UNITED STATES of America, Plaintiff-Appellee, v. Dennis Ray HOWARD, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Dennis Ray Howard, a/k/a D, Defendant-Appellant.
No. 13-4296.
United States Court of Appeals, Fourth Circuit.
Argued: Sept. 17, 2014. Decided: Dec. 4, 2014.
773 F.3d 519
In sum, the review officer‘s conclusion that E.L. received the speech therapy mandated by her individualized education program is supported by the evidence. We therefore affirm the district court‘s determination that E.L. received a free appropriate public education.
AFFIRMED.
Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge.
Judgment in No. 13-4296 affirmed in part, and vacated and remanded in part; appeal in No. 13-4299 dismissed by published opinion. Senior Judge DAVIS wrote the opinion, in which Judge MOTZ and Judge DIAZ joined.
DAVIS, Senior Circuit Judge:
In appeal No. 13-4296, a jury convicted Dennis Ray Howard on one count of conspiracy to distribute and possess with intent to distribute a controlled substance, phencyclidine (“PCP“), nine counts of distribution of PCP, and one count of posses-
Howard noted timely appeals from both judgments, but he has abandoned his appeal of the revocation sentence in No. 13-4299, which we dismiss. As to the drug trafficking appeal, he challenges the sufficiency of the evidence supporting each of his convictions and the substantive reasonableness of his sentence. For the reasons set forth within, we affirm the convictions, vacate the sentence as substantively unreasonable, and remand for resentencing.
I.
A.
In September 2010, Wilson, North Carolina narcotics investigator Jason Corprew was investigating drug activity at a residence on Black Creek Road when he learned from a confidential informant, C.B.1, that Howard, or “D” as he was commonly known, sold C.B. a “dipper” from the residence. Dippers are cigarettes that are saturated in PCP. Over the course of the next month, C.B., along with another informant, A.B., returned to the Black Creek Road residence at the direction of Corprew to make several controlled purchases of PCP from Howard. All told, the informants purchased PCP from Howard, either together or individually, six times between September 20 and October 13, 2010. A third confidential informant, A.I., participated in two controlled purchases of PCP from Howard in 2011. At the first transaction, a middle man for Howard, Desmond Farmer, delivered a one-ounce vial of PCP to A.I. on Howard‘s behalf. At the second transaction, however, Howard personally delivered two vials of PCP to A.I.
The controlled purchases continued with the assistance of T.W. In May 2011, Wilson Police arrested T.W. on drug charges. T.W. agreed to assist Corprew in the investigation of Howard, and arranged to purchase one ounce of PCP from him. Howard agreed to bring the PCP to T.W.‘s house. Surveillance officers at Howard‘s house on Vick Street observed him leaving the residence and driving to T.W.‘s house, talking to a woman who answered the door, and returning to his vehicle. Shortly thereafter, a Wilson police officer conducted a traffic stop of Howard‘s car and he detected the odor of PCP. A search of Howard‘s car revealed a glass vial containing one ounce of PCP. Officers placed Howard under arrest and then obtained a search warrant for Howard‘s home, where he lived with his girlfriend. Officers found a loaded pistol with one round in the chamber and a box of ammunition in the living room. In an adjoining den, officers found an operational police scanner, an envelope bearing Howard‘s name and address that contained black plastic caps of the type used in the sale of PCP, and a piece of cardboard with a description of vial containers and a “discountvial.com” web address. Officers did not find any PCP during their search of Howard‘s home.
B.
On January 17, 2012, a federal grand jury in the Eastern District of North Carolina returned a nine-count indictment
Trial began on October 15, 2012. Investigator Corprew, two confidential informants, and T.W. testified to the controlled purchases, some of which were recorded by audio and video surveillance. Four cooperating individuals also testified to their previous PCP drug dealing with Howard.2 At the close of the evidence, the jury returned a verdict of guilty on all counts in the superseding indictment. On October 22, 2012, Howard timely renewed his motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The district court denied the motion.
C.
During the above events, Howard was on supervised release based on a 1997 federal narcotics trafficking conviction. Accordingly, in January 2013, Howard‘s probation officer filed an amended petition for revocation of supervised release based on the instant convictions. Thereafter, the district judge conducted Howard‘s sentencing and revocation hearings.
The Presentence Investigation Report (“PSR“) for the new drug trafficking convictions originally recommended a base offense level of 26 and a criminal history category of III, which equated to a Guidelines range of 78 to 97 months.3 As the Government had filed a notice of enhanced sentence pursuant to
The district court next considered whether to depart upwardly, a possibility the court had previously expressed pursuant to Federal Rule of Criminal Procedure 32(h). The Government argued that under
The district court was not satisfied. It elected to analyze Howard as a “de facto” career offender and thereby consider Howard‘s otherwise stale (and thus unscored) prior convictions. In so doing, the court arrived at a criminal history category of VI and an offense level of 37. After following the Career Offender Guidelines, the district court arrived at a sentencing range of 420 months to life for the conspiracy charge in Count One, and a range of 360 months to life for the substantive charges in Counts Two through Ten, which carried a statutory maximum of 360 months.5
The district court next considered the § 3553(a) factors and concluded that Howard deserved the maximum sentence of life in prison:
I do think for all the reasons outlined under the 3553(a) factors, the nature and circumstances of the offense, these 11 very serious offenses, the history and characteristics of this defendant and the unrelenting, unrepenting, unreformed drug dealing, society needs to be protected. He needs to be incapacitated. People need to be deterred. There needs to be just punishment. There needs to be serious consequences for serious crimes.
J.A. 737-38.6 The court imposed a sentence of life imprisonment on Count One, 360 months imprisonment (concurrent) for Counts Two through Ten, and 60 months (consecutive) for Count Eleven. It also stated that, in the alternative, it would
At the subsequent hearing on the petition for revocation of supervised release, the court revoked supervised release and sentenced Howard to the maximum possible sentence: 60 months imprisonment consecutive to the sentences for his new convictions. Thus, Howard is now serving a consolidated sentence of life plus 120 months. As we have mentioned, although Howard timely appealed both judgments, he has abandoned the appeal of his supervised release revocation sentence.
II.
Howard presents two issues. First, we consider his argument that the district court erred in denying his motion for judgment of acquittal because the evidence presented at trial was insufficient to support his convictions. Second, pursuant to supplemental briefing ordered nostre sponte by this Court, we consider whether the district court imposed a substantively unreasonable sentence. We address each issue in turn.
A.
Howard contends that the evidence presented at trial was insufficient as a matter of law to sustain each of his convictions. For purposes of our analysis, we have grouped Howard‘s distribution convictions together and will discuss the sufficiency of the evidence for the conspiracy, distribution, and firearm convictions separately.
We review a district court‘s decision to deny a motion for judgment of acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, de novo. United States v. Smith, 451 F.3d 209, 216 (4th Cir.2006). In its assessment of a challenge to the sufficiency of evidence, a reviewing court views the evidence “in the light most favorable to the prosecution and decide[s] whether ‘substantial evidence’ supports the verdict.” United States v. Jeffers, 570 F.3d 557, 565 (4th Cir.2009) (quoting Smith, 451 F.3d at 216). Substantial evidence is “evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant‘s guilt beyond a reasonable doubt.” Smith, 451 F.3d at 216 (citation and internal quotation marks omitted).
We begin our analysis with Count One, which charged that Howard conspired to distribute and possess with the intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of PCP. Howard contends that the Government failed to establish evidence that he was aware of, or agreed to participate in, a conspiracy. He argues that the Government made no showing of mutual trust, standard dealings, or drug fronting between himself and any coconspirator. We disagree.
To establish a drug conspiracy under
Against this legal framework, we do not hesitate to conclude that the Government presented sufficient evidence to support the conspiracy conviction. Several witnesses testified to Howard‘s role in the PCP drug trade in Wilson, North Carolina. Howard and D.W. sourced PCP from the same Washington, D.C. supplier. When D.W.‘s supply of PCP was exhausted, he would refer customers to Howard. Howard, in turn, would refer customers to D.W. when his own supply was low. At times, both men purchased PCP from one another when traveling to D.C. was inopportune. Howard also sold PCP to frequent customers who often resold the drugs. A.I. testified that she regularly sold PCP in Wilson and at times she replenished her supply from Howard, her “local source.” J.A. 285. R.W. testified to his practice of selling low-quality PCP before purchasing potent PCP from Howard in an effort to regain customers. Taken together, this evidence demonstrated that Howard was part of a “loosely-knit association of members linked only by their mutual interest in sustaining the overall enterprise of catering to the ultimate demands of a particular drug consumption market” in the Wilson area. United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.1993). Accordingly, the jury‘s verdict as to Count One is amply supported.
B.
Turning to the distribution convictions in Counts Two through Ten, we also find that the Government‘s evidence was sufficient to sustain the convictions. Howard merely states, without explanation, that his motion for judgment of acquittal as to the distribution convictions should have been granted. While such a passing, conclusory assertion is “insufficient to raise on appeal any merits-based challenge to the district court‘s ruling[,]” see Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n. 7 (4th Cir. 2006), we nevertheless briefly address the abundance of evidence demonstrating Howard‘s guilt.
To prove that a defendant distributed a controlled substance in violation of
The Government presented evidence of controlled purchases between Howard and several others, including two confidential informants and a cooperating individual. C.B. purchased dippers and one ounce of PCP from Howard. A.I. directly purchased PCP from Howard on one occasion, and Howard personally delivered an ounce of PCP to T.W.‘s home. Count Eight further charged Howard with aiding and abetting the distribution of PCP, which the Government established by virtue of A.I.‘s testimony that she purchased PCP through Howard‘s middle man, Desmond Farmer. The Government‘s evidence is plainly sufficient as to
C.
We next turn to Count Eleven, which charged that Howard “knowingly possessed a firearm in furtherance of a drug trafficking offense ... in violation of
The evidence adduced by the Government here crosses the threshold from minimal to legally sufficient. Officers found a loaded pistol with a round in the chamber and ammunition in the living room of Howard‘s residence. In the adjoining den, officers found a working police scanner and plastic vial caps. The Government also established, from the testimony of Q.S. and D.W., that Howard often sold PCP from the shed on his property. While officers did not find drugs in Howard‘s home at the time of the search, the theory that the presence of the firearm served to protect Howard from a potential theft of his drugs or profits is nevertheless a plausible one. See Lomax, 293 F.3d at 705.
The firearm was readily accessible to Howard; it was hidden beneath a couch cushion in the living room. The ammunition was stored nearby in the couch‘s center console. The firearm and drug paraphernalia were also in close proximity to one other, as they were found in adjoining rooms. Drawing from the evidence of black plastic caps and the cardboard with the “discountvial.com” web address and vial description, a rational jury could conclude beyond a reasonable doubt that Howard used the firearm to protect his drug trafficking operation. It may be that, at the time of the search, Howard‘s supply of PCP was low or exhausted, and that he was preparing for a new supply; this might explain the absence of drugs in the residence. But such speculative hypotheticals have no role to play in our sufficiency appraisal. For these reasons, we decline to find error in the district court‘s denial of Howard‘s motion for judgment of acquittal as to Count Eleven.
III.
Having affirmed Howard‘s convictions, we now decide whether the sentence imposed by the district court was unreasonable.
A.
We review the reasonableness of a sentencing decision under an abuse of
A review for substantive reasonableness takes into account the “totality of the circumstances.” Id. As part of this review, we consider
the extent of any variance from the Guidelines range ... [I]f the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the district court‘s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.
Id. If the district court deviates from the Guidelines range and provides two or more independent rationales for its deviation, the appellate court cannot declare the sentence unreasonable if it finds fault with only one of the rationales. United States v. Evans, 526 F.3d 155, 165 (4th Cir.2008). Such an approach “would be wholly inconsistent with the Supreme Court‘s directives to examine the totality of the circumstances, and to defer to the considered judgment of the district court.” Id.
B.
The district court reached its life imprisonment sentence by making an upward departure based on Howard‘s de facto career offender status, and by reasoning that the
1.
Howard‘s original Guidelines range called for 120-121 months of imprisonment, plus a consecutive 60 months for the firearm offense. The district court made an upward departure and treated Howard as a de facto career offender, which resulted in an increase from criminal history category III to VI, and an increase from a base offense level of 28 to 37.
Section 4B1.1(a) of the Guidelines provides that a defendant is a career offender if: (1) the defendant was at least eighteen years old at the time of the commission of the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has been convicted of two prior crimes, each of which was a felony conviction of either a crime of violence or a controlled substance offense.
“When reviewing a departure, we consider whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range.” United States v. McNeill, 598 F.3d 161, 166 (4th Cir.2010) (citation and internal quotation marks omitted), aff‘d on other grounds, --- U.S. ---, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011).8 An upward departure may be warranted if “reliable information indicates that the defendant‘s criminal history category significantly underrepresents the seriousness of the defendant‘s criminal history or the likelihood that the defendant will commit other crimes.”
Howard‘s conviction in 1997 for conspiracy to distribute and possess with intent to distribute cocaine and cocaine base undoubtedly qualified for calculation. Howard was twenty-five years old when he was convicted, and he served more than ten years in prison. The district court found that three otherwise stale convictions, incurred by Howard from 1990 and earlier, justified its qualification of Howard as a virtual career offender. In 1988, at the age of sixteen, Howard pled guilty to two counts of selling cocaine to an undercover officer. He served approximately four months in prison. In 1990, at the age of eighteen, Howard pled no contest to voluntary manslaughter and served nine months in prison and one additional month after his parole was revoked for technical violations. While the inclusion of Howard‘s prior convictions in the calculation of the Guidelines range has raised no procedural
2.
The district court‘s decision to upwardly depart rested heavily on our Myers decision, which the district court concluded was “almost on all fours.” J.A. 718. We disagree with that characterization. In Myers, we rejected the defendant‘s argument that his sentence was substantively unreasonable because the district court made an upward departure based on his outdated predicate convictions. Only one of Myers‘s four predicate convictions had been counted in his PSR, and but for the dates of his earlier convictions, and an intervening term of imprisonment, Myers would have qualified as a career offender.
Similarly, here, Howard would have been classified as a career offender had his juvenile convictions for the sale of cocaine and voluntary manslaughter not been outdated. Myers, however, displayed a consistent pattern of recidivism immediately upon release from prison, and an offense for which Myers was convicted involved conspiracy to distribute cocaine base with an eighteen-year-old female. Most of Howard‘s serial convictions occurred between the ages of sixteen and eighteen. After Howard‘s release from prison in June 2008, he held steady employment for more than a year.
The facts of the present case are also readily distinguishable from those in United States v. Lawrence, 349 F.3d 724 (4th Cir.2003), and Cash, in which we similarly affirmed decisions by district courts to depart upward on the basis of de facto career offender status. In Lawrence, the district court determined that an upward departure of one level in the criminal history category did not reflect the seriousness of Lawrence‘s past criminal conduct. The court concluded that Lawrence was a de facto career offender, in part, because two of his qualifying predicate convictions were consolidated for sentencing purposes. Lawrence‘s criminal history was violent, and quite dissimilar to Howard‘s record. While Lawrence and Howard share a lengthy juvenile record, Lawrence‘s juvenile convictions consisted largely of thefts and assaults. Lawrence hardly ever completed parole or probation successfully. Furthermore, Lawrence attempted a jail break and carjacking while en route to prison, and he admitted to committing two other bank robberies for which he was never convicted.
The defendant in Cash challenged his upward departure on the ground that one of his predicate convictions was constitutionally invalid. We concluded that the district court was free to consider a constitutionally invalid conviction as evidence of the defendant‘s prior criminal conduct for the purpose of determining the extent of a departure. Cash‘s criminal history included a remarkable number of forty prior adult convictions over a seventeen-year period, a far cry from Howard‘s criminal record.
An additional point is worth noting. Despite the grave criminal records that Myers, Lawrence, and Cash had in common, not one of those defendants was sentenced to life in prison as a result of an upward departure to the career offender Guideline. The district court sentenced Myers to 360 months imprisonment; Lawrence‘s sentence was a total of 262 months of imprisonment; and the district court sentenced Cash to 210 months imprisonment. These sentences pale in comparison to Howard‘s sentence of life imprisonment plus 60 months. Cf. United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008) (“[W]hen determining whether the district court‘s proffered justification for imposing a non-guidelines sentence is suf-
3.
We acknowledge that Howard would never be mistaken for a model citizen, but we cannot ignore the fact that most of his serious criminal convictions occurred when he was eighteen years old or younger. Two convictions, when Howard was seventeen years old, involved providing fictitious information to a police officer. Howard‘s other juvenile convictions include second degree trespass and possession of cocaine. Three convictions that Howard received as an adult are related to driving without a license or driving while his license was revoked. The facts presented here are thus distinct from those in our relevant circuit precedent.
The district court abused its discretion by focusing too heavily on Howard‘s juvenile criminal history in its evaluation of whether it was appropriate to treat Howard as a career offender and in its weighing of the
Since the Supreme Court‘s decision in Gall, this Court has, on rare occasion, found a district court‘s sentence substantively unreasonable. In United States v. Engle, 592 F.3d 495 (4th Cir.2010), we vacated a district court‘s sentence of four years probation for a defendant convicted of tax evasion because we could not glean from the district court‘s decision why it failed to impose a term of imprisonment as recommended by the Guidelines. We also addressed the substantive component of the sentence and noted that the district court committed error by its “near-exclusive focus on Engle‘s financial ability to pay restitution.” Engle, 592 F.3d at 504. We noted that “[i]t may well be that in many cases, the sentencing decision will ultimately turn on a single
Here, too, the district court focused extensively on a single factor—Howard‘s early criminal history—and it did so at the expense of a reasoned analysis of other pertinent factors. “Sentencing courts remain obligated not to ‘give excessive weight to any relevant factor’ and to impose a sentence ‘which effect[s] a fair and just result in light of the relevant facts and law.‘” United States v. Tucker, 473 F.3d 556, 562 (4th Cir.2007) (quoting United States v. Green, 436 F.3d 449, 457 (4th Cir.2006)); see also United States v. Hampton, 441 F.3d 284 (4th Cir.2006) (vacating defendant‘s sentence as unreasonable because the district court relied on only one aspect of one
The district court began its discussion of the
The district court‘s sentence failed to appreciate what we cannot ignore—that the three predicate convictions, upon which the district court focused so heavily in assessing its departure and sentencing options, occurred when Howard was between sixteen and eighteen, and that youth is a “mitigating factor derive[d] from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” Roper, 543 U.S. at 570 (citation and internal quotation marks omitted). Cf. Barry C. Feld, The Youth Discount: Old Enough To Do The Crime, Too Young To Do The Time, 11 Ohio St. J.Crim. L. 107, 137 (2013) (“The [Supreme] Court‘s jurisprudence of youth recognizes that juveniles who produce the same harms as adults are not their moral equals and do not deserve the same consequences for their immature decisions.“).
4.
We are persuaded, as well, that the district court committed an abuse of discretion insofar as it concluded, summarily, that a life sentence was not greater than necessary in this instance based on its belief that Howard was “at the top” of its list of criminal offenders. J.A. 720. According to the court, Howard was, at his core, a career criminal: “It‘s who he is. It is what he has done. It‘s what he has always done. It‘s how he lives his life.” J.A. 722. Despite the fact that Howard is now a middle-aged offender, the district court predicted that, “the likelihood of recidivism for this man [is] 100 percent. Absolutely 100 percent. If he is living free, he will be committing crimes. He will be dealing drugs. It‘s who he is. It‘s what he does.” J.A. 727. The court, in an apparent attempt to justify the life sentence that it was about to impose, noted the need to deter Howard individually, to incapacitate him, and to “prevent [him] from poisoning people.” J.A. 735.
Given the long sentence (short of life) that Howard no doubt would have received from any federal judge reviewing the in-
One might gather from the district court‘s statements that it was sentencing a notorious drug lord at the top of an unremittingly violent and widespread organization, but Howard hardly fits that description. Under
5.
Notably, even after the district court had expressed its view that Howard should be treated as a de facto career offender, the Assistant United States Attorney herself twice urged the court to impose a far shorter sentence than that ultimately im-
The district court immediately challenged the prosecutor to explain “why ... shouldn‘t [the sentencing range] be higher.” J.A. 720. After discussion, see id. at 720-25, the Government agreed with the court that Howard should be treated as a career offender, see id. at 726, but then, the Government suggested a 360-month sentence (mindful, no doubt, that through the combination of the mandatory consecutive 60-month sentence to be imposed on the gun count, and the still outstanding adjudication of the supervised release violation, another ten years was available to further seek retribution against Howard).10
We acknowledge, as we must, that no district court is ever mandated to impose the sentence recommended by the prosecution; the very idea is unthinkable in our constitutional system rooted in an independent judiciary. Still, the prosecutorial experience of the assistants in the Office of the United States Attorney in any district can serve as an important pillar in the achievement of one of the principal goals of the Sentencing Reform Act of 1984 and its system of (now advisory) Guidelines sentencing: the avoidance of unwarranted sentencing disparities. See
By declaring Howard a serial recidivist dedicated to dispensing “poison” with no hope of redemption, and by basing this judgment on stale criminal history, the bulk of which was non-violent and committed when Howard was a juvenile, the district court failed in its effort to comply with the aims of sentencing prescribed by
The district court plainly sought to intone all of the principles underlying
IV.
For the reasons set forth forth, we affirm the convictions on all counts, vacate the sentence as substantively unreasonable, and remand this case for resentencing.
JUDGMENT IN NO. 13-4296 AFFIRMED IN PART, AND VACATED AND REMANDED IN PART; APPEAL IN NO. 13-4299 DISMISSED.
DAVIS
SENIOR CIRCUIT JUDGE