United States v. Henry Austin, II

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11442
Non-Argument Calendar
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D.C. Docket No. 7:18-cr-00024-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY AUSTIN, II,
a.k.a. POOCHIE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 12, 2020)
Before WILLIAM PRYOR, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
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Henry Austin, II, appeals his jury conviction and 125-month sentence for
conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(C), and 851(a). Austin argues that the district court: (1) abused
its discretion by admitting evidence of his prior conviction for sale of cocaine in
1992, and (2) erred in calculating his guideline range by attributing to him over
five kilograms of cocaine and without making an explicit factual finding to support
this allegation. We affirm.
I. Background
In 2018, a grand jury charged Austin, along with 18 co-conspirators, with
conspiracy to distribute more than five kilograms of cocaine and cocaine base
between January 1, 2013, and October 28, 2014. Most of Austin’s named
co-conspirators, including Andrew Carter, Willis Young, Eddie Smith, and
Kenyatta Mitchell pleaded guilty.
At Austin’s trial, Carter testified that, during the relevant time period, he
received 15-kilogram shipments of cocaine every four to five days and would
distribute it to various individuals throughout Georgia. Carter distributed cocaine
to Austin, whom he knew through Young and Smith. Carter sold approximately
half a kilogram, or 18 ounces, of cocaine to Austin using Smith or Young as an
intermediary about once or twice a week from around March or April of 2013 until
Carter’s arrest in September 2014.
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Similarly, Young testified that he introduced Austin to Kenyatta Mitchell so
that Austin could buy cocaine from Mitchell. In 2011 and 2012, Young brought
Austin to buy drugs from Mitchell three times—on two of those occasions Austin
purchased 9 ounce of cocaine and on one occasion 18 ounces. Young also helped
Austin buy cocaine from Carter.
Smith testified that he knew Austin for about 20 years and Smith sold crack
cocaine for him in the 2000s. Austin taught Smith how to cook crack cocaine. In
the 2000s, Smith brokered five or six drug transactions between Austin and
Mitchell in amounts varying between 9 and 18 ounces. And between 2013 and
2014, Smith brokered five or six drug transactions between Austin and Carter for
18 ounces of cocaine each time.
The government also introduced at trial audio recordings obtained through
authorized wiretaps in which Austin was recorded speaking with various
co-conspirators discussing the poor quality of the cocaine he purchased from
Carter in September 2014, stating he was having difficulty cooking it, and
arranging to exchange it for another 18 ounces. Additionally, the government
introduced video surveillance and photographs taken of Carter, Young, and Austin
together during at least two different drug transactions. Finally, the government
introduced, over Austin’s objection, evidence of Austin’s 1992 Georgia conviction
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for two counts of sale of cocaine, pursuant to Federal Rule of Evidence 404(b).1
However, the district court agreed to give the defense’s requested limiting
instruction with regard to the prior conviction, admonishing the jury that it “must
not consider any of this evidence to decide whether the Defendant committed the
acts charged now.” But the court also explained that the jury could “consider
evidence of similar acts done on other occasions to decide whether the Defendant
had the state of mind or intent necessary for the crime charged, or whether the
Defendant acted according to a plan or to prepare to commit a crime, or whether
the Defendant committed the charged acts by accident or mistake.” Following
deliberations, the jury convicted Austin as charged, and determined that he
conspired to possess with intent to distribute less than 500 grams of cocaine.
Prior to sentencing, the probation office prepared a presentence investigation
report (“PSI”). The PSI noted that, according to trial testimony, from 2013 to
2014, Austin purchased from Carter approximately 1.53 kilograms of cocaine
through brokered transactions with Young, and approximately 2.55 to 3.06
1
Rule 404(b) provides in relevant part that:
Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character. . . . The evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.
Fed. R. Evid. 404(b)(1)–(2).
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kilograms of cocaine through brokered transactions with Smith. Austin also
purchased approximately 2.30 to 3.06 kilograms of cocaine from Mitchell. Thus,
pursuant to U.S.S.G. § 1B1.3(a)(1)(A) and (B), the probation officer concluded
that Austin was accountable for 6.38 to 7.65 kilograms of cocaine, which resulted
in a base offense level of 30, pursuant to U.S.S.G. §§ 2D1.1(a)(5) and (c)(5). 2
Based on an offense level of 30 and a criminal history category of II, Austin’s
guideline range was 108 to 135 months’ imprisonment, and the statutory maximum
sentence was 30 years. Austin objected to the attributed drug amount, asserting
that the base offense level should only be 22 because “the investigation [did] not
show his conduct was part of a conspiracy,” and, therefore, only the less than 500
grams the jury determined he possessed should be the amount attributed to him. In
response, the probation officer explained that because Austin was found guilty of
participating in a jointly undertaken criminal activity—here, conspiracy to
distribute cocaine— under the Guidelines he was accountable for conduct that was:
“within the scope of the jointly undertaken activity, in furtherance of the criminal
activity, and reasonably foreseeable in connection with that criminal activity.”
And Carter testified that Austin bought cocaine from him through Young and
Smith in 18-ounce increments on multiple occasions between 2013 and 2014.
2
U.S.S.G. § 2D1.1(c)(5) provides a base offense level of 30 for a 21 U.S.C.
§ 841(b)(1)(C) offense involving at least 5 but less than 15 kilograms of cocaine.
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These transactions were in furtherance of the drug conspiracy and were reasonably
foreseeable because they were brokered on Austin’s behalf. Accordingly, Austin
was accountable for 6.38 to 7.65 kilograms of cocaine.
At sentencing, Austin reiterated his objection to the amount of cocaine
attributed to him. He also argued that the transactions with Mitchell took place
prior to the period covered by the indictment, and, therefore, he should not be held
accountable for the 2.3 to 3.06 kilograms he bought from Mitchell. The
government responded that the jury’s determination of a defendant’s drug quantity
for the purposes of the statutory penalty did not affect the district court’s
determination of his drug quantity at sentencing and that, given the testimony at
trial, the district court could attribute to Austin more than the 500 grams the jury
found him guilty of possessing. The government also argued that even if the
transactions with Mitchell occurred outside the window alleged in the indictment,
those transactions could still be considered as relevant conduct for sentencing
purposes. The district court overruled Austin’s objections, adopted the PSI, and
sentenced Austin to 125 months’ imprisonment to be followed by 6 years of
supervised release. This appeal followed.
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II. Discussion
A. The Rule 404(b) Evidence
Austin argues that the district court abused its discretion when it admitted
evidence of his 1992 Georgia conviction for two counts of sale of cocaine because
the prejudicial effect far outweighed any probative value. 3 In response, the
government concedes that the admission of the 1992 conviction was an abuse of
discretion, but contends that the error was harmless.4
“[We] review[] a district court’s evidentiary rulings for a clear abuse of
discretion.” United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). “Even if
an evidentiary ruling is erroneous, ‘that ruling will result in reversal only if the
error was not harmless.’” United States v. Khanani, 502 F.3d 1281, 1292 (11th
Cir. 2007) (alteration adopted) (quoting United States v. Hands, 184 F.3d 1322,
1329 (11th Cir. 1999)). Thus, “where an error had no substantial influence on the
outcome, and sufficient evidence uninfected by error supports the verdict, reversal
is not warranted.” United States v. Drury, 396 F.3d 1303, 1315 (11th Cir. 2005)
(quoting United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990)).
3
Austin also generally argues that this Circuit’s standard for admissibility of other acts
evidence under Rule 404(b) is too broad and urges this Court to adopt a narrower standard used
in other Circuits. We decline to address this argument.
4
In light of the government’s concession, for purposes of this appeal, we will assume
without deciding that the admission of this evidence was an abuse of discretion and conduct a
harmless error analysis.
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Here, as an initial matter, the risk of any unfair prejudice from the admission
of Austin’s 1992 conviction was reduced by the district court’s limiting instruction
to the jury. See United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir.
1993) (“While the probative value and government need for this [Rule 404(b)]
evidence were strong, any unfair prejudice possibly caused by its introduction was
mitigated by the trial judge’s limiting instructions.”); see also United States v.
Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (noting that the risk of prejudice
from Rule 404(b) evidence can be mitigated by a limiting instruction).
Additionally, even without the 1992 conviction, sufficient evidence uninfected by
error supported the jury’s guilty verdict, as law enforcement and Austin’s
co-conspirators testified that he was placed at locations where drug deals took
place, purchased cocaine at those locations on multiple occasions, and cooked and
sold crack cocaine. Accordingly, any error in the admission of Austin’s 1992
conviction was harmless. See Drury, 396 F.3d at 1315. Therefore, we affirm
Austin’s conviction for conspiracy to distribute cocaine and cocaine base.
B. Sentencing Challenge
Austin argues that the district court erred at sentencing when it attributed
over five kilograms of cocaine to him and failed to make an “explicit factual
finding as to the allegation.” Therefore, he maintains that he must be resentenced
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using the jury’s determination that he was responsible for less than 500 grams of
cocaine.
“The district court’s determination of the drug quantity attributable to a
defendant is reviewed for clear error.” United States v. Chavez, 584 F.3d 1354,
1367 (11th Cir. 2009). “A finding is clearly erroneous where, after reviewing all
the evidence, we are ‘left with the definite and firm conviction that a mistake has
been committed.’” United States v. Alicea, 875 F.3d 606, 608 (11th Cir. 2017)
(quoting United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007)).
“When a defendant objects to a factual finding that is used in calculating his
guideline sentence, such as drug amount, the government bears the burden of
establishing the disputed fact by a preponderance of the evidence.” United States
v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). “The district court’s factual
findings for purposes of sentencing may be based on, among other things, evidence
heard during trial, undisputed statements in the PSI, or evidence presented during
the sentencing hearing.” United States v. Polar, 369 F.3d 1248, 1255 (11th Cir.
2004). Although, “a district court should make explicit factual findings that
underpin its sentencing decision[,]” the failure to make specific findings does not
preclude appellate review or warrant reversal “where the court’s decisions are
based on clearly identifiable evidence.” United States v. Bradley, 644 F.3d 1213,
1293 (11th Cir. 2011).
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Here, the district court did not err in attributing more than 500 grams of
cocaine to Austin for purposes of calculating his guideline range. The Guidelines
instruct district courts to consider not merely the charged conduct, but rather all
“relevant conduct,” in calculating a defendant’s guideline range. U.S.S.G.
§ 1B1.3. Therefore, “sentencing courts may consider both uncharged and
acquitted conduct in determining the appropriate sentence.” United States v.
Hasson, 333 F.3d 1264, 1279 n.19 (11th Cir. 2003). Thus, when determining the
quantity of drugs attributable to the defendant for sentencing purposes,
the defendant is accountable . . . for all quantities of contraband with
which he was directly involved and, in the case of a jointly undertaken
criminal activity . . . all quantities of contraband that were 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 activity.
U.S.S.G. § 1B1.3, cmt. (n.3(D)). Here, the district court determined Austin was
accountable for cocaine he purchased from Carter and Mitchell, albeit uncharged
or acquitted conduct. This conduct was clearly relevant under U.S.S.G. § 1B1.3
because it was quantities of cocaine “with which [Austin] was directly involved.”
Id. Although Austin argues that the district court failed to make an explicit factual
finding regarding the amount attributable to him, his argument is belied by the
record as the district court expressly overruled his objection to the amount of
cocaine attributed to him, found the challenged conduct to be “relevant,” and
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adopted the PSI, which stated that the amount of cocaine attributable to Austin was
based on trial testimony. Accordingly, the district court’s factual finding was not
clearly erroneous. See Alicea, 875 F.3d at 608; Bradley, 644 F.3d at 1293. We
affirm Austin’s sentence.
AFFIRMED.
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