United States v. Joseph Swafford

Citations: 639 F.3d 265; 2011 U.S. App. LEXIS 8642; 2011 WL 1584344Docket: 08-6462

Court: Court of Appeals for the Sixth Circuit; April 28, 2011; Federal Appellate Court

Original Court Document: View Document

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Joseph Swafford was convicted by a jury of selling over 3,000 gallons of iodine, knowing or having reasonable cause to believe it would be used to manufacture methamphetamine, violating 21 U.S.C. § 841(c)(2). The district court imposed a 360-month sentence, referencing U.S.S.G. § 2D1.11(c)(1) due to the implication of unlawfully manufacturing a controlled substance. This marked Swafford’s second appeal to the Sixth Circuit; the first resulted in the vacating of certain conspiracy and possession convictions, leading to a resentencing based solely on iodine distribution convictions. The district court determined that Swafford's actions involved the unlawful manufacture of methamphetamine, applying a base offense level of 38 per the relevant guidelines. After a two-level enhancement for obstruction of justice, Swafford's guidelines range was adjusted to 292-365 months, and the court reaffirmed the 360-month sentence. The central issue on appeal was whether the district court correctly applied the cross reference in § 2D1.11(c), which pertains to offenses involving the unlawful manufacturing or attempted manufacturing of a controlled substance. The application notes clarify that the cross reference applies if the defendant or accountable parties completed actions constituting the unlawful manufacturing offense.

Swafford did not directly engage in the illegal manufacture of methamphetamine, but several of his customers did, which leads to accountability under § 1B1.3. This provision holds Swafford responsible for acts committed by others in a jointly undertaken criminal activity if those acts were reasonably foreseeable. The district court found that Swafford was involved in a conspiracy with multiple methamphetamine cooks, concluding that it was foreseeable that these individuals would manufacture methamphetamine and that Swafford’s sale of iodine supported this activity.

At the sentencing hearing, the court noted evidence of Swafford's involvement in multiple conspiracies, as highlighted by testimony from various witnesses. The court determined that Swafford knowingly supplied iodine for methamphetamine production, satisfying the foreseeability requirement. Evidence indicated Swafford purchased excessive amounts of iodine—far beyond legitimate needs—and sold it exclusively for cash to known methamphetamine producers.

Testimony from methamphetamine cook Brian Storey illustrated the ongoing relationship between him and Swafford, where large cash transactions for iodine occurred discreetly. The court also noted instances of Swafford taking precautions to avoid detection while selling iodine. Despite Swafford's claims that the sentencing guidelines unfairly punished him for an uncharged manufacturing offense, the guidelines apply based on specific acts rather than strict criminal liability. The district court’s findings were supported by the evidence and were not clearly erroneous, justifying the application of the cross-reference in sentencing.

Cross references and relevant conduct guidelines apply to any jointly undertaken criminal activity, regardless of whether a conspiracy charge is present, as per § 1B1.3(a)(1)(B). Even if the jury had acquitted Swafford of conspiracy to manufacture methamphetamine, the district court could still consider that conduct if supported by evidence. The court retains discretion in sentencing as long as the sentence stays below the statutory maximum, which, in Swafford's case, is 190 years based on nineteen counts of violating § 841(c), each with a maximum of 10 years. Swafford’s 360-month sentence is well within this limit, and stacking sentences does not infringe upon Sixth Amendment rights. 

Swafford argues that Congress intended to differentiate penalties for the distribution of methamphetamine precursors from those for manufacturing it, suggesting that cross-references should not apply to individuals merely selling large amounts of precursor chemicals. However, the language of the § 2D1.11 cross reference indicates that any involvement in methamphetamine manufacture triggers its application, including sales of precursors like iodine. Swafford's concern that this interpretation makes § 2D1.11 redundant is unfounded, as the guideline applies to a broader range of offenses beyond just § 841(c), serving a significant function by distinguishing levels of involvement in manufacturing. 

Swafford asserts that reasonable knowledge of the intended use of chemicals does not equate to involvement in manufacturing. The case of United States v. Voss, which addressed sentencing for listed-chemical offenses, is distinguished from Swafford's situation, as it involved outdated guidelines and did not reflect current interpretations. Voss conflicts with decisions from multiple circuits, reinforcing the legitimacy of using the cross reference in Swafford's case.

Voss acknowledged that § 2D1.11 resolves prior ambiguities in sentencing, meaning Voss no longer applies in the Tenth Circuit, as confirmed in United States v. Wagner. The rule of lenity does not assist Swafford since it applies only in cases of significant ambiguity in the guidelines, which is not present regarding cross references in this instance. The district court’s failure to apply the cross reference during the initial sentencing does not affect the outcome, as the remand allowed for a reassessment of the guidelines range without restrictions. The conspiracy conviction necessitated the use of § 2D1.1, preventing the application of the cross reference due to potential double counting. Swafford's challenge to the reasonableness of his sentence, based on avoiding disparities among similarly situated defendants, is unconventional since within-guidelines sentences are designed to reduce such disparities. A below-guidelines sentence, which Swafford seeks, is more likely to introduce disparities rather than mitigate them. Thus, the request for a below-guidelines sentence should not be based on § 3553(a)(6). The court ultimately affirms the sentence.