State of Iowa v. Caleb Lee Birch

IN THE COURT OF APPEALS OF IOWA

No. 20-1111
Filed April 14, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

CALEB LEE BIRCH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.

Caleb Birch challenges his sentence for the crime of possession with intent

to deliver marijuana. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., and Tabor and Ahlers, JJ.
2

AHLERS, Judge.

After pleading guilty to possession with intent to deliver marijuana, a class

“D” felony,1 Caleb Birch requested a deferred judgment at his sentencing hearing.

The district court rejected his request and adjudicated Birch guilty of the crime,

imposed a prison sentence, suspended the prison sentence, and placed Birch on

probation. Birch appeals, claiming the district court abused its discretion by

improperly considering unproven and unadmitted offenses.

Before getting to the details of Birch’s claim, we will first address the legal

standards governing our review. Birch makes no claim the sentence imposed fell

outside the statutory limits for the offense, so we presume the sentence is valid

and will only overturn the sentence for an abuse of discretion or reliance on

inappropriate factors. See State v. Hopkins, 860 N.W.2d 550, 554 (Iowa 2015).

Birch claims the district court improperly considered inappropriate factors and thus

abused its discretion. It is Birch’s burden to prove the claimed abuse of discretion,

and it is a heavy burden, as the sentence imposed is cloaked with a strong

presumption in its favor. See State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983).

However, if Birch meets his burden of showing the district court relied upon

offenses that were neither admitted by Birch nor otherwise proved, then we will set

aside the sentence and remand for resentencing. See State v. Sailer, 587 N.W.2d

756, 762 (Iowa 1998).

Birch tries to meet his burden by pointing to the following statements by the

district court at sentencing:

1 See Iowa Code § 124.401(1)(d) (2018).
3

I have looked at the record of the case. I’ve looked at the
[presentence investigation report] in particular. I do note, as defense
counsel points out, that Mr. Birch is young, that he doesn’t have a
criminal record, and, frankly, if this were a garden variety delivery
case, I don't think I would have any problem at all with a deferred
judgment.
But in reviewing the facts of the case, this is not what I would
call a garden variety delivery case where somebody received a bag
of marijuana and handed it or sold it to somebody else. This involved
very, very significant quantities. It involved marijuana coming from
different states. A fairly sophisticated operation of which Mr. Birch
was a part, and it also involved delivery to high school students.
I think with all of those factors, while I’m taking Mr. Birch at his
word, defense counsel’s word, that he may be changing and moving
in the right direction, and that’s terrific. That’s great. I hope he
continues to do so. However, this was more than just a single, you
know, youthful mistake on a bad night or a bad day. This was
something that happened over time and had to be planned out. And
as such, I’m just not prepared to go along with a deferred judgment
in the case.

Birch claims the court’s reference to importing marijuana from out of state pursuant

to a sophisticated operation and delivering to high school students were unproven

and unadmitted offenses.

We reject Birch’s claim for two reasons. First, the referenced details were

part of the crime to which Birch pleaded guilty, not other offenses. Birch was

charged with and pleaded guilty to a violation of Iowa Code section 124.401(1),

which reads in pertinent part as follows:

Except as authorized by this chapter, it is unlawful for any person to
manufacture, deliver, or possess with the intent to manufacture or
deliver, a controlled substance, . . . or to act with, enter into a
common scheme or design with, or conspire with one or more other
persons to manufacture, deliver, or possess with the intent to
manufacture or deliver a controlled substance.

(Emphasis added.) Not only does the statute reference acting with, entering a

common scheme with, or conspiring with another, the trial information charged

both the act itself and the alternative of acting with, entering a common scheme
4

with, or conspiring with another. As a result, the “sophisticated operation” involving

delivery to high school students was part of the crime with which Birch was charged

and to which he pleaded guilty. The details noted by the district court were part of

the “attending circumstances” of the offense, so were properly considered by the

district court. See State v. Formaro, 638 N.W.2d 720, 724–25 (Iowa 2002) (listing

“the attending circumstances” as one of the factors to consider in sentencing).

The second reason we reject Birch’s claim is that, even if we assumed the

district court’s reference to importing marijuana from out of state pursuant to a

sophisticated operation and delivering to high school students involved other

offenses, the record establishes Birch admitted those facts. During the plea

hearing, the following exchange took place:

COURT: There were minutes of [evidence] that were filed in
this case. The minutes of [evidence] listed the witnesses who would
testify against you if the case were to go to trial and also contained
a summary of what the State believes that those witnesses would
say under oath. Did you review the minutes of [evidence] at some
point? BIRCH: Yeah.
COURT: If those witnesses came to court and testified to the
things that are set forth in the minutes, would they be telling the truth?
BIRCH: Yes.

The minutes of evidence asserted that a confidential informant (CI) would

testify that the Subject2 is one of the main suppliers of marijuana in Dubuque. The

CI would also testify the Subject was selling marijuana and THC oil cartridges to a

large number of people in Dubuque, including persons who were in high school,

some of whom were under the age of eighteen. According to the CI, the Subject

was receiving pounds of marijuana through the United States Postal Service

2 The subject’s name is stated in full in the minutes of evidence, but we will use
“the Subject” in an effort to maintain confidentiality.
5

(USPS) on a weekly basis from the states of California and Washington and was

having the packages shipped to different addresses in the Dubuque area,

sometimes using fictitious names, to avoid detection. Investigators identified Birch

as the Subject’s “close associate” in the marijuana delivery scheme. A tracking

device on the Subject’s vehicle showed the Subject frequently traveled to Birch’s

residence. On the date of the offense with which Birch was charged, the Subject’s

vehicle was observed in the parking lot of a store that housed a USPS branch.

Birch was observed exiting the passenger side of the Subject’s vehicle carrying a

large USPS envelope and entering the store. A short time later, Birch exited the

store and got back into the Subject’s vehicle, and the vehicle left. A law

enforcement officer who observed this behavior entered the store and spoke to the

USPS employee about the customer who had just left (i.e., Birch). The employee

explained that Birch had been in and purchased an envelope, left the store, and

then returned with the envelope sealed and paid cash to send it by priority mail to

Vancouver, Washington. The name disclosed on the envelope as the sender was

a false name. The envelope was seized and then opened by a postal inspector.

The envelope contained a heat-sealed package of baby wipes. Inside the baby

wipes package was a stack of United States currency in the approximate amount

of $6000.00. A search warrant was executed on the Subject’s residence. The

Subject, the Subject’s paramour, and Birch were found in the residence along with

over fourteen pounds of marijuana, over $17,000.00 in United States currency

(including $4500.00 in a baby wipes container placed in a USPS box), and a loaded

semi-automatic rifle.
6

A sentencing judge is permitted to consider facts in the minutes of

evidence “that are admitted to or otherwise established as true.” State v. Black,

324 N.W.2d 313, 316 (Iowa 1982). Based on the above-quoted admission during

Birch’s plea hearing, we find Birch admitted the allegations in the minutes.

Therefore, the district court did not err in considering the information in the minutes

as having been established.

Furthermore, essentially the same information contained in the minutes was

repeated in the presentence investigation report (PSI). At the sentencing hearing,

Birch did not challenge any part of the PSI after being given the opportunity to do

so. Therefore, the district court was free to consider that information and doing so

was not improper. State v. Grandberry, 619 N.W.2d 399, 402 (Iowa 2000) (“In

determining a defendant’s sentence, a district court is free to consider portions of

a presentence investigation report that are not challenged by the defendant.”).

Birch has not met his burden to establish the district court considered

improper factors in sentencing him, which is the only challenge lodged on appeal.

Therefore, we find no abuse of discretion and affirm the district court’s sentencing

decision.

AFFIRMED.