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United States v. Unthank

March 19, 1997

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

KEVIN UNTHANK,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division.

No. 95 CR 30094

Before CUMMINGS, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

William L. Beatty, Judge.

ARGUED SEPTEMBER 4, 1996

DECIDED MARCH 19, 1997

The defendant-appellant, Kevin Unthank, was indicted by a federal grand jury in the Southern District of Illinois, and was charged with conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. sec. 841(a)(1) and sec. 846. The indictment also alleged that Unthank had obtained cash proceeds of $240,820 from drug-trafficking and that these proceeds were subject to forfeiture pursuant to 21 U.S.C. sec. 853. Unthank entered a plea of guilty to the indictment and agreed to forfeit the illegal drug proceeds. The district judge accepted Unthank's plea of guilty, following a hearing to determine that the plea was knowingly and voluntarily made. At the sentencing hearing, the trial judge heard testimony from several witnesses, including Unthank and his father, and considered various defense objections to the Presentence Investigation Report ("PSR"). Two of the sentencing judge's determinations concerning the defendant's sentence are challenged on appeal. Over the defendant's objection, the judge sentenced Unthank as a career offender, pursuant to U.S.S.G. sec. 4B1.1, based in part upon the defendant's prior Illinois conviction for the crime of "intimidation," 720 ILCS 5/12-6, which the court determined was a "crime of violence," as a matter of federal sentencing law. The judge agreed with the Government's position that Unthank had directed his parents to secrete incriminating evidence after his arrest, while agents of the Drug Enforcement Agency ("DEA") were still investigating his marijuana dealing. The court reasoned that Unthank had obstructed justice and increased his base offense level by two points, pursuant to U.S.S.G. sec. 3C1.1. The obstruction-of-justice enhancement ultimately had no effect on Unthank's sentence as the defendant was assigned a higher offense level under the career offender provisions of the Guidelines, which prevail whenever they provide for an offense level "greater than the offense level otherwise applicable." U.S.S.G. sec. 4B1.1. The court sentenced Unthank to 262 months imprisonment, to be followed by five years supervised release, and ordered him to pay a fine of $3,500 as well as a special assessment of $50. Additionally, Unthank was ordered to forfeit the $240,820 worth of illegal drug proceeds. We affirm.

I. BACKGROUND

Thirty-three year old Kevin Unthank is no stranger to the criminal justice system. Among the many adult criminal convictions listed in his PSR are two prior felony convictions that are relevant to the question of whether the district court's sentencing of him as a career offender was proper. In 1987, Unthank entered a plea of guilty to the federal crime of conspiracy to distribute cocaine and received a sentence of several years in prison. In 1991, Unthank was charged by the state of Illinois with committing the felony crime of intimidation, in violation of 720 ILCS 5/12-6, in Madison County, Illinois. Unthank pleaded guilty to the information in 1992, and thus admitted that he had "with the intent to cause Jackie Weber, Jr. to pay a past due bill, . . . communicated to Jackie Weber, Jr. a threat to damage property of Jackie Weber, Jr." Unthank was sentenced to 33 months imprisonment for this offense and was released after serving slightly more than five months.

Unthank's most recent criminal activity--the extensive marijuana dealing that gave rise to the instant conviction--was uncovered in mid-August of 1995, when sheriff's deputies in Jefferson County, Missouri pulled over a large tractor-trailer truck for a routine traffic violation. The driver of the truck--not the defendant but an individual named Kevin Miller--was extremely nervous and unable to answer simple questions. His behavior aroused the suspicions of one of the deputies, who asked for and received permission to search the vehicle. The consensual search of the truck yielded approximately 600 pounds of marijuana. Miller agreed to cooperate with law enforcement officials and informed them that he was working with an individual named "Carol" and had been directed to deliver the drugs to another person known as "Kevin" in Illinois. Agents of the DEA were contacted, and a "controlled delivery" of the marijuana was arranged. Miller drove the truck to the trailer home of the appellant, Kevin Unthank, in Brighton, Illinois, where DEA agents effected an arrest after observing Kevin Unthank and Carol VanDalsen unload the marijuana.

Following his arrest, and after being advised of his Miranda rights, Unthank provided the DEA with a two-page written statement in which he admitted his involvement in prior marijuana dealing. On August 14, 1995, the day following his arrest, the DEA conducted a consensual search of Unthank's trailer-home and seized $12,400 in cash. Federal prosecutors filed a criminal complaint on August 15, charging Unthank and VanDalsen with conspiring to possess with intent to distribute marijuana. 21 U.S.C. sec. 841(a)(1) and sec. 846. Unthank was detained pending trial. On August 22, a federal grand jury returned an indictment which, like the complaint, charged Unthank and his co-defendant with conspiracy to possess with intent to distribute "divers amounts of marihuana."

Following Unthank's arrest, DEA agents conducted further investigation and discovered, in piecemeal fashion, substantial cash proceeds from Unthank's drug-dealing activity. These discoveries occurred as follows:

(1) On September 5, 1995, after questioning Terry and Joanne Overbey, who were friends of the Unthank family (and relatives of the defendant's mother), investigators conducted a consensual search of the Overbey residence. They discovered a safe and some guns, and $26,800 in cash belonging to the defendant. The Overbeys informed investigating agents that they had received these items from Kevin Unthank's parents on two or three different occasions during the approximately two and a half weeks immediately following Unthank's arrest. Terry Overbey provided a written statement to the effect that Unthank's father had asked him to take the guns and the safe for safekeeping because he was afraid the police were going to find them. On September 6, pursuant to a search warrant, DEA agents opened the safe and found that it contained $15,000 cash as well as extensive drug ledgers that chronicled Unthank's drug-dealing activities.

(2) On September 6, the defendant's mother, Georgia Unthank, led investigators to yet another safe belonging to Unthank (which had been transferred to other friends of the Unthanks for ...


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