                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-24-2007

USA v. Oatman
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2097




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"USA v. Oatman" (2007). 2007 Decisions. Paper 392.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/392


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                                                                NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2097
                                     ____________

                           UNITED STATES OF AMERICA

                                            vs.

                            KENNETH BRENT OATMAN,
                                               Appellant
                                  ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                          (D.C. Crim No. 05-CR-00073-4 )
                  District Judge: Honorable Eduardo C. Robreno

                                     ____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 18, 2007
                Before: SLOVITER, SMITH and WEIS, Circuit Judges.

                               (Filed: September 24, 2007)
                                      ____________

                                       OPINION


WEIS, Circuit Judge.

             Defendant Kenneth Oatman was convicted by a jury of conspiring to

distribute and possess with the intent to distribute more than 100 kilograms of marijuana

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in violation 21 U.S.C. § 846. He was sentenced to 115 months incarceration, four years

of supervised release, and received a fine.

                On appeal, defendant contends that:

                1. The evidence was insufficient to convict him of conspiracy to distribute

more than 100 kilograms of marijuana;

                2. The District Court erred in holding that he had voluntarily waived his

Miranda rights; and

                3. The District Court did not properly calculate his criminal history

category under the Sentencing Guidelines.

                Our review of the record in the light most favorable to the government

persuades us that there was adequate evidence to convict Oatman of participation in a

drug conspiracy involving more than 100 kilograms of marijuana.

                Evidence showed that Oatman became acquainted with co-defendant Ross

and several other individuals in Lancaster County, Pennsylvania. The group arranged to

buy marijuana from Oatman who lived in Oklahoma and had sources in Texas and

Mexico to secure the drug. The Pennsylvania participants drove to Oklahoma and Texas

with cash to purchase the marijuana from Oatman and then carried it back to

Pennsylvania.

                One witness testified that his brother made at least 15 to 20 trips to pick up

marijuana from Oatman or from Oatman’s source, averaging 50 pounds each trip. This



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was more than sufficient evidence from which a jury could conclude that Oatman was

involved in a conspiracy to distribute more than 100 kilograms of marijuana.

               After defendant was arrested, he was transported by a DEA agent to federal

court. On the way, the agent read Oatman his Miranda rights. Oatman nevertheless

opened a conversation with the agent and offered to set up drug transactions for him. The

district judge denied suppression of the statement, finding that defendant voluntarily,

knowingly, and intelligently waived his rights. We conclude that the District Court did

not err in that finding.

               Defendant has also filed a pro se brief asserting that the government failed

to establish when the conspiracy took place. He contends that the indictment was

improperly amended when the trial court permitted evidence of conduct that occurred

before February 2004, the beginning date set out in the indictment. We conclude that

there was no prejudicial amendment of the indictment. See United States v. Somers, 496

F.2d 723, 743 (3d Cir. 1974).

               Oatman also challenges the sentence, asserting that the trial court

miscalculated the applicable Guidelines criminal history category. The government

concedes that the District Court should not have applied §§ 4A1.1(d) and (e) because it

did not count the misdemeanor convictions under § 4A1.1(a) or (b). According to the

government, the end result of this error is that Oatman should have been assigned four

criminal history points rather than seven, reducing the applicable sentencing range from



                                              3
92-115 months to 78-97 months. Oatman argues, however, that he should only have been

assigned three criminal history points because the District Court also improperly imposed

a criminal history point under § 4A1.1(c). We leave it to the District Court to determine

the appropriate adjustment.

              The judgment of conviction will be affirmed, but the case will be remanded

for resentencing.




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