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United States v. Roger Dale Tokvam, 95-3269 (1996)

Court: Court of Appeals for the Eighth Circuit Number: 95-3269 Visitors: 13
Filed: Feb. 22, 1996
Latest Update: Mar. 02, 2020
Summary: _ No. 95-3269 _ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Roger Dale Tokvam, * * [UNPUBLISHED] Appellant. * _ Submitted: February 15, 1996 Filed: February 22, 1996 _ Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. _ PER CURIAM. Roger Dale Tokvam appeals the sentence imposed by the district court1 after he pleaded guilty to distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), using
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                            ___________

                            No. 95-3269
                            ___________

United States of America,        *
                                 *
          Appellee,              *
                                 * Appeal from the United States
     v.                          * District Court for the
                                 * District of Minnesota.
Roger Dale Tokvam,               *
                                 *       [UNPUBLISHED]
          Appellant.             *
                            ___________

                  Submitted:   February 15, 1996

                       Filed: February 22, 1996
                            ___________

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________


PER CURIAM.

     Roger Dale Tokvam appeals the sentence imposed by the
district court1 after he pleaded guilty to distributing
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), using and
carrying a firearm during a drug trafficking crime, in violation of
18 U.S.C. § 924(c), and willfully failing to appear, in violation
of 18 U.S.C. § 3146(a)(1).       For reversal, Tokvam argues the
district court erred in failing to make a specific factual finding
as to whether this was an "extraordinary case" warranting both a
reduction for acceptance of responsibility and an enhancement for
obstruction of justice. During the pendency of this appeal, Tokvam
filed a motion for remand based on Bailey v. United States, 
116 S. Ct. 501
(1995), arguing that there was no proof that he "used"


     1
      The HONORABLE RICHARD H. KYLE, United States District Judge
for the District of Minnesota.
the firearm during a drug trafficking crime.


     Following his indictment for the instant drug and firearm
offenses and his release on bond, Tokvam absconded to California
and failed to appear at his change-of-plea hearing.      While in
California, Tokvam was arrested, convicted, and sentenced for,
among other things, possession of methamphetamine. Tokvam remained
in state custody until he was located by the United States
Marshal's Service.    Tokvam then pleaded guilty to the instant
offenses.


     Tokvam's presentence report (PSR) recommended an obstruction-
of-justice enhancement. Although the PSR reported Tokvam's claim
that he had absconded after his drug source threatened retaliation
if he cooperated with authorities, the probation officer did not
recommend an acceptance-of-responsibility reduction, partly because
of Tokvam's continued criminal conduct in California.        In his
sentencing position paper, Tokvam objected and argued that his was
an "extraordinary case." At sentencing, Tokvam did not present any
evidence on his objection, but rather relied solely on his
sentencing position paper. The court overruled Tokvam's objection
and sentenced him to a total of 181 months imprisonment (a
121-month Guidelines sentence, and a consecutive 60-month sentence
for violating section 924(c)(1)), and a total of four years
supervised release.


     "Sentencing Guideline § 3E1.1 allows the district court to
reduce the offense level of a defendant who `clearly demonstrates
acceptance of responsibility for his offense.'" United States v.
Evans, 
51 F.3d 764
, 766 (8th Cir. 1995).         The burden for
establishing acceptance of responsibility is on the defendant.
United States v. Morales, 
923 F.2d 621
, 628 (8th Cir. 1991). A
district court's decision to grant or deny an acceptance-of-
responsibility reduction is given great deference and will not be
disturbed unless it is clearly erroneous. 
Evans, 51 F.3d at 766
.

                               -2-
When an obstruction-of-justice enhancement is assessed, an
acceptance-of-responsibility reduction is ordinarily not granted
unless it is an extraordinary case. See U.S.S.G. § 3E1.1, comment.
(n.4).


     In view of Tokvam's arrest and conviction for possession of
methamphetamine after his release on bond, we conclude the district
court did not clearly err by denying him the acceptance-of-
responsibility reduction. See United States v. Nguyen, 
52 F.3d 192
, 194 (8th Cir. 1995).     Nor did the district court err by
implicitly rejecting Tokvam's claim that this was an "extraordinary
case." See United States v. Dortch, 
923 F.2d 629
, 633 (8th Cir.
1991) (remand for specific findings unnecessary where it is clear
district court implicitly rejected defendant's acceptance-of-
responsibility argument).


     We deny Tokvam's motion for remand because he pleaded guilty
to using and carrying the firearm, and at his plea hearing he
admitted to carrying the firearm during the drug transaction. See
Bailey, 
116 S. Ct. 507-09
(defining "use" to preserve "carry" as
alternative basis for § 924(c)(1) charge).


     The judgment is affirmed.


     A true copy.


          Attest:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                 -3-

Source:  CourtListener

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