United States v. Scott Donald Wiele

1The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa .
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1879
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Randy Lynn Zirtzman, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 12, 2007
Filed: October 19, 2007
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Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Randy Lynn Zirtzman pleaded guilty to knowingly making his property
available for the purpose of manufacturing, storing, distributing, and using
methamphetamine, in violation of 21 U.S.C. § 856. The district court 1 calculated a
base offense level of 32, see U.S.S.G. §§ 2D1.8(a), 2D1.1(c) (2005); a 6-level increase
because the offense created a substantial risk of harm to Zirtzman’s minor child who
was present in the home while methamphetamine was being manufactured, see
U.S.S.G. § 2D1.1(b)(6)(C) (2005); a 3-level reduction for accepting responsibility; a

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Category II criminal history; and a Guidelines imprisonment range of 188-235
months. The court sentenced Zirtzman to 188 months in prison and 3 years of
supervised release.
On appeal, counsel has filed a brief under Anders v. California, 386 U.S. 738
(1967), arguing that the district court erred in denying a mitigating-role reduction
under U.S.S.G. § 3B1.2(b) (2005), and imposed an unreasonable sentence as a result
of giving undue weight to the advisory Guidelines range. We find no clear error in
the district court’s denial of the reduction because Zirtzman allowed his property to
be used to manufacture methamphetamine, and he obtained precursor chemicals that
were used in the manufacturing process. See United States v. Johnson, 408 F.3d 535,
538-39 (8th Cir. 2005) (standard of review; mere fact that defendant is less culpable
than others does not entitle him to reduction; defendant was not entitled to reduction
where he was responsible for supplying pseudoephedrine for methamphetamine-
manufacturing operation). We also conclude that Zirtzman’s sentence is not
unreasonable: the district court properly took into account the Guidelines
imprisonment range along with other 18 U.S.C. § 3553(a) factors and Zirtzman’s
arguments in favor of a downward departure and/or variance. See United States v.
Booker, 543 U.S. 220, 260-62 (2005) (§ 3553(a) will guide appellate courts in
determining whether sentence is unreasonable); United States v. Haack, 403 F.3d 997,
1004 (8th Cir. 2005) (discussing appropriate consideration of § 3553(a) factors); see
also Rita v. United States, 127 S. Ct. 2456, 2462-68 (2007) (allowing appellate
presumption of reasonableness for sentence within Guidelines range).
Zirtzman asserts in his supplemental pro se brief that his base offense level
should have been lower than 32; he should not have received the 6-level increase; and
the district court should have applied the rule of lenity. We reject the first two
arguments, because at sentencing Zirtzman did not reassert or request a ruling on his
previous objection to the 6-level increase, see United States v. Hester, 140 F.3d 753,
761-62 (8th Cir. 1998) (holding that although defendant submitted various objections

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to presentence report, because he addressed only one of them during sentencing
hearing and did not ask for ruling on others, those other objections were waived), and
in his plea agreement he stipulated to a base offense level of 32, see United States v.
Early, 77 F.3d 242, 244 (8th Cir. 1996) (per curiam) (defendant who stipulated in plea
agreement to certain base offense level cannot challenge imposition of that base level
where defendant did not challenge validity of agreement or seek to withdraw from it).
The rule of lenity has no application here as the sentence was not based on an
ambiguous Guidelines provision. See United States v. Oetken, 241 F.3d 1057, 1060
(8th Cir. 2001).
We have carefully reviewed the record in accordance with Penson v. Ohio, 488
U.S. 75 (1988), and have found no nonfrivolous issues. Accordingly, we affirm the
district court’s judgment.
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