United States of America v. Benjamin Thomas Ohrtman

United States Court of Appeals
For the Eighth Circuit
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No. 22-2036
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Benjamin Thomas Ohrtman
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: April 10, 2023
Filed: June 30, 2023
[Unpublished]
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Before SMITH, Chief Judge, MELLOY and ERICKSON, Circuit Judges.
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PER CURIAM.
Benjamin Ohrtman pleaded guilty to conspiring to distribute 50 grams or more
of methamphetamine. The presentence investigation report (PSR) set his total offense
level at 31 and his criminal history at category VI. This produced a Guidelines range
of between 188 and 235 months’ imprisonment. Ohrtman objected to the base offense
level. He argued that the PSR improperly attributed to him drugs from a package he

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merely drove a friend to collect at the post office. Ohrtman also argued that he should
receive both a two-level minor role reduction and a discretionary downward variance.
The district court1 (1) adopted the PSR’s offense level recommendation, (2) denied
Ohrtman the minor role reduction, (3) denied him a downward variance, and (4)
sentenced him to 188 months’ imprisonment, the bottom of the Guidelines range. We
affirm.
On the day of his arrest, Ohrtman drove his friend to collect a package
containing 695.7 grams of methamphetamine from the post office. Neither of them
was aware the package had been identified by postal inspectors who were now
engaged in a controlled delivery to apprehend the recipient. Ohrtman and his
companion were arrested at the post office and subsequently interviewed. In his
interview, Ohrtman initially denied knowing his friend was picking up a package
containing methamphetamine. He claimed that he had seen his friend walking and
simply offered a ride. Their text messages belied this claim. On the day of their arrest,
they exchanged messages in which Ohrtman agreed to pick up the friend to go to the
post office to collect the methamphetamine-containing package. Indeed, their text
message history demonstrated that this was not a rarity; the two frequently
communicated about the sale of methamphetamine.
Eventually, Ohrtman confessed to some involvement with methamphetamine
purchases. He explained that over time he had purchased one pound (453.6 grams)
of methamphetamine from his friend. His friend’s statements to inspectors confirmed
those other sales. The friend also stated that four ounces (113.4 grams) from the
intercepted package were intended for Ohrtman.
1The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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In making its quantity finding, the district court decided that it need not
determine whether the amount of methamphetamine in the package was reasonably
foreseeable to Ohrtman. See R. Doc. 83, at 30:8–10. The court instead considered
only whether it was reasonably foreseeable to Ohrtman that he was taking his friend
to collect at least 46.4 grams of methamphetamine—enough to reach the 500-gram
threshold necessary for a base offense level of 34. See U.S.S.G. § 2D1.1(c)(3). It so
found. It further found that Ohrtman did not qualify for a minor role adjustment.
Ohrtman failed to demonstrate that he was substantially less culpable than an average
participant in the drug distribution conspiracy. The court set Ohrtman’s sentence at
the bottom of the Guidelines range.
We review the district court’s application of the Guidelines de novo and its
findings of fact for clear error. United States v. Betts, 509 F.3d 441, 445 (8th Cir.
2007).
“[T]he sentencing court may consider all transactions known or reasonably
foreseeable to the defendant that were made in furtherance of the conspiracy.” United
States v. Payton, 636 F.3d 1027, 1046 (8th Cir. 2011) (internal quotation marks
omitted). We discern two independently sufficient reasons in the record to attribute
to Ohrtman—who admitted to purchasing 453.6 grams—the additional 46.4 grams
necessary to reach a total of 500 grams.2
2Because the record provides alternative grounds for affirmance, we need not
consider the question whether a defendant may be properly attributed a lesser
foreseeable quantity that represents a fraction of a larger unforeseeable transaction.
United States v. Pierson, 219 F.3d 803, 807 (8th Cir. 2000) (“It is a well-settled
principle that we may affirm a district court’s judgment on any basis supported by the
record.”); see R. Doc. 83, at 30:8–10 (“The amount of methamphetamine specifically
might not have been reasonably foreseeable to him in terms of it being 695.7
grams.”); cf. U.S.S.G. § 1B1.3(a)(1)(B)(iii) (speaking in terms of reasonably
foreseeable acts and omissions); Payton, 636 F.3d at 1046 (speaking in terms of
reasonably foreseeable transactions).
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First, his friend stated to investigators that Ohrtman was to receive 113.4 grams
from the package that they were going to pick up. That 113.4 grams was thus
“known” to Ohrtman. See Payton, 636 F.3d at 1046 (“Coconspirators’ testimony may
be sufficiently reliable evidence upon which the court may base its drug quantity
calculation for sentencing purposes.” (internal quotation marks omitted)). Second,
Ohrtman knew that (1) he was taking his friend to collect a package of
methamphetamine, (2) he was receiving a quarter-pound portion of the package, (3)
his friend was headed home to weigh out the remainder for distribution, and (4) his
friend had sold him a pound of methamphetamine in the recent past. Collectively,
these facts made it reasonably foreseeable to Ohrtman that they were picking up a
package that might contain 695.7 grams of methamphetamine—a little more than a
pound and a half. See id. For either reason, the district court properly determined a
base offense level for Ohrtman of 34.
Ohrtman next argues that the district court erred in refusing to grant him a
minor role adjustment. The defendant bears the burden of establishing his minor role.
United States v. Young, 689 F.3d 941, 946 (8th Cir. 2012). To obtain the reduction,
a defendant must show that he “is less culpable than most other participants in the
criminal activity, but [that his] role could not be described as minimal.” U.S.S.G.
§ 3B1.2 cmt. n.5. A lesser distributor of a controlled substance does not receive a
minor role adjustment merely because of the presence of a larger distributor. United
States v. Cubillos, 474 F.3d 1114, 1120 (8th Cir. 2007). “The propriety of a
downward adjustment is determined by comparing the acts of each participant in
relation to the relevant conduct for which the participant is held accountable and by
measuring each participant’s individual acts and relative culpability against the
elements of the offense.” United States v. Bradley, 643 F.3d 1121, 1129 (8th Cir.
2011) (internal quotation marks omitted). Here, Ohrtman admitted to purchasing
453.6 grams and was slated to personally receive at least a further 113.4 grams. His
base offense level is that of someone who participated in a conspiracy to distribute
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at least 500 grams of methamphetamine. These facts militate against a minor role
reduction. As such, the district court did not err in denying Ohrtman the reduction.
Lastly, Ohrtman argues that the district court erred in refusing to grant him a
downward variance based on his personal history. We consider Ohrtman’s argument
to be a challenge to the substantive reasonableness of his sentence. We review a
district court’s sentencing decision for substantive reasonableness under an abuse-of-
discretion standard. United States v. Stoner, 795 F.3d 883, 884 (8th Cir. 2015). “An
abuse of discretion is (1) failing to consider a relevant factor that should have
received significant weight; (2) giving significant weight to an improper or irrelevant
factor; or (3) considering only the appropriate factors but in weighing them,
committing a clear error of judgment.” Id.
The record reflects that the district court considered Ohrtman’s personal
history. He argues, however, that the district court “in weighing [it], committ[ed] a
clear error of judgment.” Id. At sentencing, the district court highlighted certain
factors. First, it noted Ohrtman’s pattern of serious criminal behavior that continued
even while he was on probation. R. Doc. 83, at 43:5–18. Second, the court recounted
his violent criminal history. Id. at 44:1–17. Third, the court acknowledged the
mitigating factors of Ohrtman’s personal history of substance abuse and his strong
family support. Id. at 45:6–7. Upon weighing these factors, it sentenced Ohrtman to
188 months’ imprisonment, the bottom of the applicable Guidelines range. The
court’s selection of 188 months gave due weight to Ohrtman’s mitigating factors. Id.
at 45:25–46:1.
Upon review, we hold that the district court appropriately weighed the relevant
factors and determined that a within-Guidelines sentence was sufficient but not more
than necessary for Ohrtman. The within-Guidelines sentence Ohrtman received is not
substantively unreasonable.
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We affirm.
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