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United States v. Patrie

United States District Court, N.D. Iowa, Eastern Division

June 12, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
RANDY PATRIE, Defendant.

ORDER

B. LYNN WINMILL, Chief District Judge.

I. INTRODUCTION

The matter before the court is the sentencing of Defendant Randy Patrie after his pleas of guilty to two federal crimes: possession of firearms as a felon and possession of sawed-off shotguns.

II. RELEVANT PRIOR PROCEEDINGS

On July 23, 2013, a grand jury returned a four-count Indictment (docket no. 2) against Defendant. Count 1 charged Defendant with theft of firearms from a federally licensed firearms dealer, in violation of 18 U.S.C. § 922(u). Count 2 charged Defendant with possession of stolen firearms, in violation of 18 U.S.C. § 922(j). Count 3 charged Defendant with being a felon in possession of firearms as an armed career criminal, in violation of 18 U.S.C. § 922(g)(1). Count 4 charged Defendant with being in possession of sawed-off shotguns, in violation of 26 U.S.C. § 5861(d).

On September 6, 2013, Defendant pled guilty to the offenses charged in Count 3 and Count 4 of the Indictment before Chief Magistrate Judge Jon Scoles (docket no. 23). This court accepted the pleas of guilty on September 24, 2013 (docket no. 27) upon the Report and Recommendation of the magistrate judge (docket no. 24).

On November 26, 2013, the United States Probation Office filed a Final Presentence Investigation Report ("Final PSIR") (docket no. 32). On January 3, 2014, the government and Defendant filed sentencing memoranda ("Government's Sentencing Memorandum") (docket no. 40); ("Defendant's Sentencing Memorandum") (docket no. 41-1) with respect to the contested issues in the Final PSIR. Thereafter, on January 16, 2014, the United States Probation Office filed a Second Revised Final Presentence Investigation Report ("PSIR") (docket no. 42).

On February 6, 2014, the court held a sentencing hearing at which it received evidence on the sentencing issues (docket no. 47). The court heard testimony from several witnesses and received a number of exhibits. The court granted time to file post-hearing briefs. On February 13, 2014, the government filed a "Post-Hearing Sentencing Brief" ("Government's Post-Hearing Brief") (docket no. 51), and the government filed an Addendum to the Government's Post-Hearing Brief (docket no. 52) the following day. On February 19, 2014, Defendant filed a "Post Hearing Sentencing Brief" ("Defendant's Post-Hearing Brief") (docket no. 53). On February 21, 2014, the government filed a Reply (docket no. 54).

The court now turns to consider the issues raised by the parties. The sentencing hearing will resume on June 19, 2014 at 2:00 p.m., at which time the court will hear victim impact statements, arguments on the issue of what sentence the court should impose and permit Defendant to address the court if he wishes to do so.

III. SENTENCING FRAMEWORK

A "district court should begin [a sentencing proceeding] with a correct calculation of the [defendant's] advisory Sentencing Guidelines range." United States v. Braggs, 511 F.3d 808, 812 (8th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 49 (2007)). A defendant's advisory Guidelines range "is arrived at after determining the appropriate Guidelines range and evaluating whether any traditional Guidelines departures are warranted." United States v. Washington, 515 F.3d 861, 865 (8th Cir. 2008).

"[A]fter giving both parties a chance to argue for the sentence they deem appropriate, the court should consider all of the factors listed in 18 U.S.C. § 3553(a) to determine whether they support the sentence requested by either party." Braggs, 511 F.3d at 812 (citing Gall, 552 U.S. at 49-50). "The district court may not assume that the Guidelines range is reasonable, but instead must make an individualized assessment based on the facts presented.'" Id. (quoting Gall, 552 U.S. at 50); see, e.g., Nelson v. United States, 555 U.S. 350, 352 (2009) ("Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable.").

The district court "has substantial latitude to determine how much weight to give the various factors under § 3553(a)." United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009); see also United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) ("[It] will be the unusual case when we reverse a district court sentence-whether within, above, or below the applicable Guidelines range-as substantively unreasonable." (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008))). "If the court determines that a sentence outside of the Guidelines is called for, it must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.'" Braggs, 511 F.3d at 812 (quoting Gall, 552 U.S. at 50). "The sentence chosen should be adequately explained so as to allow for meaningful appellate review and to promote the perception of fair sentencing.'" Id. (quoting Gall, 552 U.S. at 50).

IV. EVIDENTIARY RULES

At sentencing, the court makes findings of fact by a preponderance of the evidence. See, e.g., United States v. Bah, 439 F.3d 423, 426 n.1 (8th Cir. 2006) ("[J]udicial fact-finding using a preponderance of the evidence standard is permitted provided that the [G]uidelines are applied in an advisory manner."). The court considers a wide variety of evidence, including the undisputed portions of the PSIR, as well as the testimony and other evidence the parties introduced at the sentencing hearing. The court does not "put on blinders" by only considering the evidence directly underlying Defendant's offenses of conviction. In calculating Defendant's advisory Guidelines range, for example, the court applies the familiar doctrine of relevant conduct. See USSG §1B1.3. The Eighth Circuit Court of Appeals has repeatedly held that a district court may consider uncharged, dismissed and even acquitted conduct at sentencing. See, e.g., United States v. Whiting, 522 F.3d 845, 850 (8th Cir. 2008). When relevant and "accompanied by sufficient indicia of reliability to support the conclusion that it [was] probably accurate, " the court credits hearsay. United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005). The sentencing judge is afforded great discretion in determining the credibility of witnesses and making findings of fact. United States v. Bridges, 569 F.3d 374, 377-78 (8th Cir. 2009).

V. FACTS

A. Background and Investigation

The facts admitted to by Defendant in the PSIR[1] coupled with the testimony and exhibits received during the evidentiary hearing establish the following offense conduct and relevant conduct by a preponderance of the evidence:

Defendant, a multi-convicted burglar, in spite of his status as a felon, has a fondness for firearms and acquiring them through illegal means. He acquired three firearms using a straw purchaser, his girlfriend who later became his wife, and stole a number of them during residential and commercial burglaries.

On June 6, 2010, Defendant's then-girlfriend, Wendi Alderman, purchased a Century Arms 762x54R caliber rifle, serial number XXXXXXXXXX, from Mills Fleet Farm in Mason City, Iowa. On February 12, 2011, Defendant's then-wife, Wendi Patrie (nee Alderman), purchased two more long guns, specifically a Mossberg International rifle, serial number HJH3126371 and a Romarm 7.62x39 caliber rifle, serial number AF12821989, from Mills Fleet Farm in Mason City. At the time of both purchases, Wendi Patrie claimed on ATF Form 4473 that she was the actual buyer of the firearms, but, later, Wendi Patrie testified that Defendant was with her when she bought the firearms, told her which firearms to buy, paid for the firearms and possessed the firearms.

On July 4, 2013, a search warrant was executed at the Charles City, Iowa home of Defendant and Wendi Patrie. The warrant was issued following a burglary at 8:00 p.m. that same date at the Charles City, Iowa home of Donna Patrie, Defendant's stepmother, during which Defendant was observed removing boxes and totes from the residence and taking them to his own home. The boxes and totes contained collectible coins. Even though it was a very hot day, observers reported that Defendant wore gloves during the burglary of his stepmother's home. Defendant's home is about one block from the home of his stepmother.

After discovering that one of the guns seized from Defendant's residence during the July 4, 2013 search matched one of the guns stolen from a September 25, 2012 burglary of the home of Carl Kenneth Gallmeyer, law enforcement obtained and executed another search warrant at Defendant's residence on July 9, 2013.

During the searches, investigators found not only the property taken from Donna Patrie and the gloves Defendant wore during the burglary, but also the following items:

1. Firearms, a flat-screen television, tools, a dummy surveillance camera, a chainsaw and a night vision scope belonging to Mr. Gallmeyer. On October 4, 2012, law enforcement officers responded to a call for a welfare check at Mr. Gallmeyer's rural Nashua, Iowa home. Mr. Gallmeyer's house had been burglarized, ransacked and was in complete disarray. The burglar stole, among other items, a flat-screen television, a number of tools and three firearms. Officers also found Mr. Gallmeyer's body lying on a bed with a single head wound from a.410 gauge shotgun shell. Investigators later determined that Mr. Gallmeyer had died on or about September 25, 2012. The serial numbers on the firearms and the flat-screen television found at Defendant's home matched the serial numbers of identical items stolen during the burglary of Mr. Gallmeyer's home. The physical properties of the tools seized from Defendant's home were consistent with tools stolen during the burglary of Mr. Gallmeyer's home. Photographs of the tools had been retained by Mr. Gallmeyer prior to his death.
2. Two firearms belonging to Gerald Slessor of Nashua, Iowa, which were stolen during a burglary on March 31, 2013. The firearms were identified by Slessor based on the unique markings on them. Slessor's home was also burglarized on September 16, 2012.
3. Twenty-two firearms (seventeen hand guns, four long guns and one black powder weapon) that had been stolen from Gilbert's Sale Yard, a federally licensed firearms dealer, in Floyd, Iowa, during a May 2, 2013 burglary. The serial numbers on the seized firearms matched the serial numbers of the stolen firearms.
4. Three firearms purchased by Wendi Patrie at Mills Fleet Farm. They were found in the attic of the Patries' home commingled with the other firearms.
5. Two sawed-off shotguns, including a 10 gauge shotgun of unknown manufacture with no serial number, and a.410 gauge shotgun of unknown manufacture with no serial number. Each of the sawed-off shotguns had a barrel length of less than 26 inches and had not been registered to Defendant in the National Firearm Registration and Transfer Record.
6. A Remington 12 gauge shotgun, serial number W823059M.

Further investigation revealed that on May 6, 2013, Defendant sold a chainsaw to Gilbert's Sale Yard that matched the description of a chainsaw that had been stolen from Mr. Gallmeyer. On June 4, 2013, law enforcement learned that Defendant tried to sell a Colt.357 magnum revolver, serial number J63017, which had been stolen from Gilbert's Sale Yard, to another individual.

On July 9, 2013, during an out-of-custody interview conducted at his home, Defendant admitted to law enforcement that he had burglarized Gilbert's Sale Yard and had stolen the twenty-two firearms reported stolen from Gilbert's Sale Yard and seized from Defendant's home on July 4, 2013. Defendant also admitted to burglarizing his stepmother's home and stealing tubs of coins and various other items from her home. When law enforcement went through the written inventory of property recovered from Defendant's home during the July 4 and July 9, 2013 searches, Defendant could not recall where he acquired the two long guns that were identified as having been stolen from Mr. Gallmeyer's home. As to the pistol recovered from Defendant's home that had been stolen from Mr. Gallmeyer's home, Defendant claimed to have acquired it some time previously from Dave Goddards, a friend of his who was deceased by the time of the interview. Defendant also admitted to altering two long guns by sawing off the barrels. He claimed that he altered the barrel of one of them when he was sixteen years old. He admitted to possessing those same two sawed-off shotguns.

Defendant did not admit to burglarizing Custom Wood Products or the home of Mr. Gallmeyer. Defendant did admit that he had known Mr. Gallmeyer and was able to provide a general description of him. Defendant referred to him as Carl Gallmeyer even though he went by and was known as Ken Gallmeyer. Defendant claimed that he had met Mr. Gallmeyer in 1999 or 2000 when Defendant was doing some work for Gerald Slessor at the River Ranch Campground in Nashua, Iowa. Mr. Gallmeyer was doing some bird watching. According to Defendant, he and Mr. Gallmeyer struck up a conversation. After initially stating that he had not seen Mr. Gallmeyer since then, Defendant recalled that he had seen him one other time at a grocery store in Charles City a few years prior. According to Defendant, Mr. Gallmeyer saw Defendant and approached him, recalling Defendant's last name accurately. According to Defendant, Mr. Gallmeyer, upon learning of Defendant's marriage to Wendi Patrie, was upset that he had not been invited to the wedding. Defendant professed to not knowing where Mr. Gallmeyer lived. In the context of talking about the investigation into the death of Mr. Gallmeyer and the physical evidence at Mr. Gallmeyer's home, Defendant told a law enforcement officer that he would not find Defendant's fingerprints at the crime scene. As the law enforcement officer continued to ask questions about Mr. Gallmeyer, Defendant's behavior changed. First,

Defendant became distracted with a wound on his hand. As law enforcement began to ask more questions about Mr. Gallmeyer's murder, Defendant asked if he could get a drink. Defendant told officers that he and Wendi Patrie had purchased their home in November 2012, which would have been about one and one half months after the burglary and murder of Mr. Gallmeyer. Defendant also told officers that sometime during the summer of 2012, Wendi Patrie had had some health problems and that they had accumulated significant medical bills. Defendant denied having anything to do with the murder of Mr. Gallmeyer.

During the early stages of the investigation, Wendi Patrie was interviewed by law enforcement numerous times about the firearms she purchased in 2010 and 2011 at Mills Fleet Farm. She admitted that Defendant was with her when they were purchased. Wendi Patrie admitted that she knew Defendant was a felon and that he could not have firearms. At times, she claimed the firearms were purchased by her for her protection; however, she could not provide an explanation for purchasing more than one firearm for purposes of protection. She also stated that she would use the firearms to hunt. However, she was unable to state how many firearms she purchased or name them by model or other description, and she was evasive when answering questions about who she had hunted with recently. Eventually, Wendi Patrie was charged in the United States District Court for the Northern District of Iowa, Case No. 6:13-CR-2025-LRR, with four federal crimes arising from her purchase of the long guns in 2010 and 2011: two counts of making a false statement during the purchase of a firearm (Counts 1 and 3), in violation of 18 U.S.C. § 922(a)(6), and two counts of transferring a firearm to a prohibited person (Counts 2 and 4), in violation of 18 U.S.C. § 922(d)(1). On December 30, 2013, she pled guilty to Count 1 after a debriefing with law enforcement during which she admitted that Defendant wanted her to buy the guns, Defendant advised her on the guns, Defendant paid for the guns and Defendant picked out the size and the length of the guns.

B. The Murder of Carl Kenneth Gallmeyer

Mr. Gallmeyer was seventy years old at the time of his death and was retired after forty years working as a grocery store owner in Clarksville, Iowa. Mr. Gallmeyer was divorced and lived alone in a home he built just north of Nashua, Iowa. His home was about a mile and one half from the home of Gerald Slessor, another one of Defendant's burglary victims. Mr. Gallmeyer's home sat 200-300 yards back from the road at the end of a tree-lined lane. The house was not easily seen from the road. He did not own a dog. He enjoyed observing nature, feeding the wildlife and had an affinity for cats. He helped at the local animal shelter. Mr. Gallmeyer was concerned about security because his home was so secluded. Because of his fears, he had a dummy surveillance camera installed on the outside of the garage, armed himself with firearms and a night scope, bought a police scanner and put metal bars over his garage entry and the entryway to the kitchen in the front of the house. He generally had cash on hand in the house or in his wallet.

At the sentencing hearing on February 6, 2014, Seth Gallmeyer, Mr. Gallmeyer's son, credibly testified that Mr. Gallmeyer used to keep a large amount of cash and coins totaling $50, 000 to $60, 000 on his property in a safe in his garage. Mr. Gallmeyer believed that his then-second wife Judy Gallmeyer or her relatives stole $30, 000 from the safe in 2006. Mr. Gallmeyer then divorced his wife and filed a lawsuit to recover the money. After the disappearance of the $30, 000 and sometime prior to September 2012, Mr. Gallmeyer moved the safe to the office of Clark Insurance in Clarksville, Iowa, where it remained at the time of the burglary. The safe also contained photographs of Mr. Gallmeyer's firearms with the serial numbers listed as well as photographs of his tools. It was not common knowledge that he moved the safe off of his property. Mr. Gallmeyer also had a flat-screen television in his living room that was taken from his home and found in the possession of Defendant and his wife. It was mounted on their bedroom wall.

At the sentencing hearing, Denny Hamm, Defendant's uncle, credibly testified that approximately ten months before the murder of Mr. Gallmeyer, he had told Defendant that Mr. Gallmeyer kept large amounts of cash in a safe at Mr. Gallmeyer's house. Hamm knew about the cash through his stepdaughter who is married to Judy Gallmeyer's grandson, Doug Griffin. Hamm told Defendant that Mr. Gallmeyer lived in the country and, later that day, as Hamm, Defendant and Wendi Patrie were driving home, Hamm pointed out where Mr. Gallmeyer lived. About three or four months before Mr. Gallmeyer's murder, Defendant asked Hamm if Mr. Gallmeyer had any dogs, and Hamm told him that he did not know. At some point thereafter, Hamm testified that Defendant told him that he had met Mr. Gallmeyer and gotten into his home to use the telephone after getting a flat tire or running out of gas, though Hamm did not believe that Defendant had actually had a flat tire or run out of gas. A week or two before the murder and burglary, Defendant asked Hamm if he would be interested in burglarizing Mr. Gallmeyer's home. After the murder, Hamm asked Defendant if he had anything to do with the burglary or murder. Defendant laughed and denied that he was responsible. Hamm also testified that he had seen a sawed-off shotgun in Defendant's house on a dresser over a year prior to the sentencing hearing.

Wendi Patrie credibly testified at the sentencing hearing that she heard Defendant ask Hamm if he would like to burglarize Mr. Gallmeyer's home a week or two before the murder of Mr. Gallmeyer. After this conversation and before the burglary and murder, Wendi Patrie testified that she, Defendant and Hamm were driving in the country taking Hamm somewhere when someone pointed out Mr. Gallmeyer's house. On September 26, 2012, Wendi Patrie woke up at 2:00 a.m., and neither Defendant nor his car were at their home. Defendant did not return that night. As Wendi Patrie was taking her daughter to school later that morning, she saw Defendant return home at a time when he should have been at work. Later that afternoon, Wendi Patrie testified that she saw Defendant unloading boxes from his car. Defendant's employer's records show that Defendant was sick and not at work on September 26 and 27, 2012.

In early October 2012, Wendi Patrie was watching the news with Defendant when the death of Mr. Gallmeyer was announced. Wendi Patrie testified that Defendant turned white and swallowed hard. In the following days, Wendi Patrie testified that she heard Hamm ask Defendant if he had anything to do with the burglary or murder.

When investigators searched Defendant's home in July 2013, they found firearms, a flat-screen television, tools, a chainsaw, a night vision scope and a dummy security camera minus the mounting bracket that was found in shards in Mr. Gallmeyer's driveway. Criminalist Victor Murillo testified that the shot wad found at the scene of the murder of Mr. Gallmeyer is consistent with what would have come from a.410 gauge shotgun shell. Murillo also testified that the shot wad found at the scene of the murder of Mr. Gallmeyer is consistent with having been fired out of a sawed-off shotgun. Murillo could not identify the shot wad found at the scene of the murder of Mr. Gallmeyer as having come out of the.410 gauge sawed-off shotgun in Defendant's possession, but he could not rule out the.410 gauge sawed-off shotgun in Defendant's possession as the murder weapon, either.

On October 4, 2012, law enforcement found Mr. Gallmeyer's body at his rural Nashua, Iowa home. Law enforcement determined that Mr. Gallmeyer was murdered sometime after the afternoon of September 25, 2012, and prior to the time his mail and newspaper were delivered to his home on September 26, 2012. A surveillance tape showed him visiting his former wife, Judy Gallmeyer, at her place of employment at the Kwik Star in Nashua, Iowa, at approximately 3:40 p.m. on September 25, 2012. Mr. Gallmeyer's mail carrier told law enforcement that when he delivered the mail to Mr. Gallmeyer's home on September 26, 2012, the mail from the previous day was uncharacteristically still in the mailbox. Mail continued to accumulate on the days that followed until Mr. Gallmeyer's body was discovered on October 4, 2012. Also in the mailbox was a newspaper dated September 26, 2012.

Mr. Gallmeyer's body was found in a natural sleeping position on his bed, lying on his left side, with the covers over the lower part of his body. There was a single gunshot wound from a.410 gauge shotgun in Mr. Gallmeyer's right temple and blood splatter consistent with Mr. Gallmeyer being murdered where he lay on his bed. There were many items examined and then discarded on top of Mr. Gallmeyer after he was shot, including books, a bookcase and other items. The rest of the house, including the garage, was ransacked, with drawers pulled out and shelves tipped over. Nearly everything in the house had been searched. No DNA or fingerprints, aside from those of Mr. Gallmeyer, were developed from Mr. Gallmeyer's home.

VI. ISSUES

The instant Sentencing Memorandum addresses the following issues: (1) Defendant's base offense level, specific offense characteristics and whether a cross reference applies pursuant to Chapter Two of the Guidelines; (2) whether Defendant played an aggravating role, pursuant to USSG § 3B1.1; (3) whether Defendant obstructed justice, pursuant to USSG §3C1.1; (4) whether Defendant accepted responsibility, pursuant to USSG §3E1.1; (5) whether Defendant qualifies as a career offender, pursuant to USSG §4B1.1 (PSIR ¶ 36); (6) whether Defendant qualifies as an armed career criminal, pursuant to USSG §4B1.4 (PSIR ¶ 37); and (7) whether the court should depart from the advisory Guidelines range pursuant to USSG §§4A1.3(a), 5K2.0 and 5K2.1 (PSIR ¶ 127).

As provided in USSG §1B1.1, the Sentencing Memorandum first determines Defendant's base offense level, applies any appropriate specific offense characteristics and determines if a cross reference applies as described in Chapter Two of the Guidelines. Next, the court will determine whether Defendant is subject to an aggravating role adjustment, obstruction of justice adjustment and whether he has demonstrated acceptance of responsibility, all of which are described in Chapter Three of the Guidelines. After determining the base offense level, considering the specific offense characteristics and whether a cross reference applies, and resolving Chapter Three adjustments, the court will turn to Chapter Four issues, specifically whether Defendant is a career offender and/or an armed career criminal. After determining whether any Chapter Four enhancements apply, the court will determine the Guidelines range that corresponds to Defendant's offense level and criminal history category. With the pre-departure Guidelines range calculated, the court will then address the government's request for departures.

The government bears the burden of proof on aggravating role and obstruction of justice adjustments, career offender and armed career criminal status and upward departure issues. See United States v. Flores, 362 F.3d 1030, 1037 (8th Cir. 2001) (stating that the government bears the burden to prove sentencing enhancements). A defendant "has the burden to establish that he has clearly demonstrated that he is entitled to a two-level reduction in his offense level for acceptance of responsibility." United States v. Herron, 539 F.3d 881, 887-88 (8th Cir. 2008) (citing USSG §3E1.1(a)).

VII. BASE OFFENSE LEVEL AND SPECIFIC OFFENSE CHARACTERISTICS

The parties do not dispute the PSIR's calculation of Defendant's base offense level of 26, pursuant to USSG §2K2.1 of the Guidelines. See PSIR ¶ 26. The parties also do not dispute that, given the specific offense characteristics, Defendant's adjusted offense level is 33. Id. ¶¶ 27-31. The court finds that the PSIR correctly calculated Defendant's offense level, considering only Defendant's base offense level and the specific offense characteristics pursuant to Chapter Two of the Guidelines. See Beatty, 9 F.3d at 690. However, before proceeding to Chapter Three of the Guidelines, the court finds it necessary to consider whether a cross reference applies, pursuant to USSG §2K2.1(c).

A. Cross Reference

Pursuant to USSG §2K2.1(c)(1), "[i]f the defendant used or possessed any firearm or ammunition in connection with... another offense..., apply-... (B) if death resulted, the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above." USSG §2K2.1(c)(1). See United States v. Tunley, 664 F.3d 1260, 1265 (8th Cir. 2012) (affirming the district court's application of the USSG §2K2.1(c)(1)(B) cross reference); United States v. Rashaw, 170 F.Appx. 986, 987 (8th Cir. 2006) (per curiam) (similar). "[T]he application of a cross reference on the basis of judge found facts [is proper] so long as those facts are proven by a preponderance of the evidence and the guidelines are used in an advisory manner." United States v. Howell, 606 F.3d 960, 963 (8th Cir. 2010); see also United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir. 2006); United States v. Red Elk, 426 F.3d 948, 951 (8th Cir. 2005). "Another offense', for purposes of subsection (c)(1), means any federal, state, or local offense..., regardless of whether a criminal charge was brought, or a conviction obtained." USSG §2K2.1, comment. (n.14(C)). The court may find "sentencing-enhancing facts, " including whether death resulted from the commission of another offense, "by a preponderance of the evidence." Rashaw, 170 F.Appx. at 987.

The court finds, by a preponderance of the evidence, that Defendant used a firearm, that is, a.410 gauge sawed-off shotgun, in connection with another offense, that is, burglary, and the death of Mr. Gallmeyer resulted from Defendant's commission of burglary. See USSG §2K2.1(c)(1)(B). Defendant has a history of burglaries and admitted to stealing firearms from a federally licensed firearms dealer. Defendant had long planned to burglarize Mr. Gallmeyer's home, as evidenced by his conversations with Hamm, which Wendi Patrie overheard. Defendant was alerted to Mr. Gallmeyer as a target when Hamm told him about a prior incident wherein Mr. Gallmeyer's then-wife and her relatives were reported to have stolen thousands of dollars in cash from a safe Mr. Gallmeyer kept in his home. Defendant knew where Mr. Gallmeyer lived. Defendant told Hamm he had actually entered Mr. Gallmeyer's home to use the telephone and thus was able to case the house, determine if Mr. Gallmeyer had a dog and determine what could be seen of Mr. Gallmeyer's home from the road. Defendant had motive to commit the burglary of Mr. Gallmeyer's home-his greed and need for money to defray his wife's medical bills.

Defendant and his car were gone on the night of the murder and Defendant was seen unloading boxes from his car the next day. Defendant was not at work on either of the next two days. Numerous items that had been stolen from Mr. Gallmeyer were found in Defendant's home, including multiple firearms, a flat-screen television, a police scanner, a dummy surveillance camera and a night vision scope. Along with these items were other items that had been stolen during the course of other burglaries in the area. A.410 gauge sawed-off shotgun was also found in Defendant's home, which the court concludes, by a preponderance of the evidence, is the murder weapon. When Defendant learned that Mr. Gallmeyer had been found dead, his face turned white and he swallowed hard. Law enforcement has not been able to identify any other potential suspects of the burglary-murder and Defendant provided false leads. Thus, the court finds, by a preponderance of the evidence, that Defendant committed the offense of burglary because he entered an occupied structure, that is, Mr. Gallmeyer's home, with no license or privilege to do so, with the intent to commit a theft. See Iowa Code § 713.1 (defining burglary). Since Mr. Gallmeyer's death resulted from Defendant's commission of burglary and Defendant used and possessed a firearm in connection with the burglary, it is necessary to determine "the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide)." USSG §2K2.1(c)(1)(B).

1. Analogous offense

The offenses listed in Chapter Two, Part A, Subpart 1 of the Guidelines include first degree murder (§2A1.1); second degree murder (§2A1.2); voluntary manslaughter (§2A1.3); involuntary manslaughter (§2A1.4); and conspiracy or solicitation to commit murder (§2A1.5).

Murder is defined as "the unlawful killing of a human being with malice aforethought." 18 U.S.C. § 1111(a). The government may prove malice aforethought by showing a defendant's "intent at the time of a killing willfully to take the life of a human being or an intent willfully to act in callous and wanton disregard of the consequence of human life." United States v. Johnson, 879 F.2d 331, 334 (8th Cir. 1989) (internal quotation marks omitted); see also id. ("Malice may be established by evidence of conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that [a] defendant was aware of a serious risk of death or serious bodily harm.'" (quoting United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978))). "Every murder perpetrated by... any... kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of... any... burglary[] or robbery... is murder in the first degree." 18 U.S.C. § 1111(a). "Any other murder is murder in the second degree." Id. In determining whether the murder was "willful, deliberate, malicious, and premeditated, " the court focuses on the following nonexclusive factors:

(1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity : (2) facts about the defendant's prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

United States v. Downs, 56 F.3d 973, 975 (8th Cir. 1995) (quoting United States v. Blue Thunder, 604 F.2d 550, 553 (8th Cir. 1979)) (internal quotation marks omitted). "[P]roof of premeditation [does] not require the government to show that the defendant deliberated for any particular length of time." United States v. Slader, 791 F.2d 655, 657 (8th Cir. 1986).

"Manslaughter is the unlawful killing of a human being without malice." 18 U.S.C. § 1112(a). Manslaughter is "voluntary" if it is committed "[u]pon a sudden quarrel or heat of passion." Id. Manslaughter is "involuntary" if it is committed "[i]n the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death." Id.

2. Parties' arguments

The government argues that the court should depart upward pursuant to USSG §5K2.1 because Defendant murdered Mr. Gallmeyer with a sawed-off shotgun. In the alternative, the government argues that a cross reference is appropriate pursuant to USSG §2K2.1(c)(1)(B). With respect to the cross reference, the government argues that "the evidence will show [that] [D]efendant murdered [Mr. Gallmeyer] with premeditation and malice aforethought, during the commission of a felony burglary, such that he would be guilty of First Degree Murder." Government's Sentencing Memorandum at 38.

Defendant argues that "[t]he [g]overnment has not established by the appropriate standard of proof that... Defendant murdered [Mr. Gallmeyer] and there should be no upward variance based on that allegation." Defendant's Post-Hearing Brief at 6.

3. Application

The evidence in the record establishes, by a preponderance of the evidence, that Defendant murdered Mr. Gallmeyer on or about September 25, 2012. Defendant committed the murder with malice aforethought by exhibiting conduct which was "reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that [the court] is warranted in inferring that [Defendant] was aware of a serious risk of death or serious bodily harm.'" Johnson, 879 F.2d at 334 (quoting Black Elk, 579 F.2d at 51). By going to Mr. Gallmeyer's home with a.410 gauge sawed-off shotgun and ammunition for the same with the intent to commit a burglary, it is clear that Defendant exhibited reckless and wanton conduct and that he was aware that someone might die or suffer serious bodily harm. Although this conduct satisfies the definition of second degree murder, see Johnson, 879 F.2d at 334, the evidence in the record also establishes, by a preponderance of the evidence, that Defendant committed first degree murder. With regard to Mr. Gallmeyer's death, the evidence in the record is as follows: Mr. Gallmeyer was last seen on September 25, 2012, and did not retrieve his mail or newspapers after that date. On or about the night of September 25, 2012, or in the early morning hours of September 26, 2012, Defendant retrieved a garage-door opener from Mr. Gallmeyer's truck that was parked in his driveway and entered Mr. Gallmeyer's garage. On October 4, 2012, law enforcement found Mr. Gallmeyer's body at his rural Nashua, Iowa home. His body was in a natural sleeping position on his bed, lying on his left side, with the covers over the lower part of his body. There was a single gunshot wound from a.410 gauge shotgun shell in Mr. Gallmeyer's right temple and blood splatter consistent with Mr. Gallmeyer being murdered where he lay on his bed. There were many items examined and then discarded on top of Mr. Gallmeyer after he was shot, including books, a bookcase and other items. The rest of the house, including the garage, was ransacked, with drawers pulled out and shelves tipped over. Nearly everything in the house had been searched. Law enforcement determined that Mr. Gallmeyer died on or about September 25, 2012. No DNA or fingerprints, aside from those of Mr. Gallmeyer, were developed from Mr. Gallmeyer's home.

The court concludes, by a preponderance of the evidence, that Defendant willfully, deliberately, maliciously and with premeditation murdered Mr. Gallmeyer, making it first degree murder. Although there is less evidence in the record indicating planning activity or Defendant's motive to murder Mr. Gallmeyer, the court finds that the details of the burglary and killing indicate that it was done with premeditation. See Downs, 56 F.3d at 975.

This conclusion is consistent with the facts of this case. At the time Defendant went to Mr. Gallmeyer's home, he was in need of money as his wife had just gone through an expensive medical operation. Defendant thought that there was a large amount of money in a safe in Mr. Gallmeyer's home based on his conversations with Hamm. Defendant retrieved a garage-door opener from Mr. Gallmeyer's car that was apparently unlocked in the driveway and entered through the garage. Defendant eventually entered the home in hopes of finding the safe or other items that he could steal and sell. At some point, Defendant saw that Mr. Gallmeyer was sleeping in his bed and decided to murder him. Defendant did so because he needed to ransack the rest of Mr. Gallmeyer's home to find what he was looking for, that is, the safe and other valuable items. If Mr. Gallmeyer were to wake up while Defendant was searching Mr. Gallmeyer's home, Mr. Gallmeyer could have recognized Defendant from their previous meeting and, potentially, he could have used one of his three firearms to defend himself against Defendant. Therefore, Defendant willfully, deliberately, maliciously and with the requisite premeditation, which need not be proved "for any particular length of time, " Slader, 791 F.2d at 657, murdered Mr. Gallmeyer by discharging a.410 gauge sawed-off shotgun at Mr. Gallmeyer's right temple.

Accordingly, the court finds, by a preponderance of the evidence, that Defendant committed first degree murder.[2] First degree murder has a base offense level of 43. Since 43 is greater than the offense level calculated pursuant to USSG §2K2.1(a)-(b), that is, 33, Defendant's resulting offense level is 43.[3]

VIII. CHAPTER THREE ADJUSTMENTS

Since "the offense level is determined by reference to another guideline..., the adjustments in Chapter Three (Adjustments) also are determined in respect to the referenced offense guideline." USSG §1B1.5(c).[4] Therefore, the court will determine whether Chapter Three Adjustments apply in reference to Defendant's murder of Mr. Gallmeyer.

A. Aggravating Role

The government contends that Defendant played an aggravating role with respect to his possession of firearms as a felon because he directed his wife to purchase firearms for him. However, because the cross reference to homicide, and specifically first degree murder, applies, the court concludes that there is no aggravating role adjustment. Defendant committed the murder of Mr. Gallmeyer by himself and was not "an organizer, leader, manager, or supervisor" of anyone with respect to the murder of Mr. Gallmeyer. See USSG §3B1.1(c).

B. Obstruction of Justice

1. Parties' arguments

At the sentencing hearing, the government suggested for the first time that

Defendant obstructed justice pursuant to USSG §3C1.1 and, therefore, the court should increase his offense level by two levels. See Government's Post-Hearing Brief at 8. Specifically, the government asserts that after Defendant was arrested on federal charges, he provided false exculpatory evidence through his attorneys to law enforcement officers, that is, the names of two people from whom he claimed to have purchased the property that previously belonged to Mr. Gallmeyer. Law enforcement investigated these two persons and they related their whereabouts during the relevant time period. Law enforcement officers verified their stories and "determined that neither of the persons could have committed the burglary [of Mr. Gallmeyer's home] as each was in drug treatment and [was] accounted for on the day of and the day after the murder." Id. at 8. The government states that it "did not previously object to the [G]uidelines' ...


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