United States v. Dennis Howard , 773 F.3d 519 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4296
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS RAY HOWARD,
Defendant - Appellant.
No. 13-4299
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS RAY HOWARD, a/k/a D,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:97-cr-00098-D-1; 5:12-cr-00009-D-1)
Argued: September 17, 2014 Decided: December 4, 2014
Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Judgment in No. 13-4296 affirmed in part, and vacated and
remanded in part; appeal in No. 13-4299 dismissed by published
opinion. Senior Judge Davis wrote the opinion, in which Judge
Motz and Judge Diaz joined.
ARGUED: Robert Lonnie Cooper, COOPER, DAVIS & COOPER,
Fayetteville, North Carolina, for Appellant. Yvonne Victoria
Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
2
DAVIS, Senior Circuit Judge:
In appeal No. 13-4296, a jury convicted Dennis Ray Howard
on one count of conspiracy to distribute and possess with intent
to distribute a controlled substance, phencyclidine (“PCP”),
nine counts of distribution of PCP, and one count of possession
of a firearm in furtherance of a drug trafficking offense. The
district court sentenced Howard to a term of life imprisonment
plus 60 months. In appeal No. 13-4299, the court imposed a
consecutive sentence of 60 months for violation of supervised
release arising from the convictions in appeal No. 13-4296.
Howard noted timely appeals from both judgments, but he has
abandoned his appeal of the revocation sentence in No. 13-4299,
which we dismiss. As to the drug trafficking appeal, he
challenges the sufficiency of the evidence supporting each of
his convictions and the substantive reasonableness of his
sentence. For the reasons set forth within, we affirm the
convictions, vacate the sentence as substantively unreasonable,
and remand for resentencing.
I.
A.
In September 2010, Wilson, North Carolina narcotics
investigator Jason Corprew was investigating drug activity at a
residence on Black Creek Road when he learned from a
3
confidential informant, C.B. 1, that Howard, or “D” as he was
commonly known, sold C.B. a “dipper” from the residence. Dippers
are cigarettes that are saturated in PCP. Over the course of the
next month, C.B., along with another informant, A.B., returned
to the Black Creek Road residence at the direction of Corprew to
make several controlled purchases of PCP from Howard. All told,
the informants purchased PCP from Howard, either together or
individually, six times between September 20 and October 13,
2010. A third confidential informant, A.I., participated in two
controlled purchases of PCP from Howard in 2011. At the first
transaction, a middle man for Howard, Desmond Farmer, delivered
a one-ounce vial of PCP to A.I. on Howard’s behalf. At the
second transaction, however, Howard personally delivered two
vials of PCP to A.I.
The controlled purchases continued with the assistance of
T.W. In May 2011, Wilson Police arrested T.W. on drug charges.
T.W. agreed to assist Corprew in the investigation of Howard,
and arranged to purchase one ounce of PCP from him. Howard
agreed to bring the PCP to T.W.’s house. Surveillance officers
at Howard’s house on Vick Street observed him leaving the
1
We have withheld the full names of the confidential
informants and government cooperators in this case in accordance
with recent guidance issued by the Judicial Conference Committee
on Court Administration and Case Management.
4
residence and driving to T.W.’s house, talking to a woman who
answered the door, and returning to his vehicle. Shortly
thereafter, a Wilson police officer conducted a traffic stop of
Howard’s car and he detected the odor of PCP. A search of
Howard’s car revealed a glass vial containing one ounce of PCP.
Officers placed Howard under arrest and then obtained a search
warrant for Howard’s home, where he lived with his girlfriend.
Officers found a loaded pistol with one round in the chamber and
a box of ammunition in the living room. In an adjoining den,
officers found an operational police scanner, an envelope
bearing Howard’s name and address that contained black plastic
caps of the type used in the sale of PCP, and a piece of
cardboard with a description of vial containers and a
“discountvial.com” web address. Officers did not find any PCP
during their search of Howard’s home.
B.
On January 17, 2012, a federal grand jury in the Eastern
District of North Carolina returned a nine-count indictment
against Howard. Count One charged Howard with conspiracy to
distribute and possess with intent to distribute PCP, in
violation of 21 U.S.C. § 846. Counts Two through Seven and Count
Nine charged Howard with distribution of PCP, in violation of 21
U.S.C. § 841(a). Count Eight similarly charged Howard with
distribution of PCP, and aiding and abetting another to do the
5
same. On September 25, 2012, the grand jury returned a
superseding indictment, which retained the original charges and
added two new charges: an additional count of distribution of
PCP in violation of 21 U.S.C. § 841(a), and one count of
possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c). Prior to trial, the
Government filed a notice of intent to seek an enhanced penalty
based on Howard’s previous convictions in state court in North
Carolina of felony drug offenses.
Trial began on October 15, 2012. Investigator Corprew, two
confidential informants, and T.W. testified to the controlled
purchases, some of which were recorded by audio and video
surveillance. Four cooperating individuals also testified to
their previous PCP drug dealing with Howard. 2 At the close of the
2
One individual, Q.S. testified that, beginning in January
2010, he visited Howard’s home at least once a week over the
course of five months to purchase vials of PCP.
D.W. and R.W. were coconspirators of Howard but were
indicted together in a separate case, entered into plea
agreements, and testified against Howard. They explained how the
PCP drug trade in Wilson operated. D.W. testified that he, R.W.,
and Howard shared the same PCP supplier in Washington, D.C. D.W.
also testified that, given the relatively few PCP dealers in
Wilson, when his supply of PCP was depleted, he would refer
customers to Howard. On several occasions, D.W. and Howard
purchased PCP directly from one another, rather than from their
shared Washington, D.C. supplier. D.W. also admitted to
participating in PCP deals with Howard at Howard’s home. R.W.
testified to his practice of “cutting” or diluting his PCP
supply with olive oil. Customers in search of a more potent
(Continued)
6
evidence, the jury returned a verdict of guilty on all counts in
the superseding indictment. On October 22, 2012, Howard timely
renewed his motion for judgment of acquittal pursuant to Rule 29
of the Federal Rules of Criminal Procedure. The district court
denied the motion.
C.
During the above events, Howard was on supervised release
based on a 1997 federal narcotics trafficking conviction.
Accordingly, in January 2013, Howard’s probation officer filed
an amended petition for revocation of supervised release based
on the instant convictions. Thereafter, the district judge
conducted Howard’s sentencing and revocation hearings.
The Presentence Investigation Report (“PSR”) for the new
drug trafficking convictions originally recommended a base
offense level of 26 and a criminal history category of III,
which equated to a Guidelines range of 78 to 97 months. 3 As the
Government had filed a notice of enhanced sentence pursuant to
21 U.S.C. § 851, however, the enhanced Guidelines range was 120
product would purchase PCP from Howard. In an effort to redirect
business back to himself, R.W. would purchase unadulterated PCP
from Howard for resale.
3
There is no dispute that on Count Eleven, the gun count, a
mandatory sentence of 60 months consecutive to the sentence on
the conspiracy and drug trafficking counts would be imposed as
required under the applicable statute.
7
months, the statutory mandatory minimum sentence. The Government
also objected to the drug weight described in the PSR, pointing
to some of the anecdotal testimony of other drug deals from some
of its trial witnesses. The district court agreed that the drug
weight in the PSR underestimated the amount of PCP within the
realm of relevant conduct, and adopted an increased drug weight,
which bumped Howard’s base offense level from 26 to 28, slightly
modifying the Guidelines range to 120 to 121 months. 4
The district court next considered whether to depart
upwardly, a possibility the court had previously expressed
pursuant to Federal Rule of Criminal Procedure 32(h). The
Government argued that under U.S.S.G. § 4A1.3(a)(1), an upward
departure was warranted because Howard’s criminal history
category (III) substantially underrepresented the seriousness of
his criminal history. It requested an upward departure to a
criminal history category of VI, which, at an offense level of
28, yielded a sentencing range on the drug trafficking counts of
140 to 175 months. Thus, in its initial allocution at
sentencing, the Government urged the district court to impose a
sentence within that Guidelines range.
4
Hereafter, we treat Howard’s final Guidelines calculation
on the drug trafficking counts, with grouping and before the
departure, as offense level 28, criminal history category III.
8
The district court was not satisfied. It elected to analyze
Howard as a “de facto” career offender and thereby consider
Howard’s otherwise stale (and thus unscored) prior convictions.
In so doing, the court arrived at a criminal history category of
VI and an offense level of 37. After following the Career
Offender Guidelines, the district court arrived at a sentencing
range of 420 months to life for the conspiracy charge in Count
One, and a range of 360 months to life for the substantive
charges in Counts Two through Ten, which carried a statutory
maximum of 360 months. 5
5
The district court then suggested that it was proper to
add “the 60 months consecutive” for Count Eleven (“the gun
count”) on top of the “420 months to life on count 1 and [the]
360 months on counts 2 through 10.” J.A. 725. This suggestion
was erroneous, however, because § 4B1.1(c) of the Sentencing
Guidelines already factors in a conviction under 18 U.S.C. §
924(c) (“the gun count”) in prescribing the appropriate career
offender guideline range. Section 5G1.2 of the Guidelines and
the accompanying application notes then provide instructions on
how to apportion a career offender sentence to ensure that the
sentence complies with all statutory minimums. For instance, if
the district court here had selected a sentence of 420 months,
360 months would have been apportioned to Count 1 (the
conspiracy count) and 60 months would have been apportioned to
Count 11 (the gun count) to comply with the requirements of 18
U.S.C. § 924(c). See U.S.S.G. § 5G1.2 app. n.4(B)(i). It is
impossible, however, to subtract a mandatory 60-month
consecutive sentence from a sentence of life in prison. The
district court’s sentence in this case - life in prison plus 60
months - was therefore consistent with the Guidelines.
9
The district court next considered the § 3553(a) factors
and concluded that Howard deserved the maximum sentence of life
in prison:
I do think for all the reasons outlined under the 3553
(a) factors, the nature and circumstances of the
offense, these 11 very serious offenses, the history
and characteristics of this defendant and the
unrelenting, unrepenting, unreformed drug dealing,
society needs to be protected. He needs to be
incapacitated. People need to be deterred. There needs
to be just punishment. There needs to be serious
consequences for serious crimes.
J.A. 737-38. 6 The court imposed a sentence of life imprisonment
on Count One, 360 months imprisonment (concurrent) for Counts
Two through Ten, and 60 months (consecutive) for Count Eleven.
It also stated that, in the alternative, it would impose the
same sentence as an alternative variant sentence.
At the subsequent hearing on the petition for revocation of
supervised release, the court revoked supervised release and
sentenced Howard to the maximum possible sentence: 60 months
imprisonment consecutive to the sentences for his new
convictions. Thus, Howard is now serving a consolidated sentence
of life plus 120 months. As we have mentioned, although Howard
timely appealed both judgments, he has abandoned the appeal of
his supervised release revocation sentence.
6
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
10
II.
Howard presents two issues. First, we consider his argument
that the district court erred in denying his motion for judgment
of acquittal because the evidence presented at trial was
insufficient to support his convictions. Second, pursuant to
supplemental briefing ordered nostre sponte by this Court, we
consider whether the district court imposed a substantively
unreasonable sentence. We address each issue in turn.
A.
Howard contends that the evidence presented at trial was
insufficient as a matter of law to sustain each of his
convictions. For purposes of our analysis, we have grouped
Howard’s distribution convictions together and will discuss the
sufficiency of the evidence for the conspiracy, distribution,
and firearm convictions separately.
We review a district court’s decision to deny a motion for
judgment of acquittal, pursuant to Rule 29 of the Federal Rules
of Criminal Procedure, de novo. United States v. Smith, 451 F.3d
209, 216 (4th Cir. 2006). In its assessment of a challenge to
the sufficiency of evidence, a reviewing court views the
evidence “in the light most favorable to the prosecution and
decide[s] whether ‘substantial evidence’ supports the verdict.”
United States v. Jeffers, 570 F.3d 557, 565 (4th Cir. 2009)
(quoting Smith, 451 F.3d at 216). Substantial evidence is
11
“evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” Smith, 451 F.3d at 216
(citation and internal quotation marks omitted).
We begin our analysis with Count One, which charged that
Howard conspired to distribute and possess with the intent to
distribute 100 grams or more of a mixture or substance
containing a detectable amount of PCP. Howard contends that the
Government failed to establish evidence that he was aware of, or
agreed to participate in, a conspiracy. He argues that the
Government made no showing of mutual trust, standard dealings,
or drug fronting between himself and any coconspirator. We
disagree.
To establish a drug conspiracy under 21 U.S.C. § 846, the
government must prove that “(1) [the defendant] entered into an
agreement with one or more persons to engage in conduct that
violated 21 U.S.C. §[] 841(a)(1). . . ; (2) that [the defendant]
had knowledge of that conspiracy; and (3) that [the defendant]
knowingly and voluntarily participated in the conspiracy.”
United States v. Mastrapa, 509 F.3d 652, 657 (4th Cir. 2007).
Given the “clandestine and covert” nature of conspiracies, the
government can prove the existence of a conspiracy by
circumstantial evidence alone. United States v. Burgos, 94 F.3d
849, 857 (4th Cir. 1996) (en banc). A mere buyer-seller
12
relationship is insufficient to support a conspiracy conviction.
United States v. Hackley, 662 F.3d 671, 679 (4th Cir. 2011).
However, such evidence “‘is at least relevant (i.e. probative)
on the issue of whether a conspiratorial relationship exists.’”
Id. (quoting United States v. Mills, 995 F.2d 480, 485 n.1 (4th
Cir. 1993)). “[E]vidence of continuing relationships and
repeated transactions can support the finding that there was a
conspiracy, especially when coupled with substantial quantities
of drugs.” United States v. Reid, 523 F.3d 310, 317 (4th Cir.
2008) (citing Burgos, 94 F.3d at 858).
Against this legal framework, we do not hesitate to
conclude that the Government presented sufficient evidence to
support the conspiracy conviction. Several witnesses testified
to Howard’s role in the PCP drug trade in Wilson, North
Carolina. Howard and D.W. sourced PCP from the same Washington,
D.C. supplier. When D.W.’s supply of PCP was exhausted, he would
refer customers to Howard. Howard, in turn, would refer
customers to D.W. when his own supply was low. At times, both
men purchased PCP from one another when traveling to D.C. was
inopportune. Howard also sold PCP to frequent customers who
often resold the drugs. A.I. testified that she regularly sold
PCP in Wilson and at times she replenished her supply from
Howard, her “local source.” J.A. 285. R.W. testified to his
practice of selling low-quality PCP before purchasing potent PCP
13
from Howard in an effort to regain customers. Taken together,
this evidence demonstrated that Howard was part of a “loosely-
knit association of members linked only by their mutual interest
in sustaining the overall enterprise of catering to the ultimate
demands of a particular drug consumption market” in the Wilson
area. United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.
1993). Accordingly, the jury’s verdict as to Count One is amply
supported.
B.
Turning to the distribution convictions in Counts Two
through Ten, we also find that the Government’s evidence was
sufficient to sustain the convictions. Howard merely states,
without explanation, that his motion for judgment of acquittal
as to the distribution convictions should have been granted.
While such a passing, conclusory assertion is “insufficient to
raise on appeal any merits-based challenge to the district
court’s ruling[,]” see Eriline Co. S.A. v. Johnson, 440 F.3d
648, 653 n.7 (4th Cir. 2006), we nevertheless briefly address
the abundance of evidence demonstrating Howard’s guilt.
To prove that a defendant distributed a controlled
substance in violation of 21 U.S.C. § 841(a)(1), “the
prosecution is obliged to prove ‘that (1) [the] defendant
knowingly or intentionally distributed the controlled substance
alleged in the indictment, and (2) at the time of such
14
distribution the defendant knew that the substance distributed
was a controlled substance under the law.’” United States v.
Alerre, 430 F.3d 681, 689 (4th Cir. 2005) (alteration in
original) (quoting United States v. Tran Trong Cuong, 18 F.3d
1132, 1137 (4th Cir. 1994)).
The Government presented evidence of controlled purchases
between Howard and several others, including two confidential
informants and a cooperating individual. C.B. purchased dippers
and one ounce of PCP from Howard. A.I. directly purchased PCP
from Howard on one occasion, and Howard personally delivered an
ounce of PCP to T.W.’s home. Count Eight further charged Howard
with aiding and abetting the distribution of PCP, which the
Government established by virtue of A.I.’s testimony that she
purchased PCP through Howard’s middle man, Desmond Farmer. The
Government’s evidence is plainly sufficient as to Counts Two
through Ten, and we discern no infirmity in the jury’s verdicts.
C.
We next turn to Count Eleven, which charged that Howard
“knowingly possessed a firearm in furtherance of a drug
trafficking offense . . . in violation of Title 18 United States
Code 924(c).” J.A. 68. In order to convict Howard of Count
Eleven, the prosecution was required to prove beyond a
reasonable doubt that Howard “(1) used, carried, or possessed a
firearm (2) in furtherance of a drug trafficking crime.”
15
Jeffers, 570 F.3d at 565 (citing 18 U.S.C. § 924(c)(1)(A)). In
United States v. Lomax, 293 F.3d 701 (4th Cir. 2002), we defined
the statutory term “furtherance” in § 924(c) as “the act of
furthering, advancing, or helping forward.” 293 F.3d at 705.
Thus, we concluded that § 924(c) “requires the government to
present evidence indicating that the possession of a firearm
furthered, advanced, or helped forward a drug trafficking
crime.” Id. Whether the firearm served such a purpose, we
explained, is a factual inquiry. Id. Factors that could lead a
fact finder to conclude that a defendant possessed a firearm in
furtherance of a drug crime include: “the type of drug activity
that is being conducted, accessibility of the firearm, the type
of weapon, whether the weapon is stolen, the status of the
possession (legitimate or illegal), whether the gun is loaded,
proximity to drugs or drug profits, and the time and
circumstances under which the gun is found.” Id. (citation and
internal quotation marks omitted).
The evidence adduced by the Government here crosses the
threshold from minimal to legally sufficient. Officers found a
loaded pistol with a round in the chamber and ammunition in the
living room of Howard’s residence. In the adjoining den,
officers found a working police scanner and plastic vial caps.
The Government also established, from the testimony of Q.S. and
D.W., that Howard often sold PCP from the shed on his property.
16
While officers did not find drugs in Howard’s home at the time
of the search, the theory that the presence of the firearm
served to protect Howard from a potential theft of his drugs or
profits is nevertheless a plausible one. See Lomax, 293 F.3d at
705.
The firearm was readily accessible to Howard; it was hidden
beneath a couch cushion in the living room. The ammunition was
stored nearby in the couch’s center console. The firearm and
drug paraphernalia were also in close proximity to one other, as
they were found in adjoining rooms. Drawing from the evidence of
black plastic caps and the cardboard with the “discountvial.com”
web address and vial description, a rational jury could conclude
beyond a reasonable doubt that Howard used the firearm to
protect his drug trafficking operation. It may be that, at the
time of the search, Howard’s supply of PCP was low or exhausted,
and that he was preparing for a new supply; this might explain
the absence of drugs in the residence. But such speculative
hypotheticals have no role to play in our sufficiency appraisal.
For these reasons, we decline to find error in the district
court’s denial of Howard’s motion for judgment of acquittal as
to Count Eleven.
III.
Having affirmed Howard’s convictions, we now decide whether
the sentence imposed by the district court was unreasonable.
17
A.
We review the reasonableness of a sentencing decision under
an abuse of discretion standard. United States v. Heath, 559
F.3d 263, 266 (4th Cir. 2009). “This standard of review
encompasses both procedural and substantive reasonableness.”
United States v. Myers, 589 F.3d 117, 123 (4th Cir. 2009)
(citation omitted). A district court commits procedural error
when, for example, it fails to calculate (or improperly
calculates) the Guidelines range, fails to consider the §
3553(a) factors, or selects a sentence based on clearly
erroneous facts. Gall v. United States, 552 U.S. 38, 51 (2007).
Howard does not claim that the district court committed any
procedural error, and we agree with that assessment. 7 Our review
of Howard’s sentence, therefore, is limited only to substantive
reasonableness.
A review for substantive reasonableness takes into account
the “totality of the circumstances.” Id. As part of this review,
we consider
the extent of any variance from the Guidelines range .
. . [I]f the sentence is outside the Guidelines range,
7
As we explained at n.5, supra, the district court’s
misstatement of the proper method for factoring in an 18 U.S.C.
§ 924(c) conviction under the Career Offender Guidelines did not
affect the sentence the court chose to impose in this case.
18
the court may not apply a presumption of
unreasonableness. It may consider the extent of the
deviation, but must give due deference to the district
court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.
Id. If the district court deviates from the Guidelines range and
provides two or more independent rationales for its deviation,
the appellate court cannot declare the sentence unreasonable if
it finds fault with only one of the rationales. United States v.
Evans, 526 F.3d 155, 165 (4th Cir. 2008). Such an approach
“would be wholly inconsistent with the Supreme Court's
directives to examine the totality of the circumstances, and to
defer to the considered judgment of the district court.” Id.
B.
The district court reached its life imprisonment sentence
by making an upward departure based on Howard’s de facto career
offender status, and by reasoning that the § 3553(a) factors
supported a sentence at the top of the Guidelines range
determined after the departure. Because we are persuaded that
the extent of the upward departure is unwarranted and amounts to
an abuse of discretion, and because, in any event, a sentence of
life in prison on this record is not justified by consideration
of the § 3553(a) factors as articulated by the district court,
we conclude that the sentence imposed is substantively
unreasonable.
19
1.
Howard’s original Guidelines range called for 120-121
months of imprisonment, plus a consecutive 60 months for the
firearm offense. The district court made an upward departure and
treated Howard as a de facto career offender, which resulted in
an increase from criminal history category III to VI, and an
increase from a base offense level of 28 to 37.
Section 4B1.1(a) of the Guidelines provides that a
defendant is a career offender if: (1) the defendant was at
least eighteen years old at the time of the commission of the
instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has been
convicted of two prior crimes, each of which was a felony
conviction of either a crime of violence or a controlled
substance offense. U.S.S.G. § 4B1.1(a). A district court may
depart directly to the career offender Guideline range when the
defendant’s criminal history demonstrates that the defendant
would be sentenced as a career offender “but for the fact that
one or both of the predicate convictions may not be counted.”
United States v. Cash, 983 F.2d 558, 562 (4th Cir. 1992). Thus,
de facto career offender status is permissible when the
defendant has been convicted of two prior crimes, each of which
constitutes a career offender predicate offense. Myers, 589 F.3d
20
at 126. While the de facto career offender doctrine is settled
law in the Fourth Circuit, see Cash, 983 F.2d at 562, the
district court’s departure to de facto career offender status in
this case resulted in a sentencing range — and, ultimately, an
actual sentence — that was “greater than necessary” to achieve
the purposes of federal sentencing. 18 U.S.C. § 3553(a); see
also Rita v. United States, 551 U.S. 338, 350 (2007) (explaining
that the Guidelines seek to embody § 3553(a) factors and that
they reflect “a rough approximation of sentences that might
achieve § 3553(a)’s objectives”).
“When reviewing a departure, we consider whether the
sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010) (citation
and internal quotation marks omitted), aff’d on other grounds,
131 S. Ct. 2218 (2011). 8 An upward departure may be warranted if
8
We have recognized that our deferential reasonableness
review of sentences is the same whether the district court
departed within the formal strictures of the Sentencing
Guidelines or, instead, imposed a variant sentence outside the
explicit boundaries of the Sentencing Guidelines. United States
v. Hargrove, 701 F.3d 156, 160 n.1 (4th Cir. 2012); United
States v. Diosdado–Star, 630 F.3d 359, 365 (4th Cir. 2011).
Thus, in this case, the district court’s explanation that it
would have imposed the same sentence as a variant sentence even
if it were determined that its upward departure to the career
offender guideline was an abuse of discretion does not alter our
(Continued)
21
“reliable information indicates that the defendant’s criminal
history category significantly underrepresents the seriousness
of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). A
district court may base an upward departure pursuant to § 4A1.3
on a defendant’s prior convictions, even if those convictions
are too old to be counted in the calculation of the Guidelines
range. See § 4A1.2(e) (describing the applicable time period for
calculating prior sentences).
Howard’s conviction in 1997 for conspiracy to distribute
and possess with intent to distribute cocaine and cocaine base
undoubtedly qualified for calculation. Howard was twenty-five
years old when he was convicted, and he served more than ten
years in prison. The district court found that three otherwise
stale convictions, incurred by Howard from 1990 and earlier,
justified its qualification of Howard as a virtual career
offender. In 1988, at the age of sixteen, Howard pled guilty to
two counts of selling cocaine to an undercover officer. He
served approximately four months in prison. In 1990, at the age
of eighteen, Howard pled no contest to voluntary manslaughter
and served nine months in prison and one additional month after
analysis of the substantive reasonableness of Howard’s life-
plus-sixty-months sentence.
22
his parole was revoked for technical violations. While the
inclusion of Howard’s prior convictions in the calculation of
the Guidelines range has raised no procedural error, it resulted
in a range that was nothing short of extreme.
2.
The district court’s decision to upwardly depart rested
heavily on our Myers decision, which the district court
concluded was “almost on all fours.” J.A. 718. We disagree with
that characterization. In Myers, we rejected the defendant’s
argument that his sentence was substantively unreasonable
because the district court made an upward departure based on his
outdated predicate convictions. Only one of Myers’s four
predicate convictions had been counted in his PSR, and but for
the dates of his earlier convictions, and an intervening term of
imprisonment, Myers would have qualified as a career offender.
Similarly, here, Howard would have been classified as a
career offender had his juvenile convictions for the sale of
cocaine and voluntary manslaughter not been outdated. Myers,
however, displayed a consistent pattern of recidivism
immediately upon release from prison, and an offense for which
Myers was convicted involved conspiracy to distribute cocaine
base with an eighteen-year-old female. Most of Howard’s serial
convictions occurred between the ages of sixteen and eighteen.
23
After Howard’s release from prison in June 2008, he held steady
employment for more than a year.
The facts of the present case are also readily
distinguishable from those in United States v. Lawrence, 349
F.3d 724 (4th Cir. 2003), and Cash, in which we similarly
affirmed decisions by district courts to depart upward on the
basis of de facto career offender status. In Lawrence, the
district court determined that an upward departure of one level
in the criminal history category did not reflect the seriousness
of Lawrence’s past criminal conduct. The court concluded that
Lawrence was a de facto career offender, in part, because two of
his qualifying predicate convictions were consolidated for
sentencing purposes. Lawrence’s criminal history was violent,
and quite dissimilar to Howard’s record. While Lawrence and
Howard share a lengthy juvenile record, Lawrence’s juvenile
convictions consisted largely of thefts and assaults. Lawrence
hardly ever completed parole or probation successfully.
Furthermore, Lawrence attempted a jail break and carjacking
while en route to prison, and he admitted to committing two
other bank robberies for which he was never convicted.
The defendant in Cash challenged his upward departure on
the ground that one of his predicate convictions was
constitutionally invalid. We concluded that the district court
was free to consider a constitutionally invalid conviction as
24
evidence of the defendant’s prior criminal conduct for the
purpose of determining the extent of a departure. Cash’s
criminal history included a remarkable number of forty prior
adult convictions over a seventeen-year period, a far cry from
Howard’s criminal record.
An additional point is worth noting. Despite the grave
criminal records that Myers, Lawrence, and Cash had in common,
not one of those defendants was sentenced to life in prison as a
result of an upward departure to the career offender Guideline.
The district court sentenced Myers to 360 months imprisonment;
Lawrence’s sentence was a total of 262 months of imprisonment;
and the district court sentenced Cash to 210 months
imprisonment. These sentences pale in comparison to Howard’s
sentence of life imprisonment plus 60 months. Cf. United States
v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008)(“[W]hen
determining whether the district court’s proffered justification
for imposing a non-guidelines sentence is sufficiently
compelling to support the degree of the variance, common sense
dictates that a major departure should be supported by a more
significant justification than a minor one.”) (internal citation
and quotations omitted).
3.
We acknowledge that Howard would never be mistaken for a
model citizen, but we cannot ignore the fact that most of his
25
serious criminal convictions occurred when he was eighteen years
old or younger. Two convictions, when Howard was seventeen years
old, involved providing fictitious information to a police
officer. Howard’s other juvenile convictions include second
degree trespass and possession of cocaine. Three convictions
that Howard received as an adult are related to driving without
a license or driving while his license was revoked. The facts
presented here are thus distinct from those in our relevant
circuit precedent.
The district court abused its discretion by focusing too
heavily on Howard’s juvenile criminal history in its evaluation
of whether it was appropriate to treat Howard as a career
offender and in its weighing of the § 3553(a) factors after
having done so. An appellate court owes “due deference” to a
district court’s assessment of the § 3553(a) factors, and mere
disagreement with the sentence below is “insufficient to justify
reversal of the district court.” Gall, 552 U.S. at 51. A review
for substantive reasonableness, however, “demands that we
proceed beyond a formalistic review of whether the district
court recited and reviewed the § 3553(a) factors and ensure that
the sentence caters to the individual circumstances of a
defendant, yet retains a semblance of consistency with similarly
situated defendants.” Evans, 526 F.3d at 167 (Gregory, J.,
concurring).
26
Since the Supreme Court’s decision in Gall, this Court has,
on rare occasion, found a district court’s sentence
substantively unreasonable. In United States v. Engle, 592 F.3d
495 (4th Cir. 2010), we vacated a district court’s sentence of
four years probation for a defendant convicted of tax evasion
because we could not glean from the district court’s decision
why it failed to impose a term of imprisonment as recommended by
the Guidelines. We also addressed the substantive component of
the sentence and noted that the district court committed error
by its “near-exclusive focus on Engle’s financial ability to pay
restitution.” Engle, 592 F.3d at 504. We noted that “[i]t may
well be that in many cases, the sentencing decision will
ultimately turn on a single § 3553(a) factor.” Id. However, we
viewed the district court’s rationale of declining a term of
imprisonment based solely on the defendant’s ability to pay
restitution as a “constitutionally suspect” ground. Id. at 505.
Here, too, the district court focused extensively on a
single factor — Howard’s early criminal history — and it did so
at the expense of a reasoned analysis of other pertinent
factors. “Sentencing courts remain obligated not to ‘give
excessive weight to any relevant factor’ and to impose a
sentence ‘which effect[s] a fair and just result in light of the
relevant facts and law.’” United States v. Tucker, 473 F.3d 556,
562 (4th Cir. 2007) (quoting United States v. Green, 436 F.3d
27
449, 457 (4th Cir. 2006)); see also United States v. Hampton,
441 F.3d 284 (4th Cir. 2006) (vacating defendant’s sentence as
unreasonable because the district court relied on only one
aspect of one § 3553(a) factor).
The district court began its discussion of the § 3553(a)
factors by discussing the “nature and circumstances” of the
offense and “history and circumstances of the defendant.” J.A.
733. The court ticked through the instant offenses of conviction
and stated that it understood the difficult circumstances in
which Howard was reared. J.A. 733. The district court then
summarized Howard’s criminal record, labeling it as “robust.”
J.A. 733. As we have described, Howard received most of his
convictions when he was eighteen years old or younger. The
Supreme Court has recognized, in the sentencing context, the
diminished culpability of juvenile offenders, given their lack
of maturity, vulnerability to social pressures, and malleable
identities. See, e.g., Miller v. Alabama, 132 S. Ct. 2455, 2464
(2012) (holding that a state sentencing scheme that mandated
life without parole for offenders under the age of eighteen at
the time the offense was committed violates the Eighth
Amendment); Graham v. Florida, 560 U.S. 48, 68 (2010) (adhering
to Roper’s statements regarding the nature of juvenile offenders
and holding that a life without parole sentence for a juvenile
defendant who did not commit homicide violates the Eighth
28
Amendment’s prohibition on cruel and unusual punishment); Roper
v. Simmons, 543 U.S. 551, 569-70 (2005) (describing these three
general differences between juveniles under eighteen and
adults). “These salient characteristics mean that ‘[i]t is
difficult even for expert psychologists to differentiate between
the juvenile offender whose crime reflects unfortunate transient
immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption.’” Graham, 560 U.S. at 68 (quoting Roper,
543 U.S. at 573).
The district court’s sentence failed to appreciate what we
cannot ignore – that the three predicate convictions, upon which
the district court focused so heavily in assessing its departure
and sentencing options, occurred when Howard was between sixteen
and eighteen, and that youth is a “mitigating factor derive[d]
from the fact that the signature qualities of youth are
transient; as individuals mature, the impetuousness and
recklessness that may dominate in younger years can subside.”
Roper, 542 U.S. at 570 (citation and internal quotation marks
omitted). Cf. Barry C. Feld, The Youth Discount: Old Enough To
Do The Crime, Too Young To Do The Time, 11 Ohio St. J. Crim. L.
107, 137 (2013) (“The [Supreme] Court’s jurisprudence of youth
recognizes that juveniles who produce the same harms as adults
are not their moral equals and do not deserve the same
consequences for their immature decisions.”).
29
4.
We are persuaded, as well, that the district court
committed an abuse of discretion insofar as it concluded,
summarily, that a life sentence was not greater than necessary
in this instance based on its belief that Howard was “at the
top” of its list of criminal offenders. J.A. 720. According to
the court, Howard was, at his core, a career criminal: “It’s who
he is. It is what he has done. It’s what he has always done.
It’s how he lives his life.” J.A. 722. Despite the fact that
Howard is now a middle-aged offender, the district court
predicted that, “the likelihood of recidivism for this man [is]
100 percent. Absolutely 100 percent. If he is living free, he
will be committing crimes. He will be dealing drugs. It’s who he
is. It’s what he does.” J.A. 727. The court, in an apparent
attempt to justify the life sentence that it was about to
impose, noted the need to deter Howard individually, to
incapacitate him, and to “prevent [him] from poisoning people.”
J.A. 735.
Given the long sentence (short of life) that Howard no
doubt would have received from any federal judge reviewing the
instant record, sound empirical evidence strongly suggests that
the likelihood that Howard will recidivate upon his release is
substantially lower than the district court suggested. Howard
was forty-one years old when he was sentenced, and studies
30
demonstrate that the risk of recidivism is inversely related to
an inmate’s age. A 2014 Bureau of Justice Statistics report,
which tracked the recidivism rates of state prison inmates for
five years post-release, notes that three years after release
from prison, 75.9% of inmates age 24 or younger at the time of
release had been rearrested for a new offense, compared to 69.7%
of inmates ages 25 to 39, and 60.3% of inmates age 40 or older.
Matthew R. Durose, et al., Recidivism of Prisoners Released in
30 States in 2005: Patterns from 2005 to 2010, Bureau of Justice
Statistics 12 (2014),
http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4986. A 2002
report, which tracked inmates three years after release, noted
that more than 80% of prisoners under 18 were rearrested,
compared to 45.3% of those age 45 or older. Patrick A. Langan et
al., Recidivism of Prisoners Released in 1994, Bureau of Justice
Statistics 12 (2002),
http://www.bjs.gov/index.cfm?ty=pbdetail&iid=1134. No doubt
statistics for offenders released after age 60 are even more
compelling. See generally Vera Inst. of Justice, It’s About
Time: Aging Prisoners, Increasing Costs, and Geriatric Release
(April 2010), http://www.vera.org/pubs/its-about-time-aging-
prisoners-increasing-costs-and-geriatric-release-0. Indeed,
there is no reason to believe that offenders sentenced in North
Carolina are significantly different in this regard from those
31
sentenced in, say, Iowa: “There is a statistically significant
drop in recidivism for offenders aged 45 to 54 compared with 35
to 44 year olds, and rates for those aged 55 and older are even
lower.” Lettie Prell, Iowa Recidivism Report: Prison Return
Rates, FY 2013 7 (2014),
http://www.doc.state.ia.us/Research/TrendsRecidivismFY13.pdf.
(All reports saved as ECF opinion attachments).
One might gather from the district court’s statements that
it was sentencing a notorious drug lord at the top of an
unremittingly violent and widespread organization, but Howard
hardly fits that description. Under § 3553(a)(1), courts are to
consider “the nature and circumstances of the offense and the
history and characteristics of the defendant.” Part of this
analysis contemplates the “extent and seriousness” of the
instant offense. United States v. Diosdado-Star, 630 F.3d 359,
367 (4th Cir. 2011). As noted above, the district court recited
the offenses for which Howard was convicted. However, the facts
underlying Howard’s convictions simply do not warrant the
sentence imposed. Howard was not a drug kingpin. He had no
stronghold on the PCP market in Wilson. To the contrary, at
trial, several witnesses testified to their own participation in
the PCP drug trade. A.I., D.W., and R.W. all imported PCP from
Washington, D.C. into Wilson, just as Howard did. Indeed, by
virtue of the conspiracy conviction, the Government proved that
32
Howard was no lone wolf in the Wilson PCP drug trade. Howard
also has not dealt drugs near children or school zones, and he
has not resorted to violence. Howard’s convictions are not
insignificant, and we credit the Government’s contention at
sentencing that the PCP drug problem in Wilson is terrible and
pervasive. J.A. 730. However, by all of the descriptions of
Howard presented at trial and reflected in the record before us,
he was little more than a run-of-the-mill drug dealer.
5.
Notably, even after the district court had expressed its
view that Howard should be treated as a de facto career
offender, the Assistant United States Attorney herself twice
urged the court to impose a far shorter sentence than that
ultimately imposed by the district court. In its initial
allocution at sentencing, in supporting its request for a modest
upward departure, and even while acknowledging the district
court’s elaboration of its belief that Howard should be treated
as a career offender, the Government requested an upward
departure only in his criminal history category (from III to
VI), and advocated for a sentence at the top of the resulting
range of 175 months. 9
9
The Assistant United States Attorney stated:
(Continued)
33
The district court immediately challenged the prosecutor to
explain “why . . . shouldn't [the sentencing range] be higher.”
J.A. 720. After discussion, see id. at 720-25, the Government
agreed with the court that Howard should be treated as a career
offender, see id. at 726, but then, the Government suggested a
360-month sentence (mindful, no doubt, that through the
combination of the mandatory consecutive 60-month sentence to be
Thank you, Your Honor. Your Honor, as the court is
familiar and has already referenced, the Government
did file a motion for upward departure, but the court
beat the Government to the punch in filing its notice.
Your Honor, as I have set out in my motion, this
defendant has, as the court has already mentioned, his
robust criminal history, basically almost none of
which was scored for the purposes of this PSR. Your
Honor, not only does it involve drug trafficking since
the age of 16, but also homicide, a voluntary
manslaughter conviction was pled down from murder
where the defendant received a six months sentence,
and I have set out and I don't know that I need to
talk about it in any kind of detail, kind of walking
through the criminal history and how basically almost
all of the criminal history overlaps each other. He is
basically either on probation or on parole or on some
sort of supervision just about during his entire
criminal history and during the course of his time in
the department of corrections, the bureau of prisons,
didn't do terribly well there either. But based on
those things, the fact that he really, you know, but
for the age of the convictions would be a career
offender, the Government is asking this court to
upwardly depart and I think, as I set out in the
motion for upward departure, I think the appropriate
guideline range would be one of a 28 as a career
offender as a VI, with advisory guideline range of 140
to 175.
J.A. 719-20 (emphasis added).
34
imposed on the gun count, and the still outstanding adjudication
of the supervised release violation, another ten years was
available to further seek retribution against Howard). 10
We acknowledge, as we must, that no district court is ever
mandated to impose the sentence recommended by the prosecution;
the very idea is unthinkable in our constitutional system rooted
in an independent judiciary. Still, the prosecutorial experience
of the assistants in the Office of the United States Attorney in
any district can serve as an important pillar in the achievement
of one of the principal goals of the Sentencing Reform Act of
1984 and its system of (now advisory) Guidelines sentencing: the
avoidance of unwarranted sentencing disparities. See 28 U.S.C. §
991(b)(1)(B) (describing the purposes of the United States
Sentencing Commission); U.S.S.G. ch. 1, pt. A, subpt. 3; 28
10
We note in passing that Howard’s coconspirators, D.W. and
R.W., who entered into plea agreements with the Government and
testified against Howard, see supra n.2, were sentenced to
prison terms of 131 months, and 76 months, respectively. We
further observe that, in a commonly-encountered reversal of
fortunes well known to the members of this Court, Howard himself
had pled guilty and provided “substantial assistance” to the
Government against others in connection with his 1997 drug
trafficking conviction in the Eastern District of North
Carolina, and thereby obtained a sentence reduction from 227
months to 150 months of incarceration pursuant to Federal Rule
of Criminal Procedure 35(b).
It is in light of these kinds of considerations, among
others, that the sentencing recommendations of the members of
the Office of the United States Attorney are entitled to genuine
consideration by district courts.
35
U.S.C. § 3553(a)(6)(instructing courts of “the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct”). 11
6.
By declaring Howard a serial recidivist dedicated to
dispensing “poison” with no hope of redemption, and by basing
this judgment on stale criminal history, the bulk of which was
non-violent and committed when Howard was a juvenile, the
district court failed in its effort to comply with the aims of
sentencing prescribed by § 3553(a)(2). 12 The sentencing purposes
set out in § 3553(a)(2) identify the need for the sentence to
reflect the seriousness of the offense and provide just
punishment, afford adequate deterrence to criminal conduct,
protect the public from the defendant’s crimes, and provide the
11
Cf. Berger v. United States, 295 U.S. 78, 88 (1935) (“The
United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be
done.”).
12
It seems quite apparent that the court was concerned that
Howard’s decades-old homicide conviction, which in the
representation of the prosecutor, had been “pled down” to
manslaughter, see supra n.9, especially justified, or at least
warranted, harsh sentencing treatment in this case. Without
passing on the propriety of that apparent choice, we simply
observe that Howard was not charged, convicted, or sentenced in
this case for any assaultive or other physically violent
behavior.
36
defendant with rehabilitation. “The proper application of §
3553(a) therefore requires a sentencing court to focus on the
four purposes of sentencing as applicable in a particular case,
and to consider, in determining a sentence that achieves those
purposes, the seven factors listed in § 3553(a)(1)-(7).” United
States v. Shortt, 485 F.3d 243, 249 (4th Cir. 2007) (emphases in
original); see also United States v. Dowell, --- F.3d ---, No.
13-4576, at *31 (4th Cir. 2014). “A sentence that fails to
fulfill the purposes of sentencing cannot be saved, even if
supported by consideration of the six other factors.” Shortt,
485 F.3d at 249.
The district court plainly sought to intone all of the
principles underlying § 3553(a)(2) when it announced its
sentence. It stated the need for individual and general
deterrence, incapacitation, and just punishment. J.A. 735. There
is no doubt that the sentence sent a “message” of deterrence to
the people of Wilson and the Eastern District of North Carolina.
The district court made those intentions clear. But we simply
fail to see, on the whole record, how the life-plus-60-months
sentence reasonably reflects the seriousness of the offense or
just punishment. Manifestly, it is a sentence “greater than
necessary,” 18 U.S.C. § 3553(a), to achieve the purposes of §
3553(a)(2).
37
We again acknowledge and reiterate that the sentencing
judge “is in a superior position to find facts and judge their
import under the § 3553(a) factors in the individual case[,]”
see Gall, 552 U.S. at 51, but a district court’s choice of
sentence is not without limit. “Inherent in the concept of
reasonableness is the notion that the rare sentence may be
unreasonable, and inherent in the idea of discretion is the
notion that it may, on infrequent occasion, be abused.” Engle,
592 F.3d at 504 (citation and internal quotation marks omitted).
This case presents an example of that rare sentence presented to
us on those infrequent occasions. It goes without saying then,
that our holding is limited to the facts of this case, and we do
not suggest that all life sentences plus a term of years for
convictions of the type here are per se substantively
unreasonable.
IV.
For the reasons set forth, we affirm the convictions on all
counts, vacate the sentence as substantively unreasonable, and
remand this case for resentencing.
JUDGMENT IN NO. 13-4296 AFFIRMED IN PART,
AND VACATED AND REMANDED IN PART;
APPEAL IN NO. 13-4299 DISMISSED
38