

During sentencing, the court stated that, “The defendant has also shown a

penchant for violence, and I draw that conclusion from the fact that there

was a .40 caliber loaded handgun found with the BZP in a storage

unit…..therefore he is an added danger to the community for that reason.”

(ER:68) There was no evidence to support such a statement by the court.

The information cited in the PSR concerning Steidell’s first

state conviction is incorrect and highly inflammatory. Steidell was not

involved in the crimes and circumstances outlined in the PSR ¶ 59. He was

only convicted and involved with robbery and received a three year sentence

on May 29, 2009, according to information in the PSR.

It was error to include the highly prejudicial and erroneous

information for the court’s review and ultimate influence on Steidell’s

sentence. These facts alone would tend to inflame anyone reading it to be

prejudiced against Steidell, including the court. They should not have been

11 The drugs found in the storage unit when Steidell was in state custody were destroyed by the government in 2013. Steidell did not object to the gun enhancement. (ER: 23-25)


72

included in the PSR.

Steidell requested the information to be removed prior to the

PSR being sent to the BOP and it was granted; however the damage had

already affected Steidell’s sentence. (PSR ¶ 59; ER: 45, 46, 62)

The PSR failed to include pertinent information regarding

Steidell’s last state conviction in 2013. Steidell’s plea agreement and

judgment stated that his state sentence of 80 months would be

concurrent with his pending federal sentence. (ER: 96-102) However,

Steidell was sentenced 170 months to be served consecutive to his state

sentence of 80 months. The PSR’s final draft was prepared August 26,

2014, well over a year after Steidell’s state sentence. The conviction

information was included, but not the pertinent information concerning his

plea agreement. Steidell’s federal sentence ignored his state plea agreement

and judgment.

c. Steidell’s Sentence Was Substantively

Unreasonable

In determining substantive reasonableness, we are to consider

the totality of the circumstances. Carty, 520 F.3d at 993. "A substantively

reasonable sentence is one that is 'sufficient, but not greater than necessary'

to accomplish § 3553(a)(2)'s sentencing goals." United States v. Crowe, 563


73

F.3d 969, 977 n.16 (9th Cir. 2009) (quoting 18 U.S.C. § 3553(a)). "The

touchstone of 'reasonableness' is whether the record as a whole reflects

rational and meaningful consideration of the factors enumerated in 18 U.S.C.

§ 3553(a)." United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en

banc).

Steidell contends that his sentence of 170 months to run

consecutive to his 80 month state sentence is substantively unreasonable

based on all the arguments set forth in his appeal. Therefore, his sentence

should be vacated and remanded for resentencing.

V.

CONCLUSION

Based on the foregoing, Appellant Steidell respectfully requests

that this Court vacate his sentence and remand for resentencing.

Dated: December 31, 2014 at Dana Point, California s/ DeAnna S. Dotson Attorney for Appellant

DAVID STEIDELL


74

CERTIFICATE OF RELATED CASES

Counsel is not aware of any related cases on appeal before this

Court.

DATED: December 31, 2014 at Dana Point, CA s/ DeAnna S. Dotson Attorney for Appellant


75

CERTIFICATE OF COMPLIANCE Pursuant to Ninth Circuit Rule 2 (e)(3), I certify that the opening

brief is proportionately spaced, has a New Times Roman typeface of 14 points

or more and contains 12,892 words. The text is double spaced.

DATED: December 31, 2014 at Dana Point, CA s/ DeAnna S. Dotson Attorney for the Appellant


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CERTIFICATE OF SERVICE I hereby certify that on December 31, 2014, I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the forgoing document by First Class Mail, postage prepaid, to the non-CM/ECF participants. I further certify that I have mailed the Excerpts of Record by First Class Mail, postage prepaid to the following: David Steidell #03251-122 Federal Detention Center, Honolulu 351 Elliott Street Honolulu, HI 96819 s/ DeAnna S. Dotson


77


Documents

CR 12-01259 DKW IN THE UNITED STATES COURT OF APPEALS … · CR 12-01259 DKW (District of Hawaii) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,