United states court of appeals tenth circuit united states of america



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BACKGROUND

On February 18, 1999, the DEA’s Clandestine Lab Enforcement Team, led by Officer Ralph Sorrell, executed a search warrant at Kovac’s home and found a methamphetamine lab. The lab was located primarily in the kitchen area of Kovac’s residence, but there were also three or four anhydrous ammonia tanks found in a basement bunker and in the detached garage. Kovac admitted that the lab was his and that he was using anhydrous ammonia to manufacture methamphetamine.2

Prior to the search, Officer Sorrell asked Kovac if there were any weapons in the home and Kovac admitted that there was an explosive device or “bomb” in the attic. The attic of Kovac’s residence was divided into two rooms, a bedroom and a storage area. The entrance to the storage area was through the bedroom, via a door located just to the left of the bed. The bomb was found just inside this door, about one step away from the bed. Kovac claimed that the bomb was manufactured by a friend who intended to throw it into someone’s car; but he later changed his story, stating that the friend intended to throw the bomb into a house.

There was a bottle of rifle reloading powder next to the bomb. When questioned by Officer Sorrell, Kovac admitted that the reloading powder was his, claiming “that he was going to do some reloading but never got around to it.” Tr. of Sentencing Hr’g at 27, R. Vol. II, Doc. 52. Officer Sorrell testified that after he pointed out that the reloading powder was the same kind used in the bomb, Kovac “kind of hung his head for a second and said that [his friend] had saw [sic] him with that [sic] and had borrowed it from him to make this explosive device.” Id. at 28. During the search the officers also found a “trip-light” system that was apparently designed to let occupants know when someone was approaching the front of the house. On the outside of the house there was a motion sensor or an electric eye that was triggered if anyone approached. This motion sensor was connected to a spotlight in the attic bedroom that would turn on and shine directly on the bed.

Kovac was arrested and charged in a seven-count Indictment alleging various drug and firearm offenses. On May 15, 2000, Kovac pled guilty on two counts, including the attempted manufacture of more than 50 grams of methamphetamine (Count 2). The parties entered into a plea agreement stating, in relevant part, as follows:

The government agrees to advise the sentencing court prior to sentencing of the nature and extent of the cooperation in this or other investigations provided by this defendant. If, in the sole opinion of the United States Attorney’s office, the defendant’s cooperation amounts to substantial assistance, the government will file a motion, pursuant to Section 5K1.1 Sentencing Guidelines [sic] and Title 18, United States Code, Section 3553(e), to depart downward from the defendant’s applicable guideline range.




Plea Agreement at ¶ 2(e), Ex. A to Def.’s Pet. to Enter Plea of Guilty and Order Entering Plea, R. Vol. I, Doc. 24 (emphasis added).

Thereafter, Officer Sorrell interviewed Kovac, in the presence of his attorney, at the Corrections Corporation of America facility at Leavenworth Kansas, in an effort to determine whether he could provide substantial assistance. Lawyers in the United States Attorneys Office then conferred with Officer Sorrell about the interview and reviewed the statement provided by Kovac. After doing so, the United States Attorneys Office determined that the information provided by Kovac was neither new nor useful to the Government. That office also took into account Officer Sorrell’s statements that he did not believe that Kovac was entirely truthful during the interview, specifically referring to Kovac’s refusal to accept responsibility for the bomb. Based on the information obtained from Officer Sorrell’s interview with Kovac, the United States Attorneys Office determined that a substantial assistance motion was not warranted.

Kovac’s sentencing hearing started on October 2, 2000, but was continued until October 11, 2000. During the October 2 portion of the hearing, Kovac’s attorney attempted to question Officer Sorrell about his meeting with Kovac and whether Kovac provided substantial assistance. The Government objected, asserting that such questioning was irrelevant because the Government had not filed a §5K1.1 motion, having determined that such a motion was unwarranted. The district court agreed and sustained the Government’s objection. When the sentencing hearing resumed on October 11, however, Kovac submitted a motion to compel the Government to file a substantial assistance motion, claiming that the Government’s refusal constituted bad faith, in violation of the plea agreement. Def.’s Suggestions in Supp. of Req. to Compel Gov’t to File §5K1.1 Mot. at 3, R. Vol. I, Doc. 41. The district court denied Kovac’s motion, finding that “the Government has complied with that part of the agreement and there’s no showing of bad faith based on the evidence that was presented to the court.” Tr. of Sentencing Hr’g at 110.

In sentencing Kovac, the district court applied a two-level enhancement under §2D1.1(b)(1), finding that Kovac possessed a dangerous weapon (i.e., the bomb) in connection with his illegal drug manufacturing activities. Kovac objected to this enhancement, asserting that it was clearly improbable that the bomb was connected with the offense. Def.’s Sentencing Mem. at 1, R. Vol. I, Doc. 30 (citing USSG §2D1.1, Comment (n.3)). In response to Kovac’s objection, the Government called Officer Sorrell to testify at the sentencing hearing. Officer Sorrell testified that he considered the bomb to be a dangerous weapon, and that based on his experience in investigating over 300 methamphetamine lab cases the bomb was possessed in connection with Kovac’s illegal drug manufacturing operation. Specifically, Officer Sorrell concluded that together with the warning devices found on the premises, the bomb was apparently intended as a means of destroying evidence in the event a police raid on the lab appeared imminent. Tr. of Sentencing Hr’g at 30-33. The district court overruled Kovac’s objection and applied the two-level enhancement. Id. at 104-05.

Finally, Kovac objected to the Presentence Investigation Report’s (“PSR”) “criminal history” calculation, which assessed three criminal history points and placed him within Category II of the Sentencing Table, rather than Category I. The PSR assessed two criminal history points for Kovac’s February 8, 1990, conviction for Driving Under the Influence of Alcohol, Transporting an Open Container and Providing False Information to a Law Enforcement Officer, and one criminal history point based on Kovac’s June 15, 1992, conviction for Disorderly Conduct. PSR at 8-12. Kovac argued that the PSR over-represented his criminal history by considering the 1990 conviction, which was almost ten years old at the time he committed the offenses in this case, and sought a horizontal downward departure under USSG §4A1.3. Tr. of Sentencing Hr’g at 10-11. Although the district court did not specifically discuss Kovac’s objection to the PSR’s criminal history recommendation during its ruling at the sentencing hearing, it heard argument on this objection and expressly accepted the PSR’s calculations, sentencing Kovac in accordance with Category II of the Sentencing Table. Tr. of Sentencing Hr’g at 119; Judgment in a Criminal Case at 8, R. Vol. I, Doc. 43.




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