United States of America v. Brendon Janis

United States Court of Appeals
For the Eighth Circuit
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No. 20-1077
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United States of America
Plaintiff - Appellee
v.
Brendon Janis
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: February 19, 2021
Filed: April 27, 2021
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Before LOKEN, BENTON, and KELLY, Circuit Judges.
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BENTON, Circuit Judge.
A jury convicted Brendon Dale Janis of conspiracy to distribute
methamphetamine and unlawfully possessing firearms, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), 846 and 18 U.S.C. § 922(g)(3). The district court1
1 The Honorable Jeffrey L. Viken, Chief Judge, United States District Court
for the District of South Dakota.

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sentenced him to 180 months on the conspiracy charge and 60 months on the
firearms charge, to run concurrently. He appeals his conviction and sentence.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
Janis believes the district court improperly vouched for the credibility of
prosecution witnesses when it explained Federal Rule of Criminal Procedure 35 to
the jury. This court reviews jury instructions “for abuse of discretion,” affirming “if
the instructions, taken as a whole, fairly and adequately submitted the issues to the
jury.” United States v. Thomas, 422 F.3d 665, 668 (8th Cir. 2005). Where there is
no objection, this court reviews for plain error, reversing only if the defendant shows
error, that was plain, that affected substantial rights, and seriously affected the
fairness, integrity, or public reputation of the judicial proceedings. See United States
v. Fast Horse, 747 F.3d 1040, 1041-42 (8th Cir. 2014).
During trial, defense counsel questioned prosecution witnesses about their
cooperation with the government, referencing “Rule 35” and saying: “the more
information that you give [the prosecution], the bigger the benefit you’re going to
get;” “the quantity and quality of information you give [the prosecution] results in
the recommendation that you get;” “you’ve been told that you can get up to 50
percent off of [your sentence] with cooperation;” and “the government’s there to
help you . . . [b]ecause they can reduce your sentence.”
After defense counsel finished, the district court instructed the jury:
You know, it might be helpful. This Rule 35, this is a matter of law.
These are Federal Rules of Criminal Procedure. Rule 35 in these
cooperation agreements, the United States can but does not have to
make a motion under Federal Rule of Criminal Procedure 35 after the
cooperation is complete or if the government makes certain decisions
about the level of cooperation and its thoroughness, and so on. They

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make a motion to the Court, to me, in these cases for a sentencing. The
defense has an opportunity to add more information if they want.
And based on the information in front of me and what I see and—you
know, after seeing people testify, and later there’s a motion. It’s entirely
up to the judge. There are cases where I’ve given people time served;
they’re out the next day or the next week. There are cases where I give
very minimal cuts because—for a variety of reasons. Lack of
truthfulness, cooperation fails, the information isn’t actually useful.
So it’s discretionary with every federal judge in a sentencing. This half,
it’s sort of become a regular matter, I think, across the United States,
with full cooperation a 50-percent cut. But there’s absolutely no
assurance of that. And every case is judged based on the information
that’s presented to the judge considering the Rule 35.
And so there’s a very wide range of discretion as to what the cut would
be, if any.
Does that help? All right.
I can’t testify; but that’s a matter of law, and I can tell you about that
matter.
The court then asked if there were any objections to the explanation. Defense
counsel requested a side bar:
Defense Counsel: Your Honor, I don’t want to contradict here in front
of—but isn’t it true that the prosecutor also makes a recommendation?
The Court: Nope. Not on a Rule 35. They never tell us what they think
the cut should be. I’ve never seen it.
Defense Counsel: Okay. Fair enough. Fair enough.
The Court: I really never have.
Defense Counsel: Fair enough. I wanted to ask that before we—

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The Court: I know that the implication was made in one of your
questions earlier. And it’s sort of a mysterious process for everybody
except prosecutors and judges, and the defense attorneys have a chance
to add information. But I—there’s never a recommendation.
Defense Counsel: I agree with that, Your Honor. But I think a lot of the
defendants’ understanding, from a lot of anecdotal evidence over 14
years, comports with what I’m arguing.
The Court: Never seen that on a Rule 35.
Defense Counsel: Thank you, Your Honor.
Defense counsel did not object to the instruction, claim the court improperly
vouched for any witnesses, or seek a clarifying instruction or mistrial. Before
deliberations, the court gave thorough instructions about witness testimony. See
generally Eighth Circuit Manual of Model Jury Instructions (Criminal). It told
the jury to consider witness motivation for testifying and said the jury could “believe
all of a what a witness says, only part of it, or none of it.” It instructed the jury that
it might have heard testimony from witnesses who pled guilty or received a reduced
sentence and that it should decide whether those factors influenced the testimony. It
also said that it was up to the jury to decide whether testimony “may have been
influenced by a hope of receiving a more lenient sentence” and that “[y]ou may give
this testimony whatever weight you think it deserves.”
The court’s explanation of Rule 35 was accurate and reasonable. Rather than
improperly vouching for witness credibility, the explanation clarified any confusion
defense counsel may have created. The court did not plainly err. See, e.g., United
States v. Baldenegro-Valdez, 703 F.3d 1117, 1124 (8th Cir. 2013) (upholding an
instruction about witness cooperation because it correctly stated the law and was
supported by the evidence).

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II.
Janis asserts the district court erred by relying on trial testimony in calculating
the drug quantity attributable to him for sentencing. “Drug quantity determinations
are factual findings, which we review for clear error, applying the preponderance-
of-the-evidence standard.” United States v. King, 898 F.3d 797, 809 (8th Cir. 2018)
(internal quotation marks omitted). When “the quantity of drugs was established
through witnesses’ testimony, the issue becomes one of credibility.” United States
v. Quintana, 340 F.3d 700, 702 (8th Cir. 2003). “It is . . . well established that in
sentencing matters a district court’s assessment of witness credibility is
quintessentially a judgment call and virtually unassailable on appeal.” Id. (internal
quotation marks omitted).
At trial, the court concluded that the evidence was sufficient to permit a
reasonable jury to find Janis conspired to distribute over 500 grams of meth. And
the jury convicted him of a conspiracy involving at least 500 grams. However, the
court sentenced Janis for a conspiracy involving 1,500 grams of meth. Janis asserts
the court “had an affirmative obligation to put factual findings on the record, rather
than merely referring to ‘trial testimony’ in its calculation.” But “it is well-
established that the testimony of coconspirators may be sufficiently reliable evidence
upon which the district court may base its drug quantity calculation for sentencing
purposes.” United States v. Plancarte–Vazquez, 450 F.3d 848, 852 (8th Cir. 2006).
See United States v. Young, 689 F.3d 941, 945 (8th Cir. 2012) (noting the district
court may rely on trial testimony to determine drug quantity).
Here, the district court explained that its factual findings as to drug quantity
were based on trial testimony that it “well remembered.” And when the amount of
drugs seized does not reflect the scale of drug trafficking, “‘the court shall
approximate the quantity of the controlled substance’ for sentencing purposes.”
United States v. Walker, 688 F.3d 416, 421 (8th Cir. 2012), quoting U.S.S.G. §
2D1.1, cmt. n.12. See United States v. Shaw, 965 F.3d 921, 927 (8th Cir. 2020)
(“To determine properly the applicable drug quantity in a conspiracy, a sentencing

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court shall approximate the quantity of the controlled substance[s] for sentencing
purposes if the amount of drugs seized does not reflect the scale of the offense.”
(internal quotation marks omitted)).
The district court did not clearly err in calculating the drug quantity
attributable to Janis at sentencing.
III.
Janis contends the district court erred in imposing the following standard
condition of supervised release:
If the probation officer determines that you pose a risk to another person
(including an organization), the probation officer may require you to
notify the person about the risk and you must comply with that
instruction. The probation officer may contact the person and confirm
that you have notified the person about the risk.
Specifically, he argues the condition is vague, ambiguous, and unconstitutionally
delegates the judicial function to his probation officer.
This court reviews the imposition of standard conditions, “recommended for
supervised release,” for an abuse of discretion.” United States v. Sterling, 959 F.3d
855, 861 (8th Cir. 2020). However, where, as here, a defendant challenges a
supervised release condition on constitutional grounds, this court reviews de novo.
United States v. Kelly, 625 F.3d 516, 520 (8th Cir. 2010). Under 18 U.S.C. §
3583(d), special conditions must: (1) be “reasonably related to five matters: the
nature and circumstances of the offense, the defendant’s history and characteristics,
the deterrence of criminal conduct, the protection of the public from further crimes
of the defendant, and the defendant’s educational, vocational, medical or other
correctional needs;” (2) “involve no greater deprivation of liberty than is reasonably
necessary to advance deterrence, the protection of the public from future crimes of
the defendant, and the defendant’s correctional needs;” and “be consistent with any

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pertinent policy statements issued by the sentencing commission.” Simons, 614 F.3d
at 479 (cleaned up), quoting 18 U.S.C. § 3583(d).
This court addressed this issue in United States v. Robertson. See Robertson,
948 F.3d 912, 920 (8th Cir.), cert. denied, 141 S. Ct. 298 (2020). There, the
defendant argued the same condition was vague because the term “risk” was not
defined by statute and had “wide-ranging meanings.” Id. Rejecting that argument,
this court said:
Robertson asserts this condition is vague because the term “risk” is
undefined by statute and has wide-ranging meanings. But the condition
states that Robertson’s probation officer will determine whether
Robertson poses a risk to a particular person, and only then may he
require Robertson to notify that person of the particular risk. Thus, the
“scope of this condition can be ascertained with sufficient ease,” Key,
832 F.3d at 840, because the probation officer will identify and
communicate the risk to Robertson before Robertson has a duty to
inform another person of that risk, see United States v. Hull, 893 F.3d
1221, 1223-34 (10th Cir. 2018) (upholding a similar condition of
supervised release). Moreover, if there is genuine confusion about what
the condition requires, Robertson “may ask questions of his probation
officer, who is statutorily required to instruct [him] . . . as to the
conditions specified by the sentencing court.” United States v. Forde,
664 F.3d 1219, 1224 (8th Cir. 2012) (internal quotation marks omitted).
Id. Although the Robertson court reviewed the issue for plain error and noted this
was “a close question and some circuits have refused to uphold similar risk
conditions, see United States v. Evans, 883 F.3d 1154, 1163-64 (9th Cir. 2018),” this
panel is bound by the holding that “the scope of this condition can be ascertained
with sufficient ease.” Id.
Similarly, the Robertson defendant argued the condition was an impermissible
delegation of authority. This court disagreed:

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We have held a special condition of supervised release is an
impermissible delegation of authority “only where the district court
gives an affirmative indication that it will not retain ultimate authority
over all of the conditions of supervised release.” United States v.
Thompson, 653 F.3d 688, 693 (8th Cir. 2011) (internal quotation marks
omitted). Robertson points to nothing in the record to show the district
court disclaimed ultimate authority over Robertson’s supervision. The
court made no affirmative indication it was doing so. Thus, the risk and
blood conditions were not unconstitutional delegations of authority.
Id. As the Robertson court held, the condition is not an impermissible delegation of
authority. Id. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en
banc) (“It is a cardinal rule in our circuit that one panel is bound by the decision of
a prior panel.”).
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The judgment is affirmed.
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