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Date: 03-11-2024
Case Style:
Case Number: 22-2417
Judge: PER CURIAM
Court: United States Court of Appeals For the Eighth Circuit (St. Louis County)
Plaintiff's Attorney: The United States Attorney’s Office in St. Louis
Defendant's Attorney:
Description:
In a four-defendant, seven-count indictment, a federal grand jury charged
Lester A. Bull with conspiracy to distribute and possession with the intent to
distribute methamphetamine, cocaine, fentanyl, heroin, and marijuana, see 21 U.S.C.
§§ 841(a)(1), 846, conspiracy to commit money laundering, see 18 U.S.C. §§ 1956-
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57, possession of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C.
§ 924(c), and being a felon in possession of a firearm, see 18 U.S.C. § 922(g).
Bull signed a written plea agreement, but at the change of plea hearing
unexpectedly stated that he did not want to plead guilty and instead wanted to go to
trial. During the subsequent Frye hearing, see Missouri v. Frye, 566 U.S. 134
(2012), the district court1 confirmed with Bull that he had rejected all proposed plea
agreements and that he wished to proceed to trial. The district court told Bull that if
he changed his mind and later pleaded guilty, he would be doing so without “any
[plea] agreement that [he] earlier discussed with the United States or [his] attorneys.”
Bull confirmed that he understood.
The morning of trial, Bull again unexpectedly changed his plea. On the first
count, he pleaded guilty to conspiracy to possess with the intent to distribute 100
kilograms or more of marijuana but disputed his responsibility for drugs other than
marijuana. He pleaded guilty to the other counts as charged. There was no
agreement as to the calculation of the advisory sentencing guidelines range, and the
Government indicated it intended to put on evidence at the sentencing hearing that
Bull had in fact participated in a conspiracy to distribute methamphetamine, cocaine,
and fentanyl, in addition to marijuana. The district court confirmed with Bull that
he had heard and understood that the Government was planning “to present evidence
as to the other controlled substances alleged in the indictment” at sentencing.
Following Bull’s guilty plea, a presentence investigation report (“PSR”) was
prepared. Bull objected generally “to the paragraphs included in the Offense
Conduct section of the presentence investigation report.”
At the start of Bull’s sentencing hearing, and without prior notice, Bull’s
counsel made an oral motion for a continuance. Bull’s counsel had previously
1
The Honorable Stephen R. Clark, Chief Judge, United States District Court
for the Eastern District of Missouri.
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noticed his intent to call Charles Strozier, a co-defendant, as a witness. However, at
the time of Bull’s hearing Strozier had not yet been sentenced, and Bull only
expected that Strozier would testify after Strozier had been sentenced. Bull’s
counsel admitted that he lacked a legal basis for a continuance and struggled to
explain why he had not previously notified opposing counsel and the court. Bull’s
counsel clarified that Bull wanted Strozier to testify to a conversation that Strozier
had with an officer in Bull’s presence. In response, the district court heard testimony
from that officer and from Bull and repeatedly asked Bull’s counsel why he believed
Strozier would be able to provide non-cumulative testimony. After Bull’s counsel
stated that the only basis for his belief was Bull’s observation of Strozier’s
statements, about which Bull had already testified, the district court denied the
continuance without prejudice and told Bull’s counsel that he could renew the
motion later. Bull’s counsel never renewed the motion.
As it indicated it would, the Government then introduced evidence that Bull
was responsible for the distribution of narcotics in addition to marijuana. In an
attempt to clarify Bull’s blanket objection to the “Offense Conduct” part of the PSR,
the district court asked Bull whether he was objecting to the quantities of the drugs
laid out in the PSR or whether he was just claiming not to be responsible for those
drugs. Bull clarified that he was not objecting to the drug quantities.
The district court then made specific findings of fact, including adopting the
drug quantities from the PSR, before concluding that there was “more than a
preponderance of the evidence that Mr. Bull was not only a manager of this
[conspiracy] but that he was involved in this conspiracy much more deeply than he
would indicate, much more deeply than the stipulated facts would indicate and
consistent with the evidence that was presented here by the United States.” The
district court sentenced Bull to 360 months’ imprisonment, within the statutory range
of 5 to 40 years, see 21 U.S.C. § 841(b)(1)(B), and at the low end of the advisory
sentencing guidelines range of 360 months to life. Bull appeals, raising six
arguments.
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First, Bull argues that his guilty plea was not knowingly and voluntarily made.
However, “[b]ecause [Bull] failed to attempt to withdraw his guilty plea in the
district court, his claims are not cognizable in this appeal.” See United States v.
Villareal-Amarillas, 454 F.3d 925, 932 (8th Cir. 2006).
Second, Bull argues that the district court erred in denying his motion to
continue his sentencing hearing. “We review for an abuse of discretion, giving the
district court wide latitude, and will reverse only if [Bull] can show prejudice from
the denial.” See United States v. Flynn, 969 F.3d 873, 881 (8th Cir. 2020). “[L]astminute” motions to continue “undermine[] the court’s interest in the orderly
administration of justice,” United States v. Bradshaw, 955 F.3d 699, 704 (8th Cir.
2020), and “should be granted only when the party requesting one has shown a
compelling reason,” United States v. Jones, 643 F.3d 275, 277 (8th Cir. 2011). In
the district court, Bull failed to show a compelling reason for his last-minute motion
for a continuance.
Although Bull argues on appeal that “the only way to find out what Mr.
Strozier’s testimony would have been [was] to allow Mr. Strozier to take the stand,”
he also acknowledged to the district court that Strozier was “advised by his counsel
not to testify.” It is therefore doubtful that Strozier would have ever testified at
Bull’s sentencing, regardless of when it was held. Moreover, the district court heard
testimony from both of the other participants in the conversation about which Bull
wanted Strozier to testify. When the district court then asked Bull’s counsel if his
belief that Strozier could offer non-cumulative testimony was “only bas[ed] . . . on
conversations that Mr. Bull had with Mr. Strozier over two years ago,” Bull’s
counsel agreed. Thus, even if Strozier had testified, there is little reason to believe
that he would have added anything new. The district court did not abuse its
discretion in denying Bull’s motion to continue the sentencing hearing, nor did it
violate Bull’s due process rights in so doing. See Jones, 643 F.3d at 277 (“[A] due
process violation at sentencing is established only if the defendant shows that the
district court relied on materially false information and that the information is
demonstrably the basis for the challenged sentence.”).
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Third, Bull argues that at sentencing the Government did not prove by a
preponderance of the evidence the quantity of drugs, other than marijuana, which
were attributable to him, and that the district court clearly erred and violated his due
process rights when it found otherwise. See United States v. Plancarte-Vazquez, 450
F.3d 848, 852 (8th Cir. 2006) (“The government bears the burden of proving drug
quantity by a preponderance of the evidence.”). “We review the district court’s
application of the sentencing guidelines de novo.” United States v. Buford, 42 F.4th
872, 876 (8th Cir. 2022) (citation omitted). “We review a district court’s drugquantity finding for clear error and reverse only when the entire record definitely
and firmly illustrates that the lower court made a mistake.” Id. (internal quotations
and citation omitted). “It is [] well established that in sentencing matters a district
court’s assessment of witness credibility is quintessentially a judgment call and
virtually unassailable on appeal.” Id. (internal quotations and citation omitted).
The district court did not clearly err in finding Bull responsible for
methamphetamine, fentanyl, and cocaine, and in finding the exact amounts of each.
To the extent that Bull argues on appeal that he was not responsible for these drugs,
he already admitted at sentencing that he was aware there was methamphetamine in
his house. Detective Eric Lanham, a Drug Enforcement Administration Task Force
Officer, additionally testified that Bull had previously admitted to selling
methamphetamine, cocaine, and fentanyl. The Government also introduced a ledger
with drug and payment amounts consistent with the prices of cocaine and fentanyl.
The district court found that “Bull’s testimony was not credible” on the issue of his
responsibility, noting that “[h]e was often unable to answer questions,” even on
direct examination, and claimed not to know about the ledgers yet averred
knowledge of their contents. By contrast, the district court found credible Detective
Lanham’s testimony about Bull’s prior admission to dealing methamphetamine,
cocaine, and fentanyl. Reviewing the district court’s “carefully explained credibility
determinations,” we find nothing in the record that “definitely and firmly illustrates
that the lower court made a mistake.” Id. at 877. And to the extent that Bull disputes
the exact amounts of the drugs found, he waived that objection in response to a
question from the district court. See United States v. Campbell, 764 F.3d 874, 878
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(8th Cir. 2014) (when “a defendant knowingly and voluntarily waives a right, any
error is unreviewable on appeal”). The district court asked Bull to clarify his blanket
objection to the “Offense Conduct” part of the PSR, asking: “With respect to the
other substances besides marijuana, is there any objection to the quantities?” Bull
responded, “No, Your Honor.” Bull thus waived any objection to the quantities of
any drugs other than marijuana, and he does not dispute the marijuana quantity on
appeal. The district court properly adopted those factual findings from the PSR, and
“any error” made by the district court in so doing is “unreviewable on appeal.” Id.
Fourth, we decline Bull’s invitation to overrule our decisions holding that “a
district court may impose a sentence based on a drug quantity determination greater
than that found by the jury,” or admitted by a defendant, “so long as the sentence
does not exceed the statutory maximum of the convicted offense and the district
court’s calculation is supported by sufficient evidence.” United States v. Webb, 545
F.3d 673, 677 (8th Cir. 2008). Only the Supreme Court or this court sitting en banc
may take up Bull’s invitation. See United States v. Eason, 829 F.3d 633, 641 (8th
Cir. 2016) (“It is a cardinal rule in our circuit that one panel is bound by the decision
of a prior panel.”).
Fifth, Bull argues that his felon-in-possession conviction should be vacated
because 18 U.S.C. § 922(g)(1) is unconstitutional. But we have already held that
§ 922(g)(1) is constitutional. See United States v. Jackson, 69 F.4th 495, 502 (8th
Cir. 2023); United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023). This
contention, too, fails.
Sixth, Bull argues that his counsel was ineffective in allowing him to plead
guilty without a plea agreement. However, “[w]e will not consider ineffective
assistance of counsel claims on direct appeal except in exceptional cases in which
the district court has developed a record on the ineffectiveness issue or where the
result would otherwise be a plain miscarriage of justice.” United States v. Looking
Cloud, 419 F.3d 781, 788-89 (8th Cir. 2005) (internal quotation marks omitted).
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Outcome: These circumstances are not present, so we decline to decide Bull’s ineffective assistance claim.
Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: