Date: 06-26-2018

Case Style:

Case Number: 17-1984

Judge: Beam

Court: United States Court of Appeals for the Eighth Circuit on appeal from the District of South Dakota (Minnehaha County)

Plaintiff's Attorney: John E. Haak and Jennifer D. Mammenga

Defendant's Attorney: Raleigh E. Hansman and Clint L. Sargent

Description: Shawn Russell Sorensen appeals following his jury trial conviction and
sentence, arguing that the district court erred in 1 failing sua sponte to exclude the
testimony of the government's fingerprint expert, in determining that the
1The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
government's error in initially misstating Sorensen's predicate offense was clerical
and not substantive, and that the court's imposition 2 of life without parole in this case
violates Sorensen's rights under the Eighth Amendment. We affirm.
I. BACKGROUND
On April 25, 2016, a United States Postal Inspector in Minneapolis applied for
and received a search warrant for a postal package sent from a post office in Arizona,
addressed to "Gayle Hartz, 404 S. Donaldson, Luvern [sic], Minn. 56156." A
certified canine alerted to the odor of narcotics. The return label read "Dave
Beckman, 13580 W. Port Royale, Suprise [sic], AZ, 85379." Through the execution
of the warrant, the inspector found various items such as clothing, toilet paper, paper
towels, 192 grams of cocaine, and over four kilograms of methamphetamine wrapped
in bundles of plastic and black electrical tape. The inspector then contacted a
counterpart in Sioux Falls, South Dakota, which is very near Luverne, Minnesota, and
requested that he conduct a controlled delivery of the package. He did.
Prior to the delivery, an anticipatory search warrant was granted for the
residence and Hartz's person. After the controlled delivery to the home in Luverne,
officers observed a vehicle drive from the residence. An officer stopped the vehicle
and arrested Hartz, the driver, while other officers executed the search warrant at
Hartz's home, ultimately locating the unopened, delivered package in a bedroom.
When stopped, Hartz told the officers that she received the package on behalf of
Shawn Sorensen. Hartz and Sorensen had communicated via text regarding the status
of the package prior to its delivery. Just after delivery, Hartz texted Sorensen saying,
"Its here. So get ur butt here." Sorensen replied, "I'm on my way."
2The case was reassigned to the Honorable Karen E. Schreier, United States
District Judge for the District of South Dakota following trial.
-2-
The Minnesota agents informed members of the Sioux Falls Area Drug Task
Force (SFADTF) about Sorensen's involvement. SFADTF began conducting
surveillance almost immediately at Sorensen's residence in Sioux Falls. Between the
SFADTF and Minnesota law enforcement, officers followed Sorensen from his home
to Hartz's residence. Officers immediately arrested Sorensen when he entered Hartz's
home. After his arrest, officers found $15,700 cash in Sorensen's pocket. A search
warrant executed at Sorensen's residence turned up methamphetamine, drug
paraphernalia, and a USPS mailing label for what appeared to be a different package
sent to Hartz on September 21, 2015. The label's return address, similar to the
intercepted package return address, listed "Dave Beckman" with a Phoenix, Arizona,
address. A warrant executed on Sorensen's vehicle turned up, among other items:
Sorensen's wallet and driver's license, treasury checks addressed to Sorensen, four
cell phones, methamphetamine, marijuana, cocaine, and other drug substances, three
firearms, drug paraphernalia, and the USPS package mailing label and printed receipt
for the intercepted package.
Inspectors extracted data from two of Sorensen's cell phones. The extraction
reports and physical examinations showed that Sorensen had "Gayle" saved as a
contact in two of the phones displayed to the jury. He saved Hartz's address under
each of the "Gayle" contact listings, misspelling "Luverne" just as the label had
("Luvern"). The only other address in each of the phones was the exact return
address, including the misspelling of the city of "Surprise" as was used on the mailing
label of the intercepted package as well. The inspection also confirmed the existence
of text messages between Hartz and Sorensen regarding the intercepted package.
Too, they received proof that Sorensen called the ASK USPS hotline to check on the
status of the intercepted package. Additionally, the inspectors discovered USPS
records showing packages sent from Arizona to Hartz at addresses in Sioux Falls and
Luverne on at least six occasions, and flight records revealing that Sorensen took
flights from Sioux Falls to Phoenix on dates corresponding with the delivery of many
of the packages.
-3-
A jury trial commenced in October 2016. At trial Hartz provided extensive
testimony regarding her introduction to, and involvement with, Sorensen. Hartz
testified that she met Sorensen in the early to mid-2000's when she and her boyfriend
would do methamphetamine with Sorensen and his wife. After losing her job in
2014, Hartz began working for Sorensen, accepting packages in exchange for money
and drugs. Hartz testified that she received approximately six packages containing
methamphetamine for Sorensen.
A forensic latent print analyst with the United States Postal Inspection Service
Forensic Laboratory testified about latent prints found on the adhesive side of the
packing tape on the intercepted package. During her examination she identified three
prints on the tape that matched Sorensen's known prints. Sorensen did not file any
pretrial motions concerning this testimony, nor did he object to her testimony at trial.
In September 2016 (prior to trial), the government filed an information
pursuant to 21 U.S.C. § 851(a) notifying Sorensen of its intent to seek increased
punishment due to Sorensen's two prior felony drug convictions. These two
convictions were listed as: 1) possession of a controlled substance, on or about
December 2, 2002, Second Judicial Circuit Court, Minnehaha County, South Dakota;
and 2) "transporting or selling dangerous drug" on or about March 10, 2008, Superior
Court for Mojave County, Arizona. After the jury found Sorensen guilty, the parties
discussed for the first time that there was an error in the description of the Arizona
conviction in the § 851(a) information. On April 12, 2017, the government filed an
amended information pursuant to § 851(a) that changed the description of Sorensen's
prior conviction in Arizona from "transporting or selling" to "possession," and
additionally added the specific case number from the Arizona conviction. Sorensen
filed a written objection, arguing that given the changes made by the government to
the original information, he did not receive "reasonable notice" of its intent to rely
upon that particular Arizona conviction and thus it should be stricken from
consideration or calculation. At the sentencing hearing, the district court held that the
-4-
government's amended information merely corrected a clerical mistake, as the initial
information had the correct county and date of conviction and the amended notice
provided the correct description of the offense. The district court sentenced Sorensen
to life in prison for conspiracy to distribute a controlled substance in violation of 21
U.S.C. §§ 841(a)(1) and 846 and 120 months for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1), to run concurrently.
II. DISCUSSION
A. Expert Testimony
When a defendant has neither objected to an expert witness's testimony nor
otherwise challenged her status as an expert, this court reviews for plain error. United
States v. Parish, 606 F.3d 480, 490 (8th Cir. 2010). To prevail under this review,
Sorensen must show that (1) there was an error, (2) that error was clear or obvious
under current law, (3) the error affected Sorensen's substantial rights, and (4) the error
seriously affected the fairness, integrity, or public reputation of judicial proceedings.
United States v. Braden, 844 F.3d 794, 798 (8th Cir. 2016).
At trial, a forensic latent print analyst with the United States Postal Inspection
Service Forensic Laboratory testified about latent prints she found on the underside
of the packing tape of the intercepted package delivered to Hartz. Sorensen argues
that the fingerprint analyst's testimony did not satisfy the Daubert test and that the
district court, sua sponte, should have excluded the expert's testimony. Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 593 (1993). We need not analyze whether
the admission of this fingerprint expert's testimony was appropriate under the Daubert
standard, as Sorensen fails to establish that the alleged erroneous admission of this
witness's testimony affected his substantial rights at trial. Sorensen argues that the
expert's testimony was misleading and that the jury's conviction in reliance upon this
allegedly misleading evidence denied him due process. However, any harm in
-5-
allowing the expert testimony was not so great as to affect Sorensen's substantial
rights in light of the additional evidence presented. The testimony of Hartz (whose
credibility the jury discerned), the investigative evidence of the shipments from
Arizona that corresponded with Sorensen's trips to Arizona, and the extracted data
from Sorensen's phones including the identical misspellings of cities in Sorensen's
contact list and the shipment labels, as well as myriad other evidence, was more than
sufficient to support his conviction. The district court did not plainly err in failing
to exclude this testimony.
B. Predicate Offenses for Enhancement
A defendant convicted under § 841(a)(1) faces a mandatory life sentence if he
has been convicted of two prior "felony drug offenses." 21 U.S.C. § 841(b)(1)(A).
A "felony drug offense" is "an offense that is punishable by imprisonment for more
than one year under any law of the United States or of a State or foreign country that
prohibits or restricts conduct relating to narcotic drugs." Id. § 802(44) (emphasis
added). Prior to trial, the government filed an information pursuant to 21 U.S.C. §
851(a), giving notice that it intended to rely upon two of Sorensen's prior convictions
(a South Dakota drug conviction from December 2, 2002, and an Arizona drug
conviction from March 10, 2008) to support an enhanced minimum sentence. It was
not until after trial that Sorensen pointed out that the information incorrectly listed
his 2008 Arizona conviction as one for "transporting or selling" a dangerous drug and
failed to include a case number for reference. The government filed an amended
information pursuant to 21 U.S.C. § 851(a), listing the Arizona conviction as
"[c]onviction for possession of dangerous drugs (methamphetamine) on or about
March 10, 2008, in the Superior Court of Mohave County, Arizona (file no. CR-2007-
1523)." The district court's decision on felony drug conviction enhancements is
reviewed de novo, as it is a matter of statutory interpretation. United States v.
Sturdivant, 513 F.3d 795, 803 (8th Cir. 2008).
-6-
On appeal, citing Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) and its
progeny, Sorensen claims for the first time that the other prior conviction–the South
Dakota conviction–does not qualify as a predicate offense under § 841(b) because it
would not qualify as a felony under federal law as there is no record of drug quantity
to review. On that basis he argues his state offense was not a "felony drug offense"
under 21 U.S.C. § 841(b). We review this claim for plain error. United States v.
Thomas, 886 F.3d 1274, 1275 (8th Cir. 2018) ("This court reviews for plain error
issues raised for the first time on appeal.").
Sorensen's reliance upon Carachuri-Rosendo is misplaced on these facts.
Carachuri-Rosendo considered the definition of aggravated felony and the use of a
predicate conviction for immigration purposes. 560 U.S. at 575-82. As germane to
the instant facts in the criminal context, this court has explained the relevance of the
Court's holding in Carachuri-Rosendo, stating that where a maximum term of
imprisonment of more than one year is directly tied to recidivism, an actual recidivist
finding–rather than the mere possibility of a recidivist finding for a hypothetical
defendant–must be part of a particular defendant's record of conviction in order for
that conviction to qualify as a felony under § 841(b). United States v. Haltiwanger,
637 F.3d 881, 883-84 (8th Cir. 2011). So, while Sorensen is correct that Carachuri-
Rosendo's reasoning is applicable in the criminal context generally, it is not
applicable here. There was no issue as to whether Sorensen's South Dakota record
of conviction contained a finding of recidivism sufficient to support an enhancement
under § 841(b). The focus here is whether the South Dakota conviction satisfies the
-7-
definition of "felony drug offense" under § 802(44).3 United States v. Samuels, 543
F.3d 1013, 1021 (8th Cir. 2008).
Sorensen's conviction for possession of a controlled substance in South Dakota
is one punishable by more than one year in prison–indeed he was sentenced to a term
of ten years (with eight years suspended on certain conditions) for his crime.
Accordingly, the state conviction meets the statutory requirements as a prior felony
drug offense under 21 U.S.C. § 841(b) and the district court did not commit plain
error in its analysis. That the Minnehaha County records do not state a drug quantity
is not relevant to the instant analysis because we are not concerned about the outcome
of the matter if it had been tried in federal court.
As to Sorensen's remaining arguments concerning the timing of the information
itself and the amendment made after trial, the information filed pursuant to 21 U.S.C.
§ 851(a) sufficed in all respects. "To obtain a sentencing enhancement based on a
defendant's earlier conviction, the Government must comply with the notice
requirements of 21 U.S.C. § 851(a)." United States v. Curiale, 390 F.3d 1075, 1076
3On the facts of this case, Sorensen is likewise off point in relying upon cases
such as United States v. Haltiwanger, 637 F.3d 881 and United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc), wherein the courts reversed the application
of a 21 U.S.C. § 841(b) enhancement after looking at the particular defendant's record
of conviction to determine the maximum term of imprisonment. In those cases, the
particular defendants had received enhanced sentences based on an analysis of the
maximum penalty available for hypothetical recidivists under the relevant state
statutes. Haltiwanger, 637 F.3d at 884; Simmons, 649 F.3d at 243. We do not face
such circumstances here. Too, United States v. Sanchez, 586 F.3d 918, 929-30 (11th
Cir. 2009), also relied upon by Sorensen, is wholly inapposite, as it concerned an
analysis of an enhancement under 18 U.S.C. § 3559(c) which, in part, defines the
term "serious drug offense" as an offense under state law that, had the offense been
prosecuted in federal court, would have been punishable under 21 U.S.C. §
841(b)(1)(A). Noted above, we analyze only whether the conviction is a "felony drug
offense" under § 802(44).
-8-
(8th Cir. 2004) (per curiam). The government before trial must file an information
with the court stating in writing the previous convictions to be relied on. 21 U.S.C.
§ 851(a)(1). "Clerical mistakes in the information may be amended at any time prior
to the pronouncement of sentence." Curiale, 390 F.3d at 1076 (quoting 21 U.S.C. §
851(a)(1)). The statute does not define "clerical error." However, this court defines
it as an error "where the government's initial information still gave the defendant
'reasonable notice of the Government's intent to rely on a particular conviction.'"
Sturdivant, 513 F.3d at 804 (quoting Curiale, 390 F.3d at 1076)). The information
here was filed prior to trial and, although it listed the Arizona conviction as one of
transporting or selling when it was in fact one for possession, the information
correctly identified the state and county of conviction, and the exact date of the
conviction and thus gave reasonable notice of the government's intent to rely on that
particular conviction. Accordingly, the amendment of the information prior to
sentencing merely corrected the clerical mistake. Id. (determining that amending a
notice after trial but before sentencing to correct the state of a particular conviction
was a clerical error and thus not reversible). There was no plain error in the district
court's ruling on this matter.
C. Life Sentence
Finally, Sorensen argues that his mandatory life sentence without parole
violates the Eighth Amendment because it is grossly disproportionate and imposed
without regard to his individual characteristics. "We review Eighth Amendment
sentencing challenges de novo." United States v. Meeks, 756 F.3d 1115, 1120 (8th
Cir. 2014). We first compare Sorensen's crime with this sentence; an Eighth
Amendment violation can be found only when this comparison "leads to an inference
of gross disproportionality." United States v. Johnson, 944 F.2d 396, 409 (8th Cir.
1991). In only "an extremely rare case" will a noncapital sentence be so
disproportionate to the underlying crime that it runs afoul of the Eighth Amendment.
Meeks, 756 F.3d at 1120. "This court has ruled on numerous occasions that the
-9-
imposition of a mandatory life sentence under [21 U.S.C. § 841(b)] does not violate
the Eighth Amendment's prohibition on cruel and unusual punishment." United
States v. Camberos-Villapuda, 832 F.3d 948, 953 (8th Cir. 2016) (collecting cases).
Under de novo review, given the gravity of the offense and in light of
Sorensen's history of felony convictions, this case does not present the "extremely
rare" circumstance where the sentence runs afoul of the Constitution; it is the very
situation contemplated by the statutory scheme. United States v. Lee, 625 F.3d 1030,
1037 (8th Cir. 2010). We thus adhere to the settled law of this circuit.

Outcome: For the reasons stated herein, we affirm.

Plaintiff's Experts:

Defendant's Experts:

Comments: