United States v. Sylvester Purham ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2916
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SYLVESTER PURHAM,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 12-cr-30019 — Sue E. Myerscough, Judge.
ARGUED APRIL 25, 2014 — DECIDED JUNE 9, 2014
Before KANNE and ROVNER, Circuit Judges, and DOW,
District Judge.*
KANNE, Circuit Judge. Sylvester Purham ran a crack cocaine
distribution ring in Quincy, Illinois. With the help of his
brother, Howard, he continued to manage the conspiracy while
incarcerated following a felon-in-possession conviction.
Purham talked to Howard using the prison telephones, giving
*
Of the Northern District of Illinois, sitting by designation.
2 No. 13-2916
him advice on how to manage the conspiracy and avoid
detection by the police.
Based in part on the brothers’ recorded phone calls, federal
agents charged both with conspiring to distribute crack
cocaine. Purham pled guilty and was sentenced to 360 months’
imprisonment. He now appeals his sentence. Because we find
that the district court clearly erred in including certain prior
conduct as relevant conduct, we reverse in part and remand for
resentencing.
I. BACKGROUND
Sylvester Purham moved to Quincy, Illinois in 2006. Later
that year, Illinois authorities arrested him for cocaine posses-
sion. The state court convicted him and sentenced him to 30
months of probation. While on probation, Purham continued
to distribute crack cocaine. For instance, in 2008, he and Robert
Moman transported more than a kilogram of crack cocaine
from Chicago to Quincy for resale.
Purham’s probation for the 2006 offense was revoked in
July 2008, after Purham admitted that he had violated the
terms of his probation by not reporting for substance abuse
testing and counseling as well as failing to inform the proba-
tion department of his whereabouts. He was incarcerated in
August 2008 and remained in Illinois custody until May 10,
2010.
After being released from state custody, Purham resumed
selling crack cocaine. As a member of the Black P Stone Nation
street gang, he worked with other members of the organization
to distribute the drug. His brother, Howard, who was also a
No. 13-2916 3
Black P Stone, had recently moved to Quincy and joined the
distribution effort. The group brought crack cocaine to Quincy
from Chicago for resale using buses, Amtrak, and private
vehicles. They also rented “trap houses” to store and sell the
drugs.
In August 2010, law enforcement seized 55 grams of crack
cocaine from Gabrielle Eagle, Howard’s girlfriend. Eagle had
brought the crack cocaine to Quincy at Purham’s direction. The
authorities arrested Eagle as well as Racaia Lewis, who was
casually dating Purham. Lewis gave the officers permission to
search her apartment, in which they found more crack cocaine
and a firearm that belonged to Purham.
On August 28, 2010, Purham was arrested for unlawful
possession of a firearm and was sentenced to three years in
state prison. While in prison, Purham spoke frequently with
Howard by phone, advising him on how to continue selling
crack cocaine in his absence. They discussed how to maintain
the operation, avoid detection by law enforcement, discipline
Black P Stones who seemed likely to cooperate with govern-
ment investigations, and the merits of expanding into heroin
distribution. Purham also had a portion of the drug proceeds
sent to him in prison. Per prison policy, all of the phone
conversations were recorded.
Using the recorded conversations as well as other informa-
tion gathered during a lengthy criminal investigation, officers
arrested nine co-conspirators and arranged for Purham’s
transfer from state to federal custody. Purham and Howard
were eventually charged with conspiracy to distribute at least
280 grams of crack cocaine. The charged conduct stretched
4 No. 13-2916
from July 2010 (shortly after Purham was released from state
custody) to November 2011 (while Purham was serving a
prison term that began in August 2010). Purham pled guilty to
the charge without a plea agreement and the case proceeded to
sentencing.
Purham’s Presentence Investigation Report (“PSR”)
recommended a base offense level of 34, based on an “ex-
tremely conservative estimate” that Purham was responsible
for 1.9 kilograms of crack cocaine. This amount comprised
approximately 1.8 kilograms transported to Quincy in 2008,
before Sylvester Purham was incarcerated for violating his
probation, and approximately 190 grams the brothers had
transported while Sylvester was serving his three-year sen-
tence for unlawfully possessing a firearm. The PSR further
recommended a number of sentencing enhancements: two
levels for possessing a firearm during the offense, two levels
for making threats of violence, two levels for using trap houses
to distribute the crack cocaine, four levels for playing a
leadership role in the offense and two levels for using a minor
to commit the crime. It also recommended a three-level
reduction for acceptance of responsibility, leaving Purham at
a total offense level of 43.
At sentencing, Purham filed a series of objections to the
PSR, notably arguing that the PSR inappropriately included the
drugs transported in 2008 as relevant conduct and that the
four-level enhancement for his role in the conspiracy did not
apply. To bolster the assertions in the PSR, the government
called members of the Quincy Police Department as well as
several co-conspirators to testify about the details of the
conspiracy. Their testimony established that Purham was a
No. 13-2916 5
member of the Black P Stone Nation and described a number
of occasions on which people brought drugs to Quincy at the
direction of one of the Purhams. It did not describe the drugs
Sylvester Purham transported in 2008.
The district court rejected these objections to the PSR. With
regard to the 2008 drug quantities, the court credited the
testimony of cooperating sources and found that the activity
was relevant conduct covered by U.S.S.G. § 1B1.3(a)(1)(A). The
district court also found that Purham was not a “minimal
participant” but that he was running the drug operation and
giving direction. Purham now appeals.
II. ANALYSIS
Purham argues that the district court erred in two ways.
First, he contends that the court inappropriately included drug
conduct from 2008 as relevant conduct when calculating his
sentence. Second, he asserts that the court should have applied,
at most, the three-level role-in-the-offense enhancement rather
than the four-level enhancement it used. We address each
argument in turn.
A. Relevant Conduct
Purham challenges the district court’s inclusion of his 2008
drug activity in the drug quantities used to calculate his base
offense level under the Guidelines. When making a relevant
conduct determination in a drug distribution case, the district
court must make two findings: first, whether the uncharged
conduct was sufficiently related to the offense of conviction;
and second, what drug quantity was involved in the un-
charged actions. United States v. Acosta, 85 F.3d 275, 279 (7th
6 No. 13-2916
Cir. 1996). We review both of these findings for clear error. Id.
Purham challenges only the first of these findings—that the
conduct was sufficiently related to the offense for which he was
convicted.
When calculating an offender’s base offense level, the
district court takes into account all acts and omissions that
were a part of the same course of conduct or a common scheme
or plan as the offense of conviction. U.S.S.G. § 1B1.3(a)(2).
“Same course of conduct” and “common scheme or plan” are
close cousins, but not identical. Two offenses are part of the
same course of conduct where they are “connected or suffi-
ciently related to each other as to warrant the conclusion that
they are part of a single episode, spree, or ongoing series of
offenses.” U.S.S.G. § 1B1.3 cmt. n. 9(B). They are part of a
common scheme or plan if they are “substantially connected to
each other by at least one common factor, such as common
victims, common accomplices, common purpose, or similar
modus operandi.” U.S.S.G. § 1B1.3 cmt. n. 9(A).
The 2008 conduct was not part of the same course of
conduct as the 2010 drug conspiracy to which Purham pled
guilty. To determine whether two acts are part of the same
course of conduct, we look for “a strong relationship between
the uncharged conduct and the convicted offense, focusing on
whether the government has demonstrated … significant
similarity, regularity, and temporal proximity.” United States
v. Bacallao, 149 F.3d 717, 719 (7th Cir. 1998). The government
did not make the required demonstration here. A gap longer
than a year stretches between the purportedly relevant
conduct, which occurred before Purham went to jail in August
2008, and the offense of conviction, which began in July 2010.
No. 13-2916 7
Where a temporal gap like this exists, we require “a stronger
showing regarding the other course of conduct factors, such as
regularity and similarity of acts.” United States v. Ortiz, 431 F.3d
1035, 1041 (7th Cir. 2005). The PSR and the testimony at
sentencing did not include sufficient information to support
such a showing. In 2008, Purham did transport crack cocaine
from Chicago to Quincy. But that is the only similarity we can
discern between the 2008 and 2010 conduct. The 2008 transac-
tions generally involved much larger amounts of cocaine than
the 2010 transactions. And although the PSR makes clear that
the Purhams used Amtrak during the charged offense, there
are no details about the mode of transit used for the 2008
conduct. Testimony at Purham’s sentencing hearing did not
expand upon the meager PSR details.
Neither was the 2008 conduct part of a “common scheme or
plan” that included the convicted offenses. Two or more
offenses are part of a common scheme or plan if they include
at least one common factor, such as “common victims, com-
mon accomplices, common purpose, or similar modus ope-
randi.” U.S.S.G. § 1B1.3(a)(2). The government urges us to find
that because the 2008 conduct and the 2010 conduct both
involved members of the Black P Stone Nation, there are
common accomplices and thus a common scheme or plan. But
the men with whom Purham worked to transport the cocaine,
Robert Moman and Robert Miller, are not identified as Black P
Stones. Neither were they involved in the charged conduct. As
noted above, the PSR and the testimony at sentencing did not
provide enough information to conclude that the two periods
of cocaine running shared a modus operandi. And as this is a
drug crime, there are no identifiable victims.
8 No. 13-2916
Thus, we can only find that Purham’s 2008 activity was part
of the same course of conduct as the crime of conviction if it
shared a purpose with the 2010 activity. Of course, on some
level, we can—both periods of activity had as their ultimate
goal supplying cocaine to the people of Quincy, Illinois. But
were we to find a common purpose in this case, we would
undercut our warning that “[t]he mere fact that the defendant
has engaged in other drug transactions is not sufficient to
justify treating those transactions as ‘relevant conduct’ for
sentencing purposes.” United States v. Crockett, 82 F.3d 722, 730
(7th Cir. 1996); see also Bacallao, 149 F.3d at 720–21 (finding link
between drug transactions insufficient where defendant
worked with different accomplices, there was no evidence of
a unifying modus operandi, and transactions occurred six or
seven months apart). Supplying cocaine to the residents of an
individual city on two separate occasions, unlinked by com-
mon accomplices or a common modus operandi, does not link
the two instances as “relevant conduct” under U.S.S.G.
§ 1B1.3(a).
We note that the government may well have the necessary
evidence at its disposal to establish a link between Purham’s
2008 drug transportation and the later distribution activity. The
government is free to present this evidence at resentencing, if
it does in fact possess it. But on the record as it stands, we can
only conclude that the court below clearly erred in including
the 2008 drug quantities as relevant conduct.
B. Leadership Enhancement
Purham also challenges the district court’s decision to apply
a four-level enhancement for acting as an “organizer or leader”
No. 13-2916 9
of the conspiracy. We review this decision for clear error.
United States v. Longstreet, 567 F.3d 911, 925 (7th Cir. 2009).
The Guidelines provide several sentencing enhancements
that apply to defendants who played an aggravated role in
their offense. Two are relevant to Purham’s case: the four-level
enhancement for acting as the “organizer or leader of a
criminal activity” and the three-level enhancement that applies
to a “manager or supervisor.” U.S.S.G. § 3B1.1. Both enhance-
ments only apply where the charged activity “involved five or
more participants or was otherwise extensive.” Id. Purham
does not dispute that the Quincy cocaine conspiracy involved
five or more people, so we will focus on the district court’s
determination that he was an “organizer or leader.”
Purham argues that the evidence supports, at most, the
lesser enhancement for acting as a manager or supervisor. In
particular, he contends that his brother Howard was the real
leader. To distinguish between a leader and a mere manager,
the Guidelines instruct a court to consider a mishmash of
factors:
the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of participa-
tion in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of
control and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n. 4. Although Purham was incarcerated
during the majority of the conspiracy, he continued to exercise
decision-making authority, directing his brother Howard on
10 No. 13-2916
points of strategy and discipline. The prison phone system
recorded Purham telling Howard how much cocaine to
purchase at a time for resale in Quincy, Howard relating the
details of the operation for Purham’s approval, and Purham
asking Howard to send him some of the proceeds of the
conspiracy. Purham also told Howard to “beat [Sydney Reed’s]
little ass” when he suspected Reed had talked to law enforce-
ment authorities. Purham also recruited members of the
conspiracy.1 With all this evidence before it, we cannot say the
district court clearly erred in finding that Purham led the
conspiracy while Howard conducted the day-to-day opera-
tions.
III. CONCLUSION
The district court clearly erred in characterizing the 2008
drug transactions as relevant conduct based on the record
before it. The court did not, however, commit clear error in
applying the leader/organizer enhancement when sentencing
Purham. Accordingly, we REVERSE the district court’s
judgment sentencing Purham and REMAND for resentencing.
1
Purham argues that this factor cannot count against him, as the district
court denied the application of a two-level enhancement for recruiting a
minor to the conspiracy. But that ignores the statements in the PSR about
Purham’s recruitment of another Purham brother, Jeremy.