United States v. Kenneth Townsend

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-1577
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UNITED STATES OF AMERICA
v.
KENNETH TOWNSEND,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. No. 2-12-cr-00125-003)
District Judge: Honorable Cathy Bissoon
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Submitted Under Third Circuit L.A.R. 34.1(a)
November 3, 2016
Before: JORDAN, GREENAWAY, JR., and RENDELL, Circuit Judges.
(Filed: November 17, 2016)
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OPINION
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JORDAN, Circuit Judge.
Kenneth Townsend was convicted of drug offenses and sentenced as a career
criminal, but the District Court gave him a downward variance from the recommended

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
guidelines range. We vacated his sentence in light of Supreme Court precedent that
invalidated portions of the Armed Career Criminal Act. Johnson v. United States, 135 S.
Ct. 2551 (2015). On remand, the District Court granted the government’s request to
enhance Townsend’s sentence for obstruction of justice, and the Court resentenced him to
the full length of his original sentence. On appeal, Townsend challenges the Court’s
reliance on the remarks of an accomplice made in a proffer to the Federal Bureau of
Investigation. We conclude that the Court did not clearly err in crediting those remarks
and will therefore affirm.
I. Background
A. Arrest and Trial
In late 2011 and early 2012, the FBI and law enforcement officers in Pittsburgh,
Pennsylvania conducted an investigation into local heroin trafficking. Through a wiretap,
they determined that Damon Boyd and Carter Gaston were dealing cocaine and heroin.
The investigators also became suspicious of Townsend after they observed Boyd and
Gaston repeatedly entering and exiting from Townsend’s residence.
Soon after, the agents learned of a cocaine transaction happening there. They
followed Boyd and Gaston as those two drove away from the home. The agents stopped
them and arrested Boyd on an outstanding warrant. While conducting a standard
inventory search of the vehicle, they discovered crack cocaine. The cocaine was still wet,
indicating that it had been recently processed. The agents obtained a search warrant for
Townsend’s home and promptly conducted a search. There they found cocaine and items
associated with the processing of crack.
2
Townsend was convicted of possession with intent to distribute less than 500
grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), and of possession with intent to
distribute 28 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1). He was also
charged with, but not convicted of, conspiracy to distribute 28 grams or more of cocaine,
in violation of 21 U.S.C. § 846. During trial, he testified that the only time that he had
ever processed cocaine for Boyd was on the day he was arrested. The jury could not
reach a decision on the conspiracy charge and that charge was dismissed.
B. Sentencing and Appeal
Townsend was sentenced as a career offender pursuant to the United States
Sentencing Guidelines § 4B1.1. He had two prior offenses that contributed to his status
as a career offender: possession with intent to deliver cocaine (a controlled substance
offense) and fleeing a police officer (which at the time was considered a crime of
violence).1 The Sentencing Guidelines recommended a prison sentence of 360 months to
life, but the District Court granted Townsend’s request for a downward variance and
sentenced him to 200 months in prison. In explaining its decision to grant the variance,
the Court noted that Townsend’s “record is light with respect to violent tendencies” and
that Townsend “has shown some inclination toward bettering himself and learning a trade
both before and after his arrest.” (Suppl. App. at 102.) The District Court therefore
concluded that the sentence was “sufficient but not greater than necessary to meet the
goals of [18 U.S.C.] Section 3553.” (Id. at 103.)
1
As explained herein, we later determined that Supreme Court precedent
undermined the conclusion that his conviction for flight was a crime of violence.
3
The government had argued that Townsend qualified for an obstruction of justice
enhancement pursuant to U.S.S.G. § 3C1.1. It claimed that he had offered false
testimony when he claimed that he had only cooked crack cocaine for Boyd on a single
occasion. Because Townsend qualified as a career criminal, and therefore already faced
an elevated recommended sentence, the District Court did not resolve whether an
obstruction of justice enhancement was proper.
Townsend appealed his sentence, raising a variety of arguments about whether
there was probable cause to search his home and whether he had been denied his right to
confront a witness. United States v. Townsend, 638 F. App’x. 172, 175-77 (3d Cir.
2015). We determined those arguments to be meritless and affirmed his conviction. Id.
But, in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551
(2015), we concluded that Townsend’s prior conviction for eluding a police officer no
longer qualified as a crime of violence, Townsend, 638 F. App’x at 178, and therefore
Townsend no longer qualified as a career criminal. Accordingly, we vacated his sentence
and remanded to the District Court for resentencing.
C. Resentencing
On remand, the District Court held a new sentencing hearing. The government
argued for imposing the obstruction of justice enhancement that had been passed over
during the first sentencing. It also urged the Court to impose the same sentence that had
originally been imposed because, while “Mr. Townsend may no longer be a career
offender in terms of the legal definition, he is a career offender by every other
definition.” (App. at 87a.)
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Townsend responded that Gaston’s statements were unreliable because he made
them out of a self-serving desire to reduce his own sentence. Townsend also noted that
Boyd at one point had called Gaston to ask for Townsend’s number, which, Townsend
claimed, undermined the assertion that Boyd worked with Townsend on numerous
occasions. Moreover, according to Townsend, his earlier interactions with Boyd only
involved marijuana, not cocaine.
The Court evaluated the record from the original sentencing hearing, as well as
supplemental information, the guidelines, and the parties’ arguments. It credited
Gaston’s statement as being believable and noted that there were “other indicia that Mr.
Townsend and Mr. Boyd had a relationship including Mr. Townsend’s knowledge of Mr.
Boyd’s street name, his knowledge of Mr. Boyd’s voice, and the manner in which they
conversed.” (App. at 98a.) It found that Townsend’s claim that he had only
manufactured crack on one occasion was “a perjured statement by a preponderance of the
evidence.” (App. at 98a.) The Court therefore concluded that an obstruction of justice
enhancement was appropriate.
As a result of that sentence enhancement and Townsend’s criminal history, the
recommended guidelines range became 135 to 168 months imprisonment. The Court
agreed with the government’s argument that Townsend’s criminal history category did
not “appropriately reflect the seriousness of [Townsend’s] criminal record” or “the
likelihood of recidivism in this case.” (App. at 100a-01a, 110a.) And the Court
emphasized that, when imposing the original sentence it had “varied downward from the
guidelines … to achieve a sentence in that case that balanced the very serious nature of
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this drug trafficking offense, [Townsend’s] criminal history, and the needs for just
punishment, deterrence, and rehabilitation.” (App. at 110a.) Additionally, because the
Court had “discount[ed] … [Townsend’s] career offender status,” the fact that Townsend
was “no longer considered a career offender” did not “change what [the Court] believe[d]
to be the appropriate sentence in this case.” (App. at 110a-111a.) It thus re-imposed the
original sentence of 200 months.
Townsend appeals that sentence.
II. Discussion2
According to Townsend, the District Court erred when it granted the government’s
motion for a two-point enhancement for obstruction of justice. We review for clear error
the District Court’s factual determination that Townsend falsely testified under oath,
United States v. Napolitan, 762 F.3d 297, 312 (3d Cir. 2014), and we review the decision
to apply the sentencing enhancement for abuse of discretion. United States v. Fumo, 655
F.3d 288, 314 (3d Cir. 2011). The defense has two arguments. First, that the Court erred
in considering Gaston’s hearsay testimony, and second, that the Court did not sufficiently
address each of the elements of perjury. We reject both.
As for Gaston’s hearsay statements, it is well established that out-of-court
statements may be relied upon during sentencing as long as they have “sufficient indicia
of reliability.” United States v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996) (internal
quotation marks and citation omitted). Here, there were sufficient indicia of reliability
2
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).
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and the Court did not err in crediting Gaston’s remarks. Gaston spoke to the FBI as part
of his “safety-valve” proffer pursuant to 18 U.S.C. § 3553(f). That provision allows a
court to sentence a defendant without regard to statutory minimums, when certain
conditions are met. In particular, the defendant must have “truthfully provided to the
Government all information and evidence the defendant has concerning the offense or
offenses that were part of the same course of conduct or a common scheme or plan.” Id.;
see also United States v. Sabir, 117 F.3d 750, 751 (3d Cir. 1997) (describing the
requirement of truthfulness). Satisfying the truthfulness element requires candor and
openness. Sabir, 117 F.3d at 754; see also United States v. Aidoo, 670 F.3d 600, 607 (4th
Cir. 2012) (“The defendant’s burden under the safety valve is a true burden of proof that
rests, at all times, on the defendant. To carry his burden, the defendant must persuade the
district court that he has made full, truthful disclosure of information required by the
safety valve.”). Gaston therefore had a strong incentive to be forthright.
Furthermore, satisfying the truthfulness element does not depend on providing
novel information that furthers an investigation or leads to another’s conviction. 18
U.S.C. § 3553(f)(5) (noting that “the fact that the defendant has no relevant or useful
other information 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”). So, Gaston did not need to falsely implicate Townsend. Indeed, if his
remarks were proven false, he would have been denied the benefits of the safety valve.
There were also other indicia of reliability that the District Court noted, such as
Townsend’s knowledge of Boyd’s street name, his ability to recognize Boyd’s voice, and
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the familiarity with which he treated Boyd. In addition, the police had observed Boyd at
Townsend’s home on at least one other occasion. Townsend’s familiarity with Boyd
gave added credibility to Gaston’s assertion that Townsend had cooked cocaine for Boyd
before. Thus, the District Court could properly rely on Gaston’s remarks.
In contrast, Townsend’s remarks were highly self-serving because they reduced
the likelihood that the jury would find him guilty of conspiracy to distribute cocaine – a
tactic that bore fruit in the form of a hung jury and dismissal of the conspiracy charge.
While there is some evidence cutting in favor of Townsend, such as Boyd not knowing
Townsend’s telephone number, the District Court did not clearly err in finding Gaston’s
account more credible.3 Therefore, the Court did not err when it concluded that
Townsend had perjured himself on the stand.
Townsend also obliquely attacks the District Court for not being sufficiently
thorough in its analysis of the other elements of perjury. It is clearly “preferable for a
district court to address each element of the alleged perjury in a separate and clear
finding.” United States v. Dunnigan, 507 U.S. 87, 95 (1993). But it is enough for a court
to “make[] a finding of an obstruction of, or impediment to, justice that encompasses all
of the factual predicates for a finding of perjury.” Id. That was the case here, as the
Court noted that Townsend’s statements “were intentional misrepresentations on material
matters and contrary to other evidence.” (App. at 97a-98a.) The Court therefore did not
3
Townsend admitted to having sold cocaine for several years to numerous other
individuals. That was consistent with Gaston’s account that Townsend was known for
his skill with cocaine manufacture and distribution.
8
abuse its discretion when it found that Townsend had committed perjury and applied the
sentencing enhancement.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s sentencing decision.
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