United States v. Edward Joseph Lowen

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2467
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United States of America, *
*
Plaintiff-Appellee, * Appeal from the United States
* District Court for the
v. * District of South Dakota.
*
Kent Hazelrigg, * [UNPUBLISHED]
*
Defendant-Appellant. *
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Submitted: March 17, 2011
Filed: July 14, 2011
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Before SMITH, BRIGHT, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Kent Hazelrigg appeals his jury conviction and sentence for conspiracy to
distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1), and 846. The district court sentenced Hazelrigg to 100 months’1
(8 years, 4 months) imprisonment. Hazelrigg appeals the denial of his motion to
suppress, challenges the sufficiency of the evidence, and contends his sentence is
unreasonable. We reject these claims and affirm.
The Honorable Karen E. Schreier, Chief Judge, United States District Court1
for the District of South Dakota.

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A. Motion to Suppress
“This Court reviews factual findings underlying the district court’s denial of
a motion to suppress for clear error and the question of whether the Fourth
Amendment has been violated de novo.” United States v. McMullin, 576 F.3d 810,
814 (8th Cir. 2009).
Probable cause to issue a search warrant exists when an affidavit sets forth
sufficient facts to justify a prudent person in the belief that contraband will be found
in a particular place. United States v. Reivich, 793 F.2d 957, 959 (8th Cir. 1986). A
facially sufficient affidavit offered in support of a warrant application may be
challenged on the ground that it includes deliberate or reckless falsehoods or
omissions. Id. at 960. In United States v. Jacobs, this court explained that in order
to successfully challenge a warrant on the basis of omitted information, a defendant
must show (1) police omitted the information with the intent to make, or in reckless
disregard of whether they made, the affidavit misleading; and (2) inclusion of the
omitted material would not have been sufficient to support a finding of probable
cause. 986 F.2d 1231, 1234 (8th Cir. 1993) (quotation omitted). In Jacobs, this court
held an affidavit’s failure to include the fact that a drug dog did not alert to a package
constituted the reckless omission of “clearly critical” information. Id. at 1235.
Hazelrigg contends that Agent Tolsma’s affidavit recklessly omitted the fact
that Shane Oliver was in jail for 22 days before identifying Hazelrigg as the source
of the drugs found in Oliver’s car. Hazelrigg asserts this rises to a reckless omission
because it did not inform the magistrate judge as to Oliver’s veracity and motive in
speaking to law enforcement.
We disagree. The affidavit stated that on November 13, 2007, Oliver was in
jail and requested to speak with law enforcement about his “current situation.” The
affidavit informed the magistrate judge that Oliver was currently on parole for Grand
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Theft and that he had been out of prison for two years. The affidavit explained that
Oliver was arrested for theft on October 22, 2007, that drugs were found in his car,
and that Oliver stated the drugs belonged to Hazelrigg. We conclude this information
provided sufficient detail for the magistrate judge to consider Oliver’s veracity and
motive in identifying Hazelrigg as the owner of the drugs found in Oliver’s car.
Hazelrigg also contends the affidavit recklessly omitted relevant information
from a transcribed phone call between himself and Oliver. We disagree. Although
the affidavit relates very little of the transcript, it does not recklessly disregard
relevant information. Most of the telephone call consists of Hazelrigg and Oliver
discussing a house on which the two were working. The portions relevant to drugs
were included in the affidavit and do not materially misstate the conversation between
Hazelrigg and Oliver. Accordingly, we affirm the denial of Hazelrigg’s motion to
suppress.
B. Sufficiency of the Evidence
In considering challenges to the sufficiency of the evidence, this court reviews
the record in the light most favorable to the government, resolving evidentiary
conflicts in favor of the government, and accepting all reasonable inferences drawn
from the evidence that support the verdict. United States v. Winston, 456 F.3d 861,
866 (8th Cir. 2006). This court affirms if the evidence is sufficient to prove the
elements of a crime beyond a reasonable doubt. United States v. Lopez, 443 F.3d
1026, 1030 (8th Cir. 2006) (en banc).
To convict Hazelrigg of conspiracy to distribute methamphetamine, the
government needed to prove (1) the existence of a conspiracy; (2) that Hazelrigg
knew of the conspiracy; and (3) he intentionally joined the conspiracy. See United
States v. Alexander, 408 F.3d 1003, 1008 (8th Cir. 2005). “Proof of a defendant’s
involvement in a conspiracy may of course be demonstrated by direct or
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circumstantial evidence.” Lopez, 443 F.3d at 1030. An agreement need not be
express and may consist “of merely a tacit understanding.” United States v.
Crossland, 301 F.3d 907, 913 (8th Cir. 2002). But a mere sales agreement between
a buyer and seller does not constitute a conspiracy. United States v. Jensen, 141 F.3d
830, 833 (8th Cir. 1998).
Hazelrigg argues that the government presented no evidence that he joined in
an agreement. At most, he asserts, the evidence established possession, a buyer-seller
arrangement, that he maintained a residence where drugs were ingested, and
associated with people who bought, sold, and used illegal drugs. He discounts Alicia
Herrick’s testimony on behalf of the government as that of a “self professed liar.”2
After carefully reviewing the evidence in the light most favorable to the
verdict, we conclude a reasonable jury could find beyond a reasonable doubt that
Hazelrigg conspired to distribute methamphetamine. Herrick’s testimony established
a conspiracy beginning in late 2007 that initially involved herself, Eric Johnson, and
Shaun Huckaby. She later met Hazelrigg through Huckaby and observed one drug
exchange between the two. Although she testified she never witnessed Johnson sell
methamphetamine to Hazelrigg, on one occasion she went with Hazelrigg to a truck
stop to meet Johnson and afterwards observed Hazelrigg with two ounces of
methamphetamine. She then observed Hazelrigg give some of that methamphetamine
to another individual. Around Christmas 2007, Herrick contacted Hazelrigg when
Johnson was unavailable and obtained two eightballs of methamphetamine. In early
2008, Herrick again contacted Hazelrigg instead of Johnson when she sought to
obtain three eightballs of methamphetamine for an individual from North Dakota.
To the extent Hazelrigg assails Herrick’s credibility, we reject that argument.2
See United States v. Vickers, 528 F.3d 1116, 1120 (8th Cir. 2008) (stating credibility
determinations are “virtually unassailable on appeal”); United States v. Delpit, 94
F.3d 1134, 1152 (8th Cir. 1996) (“[I]t is the jury’s business whom it chooses to
believe.”).
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We conclude that Herrick’s testimony, in addition to Tolsma’s testimony regarding
owe sheets, scales, and other seized contraband, was sufficient for a reasonable jury
to conclude Hazelrigg conspired to distribute methamphetamine. See United States
v. Donnell, 596 F.3d 913, 924 (8th Cir. 2010) (rejecting mere buyer-seller agreement
where the evidence showed multiple transactions involving large amounts of drugs);
Delpit, 94 F.3d at 1152 (stating a series of drug deals for resale can prove a
conspiracy to distribute).
C. Sentence
We consider the substantive reasonableness of a sentence imposed under an
abuse-of-discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc). A district court abuses its discretion when it (1) “fails to consider
a relevant factor that should have received significant weight”; (2) “gives significant
weight to an improper or irrelevant factor”; or (3) “considers only the appropriate
factors but in weighing those factors commits a clear error of judgment.” United
States v. Kane, 552 F.3d 748, 752 (8th Cir. 2009).
Hazelrigg contends his 100-month sentence is unreasonable in light of the
sentences imposed on his co-conspirators. He asserts the district court gave “short3
shrift” to the 18 U.S.C. § 3553(a) factors as well as to testimony and letters on his
behalf that described his industriousness, talents, and charitable works.
At sentencing, the court denied Hazelrigg’s motion for a downward variance,
explaining that although his role was similar to co-conspirators Huckaby and Bickle,
they pleaded guilty and did not commit perjury at trial. As for the section 3553(a)
factors, the court considered this a serious offense. The court recognized that
The district court determined that Hazelrigg’s guideline range was 87 to 1083
months’ imprisonment. Hazelrigg does not challenge this determination.
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Hazelrigg held a steady job, was described as reliable, a man of honor, and possessed
several other good character traits. But the court also explained that Hazelrigg
attempted to threaten and intimidate a witness. We conclude the district court
sufficiently explained how the 18 U.S.C. § 3553(a) factors informed its sentencing
decision and as such did not abuse its discretion.
The judgment of the district court is affirmed.
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