United States of America v. Kathan Daniel Wiley

United States Court of Appeals
For the Eighth Circuit
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No. 23-3342
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United States of America
Plaintiff - Appellee
v.
Kathan Daniel Wiley
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: September 25, 2024
Filed: December 6, 2024
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Before BENTON, ARNOLD, and KOBES, Circuit Judges.
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BENTON, Circuit Judge.
Kathan Daniel Wiley was convicted of conspiracy to distribute a mixture and
substance with a detectable amount of fentanyl (Count One) and possession with
intent to distribute a mixture and substance with fentanyl resulting in serious bodily
injury (Count Two), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846.

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The district court1 denied his motion for judgment of acquittal. He appeals. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
On October 30, 2021, Davenport fire and police officers responded to a call
about an 18-month-old who ingested pills. His mother, Jessica Brady, tried to take
the baby to the hospital, but then called an ambulance to take him there.
At the hospital, officers met with her. She said that Wiley, the father, told her
that the baby ate pills left at the house by Wiley’s friend. Brady testified that
although Wiley originally said his friend left the pills, he later said he got them from
a dealer.
Other testimony indicated Wiley apparently got them within the hour before
the baby’s overdose. The baby—after respiratory depression, cardiac arrest, and
multiple doses of Narcan—survived. Brady testified that Wiley had been
distributing the fentanyl pills for months.
The jury found Wiley guilty on both counts. The district court sentenced him
to a below-guidelines sentence of 240 months on Count One and 324 months on
Count Two, to be served concurrently.
II.
This court reviews “the sufficiency of the evidence de novo, viewing evidence
in the light most favorable to the government, resolving conflicts in the government's
favor, and accepting all reasonable inferences that support the verdict.” United
States v. Polk, 715 F.3d 238, 245 (8th Cir. 2013). Reversal for insufficient evidence
1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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is warranted only if this court concludes that “no reasonable jury could find all the
elements beyond a reasonable doubt.” United States v. Wiest, 596 F.3d 906, 910
(8th Cir. 2010). “A conviction may be based on circumstantial as well as
direct evidence. The evidence need not exclude every reasonable hypothesis except
guilt.” United States v. Seals, 915 F.3d 1203, 1205 (8th Cir. 2019).
Wiley argues that the evidence was insufficient on the conspiracy charge
because the government did not establish he “voluntarily and intentionally joined in
an agreement with regard to the distribution of fentanyl.” Specifically, he asserts
that because he was an addict, the “purpose of his possession is to support his
addiction” as opposed to a “shared conspiratorial purpose.” He concludes that the
jury had insufficient evidence to find he had an agreement with the “actual
conspirators.”
“To establish a drug conspiracy, the government must prove the existence of
an agreement between two or more persons to violate federal narcotics law.” United
States v. Smith, 450 F.3d 856, 860 (8th Cir. 2006). An agreement requires “a
showing the defendant was aware of the purposes of the agreement and voluntarily
participated in the agreement.” Id. “Direct or circumstantial evidence may provide
the basis for a conspiracy conviction.” United States v. Castro-Gaxiola, 479 F.3d
579, 581 (8th Cir. 2007). “Evidence of a conspiracy will often be circumstantial due
to a conspiracy’s necessary aspect of secrecy.” Id. “Evidence may be implied by
surrounding circumstances or by inferences from the actions of the parties.” Id.
Wiley’s Facebook messages supported a jury finding of a conspiracy beyond
a reasonable doubt. Wiley exchanged more than 80 messages with a dealer over a
three-day period with the clear intent to buy drugs. Wiley offered to buy “50 [pills]
for 750” and tried to coordinate plans for the transaction. Brady testified that, around
the time of the messages, Wiley received a check for $750, deposited directly into
her bank account. She estimated Wiley received 100 pills in exchange for the
$750—which the couple fought over because she needed the money for rent. Other
messages showed that Wiley owed the dealer money for an earlier transaction,

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supporting “a finding that they shared a conspiratorial purpose to advance other
transfers.” United States v. Slagg, 651 F.3d 832, 842 (8th Cir. 2011). In other
Facebook messages, Wiley explicitly advertised “Perks” and “Perk 30s” for sale to
several others, often packaging the offer with other narcotics, including “acid,”
“Xans” (Xanax), and Vicodin.
While the Facebook messages may not show an express agreement, the law
does not require one. See United States v. Adams, 401 F.3d 886, 894 (8th Cir. 2005)
(finding “the government need only establish a tacit understanding between the
parties.”). “In cases charging conspiracy, the evidence is often circumstantial:
because the nature of conspiracy entails secrecy, the agreement and members’
participation in it must often be established by way of inference from the surrounding
circumstances.” United States v. Williams, 910 F.3d 1084, 1090 (8th Cir. 2018).
True, there is no “precise” point when one can say a person entered a conspiracy.
United States v. Conway, 754 F.3d 580, 591 (8th Cir. 2014). But like the defendants
in Conway, Wiley was not a “one-time buyer who purchased a small amount” of
fentanyl for personal use. Id. at 592. He was a buyer and seller of fentanyl pills for
months. Brady’s testimony, coupled with the Facebook messages advertising the
pills, are sufficient evidence that Wiley entered into a conspiracy to violate federal
narcotics laws.
Wiley’s insufficiency argument also fails for Count Two—possession with
intent to distribute resulting in serious bodily injury. He asserts that the evidence
did not support a conviction because the fentanyl that the baby ingested was intended
for Wiley’s personal use, not for distribution.
Wiley argues that it “could not be established that the fentanyl ingested by
Mr. Wiley’s son was fentanyl that he intended to distribute but rather, fentanyl he
intended to use himself to satisfy his need for the highly addictive drug.” Wiley
emphasizes his drug addiction, that he sometimes took some of the drugs for his
personal use, and efforts to prevent children from accessing his narcotics—all of

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which Brady confirmed through testimony. The “elements” in the jury instruction
were:
One, on or about October 30, 2021, the Defendant possessed a mixture or
substance containing a detectable amount of fentanyl, a Schedule II
controlled substance;
Two, the Defendant knew the substance he possessed was a controlled
substance;
Three, the Defendant intended to distribute some or all of the controlled
substance to another person;
Four, K.M. suffered serious bodily injury; and
Five, K.M. would not have suffered serious bodily injury but for the use of
the fentanyl the Defendant possessed with the intent to distribute.
Wiley argues that the “some or all” language in element Three, along with the
notes from the model instructions, “makes it clear that the fentanyl which caused
bodily injury must be from the portion that a defendant intended to distribute and
not the remainder.” To the contrary, the plain language of “some or all” says exactly
the opposite—element Three requires that only some of the narcotics in Wiley’s
possession must be intended for distribution. The instruction means that the jury
should acquit if the drugs were intended only for personal use, such as in a personal
stash. See Eighth Circuit Manual of Model Jury Instructions (Criminal) 6.21.841A.1
(Short) (2021) (“It is uncertain whether, in Section 841(a)(1) possession with intent
to distribute cases, drugs intended only for personal use are included in the drug
quantity.”) citing United States v. Fraser, 243 F.3d 473, 476 (8th Cir. 2001) (finding
that in determining relevant conduct under the sentencing guidelines for a Section
841(a)(1) offense, drugs possessed for solely personal use should not be included.).
The instruction implements the statute Wiley violated. He bought a large
quantity of pills containing fentanyl for the purpose of distribution. 21 U.S.C. §
841(b)(1)(C) punishes the (a) knowing or intentional possession with intent to

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distribute, and (b) “death or serious bodily injury result[ing] from the use of such
substance” (emphasis added). The “use” is broad, capturing any use of the substance
that results in serious bodily injury, including the baby’s accidental ingestion of
Wiley’s fentanyl pills. See United States v. Wysinger, 64 F.4th 207, 216 (4th Cir.
2023) (finding “nothing in [841(b)(1)(c)] requires a jury to find the defendant
actually delivered the drug to the victim in order for the increased penalty to apply.”).
Wiley also argues that element Five requires that the “fentanyl causing the
bodily injury must be the fentanyl possessed with intent to be distributed.” Wiley
says: “there can be no doubt Mr. Wiley had no intention to distribute any fentanyl to
[the baby] even if he did intend to distribute it to others” (emphasis added). The jury
instruction does not require Wiley’s intent to distribute fentanyl to his own child. A
paragraph of the instruction requires the opposite: “The Government need not prove
that the Defendant intentionally transferred the fentanyl to [baby] K.M., so long as
the Government proves beyond a reasonable doubt that the fentanyl possessed with
intent to be distributed by the Defendant was the same fentanyl that resulted in the
serious bodily injury of [baby] K.M.”
The evidence here supports a conviction for possession with intent to
distribute a mixture and substance containing fentanyl resulting in serious bodily
injury from the use of such substance. At the time of the baby’s overdose, Wiley
was under pressure to support himself and his family. In an October 29 Facebook
chat, Wiley told Brady he would obtain fentanyl pills the next day. His intent for
those pills is clear from Brady’s testimony—Wiley wanted to “flip” the pills to make
money for rent and other expenses. The next morning, on October 30, Wiley met
with his dealer. Brady testified that the co-conspirator has sold to Wiley before.
Wiley bought a golf-ball-sized bag of pills. He was the only person home with the
baby that day. The baby ingested the pills within an hour after Wiley met with the
dealer. His Facebook messages show he was also under pressure to repay his dealer
for the loan of the pills. The jury also knew he offered to sell these pills to at least
three potential buyers in the days after the baby’s overdose.

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A reasonable jury could find Wiley guilty of possession with intent to
distribute the fentanyl the baby ingested. See United States v. Hamilton, 332 F.3d
1144, 1149 (8th Cir. 2003) (“[W]e will uphold the verdict if there is any
interpretation of the evidence that could lead a reasonable-minded jury to find the
defendant guilty beyond a reasonable doubt.”).
III.
Wiley argues that the district court erred in applying the U.S.S.G. §
2D1.1(b)(13) enhancement. This court reviews de novo the district court’s
interpretation of the guidelines, and for clear error its factual findings. United States
v. Fisher, 420 Fed. Appx. 641, 643 (8th Cir. 2011). Under the advisory guidelines,
sentencing judges are required to find sentence-enhancing facts by a preponderance
of the evidence. United States v. Pirani, 406 F.3d 543, 551 n. 4 (8th Cir.2005) (en
banc).
A four-level enhancement to a defendant’s base offense level applies if he
“knowingly misrepresented or knowingly marketed as another substance a mixture
or substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
propanamide) or a fentanyl analogue.” U.S.S.G. § 2D1.1(b)(13).
Wiley advertised his drugs by several names—“perks,” “perk 30s,” and “perk
30”—without any reference to the fentanyl in them. After overdosing himself on
similar pills, Wiley knew the pills contained fentanyl.
The district court found that Wiley’s overdose indicates he conspired to
distribute pills that were not legitimate Percocet prescription pills. Several witnesses
confirmed what Wiley knew. See Fed. R. Civ. P. 52(a)(6) (“the reviewing court
must give due regard to the trial court’s opportunity to judge the witnesses’
credibility.”); United States v. Williams, 605 F.3d 556, 570 (8th Cir. 2010) (Clear
error exists “only when we are left with the definite and firm conviction that a
mistake has been committed.”).

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By advertising the pills as “perks,” the accepted name for prescription
Percocet, with the knowledge that they were not, Wiley knowingly marketed a
substance containing fentanyl as another substance. The district court did not err in
applying a four-level enhancement under § 2D1.1(b)(13).
IV.
Wiley suggests that the district court failed to correctly weigh the § 3553(a)
factors, resulting in a sentence that is substantively unreasonable. This court reviews
the substantive reasonableness of a sentence under a deferential abuse of discretion
standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).
Wiley dedicates one sentence to the district court’s failure to “give due
consideration to the fact that Mr. Wiley never intended to distribute fentanyl to his
son.” But the district court considered each § 3553(a) factor, including his
challenging life experiences. The court considered the seriousness of the offense,
including the fact that K.M. likely ingested more than one pill containing fentanyl,
and Wiley’s “serious efforts to obstruct/undermine the criminal justice system.”
Considering all the factors, the district court sentenced Wiley to 324 months—a
downward variance from the advisory guideline range of life imprisonment. The
court did not abuse its discretion. See id. at 464 (“It will be the unusual case when
we reverse a district court sentence-whether within, above, or below the applicable
Guidelines range-as substantively unreasonable.”)
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The judgment is affirmed.
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