United States v. Lewis-Zubkin, No. 17-3411 (8th Cir. 2018)

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Justia Opinion Summary

The Eighth Circuit affirmed defendant's sentence after she pleaded guilty to conspiracy to distribute methamphetamine. The court held that the district court did not clearly err by imposing a two-level enhancement under USSG 2D1.1(b)(2) for making a credible threat to use violence against cooperating codefendants. In this case, defendant paid a coconspirator to carry out assaults and demanded her money back when the assaults did not take place, stating that she would find someone else to do the job.

Court Description: Per Curiam - Before Wollman, Kelly and Erickson, Circuit Judges] Criminal case - Sentencing. The district court did not err in imposing a two-level enhancement under Guidelines Sec. 2D1.1(b)(2) for making a credible threat of violence against cooperating co-defendants. [ November 05, 2018
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-3411 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Patricia Gayle Lewis-Zubkin, also known as Pat Watts, also known as Pat Zubkin, also known as Pat Lewis lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Western District of Arkansas - Harrison ____________ Submitted: September 25, 2018 Filed: November 6, 2018 [Published] ____________ Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges. ____________ PER CURIAM. Patricia Gayle Lewis-Zubkin pleaded guilty to conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. She appeals the district court’s1 imposition of a two-level sentencing enhancement under USSG § 2D1.1(b)(2), which applies if the defendant “used violence, made a credible threat to use violence, or directed the use of violence.” In several intercepted phone calls, Lewis-Zubkin stated that two of her coconspirators, James Suggs and Dammon Charlton, were working with law enforcement and needed to be assaulted. At one point she said that Suggs should have the life beat out of him and that she would like to see Charlton at least get his front teeth knocked out. She later paid another co-conspirator $100 to carry out the assaults. When days passed without the attacks taking place, Lewis-Zubkin demanded the return of her $100 and said she had found someone else to do the job. At sentencing, Lewis-Zubkin did not contest any of these facts but argued they were insufficient to show her threats were credible. We find no clear error in the district court’s application of the § 2D1.1(b)(2) enhancement. See United States v. Kirk Tang Yuk, 885 F.3d 57, 82–83 (2d Cir. 2018) (concluding it was not clear error for the district court to construe defendant’s comments that referenced “driving a car over” another individual as credible threats, even if “the statements in question could be interpreted as innocent hyperbole”); United States v. Rutherford, 599 F.3d 817, 820 (8th Cir. 2010) (standard of review). The district court correctly noted that the enhancement applies regardless of whether the threatened violence is ultimately carried out. Cf. United States v. Sykes, 854 F.3d 457, 461 (8th Cir.), cert. denied, 138 S. Ct. 346 (2017).2 1 The Honorable P.K. Holmes, III, Chief Judge, United States District Court for the Western District of Arkansas. 2 In a passing remark during sentencing, the district court referred to LewisZubkin as bearing the burden of proof. The district court did not repeat this error and the uncontested facts establish that the government showed that the enhancement applied by a preponderance of the evidence. See United States v. Pepper, 747 F.3d 520, 523 (8th Cir. 2014) (burden of proof). -2- The judgment of the district court is affirmed. ___________________________ -3-

Primary Holding

District court did not clearly err by imposing a two-level sentencing enhancement under USSG 2D1.1(b)(2) for making a credible threat to use violence against cooperating codefendants.

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