                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    October 19, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AM ERICA,
          Plaintiff - Appellee,
 v.                                                     No. 04-6315
 TIM O TH Y D EWA Y N E K IN CHION,            (D.C. No. CR-03-148-001-T)
 SR.,                                                 (W . D. Okla.)
          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before BR ISC OE, M cK AY, and M cCO NNELL, Circuit Judges.




      At trial, the government presented the following narrative of A ppellant’s

drug dealing activities. Appellant contacted an individual about becoming

reengaged in dealing drugs. Unbeknownst to Appellant, this individual was

cooperating with the Oklahoma City Police Department (“OCPD”). Appellant,

who was already in debt to the cooperating individual, asked the cooperating

individual if he could be fronted one kilogram of cocaine. The deal was set up at

the direction of the O CPD .



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       On the day of the arranged deal, Appellant and his co-defendant dropped

off several cars at the cooperating individual’s place of business as collateral for

the cocaine. Later that day, Appellant and his co-defendant returned to the place

of business to pick up the cocaine; police audio and video recorded the exchange.

As the co-defendant, who was driving, and Appellant left the place of business, a

marked OCPD car attempted to make a stop, but the co-defendant and Appellant

led police on a high-speed chase. During the twenty-five to thirty-minute car

chase, Appellant dumped the cocaine out the window. After the chase ended and

Appellant was placed under arrest, police found a revolver in the console of the

car.

       W hile Appellant was being processed at the county jail, he told the

processing officers that when the OCPD made its first attempt to pull over the car

he had said, “I’ve got a kilo, go, go, go!” Appellant also talked with several other

inmates about the drug transaction and the chase while awaiting trial.

       Prior to trial, Appellant made two motions for a continuance based on what

he terms “eleventh-hour” disclosures by the government. Appellant’s first motion

for continuance was made on October 9, 2003, and was denied by the district

court that same day for lack of specificity. On October 16, 2003, Appellant filed

another motion for continuance pointing to information that he had received from

the government that day. That information was subject to a protective order

issued by the district court on October 15, 2003. Appellant argued that the

                                          -2-
recently released information from the government— that an OCPD officer

involved in Appellant’s case had been implicated in a Drug Enforcement

Administration (“DEA”) investigation of a false report— warranted a continuance.

On October 17, 2003, however, the district court denied Appellant’s second

continuance motion because (1) the officer in question was not, and had never

been, scheduled to testify at trial, and (2) “the recently disclosed information . . .

could only be used to impeach the officer and . . . does not go to the issues to be

determined by the jury (i.e., it is not directly related to the innocence or guilt of

the defendants).” Order, Case No. CR-03-148-001-T, at 2 (W .D. Okla. Oct. 17,

2003). Additionally, it appears that Appellant had some knowledge of this

information prior to the government disclosure, since in an August 12, 2003

discovery request, Appellant asked for information about the officer in question.

The trial began on October 20, 2003. That same day Appellant moved for a

mistrial based on the same grounds as the two continuance motions. The district

court denied Appellant’s motion.

      Appellant was convicted by a jury of (1) conspiracy to possess with intent

to distribute cocaine, (2) possession with intent to distribute cocaine, and (3)

carrying a firearm during and in relation to a drug trafficking crime. He was

sentenced to 352 months’ imprisonment, consisting of 292 months’ imprisonment

on counts one and two, to run concurrently, and 60 months’ imprisonment on

count three, to run consecutively to the other sentences.

                                           -3-
      Appellant’s main contention is that his trial and conviction were the result

of a police set-up. He argues that, because of the dismissal of an earlier case

against him, the OCPD and, in particular, the officer in question were intent on

putting Appellant in jail. A ppellant makes three legal arguments on appeal.

First, he argues that the district court erred when it denied his pretrial motion for

a continuance and subsequent motion for a mistrial. Second, he argues that the

evidence was insufficient to support his conviction. Third, he argues that the

district court committed both constitutional and nonconstitutional sentencing

errors.

      W ith respect to Appellant’s first claim regarding the allegedly erroneous

denial of the motion for continuance, “[w]e review the denial of a motion for

continuance of trial for abuse of discretion and ‘will find error only if the district

court’s decision was arbitrary or unreasonable and materially prejudiced the

defendant.’” United States v. Diaz, 189 F.3d 1239, 1247 (10th Cir. 1999)

(quoting United States v. Simpson, 152 F.3d 1241, 1251 (10th Cir. 1998)). W e

look to a number of factors to determine whether the district court acted

arbitrarily, including:

      (1) the diligence of the party requesting the continuance; (2) the
      likelihood that the continuance, if granted, would accomplish the
      purpose underlying the party’s expressed need for the continuance;
      (3) the inconvenience to the opposing party, its witnesses, and the
      court resulting from the continuance; (4) the need asserted for the
      continuance and the harm that appellant might suffer as a result of
      the district court’s denial of the continuance.

                                          -4-
Id. (quotation omitted).

      W e conclude that, in light of the abuse of discretion standard and these

factors, the district court acted w ithin its discretion when denying Appellant’s

motion for a continuance. In this case, as the district court correctly noted, there

was nothing to be gained by allowing the continuance. Appellant argues that the

denial of a continuance thwarted his ability to investigate the OCPD officer’s role

in the case and that the late disclosure of the report was a clear violation of Brady

v. M aryland, 373 U.S. 83 (1963), since the OCPD officer’s conduct “w ent directly

to the heart of the guilt of the accused.” Appellant diligently pursued the

continuance, and the government failed to argue that it would be inconvenienced

by the continuance, but Appellant has not demonstrated either that the

continuance would have satisfied his expressed need or that he suffered harm

because the continuance was denied. No information that Appellant would have

sought during the continuance was admissible at trial, and, therefore, a

continuance would not have helped Appellant prepare for trial. The OCPD officer

was not scheduled to testify at trial, and the evidence Appellant sought would

only have gone to impeaching that officer. 2 W e therefore hold that the district


      2
        In the interest of fairness to the OCPD officer, the government observes
that the DEA report in question concerned an investigation of a DEA agent other
than the OCPD officer implicated by Appellant. The agent under investigation
had no involvement with Appellant’s case. The OCPD officer w as a witness in
the investigation. Although the report concluded that the OCPD officer’s conduct
                                                                      (continued...)

                                         -5-
court did not abuse its discretion when denying Appellant’s motion for a

continuance.

      For the same reasons, we reject Appellant’s claim that the district court

erred in denying Appellant’s motion for a mistrial. “A district court’s denial of a

motion for mistrial is reviewed for abuse of discretion.” United States v. Crockett,

435 F.3d 1305, 1317 (10th Cir. 2006) (citing United States v. M eienberg, 263

F.3d 1177, 1180 (10th Cir. 2001)). “A mistrial may only be granted where a

defendant’s right to a fair and impartial trial has been impaired.” United States v.

Kravchuk, 335 F.3d 1147, 1155 (10th Cir. 2003). Given the irrelevant nature of

the investigation and the O CPD officer’s actions therein to Appellant’s trial, we

cannot say that the fairness of Appellant’s trial was in any way compromised. W e

note that Appellant conceded at oral argument that he was not alleging malicious

prosecution by the U.S. Attorney’s Office.

      Next, Appellant argues that the evidence presented at trial was insufficient

to sustain a conviction. “The evidence necessary to support a verdict need not



      2
        (...continued)
with regard to that investigation was so inappropriate that, were he a federal
officer, he would have been fired, the DEA Administrator determined that the
OCPD officer had not been afforded due process in the production of the report
because the officer had never been given a chance to rebut the allegations against
him. Due to the defects in the report, the DEA Administrator rescinded and
destroyed the report. Apparently, the OCPD officer was not even aware of the
report until late September 2003, and the OCPD cleared the officer of any
wrongdoing after its own investigation into the allegations.

                                         -6-
conclusively exclude every other reasonable hypothesis and need not negate all

possibilities except guilt. Instead, the evidence only has to reasonably support the

jury’s finding of guilt beyond a reasonable doubt.” United States v. Wilson, 182

F.3d 737, 742 (10th Cir. 1999) (citation and internal quotations omitted). Under

this standard, “[w]e will not reverse a conviction . . . unless no rational trier of

fact could have reached the disputed verdict.” Id. In this case, there was enough

evidence presented at trial to allow a rational trier of fact to reach this verdict.

      The prosecution presented sufficient evidence of a conspiracy and intent to

distribute to support Appellant’s conviction. “To obtain a conviction for

conspiracy, the government must prove that (1) there was an agreement to violate

the law; (2) Defendant knew the essential objectives of the conspiracy; (3)

Defendant knowingly and voluntarily took part in the conspiracy; and (4) the

coconspirators were interdependent.” United States v. Ailsworth, 138 F.3d 843,

850 (10th Cir. 1998). “To prove a charge of possession with the intent to

distribute, the government must show that the defendant possessed the controlled

substance; knew that he had it; and possessed it w ith the intent to distribute it.”

United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000).

      Several sources implicated Appellant in the conspiracy. First, the

confidential informant testified that he was contacted by Appellant. The

confidential informant also testified regarding the particulars of the reverse-buy

transaction, including the cars used for collateral and the eventual transfer of the

                                           -7-
drugs. Second, there was video and audio evidence from the transaction,

including Appellant referring to “a whole one,” which the jury could have

reasonably inferred meant a whole kilogram of drugs. Third, Appellant and co-

defendant fled when the OCPD attempted to pull them over. Fourth, Appellant

disposed of the drugs out the window during the high-speed chase. Fifth,

witnesses testified that Appellant spoke with fellow prison inmates about how he

executed the buy. Appellant completely ignores these facts in his brief.

Accordingly, the jury had sufficient evidence to support convictions on the

conspiracy and intent to distribute charges.

      Likewise, the jury had sufficient evidence to convict on the firearms

charge. To establish a violation of 18 U .S.C. § 924(c), the prosecution must

establish beyond a reasonable doubt that “(1) the Defendants committed the

underlying crime of violence . . .; (2) the Defendants ‘carried’ a firearm; and (3)

the carrying of the firearm was ‘during and in relation to’ the [crime].” United

States v. Shuler, 181 F.3d 1188, 1190 (10th Cir. 1999) (footnote omitted) (quoting

United States v. Lam pley, 127 F.3d 1231, 1240 (10th Cir. 1997), cert. denied, 522

U.S. 1137 (1998)). Since there was sufficient evidence of Appellant’s guilt with

respect to the drug charges, we look to see what evidence was presented that

Appellant “carried” the firearm “during and in relation to” the drug transaction.

The Supreme Court explained that the term “in relation to” requires at a minimum

that the firearm have “some purpose or effect with respect to the drug trafficking

                                         -8-
crime; its presence or involvement cannot be the result of accident or

coincidence.” Smith v. United States, 508 U.S. 223, 238 (1993). Despite

Appellant’s protestations to the contrary, there was evidence that Appellant was

aw are of the loaded, .44 caliber pistol in the center console of the vehicle. There

was testimony that Appellant told a fellow prisoner while awaiting trial that he

had “a snub in the console,” which Appellant explained to the witness meant a

snub-nose revolver. Appellant told this witness that he knew the firearm was

present and would not have gone to buy drugs without being armed. In addition,

testimony revealed that Appellant explained that he was “heavily strapped” and

“with artillery” on the day of the reverse buy, by which he meant armed and

dangerous. This testimony against the backdrop of a $20,000 drug deal was

sufficient for a rational trier of fact to draw a reasonable inference from the direct

evidence that this statement referred to a firearm. See United States v. Jones, 44

F.3d 860, 865 (10th Cir. 1995).

      Finally, Appellant makes a United States v. Booker, 543 U.S. 220 (2005),

argument. The district court imposed Appellant’s sentence on September 9, 2004,

in between the Supreme Court’s Blakely v. Washington, 542 U.S. 296 (2004), and

Booker decisions. Appellant raised a Blakely argument at sentencing and now

continues to argue that, because the judge found certain facts only by a

preponderance of the evidence standard under the mandatory federal sentencing

guideline scheme, Appellant’s sentence violated his Sixth Amendment rights as

                                          -9-
described in Blakely and Booker. Specifically, Appellant contends that the

district court improperly applied an obstruction-of-justice enhancement for the car

chase, erroneously denied an acceptance-of-responsibility reduction, and

miscalculated his base offense level by using “cocaine base” instead of “cocaine

powder.”

      In this case, it is clear that when the district court imposed the sentence, it

felt bound by the mandatory guidelines to impose that sentence— a clear violation

of Booker. See 543 U.S. at 259. It is also clear that the district court committed

constitutional Booker error when it relied upon judge-found facts in enhancing

Appellant’s sentence mandatorily. See United States v. Gonzalez-Huerta, 403

F.3d 727, 731 (10th Cir. 2005) (en banc). The district court did, however,

anticipate the potential invalidation of the federal Sentencing Guidelines and so

offered an alternative sentence. The district court noted: “In the event the

foregoing sentence is ruled unconstitutional by the Supreme Court, the following

alternative sentence is imposed: . . . ten years on Count 1, ten years on Count 2,

and five years on Count 3. Counts 1 and 2 shall run concurrently with each other.

Count 3 shall not be served concurrently with any other sentence.”

      Given this lower alternative sentence, we must remand for resentencing.

Unlike in United States v. Corchado, 427 F.3d 815, 821 (10th Cir. 2005), and the

host of cases analyzing district court-provided alternative sentences, the district

court here did not provide for similar sentences under mandatory and

                                         -10-
discretionary sentencing. Rather, the alternative sentence sharply reduced the

then-mandatory Guideline sentence by apparently eliminating the enhancements

and using the minimum periods of incarceration. Given this sentencing disparity,

we w ould be speculating about the district court’s likely sentence even if we w ere

somehow able to determine whether either sentence complied with Booker’s new

reasonableness requirements, which we are unable to do on the record before us.

      After Booker, sentencing courts are still required to consult the Guidelines

and apply the 18 U.S.C. § 3553 factors when imposing sentence. 543 U.S. at 264.

The district court consulted the presentence report and was obviously aware of the

Guidelines, but this court is unable to approve the district court’s method for

creating two disparate sentences. 3

      For the foregoing reasons, we DENY Appellant’s motion to unseal

documents, A FFIR M the district court’s denial of Appellant’s motion for

continuance, A FFIR M the district court’s denial of Appellant’s motion for

mistrial, hold that there was sufficient evidence to support Appellant’s conviction,

and REV ER SE and R EM A N D for resentencing consistent with the Supreme

Court’s decision in Booker and this court’s decision in United States v. Kristl, 437




      3
        W hile not binding on us, in a recent order and judgment we have set out
an excellent recapitulation of the steps required to be taken by district courts in
cases like this. See United States v. French, No. 04-5168, 2006 W L 2867995
(10th Cir. Oct. 10, 2006).

                                         -11-
F.3d 1050, 1053-54 (10th Cir. 2006).

                                              Entered for the Court


                                              M onroe G. M cKay
                                              Circuit Judge




                                       -12-
