United States v. Hill ( 2023 )

Case: 22-10460 Document: 00516882189 Page: 1 Date Filed: 09/01/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 1, 2023
No. 22-10460
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Bryan Reshad Hill,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-86-20
______________________________
Before Duncan and Wilson, Circuit Judges, and Schroeder, District
Judge.*
Cory T. Wilson, Circuit Judge:
A jury found Bryan Reshad Hill guilty of conspiring to possess a
controlled substance with the intent to distribute it and distributing a
detectable amount of a substance containing cocaine base. Hill now
challenges his sentence on several grounds. We affirm.
_____________________
*
United States District Judge for the Eastern District of Texas, sitting by
designation.
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I.
Su Mun purchased the HanGil Hotel in Dallas, Texas, sometime
before 2018. The facility was formerly a nursing home, but Mun quickly
converted it into a free-wheeling drug emporium, allowing dealers to use the
hotel’s rooms as “trap rooms” from which they sold a plethora of illegal
narcotics 24 hours a day, seven days a week. These trap rooms were
equipped with surveillance cameras, and individuals worked as armed
guards. For his trouble, Mun charged the drug dealers a higher room rate.
The HanGil first appeared on law enforcement’s radar in July 2018
following several overdose deaths there. After reading numerous Google
reviews that confirmed the hotel’s status as a drug market, law enforcement
began investigating the HanGil. But surveillance proved difficult, as all the
hotel’s rooms faced an interior hallway. Flummoxed, law enforcement put
up a “pole camera” near the hotel. The pole camera captured footage of
people coming and going from the hotel day and night; the open-air use of
narcotics; and individuals openly carrying firearms, including assault rifles.
Throughout 2018, Dallas police officers conducted numerous code
inspections of the HanGil, and each uncovered significant evidence of a large
drug operation—despite Mun’s warning his tenants of the inspections
beforehand. The cat-and-mouse game only ended when Erick Freeman, a
prolific HanGil drug dealer who had a penchant for violence—including use
of a blowtorch to torture people—was arrested in early 2019 and cooperated
with law enforcement.
Hill was involved in the HanGil’s activities throughout most of the
hotel’s sordid history. At first, he worked for Mun as hotel security. Then,
he operated a trap room selling cocaine base and heroin. But when Hill lost
most of his customers due to his own addiction and the arrival of other
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dealers, including Freeman, he began working for Freeman in several
capacities.
As Freeman’s enforcer, Hill, brandishing a firearm, stood guard at the
entrance of Freeman’s trap rooms. His job was to intimidate and coerce
Freeman’s customers and other people that Freeman believed owed him
money. On one occasion, Hill and two others beat a homeless man until he
was unconscious. On another, someone paid Hill $250 to remove a body
from one of the trap rooms. In addition to his enforcer and doorman duties,
Hill also cut, bagged, and sold drugs for Freeman, including heroin and
cocaine base.
But Hill’s behavior proved too abhorrent even for the HanGil. In the
early morning hours of December 27, 2018, Hill was working the door of one
of Freeman’s trap rooms. Freeman’s room surveillance camera captured the
events. A customer, L.R., was using drugs provided by Hill. After L.R.
smoked what appeared to be crack cocaine, she injected an unknown
substance into her arm as Hill watched. As L.R. was falling in and out of
consciousness, Hill put on gloves and took her into the bathroom of the trap
room. The two were in the bathroom for 26 minutes. Another person
working for Freeman testified that she heard people having sexual
intercourse. When Hill exited the bathroom, he was still wearing gloves but
neither his shirt nor his necklace. He threw his shirt into a trash can, put on
his necklace, and made the sign of the cross. Freeman’s other employee
entered the bathroom and found L.R. unresponsive with her hair covering
her face and her pants pulled down. Freeman subsequently investigated, and,
determining that L.R. had died, recruited two individuals to help him dispose
of her body. Freeman thereafter banished Hill from the HanGil.
After Freeman’s arrest in 2019, law enforcement used the recorded
surveillance footage of his trap rooms to build their case against the HanGil’s
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principals. A series of indictments followed, with Hill being indicted on
October 9, 2019. After a superseding indictment that charged Hill with one
count of conspiracy to possess with intent to distribute a controlled
substance, Hill went to trial on April 7, 2021. The jury deadlocked, and the
district court declared a mistrial. The Government responded with a three-
count superseding indictment, charging Hill with conspiracy to possess with
intent to distribute a controlled substance (count one), possession with intent
to distribute a Schedule II controlled substance (count two), and distribution
of a Schedule II controlled substance (count three). After a seven-day trial,
the second jury convicted Hill on counts one and three but acquitted him on
count two.
Hill was sentenced under 21 U.S.C. § 841(b)(1)(A) for conspiracy to
possess with intent to distribute a controlled substance, which, unlike its
more lenient neighboring subsections, carries a sentence of 120 months to
life. § 841(b)(1)(A)(iii). To obtain a conviction under § 841(b)(1)(A), the
Government must show that the defendant knew that the conspiracy involved
a minimum quantity of the controlled substance. The threshold for heroin is
one kilogram; for cocaine base, 280 grams. § 841(b)(1)(A)(i) & (iii). In Hill’s
case, the jury charge and verdict form—specifically, whether they facilitated
a jury finding that Hill had knowledge of the drug quantities involved in the
HanGil conspiracy—are at issue.
The jury charge given by the district court instructed the jury to
convict if it found that Hill “knew that the scope of the conspiracy involved
at least a detectable amount of heroin or at least 280 grams of a mixture or
substance containing cocaine base.” The verdict form used special
interrogatories for the jury to determine specific drug quantities involved in
the conspiracy. The first asked whether the “substance that was intended to
be distributed as part of the conspiracy contained a detectable amount of
cocaine base,” and the jury checked “yes.” The next asked for the amount
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of cocaine base, and the jury checked “280 grams or more.” The last
question asked whether the conspiracy included a detectable amount of
heroin, and again the jury checked “yes.” The jury was not specifically asked
via the verdict form whether Hill knew the scope of the conspiracy
envisioned these amounts.
Post verdict, Hill raised several objections to the presentence
investigation report (PSR). Relevant here, he objected to the PSR’s drug
quantity determination. The PSR recommended that Hill be held
accountable for one kilogram of cocaine base and one kilogram of heroin per
month for nine months. The PSR did not explain how it arrived at that
number, only stating the amounts were “consistent with what other
codefendants were held accountable for through the case[.]” In fact, the PSR
conceded that “[t]he specific quantities of narcotics being sold from each
room in the HanGil Hotel [are] unknown[.]” The district court overruled
Hill’s objection, finding that the PSR’s drug quantity determination was
supported by “statements of several unindicted co-conspirators and co-
defendants, former customers of [Hill’s], criminal background checks, and
evidence introduced at [Hill’s] trial.” Specifically, the court cited Hill’s own
statements in which he admitted to selling drugs at the HanGil and the trial
testimony of other witnesses who testified as to the amount of drugs
distributed each day.
Hill’s total offense level was 44, reduced to the maximum level of 43
allowed by the Guidelines, and his criminal history category was III. See
U.S.S.G., Ch. 5, Pt. A, cmt. (n.2). The result was a Guidelines range of life
imprisonment. The district court varied downward, tracking the proposed
EQUAL Act, then-pending legislation in Congress that would have
eliminated the sentencing disparity between crack and powder cocaine.
Thus, the court gave Hill the benefit of an unenacted law and sentenced him
as if it applied. In the end, the district court sentenced Hill to 480 months on
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the first count and 240 months on the second count, to run concurrently. Hill
timely appealed.
II.
Hill raises four issues on appeal. He contends that (A) the district
court imposed a “trial penalty” in sentencing him, i.e, the court sentenced
Hill more harshly than it otherwise would have because he went to trial. Hill
also argues that (B) the district court erred in determining the quantity of
drugs attributable to him, and he challenges (C) the propriety of the jury
charge and verdict form. Finally, Hill asserts that (D) the district court
imposed a substantively unreasonable sentence. Reviewing these arguments
in turn, we find each to be without merit.
A.
Hill asserts that the district court sentenced him more harshly because
he went to trial, thereby imposing a trial penalty. The Sixth Amendment
provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial.” U.S. Const. amend. VI. “[A]
defendant cannot be punished by a more severe sentence because he
unsuccessfully exercises his constitutional right to stand trial.” United States
v. Gozes-Wagner, 977 F.3d 323, 335 (5th Cir. 2020) (citation and quotation
marks omitted). A defendant can show a trial penalty in two ways: (1) by
comparison to the sentences of “similarly situated” defendants, or (2) by the
district court’s “plain[] state[ment] that it was punishing the defendant more
severely than it otherwise would because she went to trial[.]” Id. at 337(citation omitted). In assessing the question, though, we remain mindful that
the “bargained-for leniency inherent in the plea negotiation process is not
available once a trial has been held[.]” United States v. Velasquez, 881 F.3d
314, 343 (5th Cir. 2018) (citation and quotation marks omitted).
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We have previously utilized two standards of review for trial penalty
claims. In one unpublished case, we applied de novo review. See United States
v. Molina, No. 20-11232, 2022 WL 3971588, at *4–5 (5th Cir. Aug. 31, 2022),
cert. denied, 143 S. Ct. 619 (2023). But in another, we reviewed the sentence
for plain error. See United States v. Guy, 633 F. App’x 851, 855 (5th Cir.
2015), as revised (Dec. 15, 2015). In any event, we need not pick the correct
standard today because Hill’s claim fails under even de novo review. See
Gozes-Wagner, 977 F.3d at 335 n.7 (similar).
Hill argues that the district court explicitly stated that it was
sentencing him more harshly because he went to trial, thus imposing a trial
penalty. He points to two comments from his sentencing, one by the
Government and another by the district court. Arguing that Hill deserved
life in prison, counsel for the Government stated:
[O]f all the defendants in this case . . . the only defendant that
did not . . . provide the Government with some assistance to
stop this madness was [Hill]. That’s why Mr. Freeman is not
in prison for the rest his life, that is why Mr. Washington is not
in prison for the rest of his life. Yes, they engaged in some
horrific acts, they were involved in this conspiracy, they were
high up in the food chain, but when they were caught, they
stepped up, they helped find [L.R.’s] body, they cooperated
and help[ed] identify all the other individuals that were
involved in this case. This Defendant chose not to. That’s his
right. That is absolutely his right to put the Government to the
test to come in here and prove its case. We did.
And in relevant part, the district court explained that it “agree[d] with the
Government’s counsel that as heinous as the crimes by Messrs. Freeman and
Washington were, it’s a very different situation there than here. They
accepted responsibility. They were both [Rule] 11(c)(1)(C) agreements [sic]
and so on.” Hill contends that these statements, considered together,
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indicate that both the Government and district court relied on Hill’s not
pleading guilty, i.e., his going to trial, to justify a significantly higher sentence
than his co-conspirators, Freeman and Washington, who both received 360
months.
We disagree. The statements made by the Government at sentencing
are only relevant insofar as they inform the meaning of the district court’s
statements. And the district court’s statements during Hill’s sentencing
must be viewed in context. See Gozes-Wagner, 977 F.3d at 340 n.12 (“One
stray comment does not create error when it can be understood in the context
of a lengthy sentencing hearing.”). The district court’s comments came
during its discussion of the 18 U.S.C. § 3553(a) sentencing factors.
Specifically, the court mentioned the need to avoid unwarranted sentencing
disparities among defendants before making the challenged statement. It is
thus reasonable to assume that the district court sought to distinguish
Freeman and Washington as not similarly situated for purposes of 18 U.S.C.
§ 3553(a)(6). See United States v. Duhon, 541 F.3d 391, 397 (5th Cir. 2008)
(stating that a “[d]isparity in sentences between a defendant who provided
substantial assistance and one who provided no assistance . . . is not
unwarranted” (citation and quotation marks omitted)).
Further, we do not read the district court’s recognition that Freeman
and Washington “accepted responsibility” as centering on their forfeiture of
their right to jury trial. Rather, we read that statement as indicative of
Freeman’s and Washington’s cooperation with the Government, especially
considering the district court’s recognition that their plea agreements were
reached pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), which
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indicates some level of cooperation.1 Moreover, during its extended
explanation of Hill’s sentence, the district court listed various reasons for the
sentence it was imposing—which incorporated a downward variance—
including Hill’s involvement in the conspiracy from start to finish, his violent
behavior, and his sexual assault of an incapacitated victim.
Finally, the district court considered that Freeman and Washington
were inapt comparators because they cooperated with the Government.
“[A] defendant who cooperates with the Government is not similarly
situated to one who refuses to do so.” Gozes-Wagner, 977 F.3d at 337
(citation omitted). “We cannot compare apples to oranges when deciding
whether a sentence is ‘more severe’ for trial penalty purposes.” Id. Based
on the record before us, we conclude that the district court did not make any
statement, plain or otherwise, that it was sentencing Hill more harshly
because he went to trial. And Washington and Freeman were not “similarly
situated” to Hill, so their sentences are irrelevant. We discern no reversible
error as to this issue.
B.
Hill next argues that the district court erred in calculating the drug
quantity attributable to him. We disagree.
A participant in a drug conspiracy is responsible for all drug quantities
with which he was “directly involved,” as well as for quantities “involved in
transactions carried out by other participants, if those transactions were
within the scope of, and in furtherance of, the jointly undertaken criminal
activity and were reasonably foreseeable in connection with that criminal
_____________________
1
The hearing transcript states that the plea agreements were made under Rule
11(c)(1)(C). But the Government clarified in its briefing that Freeman’s and Washington’s
plea agreements were struck pursuant to Rule 11(c)(1)(B).
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activity.” U.S.S.G. § 1B1.3, cmt. (n.3(D)); see United States v. Johnson, 14
F.4th 342, 347 (5th Cir. 2021). We review the district court’s drug quantity
determination for clear error. See United States v. Ekanem, 555 F.3d 172, 175
(5th Cir. 2009).
In calculating the drug quantity attributable to Hill, the PSR provided:
The specific quantities of narcotics being sold from each room
in the HanGil Hotel [are] unknown, which is primarily a result
of the difficulty in investigating this case . . . . However,
because no other way to calculate drug quantities is available,
and to remain consistent with what other codefendants were
held accountable for through the case, the defendant will be
held accountable for 1 kilogram of heroin and 1 kilogram of
cocaine base (crack) for each month Hill was involved in the
conspiracy.
Hill attacks these statements as unsupported, and thus insufficiently reliable
to support the district court’s ultimate drug quantity attribution. So he
argues we should remand for resentencing.
A PSR generally “bears sufficient indicia of reliability to be considered
as evidence by the sentencing judge in making factual findings.” United
States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (citations omitted).
“However, mere inclusion in the PSR does not convert facts lacking an
adequate evidentiary basis with sufficient indicia of reliability into facts a
district court may rely upon at sentencing.” United States v. Gentry, 941 F.3d
767, 788 (5th Cir. 2019) (internal quotation marks and citation omitted).
“Bald, conclusionary statements do not acquire the patina of reliability by
mere inclusion in the PSR.” Harris, 702 F.3d at 230 n.2 (citation and
quotation marks omitted). “If the factual recitation in the PSR lacks
sufficient indicia of reliability, then it is error for the district court to consider
it at sentencing—regardless of whether the defendant objects or offers
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rebuttal evidence.” United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013)
(cleaned up).
Hill might be correct that the PSR, viewed in isolation, does not
contain facts carrying sufficient indicia of reliability to substantiate the drug
quantity determination. However, “[w]hen making factual findings for
sentencing purposes, a district court may consider any information which
bears sufficient indicia of reliability to support its probable accuracy.” Id. at
590 (citation and quotation marks omitted). Here, the district court “[found]
that the facts in the PSR [were] supported by statements of several
unindicted co-conspirators and co-defendants, former customers of [Hill’s],
criminal background checks, and evidence introduced at [Hill’s] trial.”
Specifically, the court cited Hill’s prior statements, in which he admitted to
selling drugs at the HanGil, and the trial testimony of other witnesses,
including Kimberly Robinson, who, like Hill, bagged and sold drugs for
Freeman. Robinson detailed the quantity of drugs distributed each day.2
_____________________
2
Robinson testified that she routinely sold at least two to three 25-gram “cookies”
of crack cocaine during a 12-hour shift, from just one of Freeman’s trap rooms. She also
testified that she sold “lots” of heroin, which was sold in 3.1-gram quantities for $125 each,
and could make as much as $3,000 during a good 12-hour shift. Working two or three shifts
a week, Robinson thus personally sold at least 100, and maybe over 200, grams of crack
cocaine during a week. Conservatively extrapolating, if approximately 100 grams of crack
cocaine were sold daily in this one trap room, well more than 1000 grams of crack cocaine
would plausibly have been sold from Freeman’s trap rooms each month. Based on
Robinson’s testimony alone, the PSR’s estimate was if anything conservative in its
calculations.
Similarly, Monica Saucedo testified that, as a bagger for Freeman, she sold
approximately $2,000 of heroin and five or six 14-gram “cookies” of crack cocaine (70
grams, on the low end) every day for Freeman. Assuming that 3.1-gram quantities of heroin
sold for $125, then Saucedo sold approximately 50 grams of heroin daily. Thus, well more
than one kilogram of heroin was sold monthly out of one of Freeman’s trap rooms, before
adding the quantity sold by Hill himself. As with the cocaine estimate, the PSR’s heroin
quantity calculation was, if anything, skewed in Hill’s favor.
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Considering this evidence, the court concluded that “the drug quantities in
the PSR [are] supported by a preponderance of the evidence.”
The district court’s reliance on evidence not expressly cited in the
PSR was consistent with our caselaw, see Zuniga, 720 F.3d at 590, and the
evidence provided an adequate basis for the PSR’s ultimate drug quantity
calculations, which the district court expressly found was calculated “to the
benefit of [Hill].” Notably, Hill also fails to rebut the evidence. The district
court’s determination of the quantity of drugs attributable to Hill was not
clearly erroneous.
C.
Hill challenges the propriety of the jury charge and verdict form as to
count one, which charged Hill with conspiracy to possess 280 grams or more
of a mixture containing a detectable amount of cocaine base with the intent
to distribute it, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). As noted
supra in Part I, when the Government seeks an enhanced sentence under
§ 841(b)(1)(A), the jury must “determine the [drug] amount which each
defendant knew or should have known was involved in the conspiracy.”
United States v. Montemayor, 55 F.4th 1003, 1012 (5th Cir. 2022) (citation and
quotation marks omitted). A district court therefore errs if it imposes a
mandatory minimum under § 841(b)(1)(A) based on a jury finding of the drug
quantity attributable to the entire conspiracy, as opposed to the amount of
drugs the particular defendant knew, or should have known, was involved.
United States v. Haines, 803 F.3d 713, 741–42 (5th Cir. 2015).
Hill contends that the jury charge and verdict form did not require the
jury to find that he knew that the scope of the conspiracy included 280 grams
of cocaine base. The jury charge on this element instructed the jury to
determine whether Hill “knew that the scope of the conspiracy involved at
least a detectable amount of heroin or at least 280 grams of a mixture or
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substance containing cocaine base.” (emphasis added). Thus, though the
charge contained the requisite scienter, it was written in the disjunctive,
allowing for conviction under either a cocaine base or heroin theory of guilt.
According to Hill, because the verdict form did not include a special
interrogatory centered on his knowledge of the amount of cocaine base
involved in the conspiracy, the jury did not find that he had such knowledge.
Therefore, the Government failed to prove the required § 841(b)(1)(A)
elements, and Hill should not be subject to the mandatory minimum under
that subsection. Instead, the jury could only have convicted him of violating
§ 841(b)(1)(C), which carries a statutory maximum of 240 months, such that
his 480-month sentence under count one must be set aside.
Hill did not object to the jury charge or verdict form at trial.
Ordinarily, failure to abide by the contemporaneous objection rule
“precludes the raising on appeal of the unpreserved claim of trial error.”
Puckett v. United States, 556 U.S. 129, 135 (2009) (citation omitted). But
Federal Rule of Criminal Procedure 52(b) “recognizes a limited exception to
that preclusion,” in that “[a] plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.” Id.(quoting Fed. R. Crim. P. 52(b)).
“To establish plain error, ‘a defendant must show (1) error, (2) that
is clear or obvious, and (3) that affected the defendant’s substantial rights.’”
Montemayor, 55 F.4th at 1010 (quoting United States v. Hinojosa, 749 F.3d
407, 411 (5th Cir. 2014)). If the first three prongs are satisfied, then the court
has the discretion to “remedy the error only if it (4) seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (citation
and quotation marks omitted). “Meeting all four prongs is difficult, as it
should be.” Puckett, 556 U.S. at 135 (quotation marks and citation omitted).
And the Supreme Court has “repeatedly cautioned that [a]ny unwarranted
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extension of the authority granted by Rule 52(b) would disturb the careful
balance it strikes between judicial efficiency and the redress of injustice[.]”
Id. (quotation marks and citation omitted).
We assume arguendo that there was clear or obvious error in the jury
charge and corresponding verdict form, though whether there actually was
plain error is at least debatable. The jury charge conformed to our pattern
jury instructions, see Fifth Circuit Pattern Jury Instructions
(Criminal Cases) 2.97 (2019), but contained two distinct theories of
guilt (cocaine and heroin). Any uncertainty caused by the “or” in the jury
charge is somewhat ameliorated by the verdict form’s special interrogatories,
because from them, we know that the jury convicted Hill of conspiracy to
possess with intent to distribute and found that the conspiracy involved at
least 280 grams of cocaine base. Nevertheless, we are left with the lack of an
express finding that Hill knew that the conspiracy involved at least 280 grams
of cocaine base, even if that is implied in the jury’s responses. See
Montemayor, 55 F.4th at 1012–14; see also United States v. Benitez, 809 F.3d
243, 250 (5th Cir. 2015) (holding that the jury must find individualized drug
weight and a failure to do so “satisfies the first two prongs of the plain error
analysis”); cf. United States v. Gonzales, 841 F.3d 339, 346 (5th Cir. 2016)
(“With respect to special interrogatories, we have repeated the refrain that
they should not be used in criminal trials.” (cleaned up)).
More clearly, any error that occurred affected Hill’s substantial rights.
This prong of the analysis “may be satisfied by showing a reasonable
probability that, but for the error, the outcome of the proceeding would have
been different.” Montemayor, 55 F.4th at 1010 (citation and quotation marks
omitted). If Hill had not been convicted under § 841(b)(1)(A), then the
maximum sentence he faced for count one would have been 240 months, half
of the 480 months he received. See 21 U.S.C. § 841(b)(1)(C). Simply put,
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there is a reasonable probability that, but for the error, Hill would have
received a significantly shorter sentence. See Montemayor, 55 F.4th at 1013.
But even if Hill establishes the first three prongs of plain error, he
falters on the fourth. To succeed on plain error review, the error must
“seriously affect[] the fairness, integrity[,] or public reputation of judicial
proceedings.” Id. (citation omitted). Only then may we exercise our
discretion to remedy the error. See id. at 1010, 1013. In Montemayor, we
weighed whether to do so faced with a similar scenario, i.e., when the jury
had not made the requisite individualized drug finding. Id. at 1012–14. We
held that, notwithstanding clear error that affected their substantial rights,
the evidence against the defendants was “overwhelming,” so that the error
did not satisfy the fourth prong. Id. at 1014. We reach the same conclusion
in Hill’s case.
There was overwhelming evidence that Hill “knew or should have
known [the drug amount that] was involved in the conspiracy[.]” Haines,
803 F.3d at 741; see also Montemayor, 55 F.4th at 1014. Besides operating his
own trap room selling cocaine base, he also served as hotel security for Mun
and as an enforcer and bagger for Freeman. He served in these varied roles
from the time Mun bought the HanGil until late 2018. During his tenure
providing security, Hill would have been privy to each of the trap rooms and
known that cocaine base was being sold. And when working for Freeman,
Hill bagged cocaine base and facilitated its distribution while hundreds of
grams of cocaine base were sold out of Freeman’s trap rooms. See supra n.2.
Based on Hill’s personal involvement in the broader HanGil enterprise, his
personal drug dealing, and his work for Freeman, it is inconceivable that he
did not know that the conspiracy involved at least 280 grams of cocaine base.
Thus, regardless if there was plain error in the jury charge and verdict form,
Hill has “not shown that the fairness, integrity, or public reputation of the
judicial proceedings was seriously affected.” Monetmayor, 55 F.4th at 1014.
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D.
Finally, Hill asserts that the district court imposed a substantively
unreasonable sentence. Our review for substantive reasonableness “is highly
deferential[] because the sentencing court is in a better position to find facts
and judge their import under the § 3553(a) factors[.]” United States v. Diehl,
775 F.3d 714, 724 (5th Cir. 2015) (citation and quotation marks omitted). A
sentence below the Guidelines range enjoys a presumption of reasonableness.
United States v. Scully, 951 F.3d 656, 672 (5th Cir. 2020).
The Guidelines range calculated for Hill’s sentence was life
imprisonment. But the district court varied downward from the Guidelines
range, using the base offense level that would have applied under the
unenacted EQUAL Act to determine what the hypothetical range would be.
By sentencing Hill to 480 months, the district court thus gave Hill the benefit
of proposed legislation via a downward departure from the actual Guidelines
range. So the presumption of reasonableness most certainly applies here.
Hill can rebut this presumption “only upon a showing that the
sentence does not account for a [sentencing] factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
[sentencing] factor, or it represents a clear error of judgment in balancing
sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009)
(citation omitted). Hill argues that the district court did not account for “the
need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct[.]” 18 U.S.C.
§ 3553(a)(6). Specifically, he points out that Mun, who owned the HanGil
hotel, only received 240 months; Freeman, the leader of the drug conspiracy
who tortured people with a blowtorch, only received 360 months; and
Washington, one of Freeman’s enforcers who helped Freeman torture
someone, only received 360 months. Hill argues that his 480-month
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Case: 22-10460 Document: 00516882189 Page: 17 Date Filed: 09/01/2023
No. 22-10460
sentence creates an unwarranted disparity because he had a comparatively
minor role in the conspiracy and never tortured anyone.
Hill fails to rebut the presumption that his sentence was substantively
reasonable. For the same reasons as described supra in Part II.A., he was not
similarly situated to the other defendants. He did not plead guilty, and he did
not cooperate with the Government. See Duhon, 541 F.3d at 397 (stating that
a “[d]isparity in sentences between a defendant who provided substantial
assistance and one who provided no assistance . . . is not unwarranted”
(citation and quotation marks omitted)). The district court also expressly
considered the need to avoid unwarranted sentencing disparities among
defendants, but distinguished Hill from Freeman and Washington based on
their cooperation with the Government. We discern no abuse of discretion
in the district court’s sentencing Hill, and this claim lacks merit.
III.
Each of Hill’s four challenges to his sentence fails. The judgment of
the district court is therefore
AFFIRMED.
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