United States v. House, Adonis ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-4043
U NITED S TATES OF A MERICA,
Plainitff-Appellee,
v.
A DONIS H OUSE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 631-2—Virginia M. Kendall, Judge.
A RGUED D ECEMBER 2, 2008—D ECIDED D ECEMBER 31, 2008
Before C UDAHY, F LAUM, and S YKES, Circuit Judges.
F LAUM, Circuit Judge. A federal jury convicted Adonis
House of two counts of distribution of crack cocaine, and
the district court sentenced him to 188 months in prison,
followed by five years of supervised release. On appeal,
House raises three challenges to his sentence. First, he
contends that the district court improperly made a two-
point adjustment to his base offense level under the
United States Sentencing Guidelines for obstruction of
justice. Second, he contends that the district court failed
2 No. 07-4043
to consider the disparity in sentences between crack
cocaine and powder cocaine under the sentencing guide-
lines. Third, he contends that the district court did not
correctly apply the sentencing factors in U.S.S.G. § 3553(a).
For the following reasons, we affirm the conviction
and sentence of the district court.
I. Background
Adonis House was arrested and prosecuted as part of
a broader federal narcotics investigation in Chicago.
House’s involvement began in February 2005, when he
met with Sylvester Avery, a man who claimed that he
was looking to get into the cocaine trafficking business, at
a barber shop on Madison Street on the west side of
Chicago. Avery asked House if he knew of anyone who
could sell him narcotics, and House apparently told
Avery that he would try to find out who could supply
him. What House did not know at this time was that Avery
was working as a government informant pursuant to a
cooperation agreement. Later, in March 2005, Avery
introduced House to John D. Morton, supposedly a high-
level dealer from Madison, Wisconsin, but in fact the
undercover identity of Mark Horton, a Supervisory
Special Agent with the FBI. During the course of the
next month, Avery and House talked numerous times
over the phone and met at the barber shop; eventually,
they agreed that House would sell Avery and Horton
four-and-one-half ounces of crack cocaine for $2600 to
$2700.
On April 5, 2005, Horton and Avery caught up with
House at the barbershop for a prearranged meeting.
No. 07-4043 3
Horton gave House $2700 in cash to purchase four-and-a-
half ounces of crack cocaine. House and Avery then
drove to another location where they met with LaPriest
Gary, who was supplying the crack cocaine. Gary, Avery,
and House then went to a third location, where Gary
obtained about four ounces of crack, which he ex-
changed for $2350 from House and Avery. Gary then drove
Avery and House back to the barbershop, where House
gave Avery a white bag filled with crack cocaine. Avery
waited for Horton to leave the barbershop, and the two
then drove away in Horton’s undercover car (the crack
cocaine was seized by the FBI at that time). Later, House
met Avery and gave him $200 for setting up the deal.
On April 11, 2005, Avery called House about setting
up a second drug deal. House told Avery that he had
another source for crack cocaine, but that the price
would be higher. On May 20, 2005, Avery, Horton, and
House met at the barbershop on Madison Street and
discussed buying four-and-a-half ounces of crack. House
told Avery and Horton that his source had that much
available for purchase, and that he would only need to
drive over to the supplier in order to get it. Horton then
gave Avery $2900 for the purchase. When House told
Avery and Horton he would need to take the money with
him, Avery decided to go to the supplier’s location as well.
House, Avery, and a third man, Frederick Young, then
drove away from the barbershop. Avery gave House the
$2900, and while Avery apparently did not witness an
exchange between House and his supplier, House and
Avery returned to the barbershop with crack cocaine,
which was then turned over to Horton. Later that same
4 No. 07-4043
day, House met Avery and gave him $250 for setting up
the second deal.
Horton and House apparently spoke twice more, and
they discussed the possibility of House supplying drugs
for Horton’s operation. According to trial testimony,
House speculated on the price for as much as nine ounces
or a quarter kilogram of crack at a time. However, those
discussions and agreements were not part of the
charges brought in this case.
On August 31, 2006, a grand jury in the Northern
District of Illinois returned an indictment charging
House with two counts of knowingly and intentionally
distributing cocaine in the form of crack cocaine in viola-
tion of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. A jury trial
in House’s case began on June 5, 2007, and on June 7, the
jury found House guilty on both counts. Sentencing in
the case was originally scheduled for August 29, 2007,
but was continued twice, first until September 24, and
then for November 13. Immediately before the Novem-
ber 13 sentencing hearing, however, House moved to
continue sentencing because he was also charged in a
separate indictment before Judge Matthew Kennelly in
the Northern District of Illinois, and House wanted the
district court in this case to consider the pending charges
as part of his relevant conduct for sentencing. The district
court granted House’s motion, and held a sentencing
hearing on December 13, 2007. The jury verdict in House’s
trial included a special jury form to include a determina-
tion of drug amounts, and based on the amounts in the
present case as well as the separate indictment, the
No. 07-4043 5
district court calculated a base offense level of 34. The
district court then imposed a two-level enhancement
for obstruction of justice under U.S.S.G. § 3C1.1, finding
that House had improperly attempted to influence
Avery’s testimony in the case. Working from the new base
offense level of 36, the district court sentenced House to
188 months in prison, followed by five years of super-
vised release. This appeal followed.
II. Discussion
House raises three issues in his appeal. First, he claims
that the district court should not have imposed a two-level
sentencing enhancement for obstruction of justice, as
House only intended to confirm that Avery would testify
at trial, rather than to obstruct justice by persuading Avery
not to appear. Second, he seeks a remand so that the
district court can consider the disparity between sen-
tences for crack cocaine and powder cocaine offenses in
the sentencing guidelines. Third, House argues that his
sentence was unreasonable, given that he has no criminal
history, is not a threat to re-offend, and does not present
a danger to his community.
A. Whether the district court properly applied a two-
level enhancement for obstruction of justice under
U.S.S.G. § 3C1.1.
House first argues that the district court improperly
granted a two-level enhancement to his base offense level
for obstruction of justice in violation of U.S.S.G. § 3C1.1.
6 No. 07-4043
That portion of the sentencing guidelines instructs
judges that:
If (A) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administra-
tion of justice with respect to the investigation, prose-
cution, or sentencing of the instant offense of convic-
tion, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant
conduct; or (ii) a closely related offense, increase
the offense level by 2 levels.
U.S.S.G. § 3C1.1. The section requires, first, a finding that
the defendant endeavored to obstruct or impede the
administration of justice, and that the obstructive
conduct related to the offense of conviction or a closely
related offense. We review de novo whether the
district court made adequate findings to support an
enhancement for obstruction of justice, while we review
the underlying factual findings for clear error. United
States v. Carrera, 259 F.3d 818, 831 (7th Cir. 2001); see
also United States v. Gage, 183 F.3d 711, 715 (7th Cir. 1999).
The district court first learned of the alleged obstructive
conduct in this case on the first day of trial, when the
government informed the court that House had con-
tacted Avery through Mary Brown, a friend of House’s
from his neighborhood. A few months before House’s
trial, he had learned through discovery documents that
Avery was a cooperating witness with the government
and was supposed to testify against him at trial. Sometime
after that, Brown and her brothers encountered Avery at
the scene of a traffic accident on Western Avenue in
No. 07-4043 7
Chicago. According to the testimony of Anita Dunn, an
FBI agent who investigated the incident after Avery
reported it to the government in this case, Brown ap-
proached Avery at the scene of the accident, asked if he
was planning on testifying against House, and asked him
not to testify. Dunn also claims that she spoke to Brown,
who gave a similar account of events: “She said she
confronted [Avery]. She asked him about testifying and, I
believe, not to testify against Mr. House.” Sen. Tr. at 19.
According to Dunn, this was all done at House’s instruc-
tion: Brown approached Avery because “Mr. House
asked her to locate Mr. Avery and ask him not to testify
against him.” Id.
House disputes this version of events, claiming that he
only asked Brown to speak to Avery about whether he
would testify because Brown herself was skeptical
about Avery’s cooperation, and House believed that
Brown could tell from Avery’s reaction to her question
whether or not he really intended to appear in court. He
also claims that his intent was only to confirm that Avery
would in fact be testifying at his trial.1 On appeal, he first
1
The parties argue inconclusively about the plausibility of this
second explanation for the confrontation. The government
argues that Avery’s identity was firmly established in dis-
covery documents and that this confrontation occurred shortly
before trial when it was clear that Avery would testify. House
argues that the time of the confrontation has never been estab-
lished and so the confrontation occurred at a point when House
was still identifying the government’s primary witnesses.
(continued...)
8 No. 07-4043
questions the reliability of the government’s evidence
supporting the enhancement, as it was made on the
basis of hearsay testimony from Dunn and neither Avery
nor Brown appeared at the sentencing hearing to
explain what happened. He next argues that the testi-
mony on its own is insufficient to establish that he had
the intent to obstruct justice. In support of this argu-
ment, House points out that Dunn stated during her
direct examination that Brown did not “believe that
[House] wanted her to intimidate Mr. Avery,” Sen. Tr. at
20-21, and during her cross-examination that Brown did
not say that House asked her to speak with Avery in
order to intimidate him.
House’s first objection is misplaced. While it is true that
Dunn’s recollection of her interviews with Brown and
Avery was hearsay testimony, sentencing courts are
allowed to consider hearsay testimony. United States v.
Roche, 415 F.3d 614, 618 (7th Cir. 2005) (citing Williams v.
New York, 337 U.S. 241 (1949)). Hearsay testimony is
proper as long as it has “sufficient indicia of reliability to
support its probable accuracy.” United States v. Otero, 495
F.3d 393, 402 n.5 (7th Cir. 2007). House is left to argue
that while the testimony was properly admissible, it
was presumptively unreliable. He claims that this circuit
has previously held that “a very strong presumption of
(...continued)
Regardless of the timing of the confrontation, we conclude
that the district court had adequate evidence at the sentencing
hearing to support a sentence enhancement.
No. 07-4043 9
unreliability attaches to statements that are: (1) given
with government involvement; (2) describe past events;
(3) have not been subjected to adversarial testing.” United
States v. Jones, 371 F.3d 363, 369 (7th Cir. 2004). 2 Dunn’s
interviews with Avery and Brown, House argues, meet
all three characteristics and thus are not sufficiently
reliable to form a basis for the sentencing enhancement.
House next argues that even if this court finds that
Dunn’s testimony was sufficiently reliable, it was insuf-
ficient to establish his intent to obstruct justice. This
circuit’s opinions on the intent requirements of § 3C1.1
“make clear . . . that the burden is on the Government to
establish that the defendant acted with specific intent to
obstruct justice.” United States v. Dale, 498 F.3d 604, 609 n.4
(7th Cir. 2007). Making any sort of statement to a wit-
2
This line of cases that House cites is not on point, however.
Jones, which cited United States v. Ochoa, 229 F.3d 631, 637 (7th
Cir. 2000), involved a co-conspirator’s hearsay statement
admitted at trial, and which thus implicated the Confrontation
Clause. Jones, 371 F.3d at 369. Ochoa involved the same set of
facts. Ochoa, 229 F.3d at 637. The determination of presumptive
unreliability is premised on the right of confrontation and upon
the fact that it is a co-conspirator’s statement, given in a context
in which the conspirator would be tempted to shift blame.
However, this case is different both because Brown’s testimony
was not a classic co-conspirator’s statement, and because the
relevant standard for sentencing proceedings is not the Con-
frontation Clause, but rather due process. We thus take
House’s point that we should question the reliability of the
statement, without attaching any presumptions of unreliability.
10 No. 07-4043
ness is not enough; rather, a defendant must make the
statement intending for it to affect whether or not the
witness will appear at trial. At the same time, this
circuit’s cases hold that a mere attempt to influence a
witness is enough, regardless of whether it succeeds.
United States v. Wright, 37 F.3d 358, 362 (7th Cir. 1994).
Moreover, the court will use an objective standard to
determine whether a given action is an attempt to
obstruct justice, rather than evaluating the subjective
intent of the defendant. See United States v. Chatmon, 324
F.3d 889, 893 (7th Cir. 2003).
House’s best argument in this respect is that Dunn’s
testimony indicated at two points that Brown did not
approach Avery with the intent to intimidate him, and
that Brown did not believe that House wanted her to
intimidate Avery. (He claims instead that he was
simply determining whether he was going to testify, and
that he was only trying to give his attorney accurate
information about the witnesses in the case.) The sen-
tencing guideline does not make attempts to “intimidate”
the basis for an enhancement, however, but rather
attempts to “obstruct or impede.” This is because the
obstruction of justice enhancement is designed “not just to
prevent miscarriages of justice but also to reduce the
burden on the justice system.” United States v. Buckley, 192
F.3d 708, 710 (7th Cir. 1999). The enhancement thus
covers not only threats or intimidation but also “otherwise
unlawfully influencing” a witness. United States v. Johnson,
46 F.3d 636, 638 (7th Cir. 1995). This circuit has previously
held that “unlawfully influencing” a witness means
intentionally engaging in conduct “having a natural
No. 07-4043 11
tendency to suppress or interfere with the discovery of
truth.” Wright, 37 F.3d at 362.
Thus, House could be liable for an obstruction of justice
enhancement merely because Brown asked Avery not to
testify against House, provided the evidence estab-
lished that House intended to have Brown ask Avery not
to appear. The bare attempt to persuade a witness not
to offer otherwise truthful testimony would indeed be an
attempt to unlawfully influence the outcome of the pro-
ceeding. The government emphasizes this aspect of
Dunn’s testimony in their briefs to this court. The district
court, in imposing the enhancement, likewise found that
“just the attempt to influence or the attempt to persuade
another to act in a certain way” was sufficient. Sen. Tr.
at 26.
This court’s review of the sentencing enhancement
thus boils down to the question of whether House intended
for Brown to ask Avery not to testify, which itself boils
down to the ancillary question of whether the district
court had sufficiently reliable evidence of House’s intent
to justify imposing the sentencing enhancement. This is
a factual question that this court reviews only for clear
error. We note that the evidence of House’s intent was
rather thin. According to Dunn’s testimony, when
House spoke to Brown about Avery he asked her to ask
Avery not to testify. Or at the risk of offering a more
confusing formulation, Dunn said she believed that
House asked Brown to ask that. There is thus only hearsay
testimony from a single witness, and not the strongest
hearsay testimony, on the crucial question of House’s
12 No. 07-4043
intent. Nor was Dunn’s testimony, which the district
court decided to credit, the strongest case that the gov-
ernment could have put on, given that it was hearsay
testimony taken without giving the defense a chance to
cross-examine either Brown or Avery about the encounter
or, crucially, to cross-examine Brown about House’s
intent with respect to that encounter. Nevertheless, this
court will only disturb the district court’s factual
findings when it is “left with the definite and firm con-
viction that a mistake has been committed.” United States
v. Christ, 513 F.3d 762, 775 (7th Cir. 2008). While this
may not have been the strongest possible case for a sen-
tencing enhancement, this court will not reverse the
district court on clear error review merely because it may
disagree with its decision. There is evidence from the
sentencing hearing that Brown approached Avery at the
behest of the defendant and asked him not to testify; and
while there may not have been an attempt to intimidate
Avery (nobody, at this point, argues that there was) there
was an attempt to unlawfully influence his testimony.
House presents no reason to question the accuracy of
Dunn’s testimony aside from the weaknesses inherent in
hearsay testimony. During a sentencing hearing, however,
the judge only needs to find that the evidence is reliable;
in this case, the district court found Agent Dunn’s testi-
mony to be credible and used her report to conclude
that House attempted to persuade Avery not to testify at
trial. There was, consequently, an adequate factual basis
for the sentencing enhancement.
No. 07-4043 13
B. Whether the case should be remanded to the district
court to apply its discretion under Kimbrough v.
United States to consider the 100:1 disparity in the
sentencing guidelines for crack and powder cocaine.
House’s next contention is that the district court did not
exercise the discretion that the Supreme Court granted to
district courts in sentencing proceedings to adjust the
calculation of a defendant’s sentencing range in Kimbrough
v. United States, 128 S. Ct. 558 (2007). The Court’s decision
in Kimbrough acknowledged the sentencing guidelines
contained a disparity between sentences of persons
charged with trafficking powder cocaine and those
charged with trafficking crack cocaine: “a trafficker
dealing in crack cocaine is subject to the same sentence as
one dealing in 100 times more powder cocaine.” Id. at 564.
Concluding that district courts did not need to reflect
this disparity in their sentencing decisions, the Court
held that “it would not be an abuse of discretion for a
district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a sen-
tence ‘greater than necessary’ to achieve § 3553(a)’s
purposes, even in a mine-run case.” Id. at 575.
In evaluating the district court’s sentencing decision,
this court reviews “both findings of fact and applications
of the Sentencing Guidelines for clear error.” United States
v. Stitman, 472 F.3d 983, 986 (7th Cir. 2007). When a defen-
dant alleges that the district court made a procedural
error in sentencing, such as a legal error in interpreting
the guidelines or a failure to appreciate the advisory
nature of sentencing guidelines, this court reviews the
sentencing procedure de novo. Id.
14 No. 07-4043
The district court held the sentencing hearing in this
case shortly after the Supreme Court handed down its
decision in Kimbrough. Before imposing sentence, the
district court acknowledged its authority to adjust
House’s sentencing range because of his conviction for
trafficking crack cocaine. “And I’m sure you’re both
aware of the Supreme Court case law that came down in
the last two days . . . which enables me to take into
account all the different characteristics under 3553 to
move lower than these crack guidelines, if necessary.” Sen.
Tr. at 34. House argues, however, that this statement from
the district court was inadequate because it did not con-
sider the 100:1 disparity between the guideline sen-
tences for crack cocaine and powder cocaine offenses, and
thus was not a proper application of the core holding of
Kimbrough.
In support of his argument that this court should remand
the case to the district court for resentencing, House cites
several cases that this circuit remanded to the district court
for resentencing because Kimbrough might have affected the
district court’s sentencing decision. See United States v.
Adefumi, 279 Fed. Appx. 401 (7th Cir. 2008); United States v.
Padilla, 520 F.3d 706 (7th Cir. 2008); United States v. Smith,
276 Fed. Appx. 497 (7th Cir. 2008). The sentencing proceed-
ings in those cases, however, occurred before the Supreme
Court issued its opinion in Kimbrough, and the district
court was thus unaware of its new discretion. This circuit
established a procedure for remanding sentencing deci-
sions in light of Kimbrough in United States v. Taylor, 520
F.3d 746 (7th Cir. 2008). In Taylor, this court determined
that a limited remand would be appropriate where an
No. 07-4043 15
appeal from a sentencing decision was pending when
Kimbrough was decided and the district court did not
have an opportunity to consider its holding. Id. at 747.
Taylor also holds, however, that remand is not appropri-
ate where the district court was aware of its power
under Kimbrough but simply chose not to apply it. Id.
at 747-48.
The government argues that the district court’s state-
ment during the sentencing hearing indicated an aware-
ness of its authority under Kimbrough to consider a lower
sentencing range, but that the district court declined to
exercise this discretion when imposing the sentence. This
is correct. While the district court could have gone into
more detail about Kimbrough, the statement from the
record shows that it was aware of its discretion in light of
that decision. The district court followed the correct
sentencing procedure, and thus House’s sentence will
be overturned only if the decision not to adjust the sen-
tencing range downward was clear error. Because the
sentence that the district court imposed is ultimately
within the guidelines range and the court acknowledged
its discretion to impose a lower sentence if it chose to do
so, it was not clear error for the district court to decline
to exercise that discretion.
C. Whether House’s 188 month sentence is unreasonable
in light of the § 3553(a) sentencing factors.
House finally argues that his 188-month sentence is
unreasonable in light of the factors contained in § 3553(a)
of the sentencing guidelines. A properly calculated, within-
16 No. 07-4043
guidelines sentence is entitled to a presumption of rea-
sonableness, and this court reviews such a sentence
deferentially. United States v. Hurn, 496 F.3d 784, 790 (7th
Cir. 2007) (citing Rita v. United States, 127 S. Ct. 2456, 2462
(2007)). Section 3553(a) requires a district court, before im-
posing a sentence, to consider among other factors the
nature and circumstances of the offense and the criminal
history of the defendant, the need for deterrence, public
protection, and rehabilitation of the defendant, and the
need to avoid unwarranted sentence disparities.
House cites four factors that justified a sentence below
the guidelines range: his non-existent criminal record, his
low risk of recidivism, his low need for deterrence, and
his lack of danger to the community. With respect to the
first of those four factors, the nature of the offense,
House argues that the district court considered only the
impact that drug dealing as a whole had on his neighbor-
hood, rather than the circumstances of his specific of-
fense. House also argues that he has positive personal
characteristics, such as his lack of a criminal history, that
the district court did not adequately consider. He also
cites the fact that he is a young father as a reason why
he does not need a long sentence to be deterred from a
life of crime, and as a reason why he does not present a
danger to his community.
It appears from the record that the district court con-
sidered the factors in § 3553(a) before imposing sentence.
The court noted four letters written on House’s behalf
by family members and friends. Sen. Tr. 30-31. Before
imposing a 188-month sentence (the bottom of the ap-
No. 07-4043 17
plicable guideline range) the district court also con-
sidered House’s culpability in both of the drug dealing
transactions. While the court did discuss the impact of
drug trafficking as a whole on House’s community, it
related that discussion back to the nature and circum-
stances of House’s convictions. “[I]t’s not just your role in
brokering a deal or moving one drug to another. It is your
role in setting that image that permeates your community
and really robs the youth of your community of any
role models to move forward and to break out of the chains
of this poverty, this violence, and this drug dealing.” Sen.
Tr. at 47. Further, the government’s evidence at trial
indicated that House was highly culpable for the two
offenses. “[W]hat [the evidence] presented was not a
confused somebody who just happened to stumble
upon drug dealing. It’s somebody who’s been a part of
this fabric that’s ruining this community and keeping
young men down in that community . . . .” Sen. Tr. at 48-49.
The district court likewise noted the possibility of
House’s rehabilitation in prison, his lack of criminal
history, and the fact that he was not a threat to re-offend.
See Sen. Tr. at 49. The district court thus considered the
factors that House now stresses on appeal. They did not
lead the district court to impose a sentence below the
guidelines range, as he had hoped. Nevertheless, while
House may argue that a lighter sentence may have
been justified, all things considered, the district court
did not err by sentencing House to a term at the low end
of the applicable guidelines range.
18 No. 07-4043
III. Conclusion
For the foregoing reasons, the conviction and sentence
of the district court are A FFIRMED.
12-31-08