United States v. Gary Wyche

America, Appellee STATES UNITED as WYCHE, known

Gary also Gunter, known

Gary also Drago, Appellant. 12-3034, 12-3058.

Nos. Appeals, States Court Circuit. Columbia

District 18, 2013. Sept.

Argued 31, 2014. Jan.

Decided Jr., Public Axam Federal

Tony Assistant Defender, argued appellant cause Zucker, ap- S. Gary Wyche. Jonathan court, the cause for argued pointed Kramer, A. A.J. Richard Smith. appellant Defender, was on brief. Public Federal United States Jay Assistant Apperson, appel- for the Attorney, argued the cause Machen, Jr., United States lee. Ronald C. Trosman, Suzanne Attorney, and Elizabeth Snow, Mary Assis- Grealy Ann Curt resulting from his Attorneys, were on arm offenses involve- tant United drug conspiracy operating brief. ment .in 17, 1989, Washington, July jury D.C. On Before: HENDERSON twenty- on six of a convicted counts SRINIVASAN, Judges, and Circuit three count indictment1: SENTELLE, Judge. Senior Circuit possess and to with intent distribute distribute cocaine and cocaine base vio- filed Circuit Opinion for the Court (Count 841(a), §§ lation of 21 U.S.C. Judge HENDERSON. One); conspiracy carry and use fire- Opinion concurring part arms and in relation to traf- by Judge in dissenting part filed Circuit in ficking offenses violation of 18 U.S.C. SRINIVASAN. 924(c) (Count 371, Three); §§ juve- use of HENDERSON, KAREN LeCRAFT drug trafficking niles in in of 21 violation Judge: Circuit (1988) (Count Four); as- U.S.C. 845b 1989, Gary Wyche Appellants In dangerous weapon with a in violation sault (Smith) were (Wyche) and Richard Smith (1981) (Count of 22-502 Thir- D.C.Code drug convicted of and firearms offenses teen); in drug use of a firearm aid of D.C., participation Washington, in a their in trafficking violation of 18 U.S.C. ring. The district court drug distribution 924(c) (Count Fourteen); possession and 2008, prison. them to life in In sentenced by of a firearm a felon in violation Wyche moved for sentence re- and Smith (Count Fifteen). § 922(g) U.S.C. ductions after amendments the United trial, Following the United States Pro- (Sentencing Guidelines States Guidelines) ranges sentencing prepared presentence lowered the bation Office re- (PSR) for cocaine base crimes. The district court port for the district court. The granted Smith’s motion but did not then began indicated that the conspiracy PSR Wyche Wyche’s rule on motion. 1987, early January as as with Michael subsequently resentencing filed mo- Palmer, Tony Anthony Flow and Watson in tions 2011 after the United States Sen- in selling partners cocaine base various tencing (Sentencing Commission Commis- D.C., Washington, neighborhoods. Ac- sion) again once lowered the PSR, cording to the which relied on trial ranges May base offenses. On cocaine 1, testimony, December sometime after 21, 2012, the district court denied Smith’s 1987, Wyche right-hand acted as Flow’s resentencing motion and most recent both man and continued to do motions, Wyche’s concluding that nei- 1988, so until at least June when Flow was eligible ther was for a sentence reduction The PSR indicated that after killed. guidelines. the amended affirm. under We death, Wyche partici- Flow’s continued to through September pate Background

I. Regarding conspiracy’s distrib- Gary Wyche A. stated that drug quantity, uted the PSR “testimony [conspiracy] indicated the to be Wyche was arrested every selling pounds fire- two of cocaine base charged multiple narcotics and eight twenty- Wyche, La- Wyche 1. 2. The PSR stated that Smith and was indicted on of the September in the mar Harris involved three counts. March, suggesting of Brenda 1988 assault conspiracy. part was still follow- Wyche appealed his convictions “bringing ap- days” two to three ing sentencing base ev- and we affirmed. United of cocaine proximately pound one ¶ Harris, PSR United days.” three ery two or (D.C.Cir.1992), ground abrogated No. 89-0036-05 on other Wyche, Crim. States v. 1989) (Sealed Stewart, (D.D.C. 246 F.3d 728 Appendix Aug. (D.C.Cir.2001). 40). did, however, (SA) remand “Projecting a conservative esti- We trial,” con- resentencing, court for testimony at PSR to the district mate from continued, Attorney’s indi- of the correct cluding “the Office that “verification U.S. necessary in excess because lan- group distributed amount” was cated that guage Wyche’s cocaine from Jan- PSR indicated of 150 only July Wyche may have been uary until 1988.” Id. base, which would sentenc- October At triggered a base offense level not have hearing, the district court found ing determined Id. at 264-65. We also ... principal “a member of the Wyche was imposing that the district court erred major in all participant and “a conspiracy” of a fire- possession two-level increase for conspiracy, includ- the activities of the ... during drug conspiracy. arm a Id. at 266- 200 kilos of ing the distribution of 100 to affirmed the two-level enhance- 67. We Sen- crack the District Columbia.” conspiracy’s restraint of a ment for the (Wyche Sentencing Tr. tencing Hr’g 2-3 victim the three-level enhancement for and Tr.), Wyche, Crim. No. United States Wyche’s managerial conspiracy. role in the 1989) (D.D.C. 18, (Appen- 89-0036-05 Oct. respect at to the district Id. 265-66. With 2-3). (AA) 2 at Appellants dix for Tab ma- Wyche court’s conclusion that “was a of the distribution of crack “On the basis jor participant in all the activities of alone, grams,” over 500 the district including the conspiracy, ... distribution then-highest base of- assigned Wyche the crack,” we concluded of 100 to 200 kilos 36, grams or more of fense level of as 500 clearly was not erroneous. triggered that offense level cocaine base omitted). (quotation Id. at 266 marks at 4 under the Guidelines. Id. remand, pre- Office On Probation (AA 4); 2 at see U.S. SENTENCING Tab (Re- pared original a revision of the PSR (U.S.S.G.) Guidelines Manual PSR). PSR, July vised The Revised dated 2Dl.l(a)(3)(tbl.) (1988). § The district 15, 1992, Wyche “Tony stated that a be- court added three-level enhancement man, right hand Mr. Flow’s Wyche managerial a role played cause who Wyche had a number of individuals a increase for the conspiracy, two-level (Revised working were for him.” Mem. during a conspiracy’s restraint of victim PSR), Wyche, Crim. No. Wyche was involved period which 1992) (SA 59). (D.D.C. 15, July 89-0036-05 posses- enhancement for two-level Although the Revised PSR did not indi- felon, making of a firearm sion precisely Wyche joined cate when the con- a total offense level 43. With offense actively spiracy, Wyche it concluded that history category and a criminal It participated September until 1988. also Wyche’s guideline range imprison- was life drug clarified the PSR’s ment. The district sentenced finding: plus a consecutive five- prison to life [Tjestimony un- at the trial year indicate[d] term on his conviction of based at least two organization of a firearm in aid of received lawful use (453.6 924(c). § of cocaine base a week trafficking. pounds See 18 U.S.C. at triggered had a base offense level grams per per pound or 907.2 week) September Wyche’s resentencing, see U.S.S.G. January 1987 2Dl.l(a)(3)(tbl.) (1988), Therefore, § cal- a conservative amend- of 1988. organization that this provides provided ment between culation of co- produced at least 70.761 of cocaine base received and 1.5 this 78-week time caine base offense level of see U.S.S.G. a base (Nov. conspiracy C, 2007); As a member of the span. app. amend. 706 suppl. time, (2007). 2Dl.l(c)(3) is held account- this the defendant light U.S.S.G. organization drugs for all of the able guideline range, Wyche the lower moved received. pro pursuant se for a sentence reduction 3582(c)(2). Wyche 18 U.S.C. subse- (SA 60). Wyche not contest at 2 did Id. supplemented through his motion quently calcula- drug quantity PSR’s the Revised appointed counsel. Before the district instead claimed that he did tion but motion, however, ruled on the managerial role in the play a guideline ranges for cocaine base offenses linking him that there was no evidence grams of were further reduced so that 500 December 1987. to the before in a cocaine base now results base offense January Wyche was resentenced on C, suppl. app. level of 32. See U.S.S.G. trial, Based on the evidence (Nov. 2011) (repromulgating amend. 750 judge found original sentencing district 748); temporary amend. cocaine base that 500 or more of 2D1.1(c)(4) (2011). Wyche then moved Accordingly, Wyche. attributable to resentencing under the 2011 amend- offense assigned Wyche the court ment. again added a three-level level of 36 and manag- Wyche’s role as a

enhancement motion, gov- considering After “the for the er and a two-level enhancement re- opposition, ernment’s the defendant’s victim, bringing of a conspiracy’s restraint law, the entire rec- ply, applicable and An total offense level to 41. offense (2012 herein,” ord the district court history category a criminal level of and court) Wyche eligible found that was guideline range thirty a of produced of 5 for a sentence reduction and denied both years again to life and the district court outstanding motions. Mem. & Or- of his years Wyche plus sentenced to life five 1, Wyche, Crim. No. der United States and Wyche again appealed consecutive. (AA 89-36-5(RCL) (D.D.C. 2012) 21, May we affirmed the sentence. See United omitted). 262) (citations orig- Because the 93-3003, Wyche, No. 1993 WL States v. make a sentencing spe- inal court did not 1993) (D.C.Cir. 478952, 12, (per *1 at Nov. determination drug quantity cific curiam). resentencing, the 2012 dis- Wyche’s 1993 its factual trict court made own Sentencing Com- November for more Wyche “was guideline ranges various mission lowered (AA crack.” Id. at 7 than 8.4 offenses, for cocaine base 268). (Nov. original sentencing C, It relied on the app. amends. suppl. to finding Wyche’s 2007), later reductions retro- made the (Nov. 2009). handled conspiracy “the hearing Id. amend. 713 active. crack,” kilograms of an roughly 100 to 200 or more of cocaine base While cocaine base. suggested than 500 Wyche in fact a base offense more 36 because the distributed trafficking in violation of 18 U.S.C. the 2012 district court noted estimate (Count 924(c) [Wyche’s Twenty-One); possession in PSR].” “in line with the one in States v. a in violation Citing Id. our decision United firearm felon (D.C.Cir.2008),4 (Count Law, Twenty-Two); 922(g) U.S.C. then, from appears it possession unregistered unlawful of an record,5 Wyche 5861(d) determined in firearm violation of 26 U.S.C. drug quantity (Count responsible for the entire Twenty-Three). conspiracy. Mem. & distributed 18, 1989, sen- On October Smith was 268). (AA Because the Order plus thirty years prison, tenced to life in Wyche exceeded 8.4 kilo- attributable At consecutively. be served the sentenc- threshold for a grams of cocaine base—the found that ing hearing, the district court current

base offense level of 38 under the integral part “Mr. an of the Smith was guideline range 2012 district court —the jail [conspiracy] since his release in- kept Wyche’s base offense level of 36 July January or until June of 1988 1989” tact, concluding guide- that the amended together and that with Harris and “Smith range According- line had not lowered it. ... principal lieutenants” of ly, the court denied motions. Palmer, who, noted, Michael was one of conspiracy’s ring Sentencing leaders. B. Richard Smith (Smith Tr.), Hr’g Tr. Smith, No. Crim. 89-0036-03 Wyche, Like Smith was arrested and (AA 2). (D.D.C. 18,1989) Tab 1 at Oct. charged multiple drug that, district court also concluded while it firearms offenses for his role in the con- exactly know how much crack “[did not] 17, 1989, spiracy. July jury On convict- period was distributed that Mr. twenty- ed Smith on seven counts of a participant,” was a it had “heard three count indictment6: month, four about kilos which is so much possess distribute and to with intent period more for the which he was a distribute cocaine and cocaine base vio- participant than the 500 which are (Count 841(a), §§ lation of 21 U.S.C. required highest for the level under the One); conspiracy carry fire- and use computation required by guide- offense the drug arms relation to a Accordingly, assigned lines.” Id. it Smith trafficking offense in violation of 18 U.S.C. a base offense level of to which it added 924(c) (Count Three); juve- §§ use of a three-level enhancement for Smith’s drug trafficking niles in in violation of 21 managerial conspiracy. role in the a 845(b) (1988) (Count With Four); § U.S.C. dis- criminal total offense level of 39 and possession with intent to dis- tribution history category guideline Smith’s fifty grams tribute or more of a mixture range thirty years was to life. The district containing cocaine base in violation 21of (1988) (Count 841(a),(b)(l)(A)(iii) prison plus court U.S.C. sentenced Smith life Twenty); thirty-year use of a firearm in aid consecutive term his con- Law, by relying jury’s aggregated drug 4.In the district court sentenced the de- error on the quantity.” Id. fendant based on "all of the crimes reason- ably conspiracy," foreseeable within in- [the] pp. 5. See at 1295-96. infra cluding drugs "the entire sum of the within conspiracy.” the 528 F.3d at 906. We found thirteen of the twen- Smith was indicted on ty-three plain that "the court did district not commit counts. law, and the entire ply, applicable re- the rec- Twenty-One. We on Count viction herein,” court Twen- ord 2012 district found conviction on Count the Smith’s versed ineligible convictions on the for a affirmed his that Smith sentence ty-One and life his motion. Mem. & counts and his sentence. reduction and denied other Smith, Harris, supra. United States Crim. No. Order 2012) (AA (D.D.C. 89-36-3(RCL) May 5, 2008, moved for a Smith June On omitted). 139) (citations The 2012 district to 18 U.S.C. pursuant reduction sentence original first that the sen- concluded 3582(c)(2) ranges for guideline after the court had “determined the tencing defen- crimes were reduced. See base cocaine roughly kilo- dant to be C, 706, 711 suppl. app. amends. (AA 145). at 7 grams of Id. crack.” 2007). (Nov. 1, did not The Government by made 2012 court on statements relied motion and the Probation Smith’s oppose sentencing court at hear- in Smith’s recommended a reduction Office that “the ing concluding han- 37, producing level from 39 to total offense a month—an roughly kilograms dled es- im- months’ sentencing range of 324-405 timate in with the [PSR] line 18, 2008, —and September On prisonment. conspir- was involved the defendant total offense court reduced Smith’s July or of 1988 acy from between June him to to 37 and resentenced level from 39 9,1989.” January Id. at until his arrest Although the imprisonment. 405 months’ (AA 144). again The 2012 district did granting order the motion one-page determination, stat- made its own reduction, appears it explain therefore not ing “[i]t is inconsistent level of arrived at a total offense the court factu- court’s] with [the by lowering Smith’s base offense from the findings al to conclude record keeping three-point from 36 to 34 but defendant Under enhancement. of crack.” Id. more

Guidelines, level of 34 corre- a base offense (AA 145). Law, again citing Once involving to offenses between sponded apparently arrived base. and 1.5 kilograms of crack” “more than 8.4 201.1(c)(3) (2007). See U.S.S.G. the entire responsible for Smith 17, 2011, again Smith moved On October kilograms of cocaine base distributed after Sentenc- for a reduced sentence partici- was a conspiracy while Smith guide- ing further reduced Commission Id.; Having note 4. found pant. supra ranges applicable to cocaine line responsible for more cocaine base C, app. suppl. crimes. See U.S.S.G. supported, level of 34 than his base offense 2011). (Nov. 1, Among other amend. the court denied his motion. provided the 2011 amendment changes, involving at least 280 that crimes Analysis II. of cocaine base than 840 but fewer offense level of 32. corresponded to base timely ap Wyche filed Smith and (2011). 2Dl.l(e)(4) Id.; § see U.S.S.G. 1, them. Order peals and we consolidated to a claimed that he entitled No. 12-3034 Wyche, v. United States 32 he offense level of because new base 2012). (D.C.Cir. 23, juris have We Aug. only 500 responsible for had been § 1291 and to 28 U.S.C. pursuant diction base. 3742(a). § See In re Sealed 18 U.S.C. (D.C.Cir.2013). Case, 361, 364 motion, 722 F.3d gov- “the considering After denial of district court’s re- We review the the defendant’s opposition, ernment’s 1292 3582(c)(2) limited, Dillon, 130 two-step inquiry. motion for abuse of dis-

section Kennedy, at must States v. S.Ct. 2691-92. The district court cretion. See United (D.C.Cir.2013). 439, “begin by ‘determin[ing] 442 re- the amended 722 F.3d We ap- findings guideline range court’s factual that would have been view the district clearly-errone- plicable to clear error. Id. Under the the defendant’ had relevant standard, ac- in at the time of ous the district court’s amendment been effect “[i]f Dillon, in plausible light sentencing.” of the evidence is the initial 130 S.Ct. count lB1.10(b)(l)) entirety, § in thé court at (quoting the record its 2691 U.S.S.G. viewed (brackets may original). not reverse it.” Anderson in If the defendant is appeals 564, 573-74, 105 City, eligible v. 470 U.S. for a reduced sentence under the Bessemer (1985). 1504, amendment, 84 L.Ed.2d 518 the court must then “consider S.Ct. We 3553(a) § may any applicable affirm the district court’s denial of a factors and deter- whether, discretion, resentencing any sup- motion on basis mine in the reduc- its ported by policies the record. See United States tion authorized reference to the (7th Cir.2010) 674, Taylor, v. 627 F.3d at step relevant one is warranted whole (appellate may part particular affirm district court’s or in under the circum- 3582(c)(2) any motion “on ruling on section stances of the case.” Id. at 2692. record”); ground supported United Guidelines, “Under the (2d Green, 432, States v. 595 F.3d court determines a defendant’s Cir.2010) (same); see also Jones v. Ber and, ultimately, base offense his level”— (D.C.Cir.2009) nanke, 557 F.3d guideline range “by delineating his ‘rele — (“[W]e may judgment any affirm a ” Thomas, vant conduct.’ United States v. ”). ground supports.... the record (D.C.Cir.1997) 114 F.3d (quoting 1B1.3). 3582(c)(2), § § Under drug conspiracy, 18 U.S.C. U.S.S.G. “In a may defendant for a drugs any move reduction his the amount of attributable to imprisonment term of if he was sentenced one codefendant as ‘relevant conduct’ for sentencing range guidelines “based on a that has purposes is limited to the rea subsequently sonably been lowered the Sen foreseeable transactions in fur tencing Commission.” ‘jointly U.S.C. therance of that codefendant’s un ” 3582(c)(2). “District courts retain broad activity’.... dertaken criminal 3582(c)(2) (7th Easter, authority to control proceed States 553 F.3d Cir.2009) ings.” Kennedy, 722 F.3d at 442. A sec (quoting 3582(c)(2) lB1.3(a)(l)(B)); Thomas, proceeding tion not a “plenary is see also resentencing proceeding,” Dillon v. United at A may rely F.3d 254-55. “on States, 2683, 2691, 560 U.S. 130 S.Ct. evidence of a relationship defendant’s (2010), L.Ed.2d nor is it “a license and involvement with the re-litigate for the defendant permissible his sen order to draw inferences re- challenge previously tence wholesale or garding” scope agreement ad of his to the judicated conviction,” aspects conspiratorial of his Ken conduct “and the foresee- 442; nedy, 722 ability F.3d see also United co-conspirators’ conduct.” Adams, (8th Thomas, If the defen- Cir.1997) (“We think it ... implicit plays managerial dant a in drug role a the district court to leave all of conspiracy, drug is its coordinates distribution intact....”). previous factual managers decisions with other of the Instead, a district a considering conspiracy’s profits, may sec shares in the he 3582(c)(2) tion engage responsible drug motion is to a be held for the entire

1293 need for addi Given the obvious to the attributable quantity these, fact-finding in cases like we tional participant. a he was during the time circuits in join a number of our sister Law, id.; F.3d at 906. 528 see also resentencing is concluding that independent drug make an permitted to outset, the dis we address At the finding if it cannot determine the quantity independent make authority to trict court’s guideline range amended with defendant’s 3582(c)(2) re- in a section findings factual Moore, doing out so. See United to deter order sentencing proceeding. (8th Cir.2013); 926, 928-29 Unit 706 F.3d guideline amended mine the defendant’s Hamilton, v. 340 ed States offense, the re- drug-related for a range (11th Hall, Cir.2013); United States drug must determine the sentencing court (7th Cir.2010). Consistent If to the defendant. attributable quantity decision, however, Kennedy with our failed to sentencing court original quantity finding can resentencing court’s calculation, specific drug-quantity make inconsistent with factual determina not be to make resentencing may have original sentencing tions made in order to deter finding its own (resentencing 122.F.3d at court. See range. guideline the defendant’s mine is “not a license for defen proceeding confronted with district court was adjudicat challenge previously dant to ... scenario, this conviction”); see also aspects ed Wyche only that and Smith court found Hamilton, Moore, 928-29; 706 F.3d at for at least 500 both Hall, 340; 600 F.3d at 876.7 F.3d at of cocaine base. While grams trig Gary Wyche A. of cocaine base at least 500 offense level of 36 under gered a base challenging Wyche arguments raises two original sentenc applied by the guidelines of his resentenc- the district court’s denial (and Wyche’s ing judge that, First, he asserts ing motions. U.S.S.G. resentencing), to establish that he was failing 2Dl.l(a)(3)(tbl.) (1988), the 2012 district of cocaine base at his specific for a amount or Wyche’s determine court could not cannot resentencing, the Government guideline range quantity. amended contest subsequently that the dis- because contention is findings Wyche’s and 1993 second basis of the 1989 responsi- finding that he was trict court’s specified four differ- the 2011 amendment of cocaine than 8.4 ble for more involving for crimes ent base offense levels legal adequate factual or is without of cocaine base—level over 500 argument address each support. We (at than 840 grams but less least 280 turn. (at but least 840 grams), level 34 (at least kilograms),

less 2.8 can- Wyche’s claim that the Government kilograms) but less than 8.4 is without drug quantity contest not now (8.4 kilograms or more and level 38 Guidelines merit. Under base), app. resentencing pro- suppl. Wyche’s 1993 applied see U.S.S.G. (Nov. 2011); trig- grams of cocaine base C, ceeding, amend. 750 offense level for 2Dl.l(c)(l)-(4) (2011). highest base gered the provide the dis- the issue to challenge theless address do not 7. While and Smith authority guidance. an to make the 2012 district court’s trict court finding, we none- independent drug quantity unclear, conspiracy crimes. See U.S.S.G. the is the record base 2Dl.l(a)(3)(tbl.) (1988). Having Wyche estab- indicates—and all but conceded be- Wyche original sentencing that was fore the court10—that lished joined conspiracy by the Government was he had the grams, more than 500 least required prove According to had no reason late December 1987. to the —and PSR, argue Wyche was for Revised his involvement lasted until —that any September amount of cocaine base over 500 1988. As a conservative esti- circumstances, mate, grams. Wyche Under these we conspira- was involved in the chal- believe the is free to cy thirty-five Government for at least weeks from the lenge drug quantity.8 beginning January early Sep- 1988 to Thus, tember using gram- 1988. the 907.2 Wyche’s attack on the 2012 district per-week figure included the Revised similar drug quantity court’s calculation is PSR, the record reflects that conspira- the ly unavailing, Wyche’s as Revised PSR and cy roughly handled of cocaine support the trial record the court’s attribu (thirty-five by multiplied weeks tion of more than 8.4 of cocaine week) grams per period Wyche. Wyche’s base to Revised PSR Wyche which was a participant. stated “received at Moreover, supports the record also hold- pounds least two of cocaine base a week (453.6 ing Wyche responsible for the entire grams per pound grams per or 907.2 week) quantity by conspiracy during handled January September 1987 to (SA 60). undisputed period 1988.” involvement. The Wyche Revised PSR original sentencing court Wyche’s did not contest this amount found at when he was sentencing proceeding Wyche resentenced 1993 and we are free to use in assessing it was a ... “principal district court’s member of the con- Pinnick, spiracy” “major calculation.9 United States v. and a participant in all the Cf. (D.C.Cir.1995) (“[A] 47 F.3d sen activities of the ... conspiracy, including tencing may rely undisputed court facts the distribution of 100 kilos of crack,” (AA presentence in a report....”). Although Wyche Sentencing Tr. 2-3 Tab 2-3), length Wyche’s the exact participation findings this Court later af- Appellants 8. tencing despite original sentencing Neither the Government nor fact that Wyche argue PSR); and Smith can adopt amount court did not see also United Hooks, (10th of cocaine base was fewer than 500 States v. 551 F.3d Cir.2009) ("If definitively by origi that issue specifically settled a defendant fails to PSR, sentencing nal (Wyche object court in 1989 to a fact in the the fact is deemed Smith) defendant....”); again (Wyche). in 1993 See Ken admitted Valentine, nedy, (6th 722 F.3d at 442. 694 F.3d Cir.2012) (resentencing may court examine transcript, sentencing hearing “the trial Although the 2012 district court did not transcript, portions presen- and the expressly rely of the on the Revised PSR in calculat- report tence ing the defendant admitted or drug quantity, may we affirm that adopted” (emphasis court add- any ground sup- “on ed)). ported Taylor, in the record.” 627 F.3d at 676; Green, (same). see also 595 F.3d at 436 original sentencing The fact that the participation 10.While did not concede itself, adopt likewise did not the Revised PSR is not in the he did admit before problematic either. sentencing hearings See United States v. Dun- his 1989 and 1993 can, (7th Cir.2011) (resen- selling drugs working Tony Flow tencing rely original sentencing entitled to on PSR that late 1987—conduct object defendant part conspiracy. failed to to at sen- found of the

1295 conclu- court’s added). district The 2012 In Harris, at 266. F.2d firmed, 959 for responsible more Wyche was sion that find- court’s district addition, original the is not base of cocaine kilograms 8.4 than abundance by an corroborated were ings See this determination. with inconsistent Wyche that indicating testimony trial of Woods, 539 v. States United for money counted drugs and separated Cir.2009) (“[A] that the defen- (7th indi- money from collected conspiracy, the least 4.5 for at responsible dants were cocaine drugs, distributed selling viduals the con- inconsistent is not kilograms Given sales. supervised and sale for sentencing court original of the clusion involvement, kil- the 31 Wyche’s extensive for responsible were defendants that the reasonably cocaine base of ograms kilograms.”). of 1.5 in excess amounts may be he thus him and foreseeable See quantity.11 that responsible held Sentencing Guidelines the Under Duncan, F.3d (and offense today), an in 2012 in effect Cir.2011) (rejecting defen- (7th 767-69 base over cocaine of quantity involving the not foresee did that he claim dant’s offense in base results kilograms 8.4 kilograms 4.5 handling over 2Dl.l(c)(l) conspiracy 38. See level of “base- and “[imjplausible” (2013). base cocaine 2Dl.l(c)(l) (2011); U.S.S.G. “staggering conspiracy sold where less” enhancements, of his total Wyche’s With had access defendant crack” and amount 2011 amendment the under level fense meet- “high-level to “stash-loeations” pre-2011 Wyche’s 43. Because would be (hold- Thomas, at 256-57 ings”); 41, his level was offense total amendment conspiracy’s ing defendant range un and guideline level total offense defendant where drug quantity entire in fact would amendment der the conspiracy, in the role managerial played relief under increase, thereby precluding and shared drug distribution coordinated Dillon, 3582(c)(2). S.Ct. section Accordingly, profits). conspiracy’s in court the district Accordingly, 2691-92. clearly err not court did denying its discretion abuse did participation Wyche’s determining resentencing motion. Wyche’s him made conspiracy base, Smith trigger- Richard B. over level&emdash;38&emdash; offense base highest ing the the law- first contends 2011 amendment. under 2012 dis barred doctrine of-the-case drug calcula revisiting the from court trict cal- addition, district In resentencing. made tion find- with the inconsistent is not culation resentencing mo Smith’s granting At sentencing court. original ings to lowered tion, district resentencing hearing, Wyche’s 1993 and resen- to 37 from 39 level offense tal estab- trial evidence that “the court stated imprisonment. 405 months’ him to finds, tenced doubt, this beyond lished arrived that the appears It conspiracy defendant lowering Smith’s sentence reduced more distributed belonged he which 34, corre from offense Sen- Wyche of crack cocaine.” to 1.5 to 500 12) sponding (emphasis (AA at3 Tab Tr. tencing the entire responsible for takenly held evidence insufficient there was 11. Because by the drugs handled before joined the Wyche had September 1988. January acknowledged a fact December PSR, PSR mis- the Revised Wyche’s cocaine base under then-existing drawn from the 2008 resentencing court’s guideline range. See U.S.S.G. assignment of a base offense level of 34 is 2Dl.l(c)(3) (2007).12 Smith now con- that Smith was responsible for at least 500 tends assigning him a grams base offense and no more than 1.5 kilograms of level corresponding to grams base, 500 1.5 cocaine to the quantity range corre kilograms base, of cocaine sponding 2008 to a resen- base offense level of 34 tencing court necessarily following found that he the 2007 amendment. See 2Dl.l(c)(3) was (2007). U.S.S.G. Thus, of cocaine to base and no the extent more. Under argu- district court was ment, bound, it this “implicit” bound to range. this became To be eligible “law for a of the case” second precluded reduction, sentence however, Smith had district court demonstrate that concluding that he was he responsible for than more kilograms fewer grams of cocaine base—the dividing cocaine base.13 line (under the 2011 and current guideline The 2012 district court’s failure to ranges) between Smith’s existing base of credit the 2008 resentencing court’s calcu fense level of 34 and a base offense lation does pose not a problem. First, it is 32. See 2Dl.l(c)(3),(4) U.S.S.G. (2011); uncertain may whether Smith be heard on § 2Dl.l(c)(3),(4) (2013). In other argument law-of-the-case given his fail words, the 2012 district court was free to ure to raise the issue before the 2012 attribute between and 1.5 kilo district court. See United States v. TDC grams of cocaine base to Smith if such Mgmt. Corp., (D.C.Cir. 421, 288 F.3d attribution was consistent with the record. 2002) (“ ‘It is well settled that issues and Given its conclusion that Smith was re legal theories not asserted at the District sponsible for over 8.4 of cocaine Court level ordinarily will not be heard on base, it plain is that the 2012 district court ” appeal.’ (quoting District v. Columbia would have found Smith responsible for a Fla., Air 1077, (D.C.Cir. 750 F.2d 1084-85 disqualifying amount of cocaine base— 1984) (quotation omitted))). marks Even more than it expressly —had assuming arguendo that Smith’s law of the followed the 2008 resentencing court. argument case was not forfeited and that While we must nonetheless review the the 2008 resentencing court’s determina 2012 district court’s drug calculation for tion is ease, the law of the the 2012 error, clear its alleged failure to follow the court’s deviation therefrom is er harmless is, law of the by itself, case harmless. See ror. See United Brinson-Scott, States, Williams v. United 503 U.S. 714 F.3d (D.C.Cir.2013) (“Error is 203, 112 S.Ct. (1992) 117 L.Ed.2d 341 if it harmless appears beyond a reasonable (district court’s error is if harmless it doubt that the complained error did “[does] not affect the district court’s selec contribute to the verdict (quota obtained.” tion of the sentence imposed”); cf. omitted)). tion marks Contrary to Smith’s Thompson, assertion, only (D.C.Cir.1993) (“Because conclusion can be the judge made it 12. There is no reason to believe that the 2008 13. The law-of-the-case provides doctrine resentencing court altered the en- three-level same presented "the issue a second time in hancement for Smith’s managerial role in the the same case same court should lead to Thus, conspiracy. likely explanation most the same result” LaShawn Barry, A. v. for the is reduction that the court lowered (D.C.Cir. 1996) (enbanc). Smith’s base offense level. during the by the handled sentence same impose he would clear supra participant. it he was category, time history criminal either under of 22 resentencing attribution 4. The note remand futile be would so.”). by the record. supported do is Smith required are not and we concluded sentencing court that, separate argues also the of member “integral” was an Smith strictures, the any law-of-the-case from evidence” finding “substantial conspiracy, determining in court erred district 2012 in managerial role played a Smith that than 8.4 for more responsible was that he Tr. 2- Sentencing Smith enterprise. the particular, In base. of cocaine kilograms 2-3). findings The were (AA at Tab 1 3 original [the that argues “[n]either Smith from multi- testimony trial by supported that ‘we court’s] comment sentencing and Smith counted that ple witnesses 4 distributing conspiracy the about’ heard conspir- the by drugs received separated Mr. Smith finding that month, [its] a kilos individu- for other drugs acy, distributed nor grams,’ 500 more than ‘did distribute regarding others sell, directed als to the [sic] support ... estimate [PSR] the how and base cocaine to distribute where that Mr. in 2012 court’s district counted mon- sell, and received to than 8.4 much for more accountable was Smith selling co-conspirators by ey Richard collected Appellants for Br. kilograms.” of charge and took street drugs on the Gary and Smith (D.C.Cir. conspiracy’s 12-3034, the 12-3058 when Smith, organization the Nos. Given 2012). absent. were leaders Oct. other kilograms involvement, the 22 heavy assertion, the rec Contrary Smith’s to Duncan, See by Smith. foreseeable were district the 2012 supports amply ord (finding defendant’s 767-69 F.3d at 639 kilo 8.4 that over determination court’s conspiracy foresee did not claims he that attributable base of cocaine cocaine kilograms 4.5 over handling sentencing court Smith. where and “baseless” roughly “[im]plausible” base handled that the found amount “staggering month sold per base kilograms access had partic defendant months’ crack” five-plus during meet- “high-level 22 kilo roughly amounts “stash-locations” which ipation, 255-57 Thomas, F.3d did not Smith total. ings”); of cocaine for con- responsible then and figure (holding defendant to the object in where de- it rely quantity entitled entire was spiracy’s court district in con- Val role managerial finding. drug quantity played its making fendant (“[T]he modifica drug distribution entine, at 670 coordinated spiracy, pre Finally, profits). whether conspiracy’s determine must tion court shared record,” determi- quantity the the evidence court’s ponderance orig- hearing tran sentencing inconsistent including the nation is At the defendant finding. sentencing “establishes court’s script, inal set drugs found court proceeding, amendment.”). than the retroactive more forth distribute “did Smith when period of crack Although Smith member.” he was as “more its calculation framed 2). The 2012 district (AA 1 at Tab Tr. apparent is it kilograms,” respon- Smith conclusion finding Smith figure at this arrived co- than 8.4 more sible for the entire caine entirely base is consistent with the nal Ante, 1293; court.” ac- original sentencing court’s cord attribution of United States v. Kennedy, 722 F.3d “more grams” (D.C.Cir.2013). than 500 of cocaine base The same princi- ple to Smith. (emphasis added); necessarily governs Id. the context of Woods, 3582(c)(2) successive F.3d at 539. motions: a district court’s quantity finding in the later sen- sum, is not entitled to a tence modification proceeding cannot be second sentence reduction because the rec inconsistent with factual determinations ord manifests that he was responsible made the court that decided the defen- disqualifying amount of cocaine base. dant’s earlier Here, motion. when the dis- Even assuming that the 2012 district court trict court modified Smith’s sentence in erred in deviating 500-gram-to- 2008, assigned Smith a base of- I.5-kilogram quantity range calculated fense level of which at the time corre- the 2008 resentencing court, plainly it sponded to offenses involving at least 500 found, could have and in find, fact did grams but less than kilograms 1.5 of crack. Smith responsible for an amount of cocaine Ante, at 12; 1295-96 & n. base exceeding 840-gram threshold. 2D1.1(c)(3) (2007). U.S.S.G. But when Because the record reflects that the 2012 the district court in 2012 later denied district court’s calculation of 8.4 kilograms 3582(c)(2) Smith’s subsequent § motion, clearly erroneous, not a quantity find- the court held that Smith’s base offense ing greater than grams of cocaine base is level which now corresponds to of- is not clearly erroneous either. And be- involving fenses 8.4 kilograms of crack or cause Smith eligible was not for a second 2Dl.l(c)(l) more. See (2011). reduction, sentence the 2012 district court The 2012 determination that Smith’s base did not abuse its discretion in denying his offense level is 38 cannot be squared with motion. the 2008 determination that his base of- fense level is 34. The 2012 district court’s 5|! í¡! «|í

V order therefore vacated, should be and the For the foregoing reasons, we affirm the case should be remanded so that the dis- district court’s judgments. trict court can recalculate Smith’s base So ordered. offense level consistent 2008 deci- sion. SRINIVASAN, Circuit Judge, majority The understandably does not concurring in part and dissenting in part: defend the 2012 court’s disregard of the I concur in the opinion court’s insofar as drug quantity range established by the it affirms as to appellant Wyche’s sen- Instead, court. majority affirms tence. I respectfully dissent from Part the decision on harmless-error grounds, II.B of the opinion, court’s however, in reasoning as follows. Under the 2011 which the court affirms appellant as to crack cocaine amendments, the base of- Smith’s sentence harmless-error fense level of 34 now corresponds to at grounds even though government has least 840 grams but less than kilograms 2.8 made request no that we do so. crack, of while the base offense As the Court explains, a district court’s corresponds grams to least 280 but less drug quantity finding in a sentence modifi- than 840 grams of crack. Smith qualifies cation proceeding under 18 U.S.C. for a only sentence reduction if his new 3582(c)(2) “cannot be inconsistent with base offense level is 32. Even though the factual determinations made by the origi- 2012 district court could not attribute more 2008 motion Smith’s oppose Smith, ing not to crack 1.5 than reduction, evidently thought sentence mo- denied have could still court have might court The same. responsible him held if it had tion why all of to assess the record scrutinized kilo- and 1.5 between anywhere be should Smith assumed those actors the 2012 because And of crack. limited only for a held responsi- concluded than for more cocaine rather crack crack, than 8.4 for more ble Single- v. States United kilograms. him Cf. have held would necessarily (not- (D.C.Cir.1985) ton, F.2d of crack. at least doctrine, a that under law-of-the-case ing ante, 1296-97. “refuse[s] generally subsequent did government Significantly, in the decided” been has reopen what argu- (or harmless-error any) advance “questions decided case, including same And court. this in its submissions ment (internal quotation implication” necessary determine have we “discretion although omitted)). marks harmless,” is an error whether sponte sua to con- failure court’s Davis, implications sider discre- (D.C.Cir.2010), exercise because significant especially is decision circumscribed, see carefully be tion should finding al- drug-quantity court’s the 2012 F.2d 938 Pryce, States United foundation. uncertain an ready on rests Williams, of (D.C.Cir.1991) (opinion 1348 attri- 2012 district the affirming In the of view, harmlessness J.). the my of over Smith bution to sufficiently obvious not case is in this error “[t]he that the crack, majority states the to the record discernible readily or found 1989] sentencing [in court original de- harmless-error sponte a sua warrant 4 kilo- roughly handled the termination. during month per grams of consider court did 2012 district The participation.” months’ five-plus Smith’s district court’s 2008 court, of the implications the Ante, And aon based rely” Smith to sentence reasons, decision “entitled majority the kilo- to 1.5 grams range of 500 If at 1297. the quantity figure. Id. on that that, even four- assumes a majority made The had indeed grams. sentencing court considered court had if the finding, if the kilograms-a-month decision, crack 2012 the the all of found 2008 court’s further had the for those Smith by have held the still distributed would Smith, I am this drugs. attributed be should months disqualifying a a in which of case granted sort judge who The be might well certain. not so would inquiry in 2008 harmless-error sponte sua sentence modification v. Sto case, States hav- United appropriate. with Smith’s be familiar intimately Cf. (D.C.Cir.2003) (per ver, 874 F.3d years 329 it for nine over presided ing make (“The must curiam) con- District Court decisions previous two having issued appel linking each findings and individualized judge That sentence. cerning Smith’s conspir in the participation (which scope lant’s recommended Office Probation drugs attributed quantum acy reduction) in concluded both quotation (alterations internal him.” be modified should sentence sentencing omitted)). But the marks corresponding offense of an basis Rath finding. such not make did The of crack. to 1.5 grams “I don’t stated: judge er, the Office, in deeid- Attorney’s United exactly know how much crack was distrib- of crack. One says witness she saw uted during period that Mr. Smith was Smith counting eight or nine large ziplock a participant, but we have heard about bags containing an unidentified white sub- added). kilos a ...” month (emphasis stance. Another witness describes time judge that, explained then four because apartment when her was “like wall-to-wall kilograms a month is “so much more” than cocaine,” but she suggests also that Smith grams, “I find that [Smith] did distrib- already had left apartment by that ute more than of crack during time. A third says witness that Smith period when he was a member.” personally gave $3,000 him crack, worth of and a fourth says witness that Smith was sure, To be the original sentencing court present while another member of the drug might have found Smith responsible enterprise $26,000 counted cash, but distributing more than if it had neither witness links the dollar amount upon been called to make such a determi- specific with a drug quantity. Our opin- nation. But it was not. The court found ions other cases roughly describe con- only that Smith distributed more than 500 temporaneous crack transactions in Wash- grams, expressly declining to any reach ington, D.C., at prices well over per $100 conclusion concerning the amount of crack gram, e.g., Brown, United States v. (and distributed the conspiracy also (D.C.Cir.1994); making no finding about Smith’s re- own Beckham, sponsibility drugs distributed (D.C.Cir.1992), so even if Smith could be conspiracy). The 2012 district court there- held responsible $3,000 worth of crack fore was mistaken when it said that the (or $26,000worth crack), that would not 1989 court had “estimated that con- necessarily demonstrate his responsibility spiracy roughly handled 4 kilograms a for 840 of crack or more. month.” And the 2012 district court oth- gave erwise explanation no of the basis for None this is intended suggest that, to its conclusion that drug the if the case remanded, the district handled more 8.4 kilograms of crack court would be likely to hold Smith re- while Smith (or, did, member if it sponsible for less than 840 grams of crack. why Smith should be held Indeed, it may be well the district the full quantity). court would examine record entire prior my view, course of none of proceedings including portions other — the record decision—and identified decide majority demonstrate attribute to Smith’s Smith more responsibility than (perhaps for 840 than) far more crack with grams. sufficient I clarity to But do not justify a sponte consider sua the matter sufficiently harmless-error affir- free from mance. While doubt to justify sua sponte harmless- found “substantial error evidence” that determination. ordinarily We leave played managerial it to role in enter- courts the first instance to prise, ante, scrutinize record and does drug quan- make speak directly question tity findings. of drug And we ordinarily would be quantity. The trial testimony reluctant concerning canvass the record ourselves role the drug conspiracy, see id. affirm a decision on harmless-error 1297-98, likewise fails grounds to establish when government has made Smith’s responsibility for at least no argument asking us to do Respect- so. is the course ordinary I fully, believe here. one

appropriate Husband, WESTBERG, S.

Kim Westberg, Laverne V.

Wife, Appellants INSURANCE DEPOSIT

FEDERAL for and

CORPORATION, Receiver Bank, and State of Silver

on Behalf Venture, Res-Adc 2009-1

Multibank

LLC, Appellees.

No. 13-5080. Appeals, Court Circuit. of Columbia

District 21, 2013. Nov.

Argued 31, 2014. Jan.

Decided

Case Details

Case Name: United States v. Gary Wyche

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 31, 2014

Citation: 741 F.3d 1284

Docket Number: 12-3034, 12-3058

Court Abbreviation: D.C. Cir.