United States v. Craig

Citation808 F.3d 1249
Decision Date22 December 2015
Docket NumberNo. 14–3185.,14–3185.
Parties UNITED STATES of America, Plaintiff–Appellee, v. Christopher CRAIG, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Rick E. Bailey, Conlee, Schmidt & Emerson, L.L.P., Wichita, KS, for DefendantAppellant.

Carrie N. Capwell, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with her on the brief), Office of the United States Attorney, Kansas City, KS, for PlaintiffAppellee.

Before TYMKOVICH, Chief Judge, BALDOCK and HARTZ, Circuit Judges.

BALDOCK, Circuit Judge.

In 2013, a grand jury charged Defendant Christopher Craig with three separate counts as part of a twenty-seven-count indictment containing nine other co-defendants. The first count charged Defendant with conspiring to (a) manufacture, possess with intent to distribute, and distribute cocaine, cocaine base, and marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841 & 846, and (b) maintain a drug-involved premises in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 846 & 856. The other two counts charged Defendant with using a communication facility to commit this conspiracy in violation of 21 U.S.C. § 843(b). After Defendant pleaded guilty to these charges, the district court at sentencing calculated his total offense level as 43 after applying a murder cross-reference under United States Sentencing Guidelines (U.S.S.G.) § 2D1.1(d), a leadership enhancement under U.S.S.G. § 3B1.1(a), and an obstruction of justice enhancement under U.S.S.G. § 3C1.1. Combined with his category III criminal history, this corresponded to a sentence of life imprisonment for the conspiracy count and 48 months' imprisonment for the two communications facility counts. Defendant now asks us to rule that the district court erred in applying these enhancements and imposing the life sentence on him. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.

I.

The overarching conspiracy in which Defendant was involved operated in the Kansas City area and lasted from January 2006 until December 2012. Two men, Gregory Moore and Daniel Bryant, headed the conspiracy with the general purpose of distributing marijuana, cocaine, and cocaine base around the Kansas City metropolitan area. Defendant and others helped allocate these substances at Moore's and Bryant's direction.

After several encounters with law enforcement officers throughout the six years the conspiracy operated, Defendant's most significant criminal foray came in August 2012 when he organized the attempted robbery of rival drug-dealer Brandon Campbell. He recruited two cousins, DaRyan Pryor and Arterrius Pryor, to actually commit the robbery.1 Defendant drove DaRyan and Arterrius to an apartment complex in south Kansas City, gave them guns and T-shirts to wear as face masks, and remained in the driver's seat of his vehicle and watched while the two men attempted to rob Campbell in the parking lot of the complex. In the midst of the robbery attempt, Campbell drew his gun and shot DaRyan. DaRyan later died from his wounds

.

Defendant went to DaRyan's mother's residence the next day and explained to her, DaRyan's stepfather, and other family members what had happened the previous night. He made clear that he, DaRyan, and Arterrius "went to go hit a lick," which is "street slang for a robbery and commonly for drugs." Sent. Tr. vol. 1, 29:4–5, 190:20–21, Aug. 20, 2014. Defendant told the family that the purpose of the "lick" was "to get a kilo of cocaine," which he referred to as a "bird." Id. at 196:25, 197:5. He further admitted that he had provided the guns to DaRyan and Arterrius and had driven them to the apartment complex, and he also explained that although he had discussed the possibility of such a robbery with DaRyan for a while, he had initially not wanted to involve DaRyan and only did so because DaRyan "was hard up for money." Id. at 174:1–2.

Defendant and DaRyan had been more than mere acquaintances: DaRyan had been living with Defendant for approximately two months prior to the attempted robbery, and during this time Defendant had been paying all of DaRyan's living expenses. In exchange for Defendant's hospitality, DaRyan had been working for Defendant selling marijuana. DaRyan's mother even alleged that DaRyan and Defendant may have been in the "marijuana and cocaine" business with each other. Id. at 162:11 (emphasis added). Reflecting on the relationship between Defendant and DaRyan, she also stated that "when he would talk about [Defendant] ... he was just like he thought [Defendant] was God, honestly. [Defendant] did everything for him." Id. at 161:23–162:1.

Law enforcement officers eventually arrested Defendant for his involvement in the drug-trafficking operation, and a November 2013 grand jury charged him in a second superseding indictment with the conspiracy count and the two communication facility counts. Although this indictment charged nine other members of the drug-trafficking operation, it did not list either DaRyan or Arterrius as co-conspirators. Moreover, Defendant was not charged with the murder of DaRyan.

Nonetheless, once Defendant pleaded guilty to the three charges against him, the Presentence Investigation Report (PSR) suggested the district court take DaRyan's death into account when evaluating Defendant's sentence. This suggestion stemmed from a cross-reference in U.S.S.G. § 2D1.1 —the section of the Guidelines that provided the applicable sentencing range for Defendant's convictions2 —that states, "If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111... apply § 2A1.1 (First Degree Murder) ... as appropriate." U.S. Sentencing Guidelines Manual § 2D1.1(d)(1) (2013).3 First Degree Murder, in turn, includes "[e]very murder ... committed in the perpetration of, or attempt to perpetrate, any ... robbery." 18 U.S.C. § 1111(a) (emphasis added). Based on this textbook codification of the felony-murder rule, the PSR suggested the district court raise Defendant's base offense level to 43 in compliance with § 2A1.1 because Defendant would have been responsible under 18 U.S.C. § 1111 for DaRyan's death during the attempted robbery. See U.S.S.G. § 2A1.1.

In accordance with § 3B1.1(a) of the Sentencing Guidelines, the PSR further labeled Defendant as "an organizer or leader of a criminal activity" because he organized the robbery that DaRyan and Arterrius committed. U.S.S.G. § 3B1.1(a). The PSR therefore recommended the district court add four additional levels under § 3B1.1(a) to Defendant's base offense level of 43. U.S.S.G. § 3B1.1(a). And finally, the PSR suggested the district court raise Defendant's base offense level an additional two levels under § 3C1.1 for obstruction of justice. U.S.S.G. § 3C1.1. The basis for this recommendation originated from an event after Defendant's arrest when the Government had sought a voice exemplar from Defendant pursuant to a court order, he had not complied, and the district court had held Defendant in contempt of court.

After factoring in an additional two levels for reckless endangerment for an unrelated high-speed chase with police and a decrease of two levels for Defendant's acceptance of responsibility, the PSR calculated Defendant's total offense level as 49, which it then decreased to the maximum-allowed level of 43. See U.S.S.G. Ch. 5, Pt. A, cmt. n. 2 ("An offense level of more than 43 is to be treated as an offense level of 43."). Combined with his category III criminal history, this corresponded to a sentence of life imprisonment for the conspiracy count and 48 months' imprisonment for the communication facility counts.4

At the sentencing hearing, Defendant objected to the PSR's recommendations that the district court apply the murder cross-reference, the leadership enhancement, and the obstruction of justice enhancement. Regarding the murder cross-reference, Defendant contended that although DaRyan's murder had taken place during the time the conspiracy had operated, DaRyan himself was not involved in this conspiracy and therefore his death could not appropriately be linked to Defendant's conspiracy conviction. Defendant also stated that "there is no evidence that this attempted robbery gone bad was in furtherance of the conspiracy. There's just no evidence at all in that regard." Sent. Tr. vol. 2, 319:4–7, Aug. 28, 2014. The district court did not buy this argument:

THE COURT: Part of what you're talking about doesn't really resonate with me because, you know, I've been hearing these cases for almost 23 years and it's, I would say, such common knowledge that drug dealers rob each other to steal money and drugs and they carry weapons to execute robberies and to defend themselves from robberies. That it seems based on these facts, you could make a reasonable conclusion from the evidence which was presented that this robbery was part of the drug conspiracy activities.
* * *THE COURT: The [robbery's] connection [to the drug conspiracy] is your client [Defendant]. I don't know what more damning connection you could be asking for.

Id. at 317:5–16, 320:24–321:1. The district court adopted the PSR's recommendation and held the murder cross-reference should be applied:

THE COURT: I think the only reasonable conclusion that you could draw from the evidence here is that the robbery and death did occur in connection with the conspiracy. It constitutes relevant conduct for purposes of the sentencing guidelines.

Id. at 326:10–15.

Defendant also based his objection to the leadership enhancement on his contention that no evidence connected the attempted robbery and DaRyan's death to the conspiracy. But because the district court had concluded this connection did exist, the court likewise concluded the leadership enhancement should apply. Defendant further argued the obstruction of justice enhancement should not apply because he had purged himself of his contempt by pleading guilty. The district court rejected this argument in light of ...

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