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United States v. Yellow Horse

United States Court of Appeals, Eighth Circuit

December 22, 2014

United States of America, Plaintiff - Appellee
v.
Wesley L. Yellow Horse, Sr., Defendant - Appellant

Submitted October 10, 2014

Appeal from United States District Court for the District of South Dakota - Rapid City.

For United States of America, Plaintiff - Appellee: Eric D. Kelderman, Assistant U.S. Attorney, Kevin Koliner, Assistant U.S. Attorney, Ted McBride, U.S. ATTORNEY'S OFFICE, Rapid City, SD.

For Wesley L. Yellow Horse, Sr., Defendant - Appellant: Ellery Grey, GREY LAW OFFICE, Rapid City, SD.

Wesley L. Yellow Horse, Sr., Defendant - Appellant, Pro se, Littleton, CO.

Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.

OPINION

Page 494

SHEPHERD, Circuit Judge.

Wesley Yellow Horse was convicted of conspiracy to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(D), and 846. At sentencing, the district court[1] determined Yellow Horse could have reasonably foreseen the conspiracy involved 100 kilograms or more of marijuana and calculated his Guidelines range accordingly, imposing a sentence of 57 months imprisonment. Yellow Horse argues the district court erred in finding he could have reasonably foreseen the conspiracy involved that much marijuana. Because we find no clear error in the district court's drug quantity determination, we affirm.

I. Background

In an August 2013 superseding indictment, a grand jury charged Yellow Horse with conspiracy to distribute 50 kilograms or more of marijuana. The indictment alleged the conspiracy was carried out between October 2008 and May 2012. At trial, the government introduced evidence about Yellow Horse's role in the conspiracy and the conspiracy's overall scope. Abraham Romero led the conspiracy, which started distributing drugs on the Pine Ridge Indian Reservation in South Dakota in 2008. Yellow Horse purchased marijuana directly from Romero from spring 2009 to winter 2009, receiving quarter- to one-pound quantities at a time. Yellow Horse repackaged and sold the

Page 495

marijuana in personal use quantities or fronted it to others for resale, including two occasions where he fronted quarter-pound quantities to a coconspirator, Jimmy Bravo. After Yellow Horse sold his first pound of marijuana, Romero offered to front him four pounds at once, but Yellow Horse refused because he had difficulty moving the first pound. He also refused Romero's request that he sell cocaine.

In summer 2009, Yellow Horse drove Romero to a Safeway in Nebraska to buy supplies to mix with cocaine to make it into larger quantities for resale. In fall 2009, Yellow Horse saw Romero with four large, circular metal objects filled with marijuana. Yellow Horse witnessed Romero open the objects with a saw to remove the marijuana. Throughout the course of their relationship, Yellow Horse had difficulty moving his marijuana as quickly as Romero wanted and repaying Romero for marijuana Romero had fronted him. Yellow Horse twice gave Romero vehicles to clear his debts. On the first occasion, Yellow Horse brought Bravo with him and introduced him to Romero. Bravo later started selling drugs for Romero. On the second occasion, in winter 2009, Romero gave Yellow Horse a pound of marijuana, accepted a ...


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