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United States v. Mark T. Abbott, 97-3338 (1998)

Court: Court of Appeals for the Eighth Circuit Number: 97-3338 Visitors: 29
Filed: Jan. 12, 1998
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 97-3338 _ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Mark T. Abbott, * [UNPUBLISHED] * Appellant. * _ Submitted: January 7, 1998 Filed: January 12, 1998 _ Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges. _ PER CURIAM. Mark T. Abbott appeals the 240-month sentence imposed by the district court1 after he pleaded guilty to conspiring to distribute
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                          United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-3338
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Mark T. Abbott,                          *     [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                            Submitted: January 7, 1998

                                Filed: January 12, 1998
                                    ___________

Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
                          ___________

PER CURIAM.

       Mark T. Abbott appeals the 240-month sentence imposed by the district court1
after he pleaded guilty to conspiring to distribute methamphetamine in violation of 21
U.S.C. § 846. For reversal, Abbott argues that the district court erred by attributing 3
to 10 kilograms of methamphetamine to him; increasing his base offense level for
creating a substantial risk of serious bodily harm to another in the course of fleeing
from a law enforcement officer, pursuant to U.S. Sentencing Guidelines Manual


      1
        The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
§ 3C1.2 (1997); and assessing 3 rather than 2 criminal history points for a prior
conviction. We affirm.

        A Drug Enforcement Administration (DEA) agent testified at sentencing that the
portion of the overall conspiracy in which Abbott was involved was responsible for
approximately 10 pounds of methamphetamine. As a co-conspirator, Abbott was
responsible for that entire amount. See U.S. Sentencing Guidelines Manual
§ 1B1.3(a)(1)(B) (1997) (co-conspirator responsible for all reasonably foreseeable acts
of other co-conspirators taken in furtherance of conspiracy); United States v.
Montanye, 
996 F.2d 190
, 192 (8th Cir. 1993) (en banc). Moreover, the DEA agent
testified that Abbott personally distributed slightly less than 4 kilograms (or 8.8
pounds) of methamphetamine. Based on the DEA agent&s testimony, which the district
court credited, we do not believe the court clearly erred in finding Abbott responsible
for 3 to 10 kilograms of methamphetamine. See United States v. Adipietro, 
983 F.2d 1468
, 1472 (8th Cir. 1993) (standard of review).

       We likewise reject Abbott&s argument that the district court clearly erred in
applying a 2-level increase pursuant to section 3C1.2. See United States v. Sykes, 
4 F.3d 697
, 700 (8th Cir. 1993) (standard of review). At sentencing, evidence was
presented that after Abbott had failed to appear for his initial sentencing hearing, a
cooperating individual informed officers that Abbott was traveling in a blue pick-up
truck--which the officers ascertained Abbott owned--pulling a trailer. An officer who
passed the truck on the road attempted to intercept it. The driver slammed on his
brakes, drove into a ditch, and fled on foot, leaving the vehicle running. Abbott was
later apprehended. During a subsequent inventory search of the trailer, two officers
were overcome by anhydrous ammonia fumes; both deputies experienced dizziness and
headaches, and one experienced tightness in his chest. We agree with the district court
that Abbott&s actions of abandoning a running vehicle containing a dangerous liquid
chemical caused a substantial risk of bodily harm. Cf. United States v. Luna, 21 F.3d


                                          -2-
874, 885 (9th Cir. 1994) (§ 3C1.2 enhancement proper when defendant ran stop signs
and abandoned still-running car in residential area).

      Finally, because we conclude that the district court did not err in determining the
drug quantity or in applying the reckless-endangerment enhancement, we decline to
review Abbott&s argument that the district court erred in assessing 3 rather than 2
criminal history points. Abbott&s 240-month sentence represents a downward departure
from the applicable Guidelines range, regardless of his criminal history score. See
United States v. Patterson, 
20 F.3d 801
, 808 (8th Cir.), cert. denied, 
513 U.S. 845
(1994). Abbott&s Guidelines range with the disputed point was 324 to 405 months; the
range without the disputed point was 292 to 365 months. See U.S. Sentencing
Guidelines Manual, Ch.5, Pt. A (1997) (sentencing table).

      The judgment is affirmed.

      A true copy.

             Attest:

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




                                          -3-

Source:  CourtListener

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