USA v. Oatman, (3rd Cir. 2007)

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NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

No. 06-2097

U N I T E D STATES OF AMERICA

vs.

K E N N E T H BRENT OATMAN,

A p p e lla n t

A P P E A L FROM THE UNITED STATES DISTRICT COURT

F O R THE EASTERN DISTRICT OF PENNSYLVANIA

(D .C . Crim No. 05-CR-00073-4

District Judge: Honorable Eduardo C. Robreno

S u b m itte d Under Third Circuit L.A.R. 34.1(a)

S e p te m b e r 18, 2007

B e f o r e : SLOVITER, SMITH and WEIS, Circuit Judges.

(F ile d : September 24, 2007)

O P IN IO N

WEIS, Circuit Judge. D e f e n d a n t Kenneth Oatman was convicted by a jury of conspiring to d is trib u te and possess with the intent to distribute more than 100 kilograms of marijuana in violation 21U.S.C. § 846. He was sentenced to 115 months incarceration, four years o f supervised release, and received a fine.

On appeal, defendant contends that: 1 . The evidence was insufficient to convict him of conspiracy to distribute m o re than 100 kilograms of marijuana; 2 . The District Court erred in holding that he had voluntarily waived his M ira n d a rights; and 3. The District Court did not properly calculate his criminal history c a te g o r y under the Sentencing Guidelines.

O u r review of the record in the light most favorable to the government p e rs u a d e s us that there was adequate evidence to convict Oatman of participation in a d ru g conspiracy involving more than 100 kilograms of marijuana.

Evidence showed that Oatman became acquainted with co-defendant Ross a n d several other individuals in Lancaster County, Pennsylvania. The group arranged to b u y marijuana from Oatman who lived in Oklahoma and had sources in Texas and M e x ic o to secure the drug. The Pennsylvania participants drove to Oklahoma and Texas w ith cash to purchase the marijuana from Oatman and then carried it back to P e n n s yl v a n i a .

O n e witness testified that his brother made at least 15 to 20 trips to pick up m a riju a n a from Oatman or from Oatman's source, averaging 50 pounds each trip. This w a s more than sufficient evidence from which a jury could conclude that Oatman was in v o lv e d in a conspiracy to distribute more than 100 kilograms of marijuana.

After defendant was arrested, he was transported by a DEA agent to federal c o u r t. On the way, the agent read Oatman his Miranda rights. Oatman nevertheless o p e n e d a conversation with the agent and offered to set up drug transactions for him. The d is tric t judge denied suppression of the statement, finding that defendant voluntarily, k n o w in g ly, and intelligently waived his rights. We conclude that the District Court did n o t err in that finding.

Defendant has also filed a pro se brief asserting that the government failed to establish when the conspiracy took place. He contends that the indictment was im p ro p e rly amended when the trial court permitted evidence of conduct that occurred b e f o re February 2004, the beginning date set out in the indictment. We conclude that th e re was no prejudicial amendment of the indictment. See United States v. Somers, 496 F .2 d 723, 743 (3d Cir. 1974).

Oatman also challenges the sentence, asserting that the trial court m is c a lc u la te d the applicable Guidelines criminal history category. The government c o n c e d e s that the District Court should not have applied §§ 4A1.1(d) and (e) because it d id not count the misdemeanor convictions under § 4A1.1(a) or (b). According to the g o v e rn m e n t, the end result of this error is that Oatman should have been assigned four c rim in a l history points rather than seven, reducing the applicable sentencing range from 9 2 -1 1 5 months to 78-97 months. Oatman argues, however, that he should only have been a ss ig n e d three criminal history points because the District Court also improperly imposed a criminal history point under § 4A1.1(c). We leave it to the District Court to determine th e appropriate adjustment.

The judgment of conviction will be affirmed, but the case will be remanded f o r resentencing.


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