United States v. Wakinyan McArthur

Citation: Not availableDocket: 20-1487

Court: Court of Appeals for the Eighth Circuit; August 25, 2021; Federal Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Wakinyan Wakan McArthur appeals his 420-month sentence related to multiple drug and firearm offenses, contesting findings by the district court that impacted his sentencing under U.S. Sentencing Guidelines. Specifically, McArthur disputes the determination of a drug equivalency of 1,000 to 3,000 kilograms of marijuana, the classification of a premises as a stash house for drug distribution, and the characterization of his offenses as part of a livelihood pattern of criminal conduct. He was convicted of several charges linked to the Native Mob gang, including conspiracy to participate in racketeering and using firearms during crimes of violence. Initially sentenced to 516 months, his conviction on one firearm charge was vacated in an earlier appeal, leading to a resentencing to 480 months. In his second appeal, McArthur raised similar claims and argued that the residual clause of 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague; the government conceded this point, resulting in a vacated conviction on a firearm charge and a remand for further proceedings.

A third revised presentence investigation report (PSR) was prepared following a second remand for resentencing. McArthur reiterated his objections regarding drug quantity, stash house usage, and livelihood-related criminal conduct. The district court reaffirmed its previous findings: McArthur was responsible for a drug equivalency of 1,000 to 3,000 kilograms of marijuana, maintained a stash house, and engaged in a pattern of criminal conduct for livelihood purposes, incorporating earlier rulings. The court confirmed that the conspiracy involved substantial drug quantities, the house served as a stash house for drug activities, and McArthur's actions were consistent with ongoing criminal conduct. The PSR's total adjusted offense level of 49 was capped at 43, with a criminal history category of III, yielding a Guidelines range of life imprisonment, limited to 960 months due to statutory maximums. Ultimately, McArthur was sentenced to 420 months’ imprisonment.

On appeal, McArthur challenged the district court's drug-quantity calculation, the stash house determination under U.S.S.G. 2D1.1(b)(12), and the pattern of criminal conduct finding under U.S.S.G. 2D1.1(b)(14)(E, 2014). He argued the court erred by attributing responsibility for 1,000 to 3,000 kilograms of marijuana based on jury findings that held him accountable for less than 500 grams of cocaine and 28 to 280 grams of cocaine base. McArthur contended that there was insufficient evidence linking him to larger cocaine transactions, asserting that his coconspirator, Christopher Wuori, was primarily responsible for those activities. He claimed his involvement was limited and mostly pertained to smaller amounts of cocaine. The government is required to prove drug quantity by a preponderance of the evidence at sentencing, and appellate review focuses on whether the district court's findings were clearly erroneous, allowing consideration of uncharged drug transactions if they were part of the same scheme or course of conduct.

Transactions related to the conspiracy encompass all actions known or reasonably foreseeable to the defendant, impacting sentencing outcomes. In conspiracy cases, the drug quantity used for sentencing includes amounts the defendant was not personally involved with, provided these amounts were within the scope of the criminal activity and reasonably foreseeable, as per U.S.S.G. 1B1.3. Testimony from co-conspirators can reliably inform drug quantity calculations, and courts may base their determinations solely on this testimony. The credibility of witnesses is primarily for the district court to assess and is largely insulated from appellate review.

In this case, the district court found a drug quantity of 1,000 to 3,000 kilograms of marijuana, relying on the testimony of several co-conspirators. Specifically, Pindegayosh testified about joint drug runs with McArthur and Wuori, estimating 15 trips that involved cocaine ranging from 255.15 grams to one kilogram per trip, yielding significant marijuana equivalents. He also noted obtaining substantial amounts of cocaine base from Wuori, translating to an equivalency of over 4,800 kilograms of marijuana. Roberts corroborated this by detailing instances where McArthur stored cocaine at his mother's house and sold cocaine base, further contributing to the drug quantity assessment. The evidence presented was deemed sufficient to support the district court's drug quantity finding.

Roberts witnessed McArthur and Wuori supplying David Bowie with 7 grams of cocaine base in 2009. Jones testified that McArthur and Wuori provided him with cocaine base from 2009 to 2010, including an incident where Wuori handed McArthur approximately 56 grams of cocaine base, equivalent to 199.98 kilograms of marijuana. Seelye indicated that he, McArthur, and other Native Mob members pooled funds to buy cocaine in 2009. While cooperating with law enforcement in 2011, Seelye purchased 3.6 grams of cocaine base from McArthur and Wuori and an additional 6 grams from Wuori shortly after. The court found sufficient evidence to uphold the district court's determination that McArthur was responsible for 1,000 to 3,000 kilograms of marijuana.

Regarding the stash house enhancement under U.S.S.G. 2D1.1(b)(12), McArthur contends the district court erred by applying it because he did not maintain the residence known as the White House. He argues that Wuori was the one who maintained the house and that any drug activity was incidental to its primary use as a dwelling. McArthur emphasizes that substantial drug trafficking occurred during Wuori's residence, not his own, and argues that incidental usage does not equate to primary use for drug distribution.

The court reviews the factual finding of whether a defendant maintained a stash house for clear error. U.S.S.G. 2D1.1(b)(12) applies when a defendant knowingly maintains premises for drug manufacturing or distribution, even if the premises serve other legitimate purposes. Factors to consider include whether the defendant possessed the premises and the level of control they had over it. Ownership is not a requirement; living in the house often suffices to demonstrate maintenance. The court assesses whether the premises was primarily used for drug-related activities compared to lawful purposes, indicating that drug distribution must be one of the primary uses rather than incidental. The enhancement requires proof that the specific defendant maintained the premises for drug-related purposes, not merely that others did.

Drug manufacturing or distribution must be a primary use of the premises for the stash-house enhancement to apply, not merely incidental. The district court did not err in applying this enhancement against McArthur, who acknowledged that the White House served as his residence and was used for manufacturing and distributing controlled substances. Although McArthur claimed Wuori maintained the premises, evidence indicated that both McArthur and Wuori utilized the White House for cocaine processing and drug distribution. Testimonies from multiple witnesses confirmed their activities, including discussions about violent incidents related to drug dealings and the presence of firearms. Furthermore, McArthur’s recorded statements revealed he permitted Native Mob members to use his home for drug preparation, emphasizing that any legal repercussions should fall on them if law enforcement intervened. McArthur also admitted in court to storing significant quantities of marijuana at the residence. 

Regarding the criminal-livelihood enhancement, McArthur contested the district court's determination that he engaged in a pattern of criminal conduct as a livelihood. The court's factual findings are reviewed for clear error. A two-level increase applies if the defendant received an adjustment under U.S.S.G. 3B1.1 and committed offenses as part of a sustained pattern of criminal conduct. The definitions of "pattern of criminal conduct" and "engaged in as a livelihood" indicate that planned criminal acts must occur over a substantial time, with income derived from these activities exceeding 2,000 times the federal minimum wage within a twelve-month period, demonstrating that such conduct was the defendant’s primary occupation.

McArthur contends that even if he engaged in criminal conduct, the evidence does not support that he did so as a livelihood. The criminal-livelihood enhancement requires proving that a defendant's income exceeds $14,500 in a twelve-month period, based on the federal minimum wage of $7.25. McArthur reported incomes of $2,406 and $17,966 for 2008 and 2009, respectively, and did not file tax returns from 2008 to 2012. He claimed no assets or liabilities and had no credit history. Although he briefly held a legitimate job, he lost it due to a parole violation. McArthur admitted to using drug sale proceeds for personal expenses and to fund a recording studio. Evidence indicated he charged between $46 and $71 per gram for cocaine base, with specific sales showing a charge of $250 for 3.6 grams. The court found it reasonable to infer that McArthur earned over $14,500 from his drug activities, as his untaxed income from cocaine alone ranged from $92,000 to $140,000 over three years outside of prison, averaging between $30,600 and $46,600 annually. This amount exceeds the threshold for the enhancement, even accounting for shared proceeds with his associate Wuori. The estimates do not include earnings from other drug sales. McArthur also testified to earning money from selling over 100 pounds of marijuana post-release. The district court's application of the criminal-livelihood enhancement is affirmed.