United States v. Steven Syms , 846 F.3d 230 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-3067
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEVEN SYMS,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13-cr-30125-DRH-5 — David R. Herndon, Judge.
ARGUED SEPTEMBER 27, 2016 — DECIDED JANUARY 17, 2017
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. This case involves a conspiracy to
distribute cocaine in St. Louis, Missouri, and the surrounding
area. One of the conspirators, Steven Syms, pleaded guilty to
conspiracy to distribute and possess with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and
846. The district court sentenced Syms to 151 months’ im-
2 No. 15-3067
prisonment. On appeal, Syms argues that the mandatory
minimum sentence contained in 21 U.S.C. § 841(b)(1)(A)(ii)
violates the separation-of-powers doctrine. He also argues that
the district court improperly based its drug-quantity calcula-
tion and sentencing enhancement on speculative and unreli-
able evidence, and further contends that he qualified for a
safety valve reduction in his sentencing, and that his sentence
violates the Eighth Amendment. For the reasons that follow,
we affirm Syms’ sentence.
I. BACKGROUND
Beginning in April 2011, multiple law enforcement agen-
cies, including the Drug Enforcement Administration, Internal
Revenue Service, and United States Marshals Service, began
investigating a drug-trafficking operation based on informa-
tion that Tyrone Carraway of St. Louis, Missouri, was supply-
ing cocaine to brothers Cortez and Richard Yarbough of East
St. Louis, Illinois. During the course of the investigation, agents
gathered information and collected evidence through confiden-
tial informants, controlled buys of cocaine, witness interviews,
surveillance, and searches. The investigation revealed that
Carraway and coconspirator Richard Graham distributed
cocaine to the Yarbough brothers, and other defendants and
unidentified individuals.
The ultimate source of Carraway and Graham’s supply was
Huey Jones of Houston, Texas. The intermediaries between
Jones, Carraway, and Graham were Syms and coconspirator
Antoine Meeks. Syms, Meeks, and an unindicted co-
conspirator, traveled to Houston to obtain cocaine from Jones.
Syms also recruited Keith Harris to transport drugs and money
No. 15-3067 3
between Houston and St. Louis; Harris transported the cocaine
and money in the gas tank of the vehicles he drove to retrieve
the drugs.
On April 27, 2012, Harris’ vehicle was searched during a
traffic stop. The search revealed 40 packages that each con-
tained around .5 kilograms of cocaine, for a total of 19.91
kilograms. A fingerprint analysis of the packages showed
latent prints belonging to Syms, Meeks, Jones, and others.
On October 14, 2012, agents conducted surveillance on
Syms, Meeks, and another individual. Syms drove to a
residence in St. Louis, at which time agents searched the
vehicle, residence, and garage and recovered two packages
that contained 982 grams of cocaine. At a post-arrest interview,
Meeks revealed that he and Syms had traveled to Houston to
obtain the drugs.
On June 18, 2013, a grand jury charged Syms with conspir-
acy to distribute, and possession with intent to distribute five
kilograms or more of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(ii), and 846. On June 27, 2013, Syms
was arrested and released on a $10,000 unsecured appearance
bond. In a September 6, 2013, interview, Jones implicated Syms
in several additional trips to Houston throughout 2011
obtaining a total of 41 kilograms of cocaine. Jones advised that
the final shipment of cocaine was 19.91 kilograms that was
seized by law enforcement, a shipment that Syms helped to
deliver. Jones also stated that Syms sought to increase his role
in the conspiracy and the amount of cocaine that was being
transported so that he could sell it in St. Louis.
4 No. 15-3067
Agents interviewed Harris on September 10, 2013, who
described how Syms recruited him to be a courier for the drug-
trafficking operation, and of Syms’ involvement in the trips to
Houston to obtain cocaine.
Syms pleaded guilty to the one-count charge against him on
August 28, 2014. The United States Probation Office prepared
Syms’ Presentence Investigation Report. It detailed the
interview notes from Jones and Harris. Syms’ PSR determined
that he was responsible for conspiring with multiple defen-
dants and others to possess and/or distribute 61.8 kilograms of
cocaine. Although the amount contained in the indictment was
5 kilograms or more, the PSR, relying in part on statements
from coconspirators, determined that Syms’ relevant conduct
was 61.8 kilograms of cocaine.
Using the 2013 Guidelines Manual, the PSR recommended
a base offense level of 36. The PSR applied a three-level
enhancement, pursuant to U.S.S.G. § 3B1.1(b), for being a
manager or supervisor of a criminal activity involving five
or more participants. Syms was credited for acceptance
of responsibility, pursuant to U.S.S.G. §§ 3E1.1(a) and (b).
Accordingly, his total offense level was 36.
Syms filed a written objection to the PSR, challenging the
inclusion of the uncharged drug amounts and the man-
ager/supervisor enhancement. He complained that the state-
ments taken from coconspirators used to increase the drug
amount and apply the manager/supervisor enhancement were
self-serving and unreliable. The government filed its response
outlining the basis for the information used in the PSR, and
Syms withdrew his objections. Syms then filed a sentencing
No. 15-3067 5
memorandum which did not raise any of the constitutional
claims he raises before us but requested that the district court
impose the statutory minimum sentence of ten years.
At sentencing, the district court accepted the PSR. The court
calculated Syms’ base offense level at 34 using the 2014
Guidelines, which contained a change from the 2013 Guide-
lines that decreased Syms’ base offense level by two. After
applying the manager/supervisor enhancement and crediting
Syms with acceptance of responsibility, the district court
calculated Syms’ total offense level to be 34. The court found
that the statutory minimum sentence was ten years, and the
maximum was a life sentence. The court determined the
Sentencing Guidelines range to be from 151 to 188 months.
Before sentencing Syms, the court specifically asked Syms’
counsel if there were any other arguments made in mitigation
that he had not fully addressed, to which counsel replied,
“No.” The court then ordered Syms to pay a $500 fine and
sentenced him to 151 months in prison with five years of
supervised release. This appeal followed.
II. DISCUSSION
Syms first argues that mandatory minimum sentences
violate the separation-of-powers doctrine by granting prosecu-
tors sole discretion in deciding whether to pursue charges that
carry mandatory minimum sentences and stripping the judicial
branch of discretion in sentencing.
We flatly rejected a similar argument in United States v.
Nigg, 667 F.3d 929, 934 (7th Cir. 2012). We held that mandatory
minimum sentences did not violate the separation-of-powers
doctrine, recognizing that “determinate sentences were found
6 No. 15-3067
in this country’s penal codes from its inception[.]” Id. (internal
alteration omitted) (quoting Chapman v. United States, 500 U.S.
453, 467 (1991)); see also United States v. Brucker, 646 F.3d 1012,
1019 (7th Cir. 2011) (“We have rejected separation of powers
challenges to mandatory minimum sentences, and we see no
reason to revisit that holding here.”). We decline Syms’
invitation to upend well-settled precedent in this case.
We also note that the district court went above the manda-
tory minimum sentence of ten years, sentencing Syms to
twelve years and seven months. The district court determined
the Guidelines range and then used the factors set forth in 18
U.S.C. § 3553(a) in fashioning Syms’ sentence. Contrary to
Syms’ contention, the district court did use its discretion in
sentencing him. Syms’ sentence did not violate the separation-
of-powers doctrine.
Next, Syms contends that the district court violated his
rights under the Fifth and Sixth Amendments when it sen-
tenced him based upon uncharged conduct contained in the
PSR. Specifically, Syms argues that the district court’s conclu-
sion that he was involved in distributing 61.8 kilograms of
cocaine in the operation was based upon unreliable informa-
tion provided by his coconspirators. He further argues that the
Probation Department’s recommendation that Syms receive a
leadership role enhancement was similarly based upon
unreliable information from coconspirators.
The government counters that Syms waived this argument
by withdrawing his objections to the PSR, and we agree. Prior
to sentencing, Syms objected to the PSR, challenging the drug
quantity calculation and the manager/supervisor enhancement
No. 15-3067 7
on the basis that they were based on unreliable coconspirator
statements. He later withdrew these objections and did not
renew them at sentencing. We have repeatedly found that a
withdrawal of an objection generally results in a waiver of that
argument on appeal, see, e.g., United States v. Venturella, 585
F.3d 1013, 1019 (7th Cir. 2009) (collecting cases), and Syms has
not put forth any argument warranting a deviation from that
holding.
In addition, the district court judge specifically asked Syms’
counsel whether he had considered all arguments in mitigation
of the sentence, to which she replied in the affirmative. The
judge took this step in order to ensure that any countervailing
factors had been appropriately considered, a practice that in
our view is to be commended. In United States v. Garcia-Segura,
we admonished defendants that if defense counsel answered
this question in the affirmative during sentencing, subsequent
challenges to the defendant’s sentence for failure to address a
principal mitigation argument would be waived. 717 F.3d 566,
569 (7th Cir. 2013). Accordingly, we find that Syms has waived
his challenges to the district court’s fact-finding at sentencing.
Syms also argues that the district court erred by not
applying the “safety valve” provision in U.S.S.G. § 5C1.2 of
the Sentencing Guidelines in order to reduce his sentence.
The government argues that Syms failed to qualify for
the safety valve according to the plain language of the Guide-
lines.
The Mandatory Minimum Sentencing Reform Act of 1994
includes a safety valve provision that created more flexibility
in sentencing by permitting courts to sentence below the
8 No. 15-3067
minimum sentences fixed by statute. See 18 U.S.C. § 3553(f).
The Sentencing Commission added an analogous provision to
the Guidelines. See U.S.S.G. § 5C1.2. The safety valve is
intended to benefit “first-time, non-violent drug offenders who
were not organizers of criminal activity and who have made a
good-faith effort to cooperate with the government.” United
States v. Arrington, 73 F.3d 144, 147 (7th Cir. 1996); see also
United States v. Thompson, 76 F.3d 166, 171 (7th Cir. 1996)
(discussing legislative history of the statute and guideline).
In order to apply the safety valve, the court must find that:
(1) the defendant does not have more than 1
criminal history point, as determined under the
sentencing guidelines; (2) the defendant did not
use violence or credible threats of violence or
possess a firearm or other dangerous weapon
(or induce another participant to do so) in con-
nection with the offense; (3) the offense did not
result in death or serious bodily injury to any
person; (4) the defendant was not an organizer,
leader, manager, or supervisor of others in the
offense, as determined under the sentencing
guidelines and was not engaged in a continuing
criminal enterprise, as defined in section 408 of
the Controlled Substances Act; and (5) not later
than the time of the sentencing hearing, the
defendant has truthfully provided to the Gov-
ernment all information and evidence the defen-
dant has concerning the offense or offenses that
were part of the same course of conduct or of a
common scheme or plan, but the fact that the
No. 15-3067 9
defendant has no relevant or useful other infor-
mation to provide or that the Government is
already aware of the information shall not
preclude a determination by the court that the
defendant has complied with this requirement.
18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2.
The defendant bears the burden of proving by a preponder-
ance of the evidence his eligibility for safety valve relief. United
States v. Ramirez, 783 F.3d 687, 692 (7th Cir. 2015). Generally,
we review the district court’s factual findings concerning a
defendant’s eligibility for the safety valve for clear error. United
States v. Rebolledo-Delgadillo, 820 F.3d 870, 879 (7th Cir. 2016).
However, Syms raises this issue for the first time on appeal,
which impacts the standard of review. Consequently, he has
either forfeited or waived the argument. We will generously
assume that Syms’ silence on this issue until this point is the
result of a “failure to make a timely assertion of a right” rather
than an “intentional relinquishment[.]” Ramirez, 783 F.3d at
693 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).
Accordingly, we assume Syms merely forfeited his safety valve
request, which permits plain error review. See id. at 694 n.5
(noting that, in addition to our circuit, other circuits have
applied plain error review where the defendant failed to
request safety valve consideration before the district court).
In any case, it is clear that Syms is not entitled to relief. The
district court determined that Syms was a manager/supervisor
of the operation, which precludes his qualifying for the safety
valve. Indeed, providing Syms with relief under the safety
valve would run counter to the purpose of the statute, which
10 No. 15-3067
is to reward those who have cooperated with the government
and did not organize the criminal activity. See Arrington, 73
F.3d at 147; see also United States v. Marin, 144 F.3d 1085, 1095
(7th Cir. 1998). There was no plain error by the district court.
Finally, Syms argues that his 151-month sentence is so
grossly disproportionate to his crime that it constitutes cruel
and unusual punishment under the Eighth Amendment. The
crux of Syms’ argument is that his sentence is disproportionate
because it is the same as that of coconspirator Meeks, who has
a more extensive criminal history than Syms.
The Supreme Court has recognized that “[t]he Eighth
Amendment, which forbids cruel and unusual punishments,
contains a narrow proportionality principle that applies to
noncapital sentences.” Ewing v. California, 538 U.S. 11, 20 (2003)
(citation and quotation marks omitted). But “narrow” does not
equate to strict proportionality. Id. at 23. Only extreme sen-
tences that are “grossly disproportionate” to the crime will be
deemed cruel and unusual. Id. (citation omitted). Additionally,
“eighth amendment challenges to sentences that are both
prescribed by the guidelines, and within the statutory maxi-
mums established by Congress, are looked on with disfavor.”
United States v. Saunders, 973 F.2d 1354, 1365 (7th Cir. 1992)
(citation omitted).
In determining whether a sentence is grossly disproportion-
ate, the Supreme Court has outlined a three-factor test, which
considers: “(i) the gravity of the offense and the harshness of
the penalty; (ii) the sentences imposed on other criminals in the
same jurisdiction; and (iii) the sentences imposed for commis-
sion of the same crime in other jurisdictions.” Solem v. Helm,
No. 15-3067 11
463 U.S. 277, 292 (1983). The first factor is a threshold factor; if
an inference of gross disproportionality is not established, we
need not conduct any comparative analysis within and
between jurisdictions. United States v. Gross, 437 F.3d 691,
692–93 (7th Cir. 2006).
In examining the first factor, the Supreme Court has
found that “[p]ossession, use, and distribution of illegal drugs
represent ‘one of the greatest problems affecting the health
and welfare of our population.’” Harmelin v. Michigan, 501 U.S.
957, 1002 (1991) (quoting Nat’l Treasury Emps. Union v. Von
Raab, 489 U.S. 656, 668 (1989)). The Court further detailed the
violence, crime, and social displacement that is attendant to the
possession and distribution of drugs in this country. Id. at
1002–04. Thus, we recognize the serious nature of the offense
that Syms committed.
Regarding the harshness of Syms’ sentence, we note that he
was sentenced within the statutory range, and at the lowest
end of the Guidelines range. “We have not in the past looked
very favorably upon Eighth Amendment challenges to
sentences that are prescribed under the guidelines and are
within the statutory maximums established by Congress.”
United States v. Jones, 950 F.2d 1309, 1317 (7th Cir. 1991).
We have also permitted lengthier sentences for similar
crimes. See Saunders, 973 F.2d at 1365–66 (defendant’s 262-
month sentence for conspiring to distribute and intent to
distribute 13 ounces of cocaine was not grossly disproportion-
ate); United States v. Washington, 109 F.3d 335, 338 (7th Cir.
1997) (“The cruel and unusual punishments clause of the
eighth amendment permits life imprisonment for a single drug
12 No. 15-3067
crime.” (citation omitted)). Therefore, we conclude that Syms’
sentence does not give rise to an inference of gross dispro-
portionality. As a result, we need not conduct any comparative
analysis with Meeks’ sentence, or within and between jurisdic-
tions.
III. CONCLUSION
For the reasons stated above, we AFFIRM Syms’ sentence.