United States of America v. Victor Rodriguez Kessel

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-2285
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Victor Rodriguez Kessel
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: October 25, 2022
Filed: October 28, 2022
[Unpublished]
____________
Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Victor Kessel, who was counseled below but is proceeding pro se on appeal,
appeals after a jury convicted him of drug and firearm offenses and the district court1
1The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri.

-- 1 of 3 --

sentenced him to 180 months in prison. On appeal, Kessel challenges the denial of
his motion to suppress, the sufficiency of evidence at trial, the forfeiture of his house,
and various aspects of his sentencing.
Upon careful review, we conclude that the district court did not err in denying
Kessel’s motion to suppress, see United States v. Holly, 983 F.3d 361, 363 (8th Cir.
2020) (in reviewing denial of a motion to suppress, district court’s findings of fact are
reviewed for clear error and its legal conclusions are reviewed de novo), as the
suppression hearing testimony showed that Kessel consented to his encounter with
law enforcement and to the searches of a package and his house, see United States v.
Lillich, 6 F.4th 869, 875 (8th Cir. 2021) (person has been seized under the Fourth
Amendment only when a reasonable person would have believed he was not free to
leave); United States v. DaCruz-Mendes, 970 F.3d 904, 908 (8th Cir. 2020)
(consensual search does not violate the Fourth Amendment if the consent was given
voluntarily and without coercion).
We also conclude there was sufficient evidence for the jury to convict Kessel
of conspiring to manufacture cocaine base, as the record indicated that he had been
working in concert with individuals in Arizona to obtain powder cocaine, which was
processed into cocaine base in his home and then distributed. See United States v.
Timlick, 481 F.3d 1080, 1082 (8th Cir. 2007) (sufficiency of evidence to sustain
conviction is reviewed de novo); United States v. Spears, 454 F.3d 830, 832 (8th Cir.
2006) (appellate court will reverse only if no reasonable jury could have found
defendant guilty beyond reasonable doubt); see also United States v. Ramirez, 21
F.4th 530, 532-33 (8th Cir. 2021) (elements of drug conspiracy).
As to Kessel’s sentencing arguments, we conclude that the district court did not
plainly err in applying an enhanced statutory sentencing range based on Kessel’s prior
conviction for a felony drug offense. See 21 U.S.C. § 841(b)(1)(C), (D) (providing
for enhanced maximum sentences if defendant committed violation after a prior
-2-

-- 2 of 3 --

conviction for a felony drug offense); United States v. Snow, 949 F.3d 1094, 1096
(8th Cir. 2020) (challenge to enhanced statutory range raised for the first time on
appeal is reviewed for plain error); United States v. Jeanpierre, 636 F.3d 416, 424
(8th Cir. 2011) (decision to seek enhanced statutory range lies within prosecutor’s
discretion and carries presumption of regularity). Further, the district court did not
err by ordering the forfeiture of Kessel’s residence, as the record indicated that the
house had been used to process and distribute drugs. See United States v. Sheley, 998
F.3d 349, 351 (8th Cir. 2021) (legal conclusion of whether property is subject to
forfeiture is reviewed de novo, factual findings are reviewed for clear error; property
is subject to forfeiture if it was used in any manner to commit or facilitate drug related
offenses).
Finally, the district court properly calculated Kessel’s criminal history, and did
not impose a substantively unreasonable sentence, as the court properly considered
the factors listed in 18 U.S.C. § 3553(a), and did not err in weighing the relevant
factors. See United States v. Turner, 781 F.3d 374, 393 (8th Cir. 2015) (construction
and application of Guidelines are reviewed de novo); United States v. Feemster, 572
F.3d 455, 461-62 (8th Cir. 2009) (sentences are reviewed for substantive
reasonableness under deferential abuse of discretion standard; abuse of discretion
occurs when court fails to consider relevant factor, gives significant weight to
improper or irrelevant factor, or commits clear error of judgment in weighing
appropriate factors); see also United States v. Mangum, 625 F.3d 466, 469-70 (8th
Cir. 2010) (upward variance was reasonable where court made individualized
assessment based on facts presented).
Accordingly, we affirm.
______________________________
-3-

-- 3 of 3 --