United States v. Hewlett, Auzio ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2532, 05-2571 & 05-2853
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
v.
AUZIO HEWLETT,
Defendant-Appellant,
Cross-Appellee,
and
ALFRED GARY,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 03-CR-23—Charles N. Clevert, Jr., Judge.
____________
ARGUED JUNE 8, 2006—DECIDED JULY 10, 2006
____________
Before EASTERBROOK, ROVNER, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. Auzio Hewlett and Alfred Gary
were convicted, following a jury trial, of conspiracy to
distribute and to possess with intent to distribute 50 grams
or more of crack cocaine and 5 kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, and
2 Nos. 05-2532, 05-2571 & 05-2853
18 U.S.C. § 2. Hewlett was sentenced to 240 months
imprisonment and Gary received a life sentence. Both have
appealed their convictions and the government has cross-
appealed, claiming that Hewlett’s sentence is unreason-
able—that is, unreasonably short.
Hewlett and Gary were in the drug business together
from the mid-1990s until the spring of 2003, when they
were arrested—in possession of several kilograms of cocaine
and marijuana—in Missouri on their way back to Wisconsin
from Texas.
Their drug operation was originally centered in Racine,
Wisconsin, selling crack cocaine with a man named
Deontrae Mayfield. For some time during 1996 or 1997,
Hewlett was a student at the University of Wisconsin-
Parkside, near Racine. His roommate at Parkside later
stored large quantities of cocaine, marijuana, and money for
Hewlett and Gary.
In 1997, Hewlett and Gary took Mayfield to Janesville, a
one-hour drive west from Racine. Mayfield realized that the
crack market was much better in Janesville than
Racine: the profits were higher and the streets were
safer because of the absence of gang activity. They ex-
panded the operation to Janesville. In fact, Mayfield moved
to Janesville in 1997 to continue sales. In Janesville, the
three often used juvenile girls to conduct their business,
surmising that the girls would face less severe punishment
if caught. Rather than sharing the profits of the drug sales
with the girls, Mayfield and Hewlett would buy things for
them—clothing, food from McDonald’s. This stingy treat-
ment of their employees apparently didn’t engender an
abundance of loyalty to the Gary/Hewlett operation as some
of the girls became government witnesses against them.
In 1999, Hewlett was arrested in Janesville when one of
the girls, April Peterson, drove—in a borrowed car—to his
motel to drop off money and pick up more crack. There were
police in the parking lot, but she nevertheless went to
Nos. 05-2532, 05-2571 & 05-2853 3
Hewlett’s room. When she left with drugs, she apparently
panicked at the presence of the police. She drove next door
to a gas station, abandoned the car, called a friend to come
and get her, and threw the drugs in a garbage can, all of
which led to the arrests of Hewlett and others. Both before
and after Hewlett’s arrest, he and Gary continued to sell
crack in Racine.
In 2003, Hewlett and Gary made two trips to Texas.
Along on the second trip were Cassandra Maiden and
Wythena Facen. On Interstate 44 south of St. Louis,
Hewlett, who was driving, made a quick lane change that
caused the SUV to veer onto the shoulder of the road. This
maneuver caught the attention of a police officer in a
marked squad car. As the squad approached their vehicle,
Hewlett instructed Facen and Maiden to say they were
traveling from Oklahoma. Facen was in the front passenger
seat, Maiden was in the backseat, and Gary was lying in the
cargo area of the SUV hiding under blankets. When the
police reached the SUV, Hewlett presented a fraudulent
Ohio driver’s license. He acknowledged that the vehicle was
a rental and, despite the fact that Gary was in the back
under blankets, said the paperwork was in the cargo area.
When the officers looked in the cargo area, they found Gary,
who also produced a fraudulent Ohio driver’s license.
Because of these and other suspicious aspects to the stop,
the officers brought in a narcotics-sniffing dog. Not surpris-
ingly, Fido sniffed and indicated that drugs were present.
The officers cut open an old, solid-sounding spare tire and
found over three kilograms of cocaine and 17 packages of
marijuana. That was the end of the Hewlett-Gary drug
business.
In this appeal, Hewlett and Gary first argue that there
was an impermissible variance between the single conspir-
acy charged in the indictment and the proof at trial. They
contend that rather than one overarching conspiracy, there
are actually three smaller conspiracies: a Janesville
4 Nos. 05-2532, 05-2571 & 05-2853
conspiracy, a Racine conspiracy, and a Missouri “incident.”
We disagree, but even were we to agree, the claim would
fail.
A claim of a fatal variance is treated as an attack on the
sufficiency of the evidence. United States v. Handlin, 366
F.3d 584 (7th Cir. 2004). Even if the evidence at trial
reveals the existence of multiple conspiracies, a variance is
not fatal if a reasonable juror could have found beyond a
reasonable doubt that the defendants were part of the
single, charged conspiracy. Id. We view the evidence in the
light most favorable to the government. Id. Furthermore,
the defendants must show that the variance prejudiced
them. United States v. Messino, 382 F.3d 704 (7th Cir.
2004).
It is clear that for years Hewlett and Gary were in-
volved together in the sale of drugs. It is of no consequence
that they sold their wares in two locations and drove drugs
though a third. Neither of the men claims—or could
claim—that he was merely a buyer in a buyer-seller
relationship with the other. Furthermore, neither could
claim that he was involved in one smaller conspiracy but
not another small conspiracy. Each was involved in this
business from beginning to end in Racine, Janesville, and,
for that matter, in Missouri. The evidence here allowed a
reasonable jury to find that Hewlett and Gary were part of
a single conspiracy.
But above all, there is no way to show that either was
prejudiced by being charged in one, rather than three
conspiracies. Neither could claim, for instance, that while
he might have sold drugs in Racine, he had nothing to do
with the Janesville operation. They were both involved
in all aspects of this business. Neither defendant could
receive a lesser sentence if he were convicted of two or three
smaller conspiracies, rather than the larger one. There
simply is no prejudice.
Nos. 05-2532, 05-2571 & 05-2853 5
Hewlett and Gary also contend that the district judge
committed reversible error in how he responded to a
question the jury asked during its deliberations. The
question was, “Can we find one defendant guilty and one
not guilty?” The judge proposed to answer the question by
saying:
Your instructions require that you consider each defen-
dant’s innocence or guilt separately. This answer is part
of the written instructions that have been provided to
you. Also keep in mind that you must follow all of the
instructions that you have been given by the court.
Counsel for Gary objected to the word “innocence,”
pointing out that the duty of the jury is not to determine
innocence, but rather a lack of guilt. Counsel suggested that
a simple “yes” would be a sufficient answer to the question.
As if to illustrate the be-careful-what-you-wish-for
principle, the judge responded:
Yeah. It probably would be appropriate to just refer to
“guilt,” but I put “innocence” in there for your benefit,
and since you don’t want it it’s out. . . . It’s out. Enough
said. . . . It’s out.
He continued, “I will refer to guilt only.” And “You said
that’s what you wanted, that’s what you’ll get.” Later he
said, “ ‘Innocence’ is equivalent to ‘not guilty,’ but you did
not want ‘innocence.’ ”
The answer which was given to the jury was:
Your instructions require that you consider each defen-
dant’s guilt separately. This answer is part of the
written instructions that have been provided to you.
Also keep in mind that you must follow all of the
instructions that you have been given by the court.
Very shortly, because he observed a typographical error in
the instruction, the judge asked the bailiff to retrieve that
6 Nos. 05-2532, 05-2571 & 05-2853
answer, and he listened to further argument regarding the
response. The rewritten response, which was then sent to
the jury, said:
Your instructions require that you determine whether
each defendant is guilty or not guilty. This should be
done separately.
Defendants argue that all of this could well confuse the jury
and constitutes reversible error.
We review a decision to answer a question from the jury
as well as the language used in the response for an abuse of
discretion. United States v. Young, 316 F.3d 649 (7th Cir.
2002). We examine a supplemental instruction by determin-
ing whether the instruction as a whole fairly and ade-
quately treats the issue, whether the instruction is a correct
statement of the law, and whether the court answered the
question specifically. Id.
Was there a better way to handle this situation? The
answer is yes—which, by the way—probably was, as well,
the better answer to the jury’s question. But we do not
demand the best answer. Here, the instructions as a whole,
which the jury was referred to and which they had in the
jury room, were a correct statement of the law. The second
answer to the jury’s question was unassailable. As to the
first answer, we are not convinced, in this context, that a
reference to considering each defendant’s guilt separately is
reversible error. At the same time, for future reference,
after our preference for a simple, “yes,” we recommend the
second answer, not the first.
Defendants also raise an issue, to preserve it, based on
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
We duly note that the issue has been properly raised.
We now arrive at the cross-appeal of the government, in
which the contention is that the 20-year sentence imposed
on Hewlett was unreasonable. Hewlett faced a statutory
mandatory minimum sentence of 20 years and a maximum
Nos. 05-2532, 05-2571 & 05-2853 7
of life. Applying the guidelines, his sentence would have
been life. The judge, however, concluded that the statutory
minimum was a sufficient sentence.
The government’s objection to the sentence is that the
sentence below the guideline range was unreasonable. See
United States v. Booker, 543 U.S. 220 (2005). We disagree.
First of all, the government did not recommend the
maximum—a life sentence. It cited Hewlett’s intelligence
and potential to give back to the community and recom-
mended a sentence of 30 years. The judge agreed that there
was reason to cut Hewlett a break; he simply gave him a
larger break than the government asked for—again, be
careful what you ask for. The judge cited as reasons
Hewlett’s “redeeming qualities,” his “family history,” and
his age. Saying that the mandatory minimum term of
20 years “exacts a very substantial measure of punishment”
and “sends a chilling message to anyone interested in
dealing drugs.” It may be a close question, but we cannot
find that the sentence imposed on Hewlett was unreason-
able.
Accordingly, the judgments of the district court are
AFFIRMED.
EASTERBROOK, Circuit Judge, concurring. I join the
court’s opinion and offer a few additional observations about
the cross-appeal.
The prosecutor’s brief chides the district court for depart-
ing too many levels without an explanation linked to the
structure of the Guidelines. United States v. Booker, 543
U.S. 220 (2005), rendered the departure apparatus and
8 Nos. 05-2532, 05-2571 & 05-2853
terminology archaic. See United States v. Johnson, 427 F.3d
423, 426 (7th Cir. 2005). A sentence within the Guideline
range is presumptively reasonable, but other sentences may
be reasonable too, and appellate review is deferential.
Reasonableness is a range, not a point. See United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). The
prosecutor recommended what would have been a 9-level
downward departure in pre-Booker terminology; the district
judge could determine, without abusing his discretion, that
a further 4-level reduction was reasonable. But was it a
lawful reduction?
The United States did not file an information under 21
U.S.C. §851 specifying all of Hewlett’s prior convictions,
which would have made a life sentence mandatory. (The
prosecutor’s brief concedes that this was an oversight rather
than a deliberate choice.) Even after that gaffe the United
States could have relied on the fact that Hewlett is a career
offender—that’s why his criminal history category is VI and
the Guidelines call for life imprisonment, neither more nor
less. Life also is the statutory maximum.
Congress has directed that career offenders be sentenced
at or near the statutory maximum for a serious drug offense
or crime of violence. 28 U.S.C. §994(h). Like other rules of
law that prescribe appropriate sentences, this survives
Booker. See United States v. Woodard, 408 F.3d 396 (7th
Cir. 2005). It survives because Booker concerns who finds
facts (and under what burden of persuasion) but not what
consequences the law attaches to facts that have been
authoritatively determined. (For other illustrations of
Booker’s irrelevance to legal rules, see, e.g., United States v.
Miller, No. 05-2978 (7th Cir. June 7, 2006) (ratio of crack to
powder cocaine); United States v. Duncan, 413 F.3d 680, 683
(7th Cir. 2005) (recidivist sentences); United States v.
Rivera, 411 F.3d 864, 866-67 (7th Cir. 2005) (mandatory
minimum sentences); United States v. Lee, 399 F.3d 864,
866 (7th Cir. 2005); McReynolds v. United States, 397 F.3d
Nos. 05-2532, 05-2571 & 05-2853 9
479, 481 (7th Cir. 2005).) Hewlett’s current conviction is for
a serious drug offense, so he should have been sentenced to
life in prison or something “near” it.
A sentence of 20 years, the mandatory minimum, is not by
any stretch of the imagination “at or near” life in prison.
Yet the United States did not rely on §994(h) in the district
court or mention it here. Likewise the United States has
forfeited the benefit of United States v. Boscarino, 437 F.3d
634, 638 (7th Cir. 2006), which shows that the district judge
erred by using concern about “sentence disparity” as
justification for a below-Guideline prison term.
When the United States proposes a sentence well below
the Guideline range it is poorly situated to complain when
the district judge is slightly more lenient. Discounted to
present value, the deterrent force of a 20-year sentence
is only a little less than that of 30 years (for years 21 to
30 are so far in the future that they have little effect on
today’s behavior). The main difference between 20- and 30-
year sentences lies in the longer term’s power to protect the
public by incapacitation. Yet when recommending 30 years,
as opposed to life, the United States espoused the view that
because Hewlett is intelligent he will abandon his criminal
career. That strikes me as topsy-turvy—a high IQ makes a
person more dangerous (if only because a clever criminal is
less likely to be caught and convicted), and to date Hewlett
has employed his talents as a criminal entrepreneur and
predator. Criminal propensity falls with age, but even at 47
(which Hewlett will be after serving the district court’s
sentence, if he behaves himself in prison and receives the
15% discount) the mastermind of a criminal syndicate
remains dangerous. Leaders of organized crime often stay
at their posts well after becoming eligible for Social Security
benefits. Still, if the prosecutor is right, incapacitation is
unnecessary.
Where this 20-year sentence falls short is on general
deterrence and desert, which underlie §851 and §994(h).
10 Nos. 05-2532, 05-2571 & 05-2853
Perhaps that’s why the Solicitor General authorized this
appeal despite the prosecutor’s optimistic estimate of
Hewlett’s likely conduct following his release. But argu-
ments based on these statutes have been forfeited.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-10-06